Delhi District Court
Raj Kumar (Son) vs Sh.Moti Ram on 2 February, 2010
IN THE COURT OF SMT. PRATIBHA RANI, DJIII
CUMASJ (WEST), DELHI
***
RCT No. 29A/09
Sh.Mali Ram
Through his LRs:
1. Raj Kumar (son)
2. Ved Parkash (son)
3. Munni Devi (Daughter)
4. Nando Devi (Daughter)
5. Bimla Devi (Daughter)
6. Hero Devi (Daughter)
7. Beena Devi (Daughter)
r/o tenanted premises bearing H.No.3346,
Kucha Kasgiri, Sita Ram Bazar, Delhi.
..... APPELLANTS
VERSUS
Sh.Moti Ram
Through his LRs :
1. Smt.Shakuntala Gupta (Daughter)
r/o 4647/21, Ansari Road,
Darya Ganj, New Delhi 110 002.
2. Sh.Amba Prasad Aggarwal (son)
r/o E66, Masjid Moth, New Delhi.
3. Sh.Kalka Prasad Aggarwal (son)
r/o B7, Friends Colony, New Delhi.
4. Sh.Anil Prasad Aggarwal (son)
5. Sh.Ajit Prasad Aggarwal
1
both r/o H.No.3338, Kucha Kasgiri,
Sita Ram Bazar, Delhi.
6. Smt.Sarla Devi Garg (Daughter)
r/o D778, Saraswati Vihar,
Pitam Pura, Delhi.
.... RESPONDENTS
Date of Institution: 06.12.2007
Date of arguments: 25.01.2010
Date of order: 02.02.2010
O R D E R
1. It is astonishing that a landlord who got the eviction order in 1966 on the strength of a compromise is yet to reap the fruits of said eviction order. By now, 44 years have passed and he is yet to recover the possession.
2. The appellant herein are LRs of deceased tenant Mali Ram who have challenged the order dated 01.11.2007 vide which the objections filed by them were dismissed by ld. ARC. In brief the facts of the case are that parties to the petition No. RCA 248/66 entered into a compromise in all the three matters pending between Moti Ram and Mali Ram. After recording the statement of parties, it was ordered that the respondent Mali Ram i.e. the tenant shall pay the rent @ Rs.4.50 p. till 31.7.1966 and from 01.08.1966 the rent @ Rs.15/ pm shall be paid. It was also 2 directed that the said order be complied within one month failing which the landlord Moti Ram shall be entitled to the possession on the grounds of non payment of rent. Thereafter execution petition No.41/78 was filed on the ground that tenant had not complied with the order dated 04.08.1966 by the Tribunal to which the objections were filed by the tenant Mali Ram claiming that the said order has been duly complied with by depositing the rent under Sec. 27 of DRC Act on26.08.1966. The objections were decided vide order dated 19.04.1980 and said order was challenged before Rent Control Tribunal wherein it was held that rent deposited before different ARCs was not in compliance of the order. That order was again challenged before Hon'ble High Court and the appeal was dismissed on 02.11.2006 as abated. Thereafter landlord filed an application for recovery of cost of Rs.5,000/ imposed on the tenant while dismissing the appeal filed by the tenant and for revival of the previous execution application filed against the tenant. Thereafter the objections were filed before ld. ARC by the legal heirs of the deceased tenant claiming that Hon'ble High Court has not decided the S.A.O. on merits but on technical grounds and that the order 3 dated 04.08.1966 is non est being nullity, void and without jurisdiction and was not executable. It was also claimed by the appellant/objector that in execution the Court can declare the said order being unlawful and that the composite order is not executable.
3. The objections filed by the legal heirs of the tenant were duly contested contending that the legal pronouncement that composite order is bad in law was subsequent and not applicable to the execution petition of the landlord as the order dated 04.08.1966 was passed before passing of the judgment to the effect that composite order was bad in law. It was also contended that the tenant had never challenged the order dated 04.08.1966 on merits, hence ld. ARC had jurisdiction to execute the said order. It was further submitted that it was the duty of the tenant to challenge the order dated 04.08.1966 which was passed in view of the compromise between the parties but that order was never challenged and the said order being passed on compromise between the parties, is not open to challenge.
4. Vide impugned order ld. ARC dismissed the objections observing that the composite order which was passed 4 on the basis of compromise between the parties was not challenged by the tenant before any Court and rather he complied with the same by depositing the rent in the Court of another ARC which made it clear that tenant was not aggrieved from that order being a composite order. It was further held by ld. ARC that the said order which was not challenged before any Court does not become unexecutable on the contention that the Court lacked the jurisdiction to pass that order and that this objection was not even taken by the tenant Mali Ram before the Court executing the order dated 04.08.1966. While referring to the various judgments relied upon by ld. counsel for the appellants in support of the contention that composite order was without jurisdiction, ld. ARC observed that these judgments are not applicable to the facts of this case as the order dated 04.08.1966 was on the basis of compromise, not challenged before any Court by the tenant.
