JUDGMENT
Sultan Singh, J.
(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (for short the ‘Act’) is directed against the Judgment and order dated 9/10/1986 of the Rent Control Tribunal confirming the order dated 29/9/1986 of the Additional Rent Controller dismissing the appellant’s application filed under Section 45 of the Act for restoration of the electricity supply.
(2) The appellant was inducted as a tenant by the respondent in a portion on ground floor of C-5 Anand Niketan New Delhi at a monthly rent of Rs. 3,000.00 with effect from 1/12/1985. The charges for electricity were payable on the basis of sub meter reading and water charges were payable at Rs. 50.00 per month. The appellant in his petition under Section 45 and application under Section 45(3) of the Act which were filed on 22/9/1986 alleges that the respondent had been pressurising him to increase rent or to vacate the premises and did not accept the cheque on account of rent for July and August, 1986, that he got the electricity supply disconnected/withheld on 9/9/1986 for which a report was made to the officials of the Delhi Electricity Supply Undertaking; an official came to the spot to connect/correct the fault but the respondent did not allow him to do so. The appellant further alleges that he also complained to the police but no account of the influence of the respondent the police did not intervene. It is also alleged that the appellant had paid a sum of Rs. 6,000.00 as security by ” means of cheque to the respondent. He allege that he has paid up to date electric and water charges in cash, and the rent for July, August, 1986 was refused by the respondent. On these grounds, the appellant prayed for a direction to the respondent to restore the supply for electricity.
(3) The respondent in reply has pleaded that the petition is an abuse of the process of the court and is not maintainable that the appellant had previously filed a petition exactly on the same allegations which was pending before Mr. M.L. Mehta, Additional Rent Controller Delhi; that the appellant has deliberately concealed that fact and, therefore, he is not entitled to the discretionary relief. It is further alleged that the appellant has made false averments in his petition; he has not paid any amount on account of water and electricity (power and light) charges from 1/12/1985. He pleads that there were separate sub meters for supply of power and light to him; that there had been a separate meter for light for the use of the appellant and the respondent had a separate meter for power; but on account of misuse by the appellant, the meters for power and light as well as the sub-meters were got burnt; the sub meter was got replaced and again it was burnt on account of the misuse by the appellant. It is also alleged that the appellant has been using power in excess of the sanctioned load. It is denied that he got the electricity supply disconnected.
(4) In replication the appellant denies the allegations of the respondent and reiterates his allegations. He however admits that previously he had filed a petition under Section c of the Act on 20/9/1986. Notices of the main petition as well as the application under Section 45(3) of the Act were issued for 22/9/1986 on which date the respondent appeared and the matter was adjourned to 24/9/1986 when an application for withdrawal of the case was filed by him and the suit was dismissed as withdrawn on 25/9/1986 by Sh. M. L. Mehta, Additional Rent Controller Delhi. The file of previous Suit No. 32 of 1984 is also before me. In his application for withdrawal, the appellant alleged that the name of Karta of H.L. Mehra, Huf was wrongly mentioned as H.L. Mehra was already dead and in the eyes of law, the petition did not lie against a dead person and in view of the said circumstances, his petition was liable to be dismissed and, therefore, he prayed that the application be dismissed as withdrawn. Thus previous petition was dismissed as withdrawn on 25/9/1986.
(5) The Additional Controller held that before the filing of the present suit under Section 45 of the Act, the appellant had already filed another petition which was dismissed without obtaining any leave to institute a fresh petition and therefore the present petition was barred under Order 23 Rule 1(4) of the Code of Civil Procedure. As regards the merits, the Additional Controller held that prima facie the appellant had a strong case for restoration of the amenity of electricity supply. The case of the appellant was that he has paid charges for water and electricity and rent up to June, 1986; that rent for July and August, 1986 was refused. The appellant placed on record one writing in the hand of Mrs. B.M. Mehra showing the calculation of electricity charges for the period up to 3/1/1986. On appeal the Rent Control Tribunal confirmed the order of the Additional Rent Controller.
(6) The appellant-tenant in this second appeal submits that the present petition under Section 45 of the Act is not barred under Order 23 Rule 1(4) of the Code of Civil Procedure; that Order 23 Rule 1(4) of the Code is not applicable to the present case. In the alternative he submits that under Rule 23 of the Delhi Rent Control Rules, all provisions of the Code of Civil Procedure are not made applicable and they should not be applied if the justice of the case demands that supply of electricity should be restored. He submits that the provisions of Section 45 of the Act are meant to provide relief to the tenant whose amenities were withheld or disconnected by the landlord. His argument is that the Provisions of Section 45 of the Act and Order 43 Rule 1(4) of the Code should be interpreted in a manner that gives relief to the tenant who had already been harassed by the respondent. Learned counsel also submits that Order 23 Rule I of the Code of Civil Procedure applies only to suits and not to petitions under the Delhi Rent Control Act 1958; that the cause of action in the earlier petition which was dismissed as withdrawn was different from the cause of action pleaded in the present petition. His argument is that the earlier petition was against “H.L. Mehra Huf Karta H.L. Mehra” while the present petition is against “H.L. Mehra Huf, Karta Smt. H.L. Mehra/B.M. Mehra”. Lastly, it is submitted that the cause of action for restoration of electricity on account of withholding of supply is a continuing cause of action day today.
