Delhi District Court
Sh. Indraj Singh vs Sh. Puneet Aggarwal on 5 January, 2012
1
IN THE COURT OF SH. S.K. SARVARIA, DISTRICT JUDGE/
INCHARGE (NW) / ADDL. SESSIONS JUDGE/ ADDL. RENT
CONTROL TRIBUNAL, ROHINI DISTRICT COURTS, DELHI.
RCT No. 02/11
Sh. Indraj Singh
S/o Sh. Hira Lal
R/o Village Kushak No.1
Qadipur, Delhi- 110036 .... Appellant
VERSUS
Sh. Puneet Aggarwal
S/o Sh. Narinder Kumar
R/o 81, Gopal Park,
Delhi - 110051 .... Respondent
:JUDGMENT:
1. This appeal is directed against the order dated 09.11.2010 passed by Ld. Additional Rent Controller (in short ARC) on the eviction petition filed by the respondent/ landlord against the appellant/ tenant on the grounds under Sec. 14(1) (a), (b) and (j) of Delhi Rent Control Act, 1958 (in short the Act) in respect of property bearing No. 6, Badli Railway Station Road, Samepur, Delhi (in short tenanted shop).
2. I have heard Ld. Counsel for both the parties and have gone through the written arguments filed on their behalf, Ld. Trial ARC's record, the appeal file and relevant provisions of law.
3. Before Ld. ARC the appellant has contested the eviction petition and filed written statement. Thereafter, the respondent/landlord has led the evidence by producing himself as PW-1 by filing affidavit in evidence before the ld. ARC and has also produced PW-2 Sh. Narender Kumar Aggarwal in support of his case, who has also filed affidavit in evidence. The Indraj Singh VS Puneet Aggarwal 2 defence of the appellant was struck off vide order dated 04.09.2010 of Ld. ARC by allowing the application under Sec. 15 (7) of the Act on account of delay in deposit of the rent for May and June 2010. Therefore, the appellant was unable to produce any evidence before Ld. ARC.
4. The arguments on behalf of the appellant are that Ld. ARC has not correctly appreciated the evidence on record. The notice of demand was not served upon the appellant as notice sent by registered post was received back unserved so the eviction order under Sec. 14(1) (a) of the Act cannot be passed,. The eviction petition is malafide based on concealment of actual facts. The benefit under Sec. 14(2) of the Act should have been granted. It is argued that rate of rent was not proved by the respondent/ landlord.
5. On the ground under Sec. 14 (1) (b) of the Act, the contention is that no subletting or assignment or parting with the possession has been proved. The court has granted relief on the facts which were not pleaded. The proper appreciation of evidence is not done. Similarly, on the ground under Sec. 14 (1) (j) of the Act, the argument is that nowhere the substantial damages to the tenancy shop is proved. The proper appreciation of evidence is also not done, so impugned order of Ld. ARC is liable to be set aside on all counts.
6. On behalf of respondent, it is argued that Ld. ARC has correctly appreciated the facts and law. The rate of rent is proved by respondent/landlord as Rs.1000/- per month and thereafter, enhanced to Rs. 1100/- per month while the appellant has failed to prove his plea that rate of rent was Rs.400/- per month. Therefore, the contentions on behalf of the appellant are not in accordance with law, so appeal is liable to be dismissed.
7. I have carefully heard the respective arguments and have gone Indraj Singh VS Puneet Aggarwal 3 through the record of the case and rival contentions.
8. Section 38 of the Act as it applies to the present case makes a complete bar for appreciation of facts for the purpose of the appeal before this tribunal. Only the questions of law can be raised. This view is repeatedly confirmed by the Hon'ble High Court.
In Ram Dulari thru. L.Rs.' Vs. Om Parkash Gupta and Anr.- MANU/DE/1017/2010 it was held as under:-
"12. I also consider that the learned Additional Rent Control Tribunal exceeded its jurisdiction by entering into an area which was prohibited. It is prohibited for Additional Rent Control Tribunal to re-appreciate the facts and change the finding of fact given by Additional Rent Controller."
In Shyam Sunder Dania and Anr. Vs. J.D. Kapoor and Anr.- MANU/DE/9744/2006 it was held as under:-
"10. On consideration of the submissions of the learned Counsel for the petitioner, I am of the view that the impugned order of the ARCT cannot be sustained. Firstly, the reasoning of the ARC was based on appreciation of evidence which did not raise any question of law in the First Appeal and thus ought not to have been interfered with. Secondly, even if the evidence is seen, it is an admitted position that there was litigation between the parties in respect of the shop much prior to the present proceedings. The testimony of the son of the original respondent herein that he was himself informed by petitioner No. 2 about creation of sub tenancy can thus hardly be accepted as it would be against the grain of any prudent communication. The ARCT appears to have been influenced by the fact that the license produced by petitioner No. 2 was of the year 1991 and if he had taken the alternative premises on rent since 1975, then such a license should have been available from an Indraj Singh VS Puneet Aggarwal 4 earlier date. This reasoning cannot be accepted. The petitioners have further filed annexure P-1, certificate of registration under the Delhi Shop and Establishment Act, 1954 of the year 1983 in the name of petitioner No. 2 with regard to the premises at F-14, Vikas Marg."
