Civil Appeal No. 253D of 1961. Case: Niadar Mal Vs Ugar Sain Jain. High Court of Delhi (India)
| Case Number | Civil Appeal No. 253D of 1961 |
| Counsel | D K Kapur, A L Patney |
| Judges | S. K. Kapur, J. |
| Issue | Delhi and Ajmer Rent (Control) Act, 1952 - Sections 13(1)(J), 13(1)(H) |
| Citation | 1965 (1) DLT 53 |
| Judgement Date | January 29, 1965 |
| Court | High Court of Delhi (India) |
Judgment:
S.K. Kapur, J.
This civil revision undersection 35 of the Delhi and Ajmer Rent Control Act, 1952, is directedagainst the judgment of Senior Subordinate Judge dated 26/09/1960.
The premises in question is situate in Deputy Ganj, Sadar Bazar,Delhi. The petitioner Niadar Mal is the landlord of the said premises andrespondents Uggar Sain and Padam Sain who are father and son respectively are the joint tenants with respect to a part of the aforesaid premises.The petitioner landlord filed a suit for ejectment against the respondenttenants mainly on three grounds-(1) that the conduct of the tenants is such that it is a nuisance tothe other occupiers of the same premises and they are therefore liable to beevicted under section 13(1) (j) of the said Act;(2) that the tenants have acquired other premises and the plaintiffis therefore entitled to a decree for ejectment under section 13(l)(h) ofthe said Act; and(3) that the defendants have been causing substantial damage tothe property.Before me, however, only the first two grounds have been pressed byMr. D. K. Kapur, the learned counsel for the petitioner. There was aprevious litigation between the parties and it is necessary to set outcertain facts relating to that as one of the principal argument by thelearned counsel for the respondents has been that the judgment given inthe previous case operates as res judicata against the petitioner. Thepetitioner filed a suit against the respondents with respect to the samepremises claiming a decree for ejectment and arrears of rent. The eject-ment was sought inter alia on the ground that the conduct of the defendantswas a source of nuisance and cause of annoyance to the occupiers of otherportions of the house in as much as they had closed the door leading to thecourt-yard, latrine and bath-room and did not allow the occupiers of otherportions to make use of them. The respondents having acquired anotherresidential accommodation was not made a ground for ejectment. It maynot be out of place to mention that it has not been disputed that theentire ground floor except one room is in occupation of the respondents.By judgment dated 26/12/1956, the learned Subordinate Judge1st Class dismissed the suit for ejectment and inter alia held that (1) it wasimperative on the plaintiff to show that the said bath-room and latrine onthe ground floor were not in the tenancy of the defendants or in thealternative the bath-room and latrine were jointly used by the tenants onthe ground floor, (2) the defendants had categorically stated that they didprevent Munshi Ram the occupant of a room in the ground floor frommaking use of the bath and the latrine but the respondents' conduct couldamount to nuisance if eiter the bath or the latrine were not in their tenancyor that they were to be used by the tenants of the ground floor and (3)the plaintiff had failed to prove any of the two essential factors and thetenants' conduct could not therefore be said to amount to nuisance orannoyance to the other occupiers of the building. The petitioner went upin appeal and during the pendency of the appeal there was a compromisebetween the parties and the petitioner made a statement before the learnedSenior Subordinate Judge stating that he would have a new door openedfrom the road side for the other tenants to enter the latrine, and theywould have no right to go to the latrine through the compound. Heprayed in that statement for being allowed to withdraw the appeal. On 31/12/1957, the learned Senior Subordinate Judge by his orderdismissed the appeal as withdrawn. The order of the learned SeniorSubordinate Judge was as under:-"The parties have arrived at a compromise as a result of whichthe appeal has been withdrawn and is hereby dismissed. But theparties will be bound by the ether terms of compromise regarding thelatrine. The parties are left to bear their own costs of appeal."After this compromise was entered into the petitioneralleges to have made an application. Exhibit P. 6, to the MunicipalAuthorities to allow him to open the door from the road side but thepermission was not granted. Upon the refusal of said permission thepetitioner gave notice to the respondents intimating to them that thepermission had been declined. The trial Court came to the conclusionthat the ground of nuisance had been raised in the previous suit anddecided against the landlord-petitioner and therefore operated as resjudicata against him.
Mr. Dalip Kapur appearing for the petitioner has raised the following contentions: (1) the tenants-respondents had admitted that they werenot allowing the use of the latrine and bath to the other occupants of thehouse and consequently the Courts below should have held that it constituted nuisance or annoyance within the meaning of section 13 (1) (j) ofthe said Act; and (2) the appellate Court while discussing issue No. (1)namely "whether the plaintiff has sued for partial premises, if so...
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