VINAY KR. KHAMBATE versus VINAY KR. AGGARWAL AND ORS.

Leave granted.

p. 1078, margin H

Challenge in this appeal is to the orders passed by a learned Single judge of the Delhi High Court dismissing the petition filed by Appellant.

p. 1079, margin A

A brief reference to the factual aspect would suffice.

p. 1079, margin A

Respondent filed a petition for eviction of the appellant's father under Section 22(d) of the Delhi Rent Control Act, 1958 (in short the 'Act') claiming that the premises in suit are required for furtherance of activities. Father the appellant filed a written statement stating that the respondent-Trust a private trust and as such the petition under Section 22 was not maintainable as the said provision specifically excludes from its ambit institutions set by a private trust. Before recording of evidence, appellant's father expired 26.6.2003. Respondent moved an application under Order XXII Rule 4 of Code of Civil Procedure, 1908 (in short the 'Code') stating that the appellant was the sole surviving legal heir of the deceased-tenant. Since tenancy of father of the appellant had been terminated as such there was no succession of the tenant to acquire the tenancy in succession even for a limited period of one year. Appellant filed his reply and took the stand that he was perpetual tenant and had inherited tenancy rights of his father. Learned · Additional Rent Controller by order dated 16.9.2005 allowed the application under Order XXII Rule 4 of the Code read with Section 2(l)(ii) of the Act. While deciding the application, he passed the eviction order on the same i.e. on I ~.9.2005 by observing that the appellant was not financially dependent on his father at the time of his death and_since the suit premises were Jet for residential purposes, tenancy of the father having been terminated notice dated 21.9.1999, appellant had the right to continue in possession for a limited period of one year only and he cannot take the defence taken his father. Appellant challenged the said order by preferring an appeal before the Rent Control Tribunal, Delhi (in short the 'Tribunal' ). The Tribunal dismissed the appeal. A petition was filed before the High Court challenging the orders of the Additional Rent Controller and the Tribunal and the High Court by the impugned order dismissed the petition.

p. 1079, margin A

Though several points were taken by the appellant in support of appeal, primarily it was stated that the order of eviction cou Id not have been passed on the very same day on which the application under Order XXII Rule 4 was allowed. The question whether the appellant had any defence available was to be adjudicated. The order of eviction could not have been passed a summary way as has been done.

p. 1079, margin E

Learned counsel for the respondents supported the orders passed lower forums and the High Court.

p. 1080, margin A

Undisputedly the respondents had filed an application under Order XXll Rule 4 of the Code read with Section 2(i)(ii) of the Act. The same filed on 5.9.2003 and the relevant portion of the petition read as follows: 'That although Shri Vijay Kumar Khambate is the son of deceased respondent and the only LR yet he does not come under the purview of 'tenant as envisaged under Section 2(1 )(ii) of the Rent Control Act as he was not financially dependent on respondent. As such there is no successor of the deceased respondent . to acquire the tenancy in succession even for a limited period of year."

p. 1080, margin A

The reply to the said petition was filed by the appellant where following stands were taken: "That the deceased Shri P.S. Khambate died as a contractual tenant and on his death the respondent became the tenant by operation ·of law. That the respondent Vinay Kumar Khambate was living in premises in suit and was not financially dependent on deceased respondent and as such the tenancy of the respondent is not hit the provision of Section 2(1)(ii) of the Delhi Rent Control Act and respondent became a lawful perpetual tenant after the death of Shri P.S. Khambate. Thus the petition as framed and filed is maintainable." 9'. The Additional Rent Controller allowed the application in terms of Order XXll Rule 4 of the Code and on the same day without considering various Stands taken in the objection, disposed of the matter.

p. 1080, margin C

It would have been appropriate for the learned Additional Controller to permit the appellant to place materials in support of his which obviously has not been done. In the above circumstances we set the order of the High Court confirming the order of the Tribunal and Additional Rent Controller and remit the matter to the Additional Rent Controller who shall hear the appellant on the question as to whether the appellant perpetual tenant and/or inherited the tenancy right of his father. We make clear that we have not expressed any opinion on the merits. Since the matter A is pending since long, Additional Rent Controller would do well to dispose of the matter within a period of four months from the date of receipt of our order. Parties are permitted to file copy of this order before the Additional Rent Controller so that the matter can be heard early.

pp. 1080–1081, margin F

The appeal is allowed to the aforesaid extent with no orders as to B costs. S.K.S. Appeal partly allowed. ~·

p. 1081