Judgment:
J.K. Mehra, J.
(1) This petition arises out of an order dated 20.11.1995 passed by the Addl. Rent Controller for eviction of the petitioner from the premises in dispute i.e. first floor and second floor of House No. 11/23, West Patel Nagar, New Delhi.
(2) Brief facts of case are that the respondents/landlords are the co-owners of the said property. It is not in dispute that the premises were let out for residential purposes. The eviction of the petitioner was sought from both first floor and second floor of premises No.11/23, West Patel Nagar, New Delhi on the ground of personal bona fide requirement of the respondents. The petitioner was granted leave to defend on his application for the purpose and the matter was finally disposed of in favor of the respondents. Mr. Sabharwal appearing for the petitioner has attacked the impugned order only on three grounds.
(3) As the first ground of attack, the petitioner alleges that the landlord is not the owner/co-owner of the premises in dispute as the property was sold by widow of the original owner of the premises in dispute. It is contended that the said widow had no right to transfer the property or deal with the property as her late husband had left behind a Will whereunder he had created a Trust and had bequeathed the property to that Trust. 'The said alleged Will in original was never proved as required under law and the suit wherein the said Will was set up by father of the deceased had also been withdrawn. A certified copy of the said alleged Will was filed here but before the Addl. Rent Controller also the said Will was never proved. In other words this piece of document that is a copy of another copy has remained unproved and as such it is of no consequence. Admittedly the said Will was never probated. In the light of these facts no merits can be attributed to the plea of the petitioner. This plea is without any merit and is rejected.
(4) The second ground of attack raised by the petitioner is that the first floor and second floor premises were let out to the petitioner separately at different point of time and are covered by two distinct tenancies one relating to first floor and the second relating to second floor of the premises in dispute. The tenant/petitioner has stated that the tenancy being separate and distinct created at different times and relating to different premises i.e. first floor and second floor, the cause of action, if any, in respect of each tenancy was distinct and separate and one could not be joined with the other in the same proceedings. On his attention being drawn to Order 2 Rule 3 of the Code of Civil Procedure which reads as under, Mr. Sabharwal points out that the provisions of Order 2 Rule 3 could not be read in isolation and without reference to Order 2 Rule 4 and that for joining two distinct causes of action, leave of the Court was necessary which had not been obtained.
'O.2R.3 - Joinder of causes of action.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit. (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.'
(5) Order 2 Rule 4 reads as under:
'0.2R.4 - Only certain claims to be joined for recovery of immovable property No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except- 349 (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof, (b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action; Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.'
(6) The legislature in its own wisdom vide an amendment of 1976 Act provided under Rule 6 of Order 2 as under:
'0.2R.6 - Power of Court to order separate trials. Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.'
(7) It is a case where no leave was specifically asked or granted as contemplated under Order 2 Rule 4 Civil Procedure Code nor was at any stage the eviction proceedings ordered to be split and tried separately. The absence of any order under Order 2 Rule 6 Civil Procedure Code is a pointer to the fact that the Court at no point of time thought that one trial in respect of the two causes of action is likely to embarrass or delay the trial or would be otherwise inconvenient to it. Another fact which in the present case cannot be lost sight of is that after the second floor was let out, they have been treated as one tenancy both for first and second floor and only one consolidated receipt was issued for a sum of Rs. 580.00 . Originally the first floor was let out and rent receipt for Rs. 440.00 per month were being issued and I am in agreement with Addl. Rent Controller that with the passage of time the tenancies for both the portions were considered as one and one suit could be maintained for the entire premises under Order 2 Rule 3 of the Code of Civil Procedure. A reference in this behalf be made to Section 99 of the Code of Civil Procedure which reads as under:- 'S. 99 - No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misguide [or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court; [PROVIDED that nothing in this section shall apply to non-joinder of a necessary party.]'
(8) These provisions by virtue of the provisions of Section 141 of the Code of Civil Procedure which reads as under, would be applicable to this petition also when read with Rule 30 of the Rent Control Rules.
