JUDGMENT
1. The appellant in this case Smt. Tulsi Bai obtained an order of eviction against the respondent Shri J.R. Pershad, from her house situated in Nawabganj, Delhi, on the ground of non-pavment of rent. The property was situated in slum area and so the appellant made an application to the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956 to get necessary permission for execution of the eviction order. On that application the order that was passed was that a sum of Rs. 325 was outstanding against the tenant by way of rent who shall pay Rs. 50 to the “landlady” on or before 15th of each month on account of arrears of rent as well as future rent; in case of any default the tenant shall be liable to eviction; no formal permission will be required in case of default and the permission as contemplated by Section 19 of the Act shall be deemed to have been granted in case the tenant committed any default in payment of the Installments as aforesaid and the first payment shall be made on or before 15th September, 1963. It was further directed that payments will be made to the “Landlady” direct against receipt or by money order.
2. It appears that the tenant committed default in paying the Installments fixed by the said order inasmuch as no rent was paid in September, 1963 to the appellant who on 4-10-1963 moved an execution application to get possession. The tenant filed a reply dated 17-10-1963 on receipt of notice of the execution application in which the default was admitted but it was pleaded that the default was occasioned on account of the appellant refusing to take the rent in cash in spite of the same being offered. It was further pleaded by the tenant that the previous order by the Slum Authority was a conditional order and as there was no clear order granting permission for eviction the execution application was incompetent. Before this execution application could be decided, on 16-3-1964 the appellant moved another application before the Slum Authority for passing a final order granting permission to evict the tenant of which notice was issued to the tenant by the Slum Authority. The tenant, in those proceedings, objected to permission being granted whereupon the following order was passed by the Slum Authority:
“The respondent has filed objections and a copy of it has been supplied to the petitioner. The respondent has shown me treasury challans and receipts for having made the following payments:–
1. Rs. 150/- on 29-10-1963
2. Rs. 50/- December, 1963.
3. Rs. 50/- January, 1964.
4. Rs. 50/- 7-2-1964.
5. Rs. 50/- 183-1964.
This proves that the respondent is making payment regularly. No further action in this case is called for and it may be consigned to record room.”
3. This last order of the Slum Authority was brought to the notice of the exe- cuting Court which held that since permission has been refused, execution of the eviction order could nto be ordered. The landlady went up in appeal to the Rent Control Tribunal which by its order dated 2-1-1965 upheld the decision of the Controller. Aggrieved by this order the landlady has appealed to this Court.
4. The learned counsel for the appellant has urged that the earlier order dated 20-8-1963 was really an order granting permission to execute the eviction order and the second order was passed without jurisdiction and should be ignored. In any case, he urges whether a default was committed or nto was a matter to be adjudicated upon by the executing court inasmuch as the Slum Authority was functus officio after it had passed the first order on 20-8-1963. The learned counsel for the respondent, on the other hand, has contended that the first order was really an order refusing permission and in any case, was a conditional order and a final order could only be passed by the Slum Authority giving a clear permission to execute the order of eviction and the second order must be construed as one refusing permission.
The learned counsel for the respondent has further urged that it is for the Slum Authority to decide whether the condition imposed by the first order had been complied with or not. For this proposition the learned counsel for the respondent has relied upon a judgment of the Chief Justice, D. Falshaw . In that case the learned Chief Justice has held that a conditional order of refusal can be passed and it is for the Slum Authority to decide whether the condition has been complied with or nto and then pass a final order either granting permission to execute the order of eviction or refuse permission to do so.
The learned counsel for the appellant has urged that the ratio of is nto applicable to the case of the respondent. In the present case the earlier order of 20-8 1963 was nto an order refusing the permission to execute the order of eviction but was an order granting permission subject to certain conditions. It was an admitted fact that the default had been committed and there was really nothing further to be enquired into either by the executing Court or by the Slum Authority.
He further urges that assuming the allegations of the tenant about tendering of money and refusing the same by the landlady to be correct, though he did nto admit the same to be so, mere tender and refusal was nto sufficient Inasmuch as an alternative mode of payment had been preceded in the first order of the Slum Authority dated 20-8-1963 and that was to send the rent by money-order. For this proposition he relied on three authorities which are Air 1932 Mad 109; (FB) and 1967 Pun Lr 148 (Sic). No reply has been given by the learned counsel for the respondent to this proposition. There is no doubt that in the present case a default was admittedly committed as is apparent by a reading of the reply dated 17-10-1963 filed by the tenant in the Court of the Controller. If that is so, then there was nothing which the Controller had to determine. Construing the order of the Slum Authority dated 20-8-1963, there is no doubt that permission had been granted to execute he order of eviction with the proviso hat in case the tenant paid rent as stipulated therein, then the permission would be of no effect but if he failed to pay, no further order was necessary and the order of 20-8-1963 would be the permission granted under Section 19 of the Slum Act. I would, accordingly, agree with the learned counsel for the appellant and hold that the order dated 20-8-1963, though conditional, was an order granting permission and nto conditional refusal of permission as was the case in . Since the default was admitted and no further order was necessary the second application of the landlady during the pendency of the execution proceedings was wholly uncalled for and in fact did nto lie. Fur-ther the second order of the Slum Authority dated 30-3-1964 in terms is nto an order refusing permission as under the provisions of Section 19 of the Slum Act an order refusing permission must state reasons and no reasons have been stated in that order. Permission cannto be regarded as refused. The application has merely been consigned to record.
5. Accordingly, I will accept this appeal, set aside the orders of the Control ler and the Tribunal and remand the case back for passing of an appropriate order by the executing Court. There will be no order as to costs.
6. Case remanded.