In Kulwant Singh and Anr. Vs. Arjun Singh MANU/DE/9677/2006 it was held as under:-
"7. If the matter is examined in terms aforesaid, it will be found that it is not the function of this Court to re-appraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under Section 38 of the said Act, the ARCT is to act as an appellate court only on a question of law.
8. The findings even on merits cannot be assailed for the reason that the petitioners cannot be permitted to lead evidence contrary to their pleadings where the creation of tenancy in the year 1978 has been admitted. In 1978, petitioner No. 1 was a boy of about 10 years of age and as such there could be no question of his doing any business. Thus, the tenancy is to be held to be in the name of petitioner No. 2. It is the admitted case of the petitioners that the premises is occupied and used by petitioner No. 1 and, thus, the occupation and user is of a third person albeit a son. Learned Single Judge of this Court in Kulwant Kaur and Ors. v. S.P. Bawa MANU/DE/0689/1992 AIR1993 Delhi 296 has held that even where there was a close relationship between the tenant and the alleged sub tenant, who was the son-in-law of the tenant, the exclusive possession of the son-in-law was held to be tantamount to subletting. The sub- tenancy or parting with possession of the tenanted premises is, thus, clearly made out. I find no patent or jurisdictional error in the impugned order.
In Dr. Mrs. Sushil Puri and Ors. Vs. Shri Jai Gopal and Ors.- MANU/DE/9637/2006 it was held as under:-
Indraj Singh VS Puneet Aggarwal 5
"9. An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has been abolished."
In Smt. Kiran Sajjan and Ors. Vs. Smt. Swarnkanta Mahajan-MANU/DE/9022/2006 it was held as under:-
5. It cannot lost sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision was taken to amend the said provision in December 1988 prior whereto the appeal was both on a question of law and on a question of fact. Thus the scope of scrutiny itself by the Tribunal was said to be restrictive and the Additional Rent Controller was construed to be a final Court for appreciation of evidence. The present proceedings under Article 227 of the Constitution of India can hardly be converted into a court of second appeal. It is only in case of a patent error or erroneous exercise of jurisdiction would an intereference be called for. The legal position in this behalf has been made clear in the judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors.
JT 2003 (6) SC 465. In fact in Mohd. Yunus v. Mohd. Mustqim and Ors. MANU/SC/0066/1983 [1984]1SCR211 , it has been observed that mere wrong decision without anything more is not enough to attract the jurisdiction of the High Courts under Article 227 of the Constitution of India, which jurisdiction is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record much less an error of law. These aspects have been emphasised to set forth the contours within which the impugned orders have to be scrutinised.
Indraj Singh VS Puneet Aggarwal 6 Ram Dulari thru. L.Rs.' Vs. Om Parkash Gupta and Anr.- MANU/DE/1017/2010
12. I also consider that the learned Additional Rent Control Tribunal exceeded its jurisdiction by entering into an area which was prohibited. It is prohibited for Additional Rent Control Tribunal to re-appreciate the facts and change the finding of fact given by Additional Rent Controller.
Shyam Sunder Dania and Anr. Vs. J.D. Kapoor and Anr.- MANU/DE/9744/2006
10. On consideration of the submissions of the learned Counsel for the petitioner, I am of the view that the impugned order of the ARCT cannot be sustained. Firstly, the reasoning of the ARC was based on appreciation of evidence which did not raise any question of law in the First Appeal and thus ought not to have been interfered with. Secondly, even if the evidence is seen, it is an admitted position that there was litigation between the parties in respect of the shop much prior to the present proceedings. The testimony of the son of the original respondent herein that he was himself informed by petitioner No. 2 about creation of sub tenancy can thus hardly be accepted as it would be against the grain of any prudent communication. The ARCT appears to have been influenced by the fact that the license produced by petitioner No. 2 was of the year 1991 and if he had taken the alternative premises on rent since 1975, then such a license should have been available from an earlier date. This reasoning cannot be accepted. The petitioners have further filed annexure P-1, certificate of registration under the Delhi Shop and Establishment Act, 1954 of the year 1983 in the name of petitioner No. 2 with regard to the premises at F-14, Vikas Marg.