'S. 141 Miscellaneous proceedings The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. [Explanation.- In this section, the expression 'proceedings' includes proceedings under Order Ix, but does not include any proceeding under Article 226 of the Constitution].'
(9) These provisions will be attracted to the present case also as the proceedings before the Rent Controller are also civil proceedings. The decisions in cases of Jaimiat Singh v. State of Punjab and others, reported as Air 1984 P&H; 352 (354) and Altab Ahmed & ors Vs . Nosinuddin and another , reported as : AIR1977Delhi121 be referred to in this regard.
(10) Mr. Sabharwal has placed reliance on the case of Gappu Lal Vs . Thakurji Shruti Dwarkadheeshji &' another , reported as : [1969]3SCR989 to support his argument that a composite petition is not maintainable. Yet a reading of the said case shows that the Hon'ble Supreme Court had granted relief in the same case in respect of both causes of action. Mr. Sabharwal then referred to a case of Atro Devi vs. Ditta Ram, reported as 1984 Drj Vol.6 186 showing that in the premises of three rooms covered by one tenancy eviction order in respect of one room could not be passed as all the rooms were part of the same tenancy. The petition seeking eviction for one room was dismissed. On the basis of terminology, Mr. Sabharwal developed his arguments that similarly one petition for two distinct tenancies could not be maintained even though it is between the same parties and in respect of different portions of the same building. Mr. Gupta in reply to Mr. Sabharwal's arguments, apart from repeating the arguments upheld in the impugned judgment, had conceded that there were two tenancies as the letting of two different portions was on different times but by issue of the same receipt the parties by their conduct have been treating both the portions and forming part of the same tenancy. Even apart from this he has placed reliance on Order 2 Rule 3 of the Code of Civil Procedure, Section 99 read with Section 141 of the Code of Civil Procedure and Rule 30 of Delhi Rent Control Rules and referred to various rulings wherein different causes of action were allowed to join in the same eviction proceedings. He has referred to a decision reported in 1972 Rlr 36 wherein grounds of subletting and the premises remaining vacant were allowed to be joined in the same proceedings. Mr. Sabharwal pointed out that in this case admittedly there was one lease and two grounds of eviction was allowed to be joined. Another ruling cited by Mr. Gupta is Mohd. Yunus v. Ram Nath, reported as 1972 Rlr 36. I find that the contention of Mr. Sabharwal is not correct because in that case also there were two separate tenancies .but one petition was allowed to be filed and proceeded with as there were common questions of law and fact arising in both and the petition was between the same parties. Mr. Gupta also placed reliance on a Full Bench judgment of this Court in the case of Abnash Kaur us. Dr. Avinash Nayyar & Ors., reported as 1974 Rlr 350. In this case additions of further grounds of eviction which had become available to the landlord during the pendency of the eviction petition was allowed to be added in the pleadings and the Full Bench had said that to avoid multiplicity of suits subsequent events may also be imp leaded in the proceedings by the amendment of the plaint and that not only all claim based on cause of action may be imp leaded but all causes of action against the same defendant may also be imp leaded in the same plaint That was also a case under Rent Control Act and the Full Bench had taker view of such a situation impermissible under Order 2 Rule 3. That was a case where a question before the Court was of amendment and while considering the desirability of allowing the amendment the Court had made aforesaid of observations in reference to provisions of Order 2 Rule 3. Another case cited by counsel for the landlords was that of Harmohan Das Bagai vs. Tarsen Parkas reported as 1979 (1) Rlr 735 (736). This was really a case where leave to defend was being considered and the controversy involved also therein, intoralia, was that after 1973 whether there were two tenancies- or there is only one tenancy and the Court granted leave to defend. In the case of Jagatjit Industries Ltd. vs. Rajiv Gupta, reported as 1980 Vol. 2 Rcr 638 the controversy was somehow similar where the parties led evidence that rent for both the floors were separately fixed. In this very context the counsel for the respondents relied upon the observations contained in the case of Harmohan Das (supra). This case however did not relate to two separate tenancies.
