Delhi High Court
Prem Chand & Anr. vs Subhash Chand Saini & Ors. on 4 September, 2012
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 1510/2010
Date of Decision:04.09.2012
PREM CHAND & ANR. ......PETITIONER
Through: Mr.Prem Kumar, Adv. with
Mr.Surjeet Singh, Adv.
Versus
SUBHASH CHAND SAINI & ORS. .....RESPONDENT
Through: Mr.Manu Nayar, Adv. with
Mr.Amitabh Krishan, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition under Article 227 of the Constitution assails the order dated 11.11.2010 of Addl. Rent Controller (ARC), Central whereby the review petition of the petitioners herein, as filed under Section 25-B (9) of Delhi Rent Control Act (for short the 'Act'), for seeking review of the order dated 14.10.2009, was dismissed.
2. This petition raises a very short question for consideration of this Court. The petitioners are the tenants in respect of the suit shop.
In the Eviction Petition filed against them by the respondents/landlords, they had filed leave to defend application, which came to be dismissed by the Additional Rent Controller vide CM (M) 1510/2010 Page 1 of 5 his order dated 14.10.2009. The petitioners filed review of this order under Section 25-B(9) of the Act read with Order 47 CPC.
Their main ground for seeking review was that the respondents/landlords had also filed a petition for eviction against another tenant Anil Kumar, in respect of a shop forming part of the same property, and wherein leave to defend was granted to him. It was averred that the respondents/landlords had challenged the said order vide CM(M) No.1261/2009, which came to be dismissed by this Court on 6.11.2009. It was the submission of the petitioners before the ARC that after the order of granting leave to defend to Anil Kumar on 22.8.2009, they have come to know that the respondents owned and occupied other properties, which were available with them, and this fact was not known to them and was also concealed by the respondents. The learned ARC dismissed the review application, holding that there was no error apparent in the order dated 14.10.2009, and further that the petitioners/tenants ought to have known the fact, being the neighbour of Anil Kumar, about the availability of additional accommodation with the respondents. Predicated on these, he rejected the review of the above order. The same is under challenge in the instant petition.
3. So far as the facts regarding another tenant Anil Kumar having been granted leave to defend in respect of the shop, similarly situated as that of the petitioners, and further that the respondents/landlords challenged the same by filing CM (M) CM (M) 1510/2010 Page 2 of 5 1261/2009 and the same having been dismissed by this Court, is not in dispute. I have gone through the order dated 14.10.2009, whereby leave to defend was declined to the petitioners and also order dated 22.8.2009 of ARC whereby leave to defend was allowed to Anil Kumar. This was clearly a case of discovery of new and important facts by the petitioners that the respondents were in possession of certain additional accommodation. It is not only that the review is warranted only in the case of mistake or error apparent on the face of the record, but under Order 47 Rule 1 CPC, the discovery of new and important matter, which was not within the knowledge of the petitioners or which could not be produced even after the exercise of due diligence, was the recognized ground warranting review. Further, the Court was also empowered to review for any other sufficient reason. The petitioners, instead of choosing to file revision against order dated 14.10.2009, chose to file review under Section 25-B (9) of the Act. But, filing of review does not preclude the petitioner to file revision against the order of 14.10.2009. The petitioner have not chosen to file revision petition under Section 25-B(8) of the Act against that order of 14.10.2009, but has challenged the impugned order as also the order dated 14.10.2009 in the instant petition under Article 227 of the Constitution. Having regard to the entire factual matrix and to avoid miscarriage of justice, I treat this petition as under Article 227 of the Constitution read with Section 25-B(8) of the Act. Having taken CM (M) 1510/2010 Page 3 of 5 note of the fact that leave to defend has been granted to another similarly situated tenant on the ground of availability of some additional accommodation with the respondents, which was not known to or discovered by the petitioners at the time of disposal of their leave to defend application, I am of the view that the order dated 14.10.2009 of ARC has resulted in miscarriage of justice to the petitioners. It is not because of error, mistake or fault on the part of the ARC, but because of the fact of the petitioners having not been able to disclose about the availability of alleged additional accommodation with the respondents. This being a subsequent event having come to the knowledge of the petitioners, notice can be taken of these facts by this Court. Thus, instead of confining to set aside the impugned order and thereby giving partial justice, I am of the considered view that the petitioners can be taken to have raised triable issue with regard to the alleged additional accommodation with the respondents. This aspect cannot be outrightly brushed without giving an opportunity to the petitioners to prove the same and test the bona fide of the respondents. Thus, both the impugned orders whereby leave to defend was declined, as also review petition was dismissed, are liable to be set aside. These are hereby set aside and resultantly, leave to defend is granted to the petitioners in the peculiar facts and circumstances of the case. Both the parties shall appear before the Court of concerned Additional Rent Controller on 13th September, 2012 for further proceedings.
CM (M) 1510/2010 Page 4 of 54. With above directions, the petition stands disposed of.
M.L. MEHTA, J.
SEPTEMBER 04, 2012 akb CM (M) 1510/2010 Page 5 of 5