(7) Learned counsel for the respondent submits that the appellant concealed the fact of institution of the previous petition under Section 45 of the Act, that he has not approached the court with clean hand and concealed the fact of earlier petition under Section 45 of the Act; that it is an abuse of the process of the Court and therefore appellant is not entitled to any relief. He submits that the present petition under Section 45 of the Act is barred under Order 23 Rule 1(4) of the Code and even if it is maintainable, he is not entitled to the restoration of the electricity supply as he has been in arrear of rent since 1-7-1986 and has not paid water and electricity charges, for the period from 1/12/1985 onwards. Learned counsel for the appellant submits that the appellant has always been ready and willing to pay the rent that infact cheque on account of rent for July and August, 1986 was offered but it was. not accepted by the respondent. As regards the water and electricity charges, the case of the appellant is that the same have been paid for the period ending June, 1986.
(8) The first question for decision is whether the present petition is barred under Order 23 Rule 1(4) of the Code of Civil Procedure. Order 23 Rule I of the Code of Civil Procedure reads as under :
“(1)At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules I to 14 of Order Xxxii extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2)An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3)Where the Court is satisfied :-
(A)that a suit must fail by reason of some formal defect, or
(B)that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.
It may, on such terms as it thinks fit, grant the plaintiff. permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
(4)Where the plaintiff :-
(A)abandons any suit or part of claim under sub-rule (1) or
(B)withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),
he shall be liable for such costs as the Court may a warrant shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(5)Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3) any suit or part of a claim without the consent of the other plaintiffs.”
(9) Under sub-rule 4 of Rule I of Order 23 of the Code, if the plaintiff abandons the suit without permission of the Court, he is precluded from instituting any fresh suit in respect of the same subject matter. In other words, the bar under sub-rule 4 is for institution of fresh suit on the same subject matter after the withdrawal of the earlier suit. Sub-rule 4 of Rule 1 cannot be read so as to bar a suit which has already been instituted before the other suit has been dismissed. The rule is clear and can only be applied to a suit instituted after the withdrawal of the previous suit. In the instant case it is admitted that the present petition under Section 45 of the Act was filed on 22/9/1986 while the earlier petition was got dismissed as withdrawn on 25/9/1986.
(10) In Mangi Lal and another v. Radha Mohan and Another, 1930 Lahore 599(2), it has been observed by the Division Bench that this rule applies only to suits instituted after the withdrawal of the previous suit. Nothing to the contrary has been brought to my notice. It is not necessary to decide the other points raised by the learned counsel for the appellant. I am of the definite view that Order 23 Rule 1(4) of the Code of Civil Procedure is not applicable to the facts of the present case. The Rent Control Tribunal and the Additional Rent Controller approached the matter in a manner which is contrary by law. The present petition under Section 45 of the Act is not barred under Order 23 Rule .1(4) of the Code of Civil Procedure and is maintainable.
(11) Learned counsel for the respondent submits that the present petition is barred under Section 12 read with Order 2 Rules I and 2 of the Code of Civil Procedure. These provisions are not applicable to the facts of the present case. Further the earlier petition under Section 45 of the Act was never heard and decided and, therefore, the order dismissing the earlier petition as “withdrawn does not operate as res judicata within the meaning of Section 11 of the Code of Civil Procedure. As there was no trial of issues arising between parties, there is no decision which can operate as res judicata. (Nand Lal v. Mt. Lakhmi and others, A.I.R. 1939 Lahore 416).
(12) The appellant has also filed an application (C.M. No. 3923 of 1986) in this Court for restoration of electricity under Section 45(3) of the Act. Reply has been filed. The admitted facts are that there is relationship of land lord and tenant. The appellant has been a tenant since 1/12/1985 at Rs. 3,000.00 per month besides electricity and water charges; the rent up to June, 1986 at the rate of Rs. 3,000.00 has been paid. It is also admitted that a sum of Rs. 6,000.00 was paid as security by the appellant to the respondent. The main dispute is about the payment of fixed water charges at Rs. 50.00 per month and the electricity charges for the period from 1/12/1985 onwards. From the writing filed by the appellant on the record of the trial Court, it is apparent that the appellant paid Rs. 177.50 on account of electricity charges for one month. It is also submitted that he had been regularly paying the electricity and water charges for which receipts were never granted by the respondent. It is not necessary at this stage to make any observation whether payment on account of electricity and water charges has been made. The pleas of the parties cannot be decided without evidence. In view of the fact that the respondent has got security of Rs. 6,000.00 . I do not deem it necessary to order the appellant to pay the disputed electricity and water charges for the period from 1/12/1985 to June, 1986. The electricity was got disconnected on 9/9/1986 The Additional Controller on the basis of the material on record prima facie concluded that the appellant tenant was entitled to the restoration of the electricity connection. After going through the entire record of the trial court I am also of the same opinion. Learned counsel for the respondent submits that the meters for power and light were got burnt on account of misuse by the appellant. Learned counsel for the appellant on the other hand submits that electricity current or load was never misused by him. I, therefore, order and direct the respondent landlord to restore the light and power supply of electricity to the premises under the tenancy of the appellant immediately. If the main meter of the Desu or any sub meter supplying current to the premises of the appellant is not working or is burnt, the same is to be got repaired or replaced by the respondent at his own costs. He may claim restoration charges if it is proved during the trial of the main petition under Section 45 of the Act that it was on account of any act of omission or commission or other conduct of the appellant that the meters or sub meters were burnt. The learned counsel for the appellant says that the rent for the period from 1/7/1986 to 31/10/1986 will be paid by him up to 15/11/1986. Let him do so. The electricity and water charges for the period from July, 1986 to 9/9/1986 when supply was disconnected be paid by the appellant on receipt of a bill from the respondent.
(13) The appeal is accepted setting aside the impugned orders of the Rent Control Tribunal and the Additional Rent Controller and the matter. is remanded to the Additional Rent Controller for decision in accordance with law. No order as to costs.
(14) The parties are directed to appear before the Additional Rent Controller on 1/12/1986.
(15) The respondent is directed to take immediate steps for restoration and get the electricity restored at the earliest.