5. Ld. counsel for the Appellant Sh. L.D. Adlakha has contended that he is challenging all the orders passed by various courts in this matter as they are null and void and it has been held in various pronouncements by the Apex Court and Hon'ble High 5 Court of Delhi that composite order is bad in law. It has also been contended that the provisions of DRC Act regarding fixation of standard rent had been declared ultra virus by the Hon'ble High Court of Delhi which is binding on the Courts of Rent Controller and Rent Control Tribunals as the same were never set aside by the Hon'ble Supreme Court, hence the order dated 04.08.1966 which is the basis of the eviction petition is without jurisdiction, null and void and no execution application is maintainable to execute the said order. Similarly, the order of the Tribunal that deposit of rent under Sec. 27 DRC Act before another Ld.ARC was not in compliance of the order of the ld. ARC, is also not tenable and the said order dated 21.11.1980 was also erroneous, nullity, void and without jurisdiction. It has also been contended that the judgments referred to by him have not been discussed by ld. ARC in his order. In support of his contentions, ld. counsel for the appellant has relied upon Kiran Singh & Ors vs Chaman Paswan & Ors AIR 1954 SC 340; State of Madhya Pradesh vs Syed Qamar Ali 1957 SLR 228; Smt. Isa Bella Johnson vs M.A. Susal (dead) by LRs AIR 1991 SC 993; Ferozi Lal Jain Vs Manmal & Anr. 1971 AIRCJ 372; Mansa 6 Ram Vs S.P.Pathak & Ors. 1984 (1) AIRCJ 130; Nagin Dass Ram Dass Vs Dalpat Ram Icha Ram alias Brij Ram & Ors. AIR 1974 SC 471; Sunder Dass Vs Ram Prakash 1977 AIRCJ (SC) 575; Smt.Kaushalya Devi & Ors. Vs K.L.Bansal 1969 (II) AIRCJ (SC) 152; Prabhati Vs Buddo Devi etc. 1973 Rajdhani Law Reporter 672; Sarwan Kumar Vs Madan Lal Aggarwal 2003 Rajdhani Law Reporter (NSC) 51; B.V.Patankar & Ors. Vs P.V.Shastri AIR 1961 (SC) 272; Prem Kumar Vs Greh Pal Singh & Ors. 1974 AIRCJ DHC 505; Swamy Krishnanand Govindanand Vs M/s M.D.Oswal Hosiery (Registered) AIR 2002 (SC) 1162; S.P.Chengalvaraya Vs Jagan Nath 1994 RLR (SC) 102; Partap Chand Jain (deceased) Vs Smt.Buddo Devi AIR 1974 Delhi 129; M/s Globtech Engineers Vs Ajay Chadah & Anr. 2002 (2) RCR 395; B.R.Mehta Vs Smt.Atma Devi 1989 (1) RLR 314; Arvind Kumar & Anr. Vs Radhey Shyam & Anr. 1987 (1) RCR 522; Debi Ram Vs Devi Chand 1992 RLR 203; Mahendra Kumar Khandelwal Vs Padam Chand Jain 1969 AIRCJ (Delhi HC) 1036; Mangat Rai & Ors. Vs Kidar Nath & Ors. 1980 (2) RLR (SC) 678; Sheo Narayan Vs Sher Singh AIR 1980 (SC) 138; M/s Jagram Nathu Ram Vs Sh.Surender Kumar 7 1978 (2) (Del HC) RCR 439; S.L.Kapur Vs P.D.Lal 1975 RLR 335 and Chokha Mal alias Chola Ram & Anr. Vs Ram Autar & Ors. 1983 (1) AIRCJ (Allahabda High Court).