Indraj Singh VS Puneet Aggarwal 7 Kulwant Singh and Anr. Vs. Arjun Singh-
MANU/DE/9677/2006
7. If the matter is examined in terms aforesaid, it will be found that it is not the function of this Court to re-appraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under Section 38 of the said Act, the ARCT is to act as an appellate court only on a question of law.
8. The findings even on merits cannot be assailed for the reason that the petitioners cannot be permitted to lead evidence contrary to their pleadings where the creation of tenancy in the year 1978 has been admitted. In 1978, petitioner No. 1 was a boy of about 10 years of age and as such there could be no question of his doing any business. Thus, the tenancy is to be held to be in the name of petitioner No. 2. It is the admitted case of the petitioners that the premises is occupied and used by petitioner No. 1 and, thus, the occupation and user is of a third person albeit a son. Learned Single Judge of this Court in Kulwant Kaur and Ors. v. S.P. Bawa MANU/DE/0689/1992 AIR1993 Delhi 296 has held that even where there was a close relationship between the tenant and the alleged sub tenant, who was the son-in-law of the tenant, the exclusive possession of the son-in-law was held to be tantamount to subletting. The sub- tenancy or parting with possession of the tenanted premises is, thus, clearly made out. I find no patent or jurisdictional error in the impugned order.
Dr. Mrs. Sushil Puri and Ors. Vs. Shri Jai Gopal and Ors.- MANU/DE/9637/2006
9. An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has been abolished.
Indraj Singh VS Puneet Aggarwal 8 Smt. Kiran Sajjan and Ors. Vs. Smt. Swarnkanta Mahajan- MANU/DE/9022/2006
5. It cannot lost sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision was taken to amend the said provision in December 1988 prior whereto the appeal was both on a question of law and on a question of fact. Thus the scope of scrutiny itself by the Tribunal was said to be restrictive and the Additional Rent Controller was construed to be a final Court for appreciation of evidence. The present proceedings under Article 227 of the Constitution of India can hardly be converted into a court of second appeal. It is only in case of a patent error or erroneous exercise of jurisdiction would an intereference be called for. The legal position in this behalf has been made clear in the judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465. In fact in Mohd. Yunus v. Mohd. Mustqim and Ors. MANU/SC/0066/1983 [1984]1SCR211 , it has been observed that mere wrong decision without anything more is not enough to attract the jurisdiction of the High Courts under Article 227 of the Constitution of India, which jurisdiction is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record much less an error of law. These aspects have been emphasised to set forth the contours within which the impugned orders have to be scrutinised.
9. Ld. ARC has made appreciation of facts and has returned the finding of proof of service of demand notice Ex. PW-1/4 relying upon M/s Madan and company vs. Wajir Jaivir Chand, AIR 1989 SC 630 and has also returned the finding that the appellant was in arrears of rent @ Rs. 1000/- per month since the last three years. The Ld. ARC, is the final authority on the question of facts and the evidence can not be re-appreciated Indraj Singh VS Puneet Aggarwal 9 by this tribunal under Sec. 38 of the Act in the light of above binding case law, as the same do not fall within the question of law which can be raised in an appeal. Similarly, on the ground under Sec. 14 (1) (b) of the Act, the Ld. ARC has relied upon the judgments on our Hon'ble High Court, Chunni Lal Vs. Vidya Devi, 2007 (138) DLT 224 and Niadar Mal Amar Nath vs. Rukmani Devi Jaipuria Charitable Trust, 2006 (91) DRJ 702. On appreciation of facts and evidence it was held that the appellant has sub- letted the tenancy premises to the respondent no.2 Pawan Sachdeva in the eviction petition. Similarly, by appreciation of facts the substantial damages to the said tenancy premises were held to be caused by the appellant and directions were issued to the appellant for carrying out repairs and to put the tenanted shop i.e. premises No. 6, Badli Railway Station Road, Delhi within 30 days of impugned order and to restore the tenanted shop to the original position. No question of law is raised to assail the findings of Ld. ARC in the present appeal.
10. In view of the above, the appeal is dismissed. The trial ARC's record be returned alongwith copy of this judgment in appeal. The judgment in appeal be sent to server (www.delhidistrictcourts.nic.in). The appeal file be consigned to record room.
Announced in the open court On 05th January, 2012 (S.K. SARVARIA) DISTRICT JUDGE/ I/C (NW) ADDL. SESSIONS JUDGE, ADDL. RENT CONTROL TRIBUNAL ROHINI DISTRICT COURTS, DELHI Indraj Singh VS Puneet Aggarwal