(11) Keeping in view the entire controversy and also the facts as have been brought out in evidence and noticed in the impugned judgment and assuming that the parties had treated the two lettings as separate tenancies yet there are common questions of law and fact arising between the same parties and in respect of different portions of the same property and keeping in view the fact that the Court did not consider it appropriate to pass any order under Order 2 Rule 6 Cpc, there would be nothing illegal in one eviction petition being entertained and tried in respect of the entire premises though different portions were let out at two different times. Such approach is in the interest of justice and has the effect of avoiding multiplicity of proceedings. I am not in agreement with Mr. Sabharwal that the petition should be dismissed on this ground alone.
(12) After concluding the arguments, the respondent made an application seeking leave to argue further. I allowed the request. In his further arguments, counsel has drawn my attention to the provisions of Order 2 Rule 6 Cpc and has cited the cases of Paira Ram v. Kesho Nath, reported as 1973 I.C. 892 Lah : Air 1924 Lah 156 and Swami Khat Khata Nand v. Suraj Pal Singh, reported as Air 1941 Oudh 56. The said provision of Order 2 Rule 6 Cpc has already been dealt with hereinabove. The aforesaid judgments have not taken any view different from what is stated hereinabove. The only argument which Mr. Sabharwal has raised is that all the provisions of Civil Procedure Code are not applicable to the proceedings under Delhi Rent Control Act. Yet he himself has relied upon the provisions of Order 2 Rule 4 of CPC. Under Rule 23 of Delhi Rent Control Rules, it is clearly provided that while deciding any question relating to procedure not specially provided by the Act and those rules, the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.
(13) The third and the last ground raised by Mr. Sabharwal was that the petition has not been filed bona fide and that need of the respondents is not I bona fide as he has pointed out that the premises were required by the respondents/ landlords for himself, his wife and son and daughter in law. My attention has been drawn to the relevant averment in the petition itself where it is stated; 'The dependant family members of the petitioner are his wife, son and daughter in law' (Page 8 of the petition). Mr. Sabharwal states that four rooms on the first floor are more than sufficient for a family of husband, wife, their son and daughter in law and eviction could not have been ordered from both the floors. He further states that this requirement is not made out as the ground floor is already available to the owners of the property. I have perused the petition and am in agreement with the Trial Court that the ground floor is occupied by 15 members of the family other than the petitioner and his family mentioned above and no more persons can be accommodated therein. In case, however, the requirement proved according to the Court appears to be for accommodation lesser than both the portions put together each covered by distinct and separate tenancy, then the Court could put the landlord to election of the portion which he wants to be vacated because Court cannot decide for the landlord about the portion which he would like to have. On such a right being exercised by the landlord the entire portion covered by that particular tenancy could be ordered to be vacated. I had ascertained from the respondents' counsel the wishes of the respondents in case Court comes to the conclusion that the bona fide requirement for both the portions is not proved but their requirement is established for only one portion, which portion would they like to be vacated. Counsel, on instructions, stated at the Bar that they in fact needed both the portions, but if Court was to reach the conclusion as stated above then they exercise their option to have the first floor vacated.
(14) Keeping in view the fact that the requirement which has been alleged and proved is only for the respondent No.1, his wife, his son and daughter-in- law, I find that there are four rooms available on the first floor of the premises in dispute and the requirement of the respondents can be fully met if those four rooms are made available which are covered by way of a separate and distinct tenancy. Accordingly, as per the choice of the respondents, the eviction order passed against the petitioner is modified to the extent that it will pertain only to the portion of the first floor which is covered by the first tenancy and the petition as regards barsati floor which is covered by a separate and distinct tenancy, shall stand dismissed. The petition is disposed of in the above terms with no order as to costs.