6. On behalf of respondent it has been contended by Sh.A.P.Aggarwal, Adv. that once the eviction order has been held to be executable confirmed by the Hon'ble High Court, thereafter, the objections cannot be filed and the objections have been filed only to delay the execution. The judgment passed by Rent Control Tribunal and confirmed by the Hon'ble High Court of Delhi is binding and there cannot be fresh start of litigations by filing fresh objections. It has been further contended that the short point for consideration in the present appeal is whether the composite order passed by the Court of Ld.Rent Controller, Delhi was nullity or not. The nullity of any judgment or order is only there when the Court lacks inherent jurisdiction. It is not in dispute that Rent Controller had jurisdiction to decide the matter between the parties and the Rent Control Act was applicable to the premises in dispute. The Appellant has been relying on the judgment passed by Hon'ble Mr. Justice B.N.Kirpal whereby it was held that the composite order passed is nullity. After the 8 passing of the judgment by Hon'ble Mr.Justice B.N.Kirpal, the Hon'ble Supreme Court of India had held that erroneous judgment passed by the Court having jurisdiction cannot be said to be nullity and relying upon the said judgment, the Hon'ble Mr.Justice R.S.Sodhi in recent judgment has held that composite order passed by the Court is not nullity. It has been held so by Hon'ble Mr.Justice R.S.Sodhi after referring to the judgment passed by Hon'ble Mr.Justice B.N.Kirpal and after referring to the later judgment of Hon'ble Supreme Court of India. It has been further contended by Ld. counsel for the respondent that it is established principle of law that the mandate given by the judgment or mandate given by the Hon'ble Supreme Court of India, is binding on the entire lower judiciary and in the entire territory of India. When the later judgment referring to the earlier judgment and also Supreme Court judgment was passed holding that the composite order cannot be said to be nullity, the law laid down in the later judgment and by the Hon'ble Supreme Court is binding.
7. It has been further contended by the Ld. counsel for the respondent that Hon'ble Mr.Justice R.S.Sodhi in the 9 judgment reported as 2006 (88) DRJ 427 held that composite order passed under Section 14(1)(a) of DRC Act is not order passed without inherent jurisdiction and is not per se nullity and executing Court has no right to look into the legality or go behind the decree passed by the Rent Controller. It has been further contended that in the instant case also the abovesaid principles are applicable. Consequently, the executing Court had no right to look into the legality of or go behind the order passed by the Rent Controller.
8. I have considered the rival contentions and also gone through the judgments relied upon by the ld. counsels for the parties.
9. The short question which arises in the present appeal is whether issue relating to validity of composite order u/s 15(1) DRC Act and eviction order in default of compliance of order u/s 15(1) DRC Act can be questioned in execution or not. The facts giving rise to the same are that Sh.G.C.Jain, the then Ld.RCT passed a compromise order dated 04.08.66 that the tenant would pay rent till 31.7.66 at the rate of Rs.4.50/ per month and rent from 01.08.66 at the rate of Rs.15/ per month. The tenant was 10 given one month time to comply with the order failing which the landlord would be entitled to possession on the grounds of non payment of rent. The tenant deposited the said rent u/s 27 DRC Act and not in the eviction petition. Ultimately, in execution, the tenant raised objection that he has substantially complied with the order, though by depositing the rent in wrong Court. The said objections were dismissed by Sh.V.S.Aggarwal, the then Ld.RCT vide order dated 21.11.80 holding that deposits in a different Court is of no help to the tenant. At that time the tenant did not take the plea that the composite order was bad in law. This is for the first time that the said plea has been raised now.
10. I have given my anxious consideration to the matter and find that tenant cannot be allowed to raise the objections one by one and stick to the premises. He should take all the pleas in the first instance. Moreover, by now the law is well settled. There is a difference between an order which is null and void on the one hand and an order which is illegal or irregular. The former order can be challenged in execution but not the later. Viewed from that angle, it is not disputed that DRC Act was applicable to the premises in question and the Ld.RCT had 11 jurisdiction to pass the compromise order dated 04.8.66. It is different matter that later on the law was changed due to subsequent pronouncement that a composite order could not be passed. Thus, at the most it can be said that the order was illegal but by no stretch of imagination it can be called an order without jurisdiction.
11. The question is no more res intergra. A similar question arose before our own Hon'ble High Court in Pyare Lal Jaipuriya Vs Ashok Kumar Bhalla & Ors. 2006(88) DRJ 427 and it was held that the composite order passed by the Rent Controller u/s 14(1)(a) is not an order passed without inherent jurisdiction and therefore, is not perse nullity in law. It was further held that executing Court has no right to look into the illegality or go beyond the order passed by the Rent Controller. The same is squarely applicable to the facts of the case in hand.
12. In para 3 of Pyare Lal Jaipuriya (SUPRA), contrary view in B.R.Mehta Vs Smt.Atma Devi (37) 1989 DLT 416 was noticed. In Para 6 of the said judgment, it was observed that the said judgment is out of tune. Thus, it is not a case in which the earlier contrary view of the Hon'ble High Court had gone 12 unnoticed.
13. So far as the judgments relied upon by the Ld. counsel for the Appellant are concerned, no detailed discussion is required in the matter as the point in issue relating to the validity of the composite order under sec.15(1) DRC Act has already been dealt with. In view of the above discussions there being no merits in the appeal, the appeal is dismissed. TCR alongwith copy of this order be sent back. Appeal file be consigned to Record Room.
Announced in the open Court 02.02.2010 ( PRATIBHA RANI ) DJIIIcumI/c ASJ(W)/Delhi 13