Delhi District Court
Sh. Balbir Thapar vs . Sh. B.P. Singh on 1 November, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 114/13
Sh. Balbir Thapar Vs. Sh. B.P. Singh
ORDER:
1. This order shall decide the application of the plaintiff U/o 47 R 1 r/w Section 151 CPC seeking review of the order dated 15.07.2014. In this application it is stated that the reasons assigned by the court for dismissing the application of the plaintiff U/o 12 R 6 CPC do not go to the root of the issue for deciding the relief of possession and the existence of two lease deeds and the true construction of the lease deeds may go towards determining the issue of arrears of rent and mesne profits but not for deciding the relief of possession and for the relief of arrears of rent and mesne profits, the plaintiff is ready to go for trial. It is contended in the application inter alia the defendant during the course of admission and denial of documents had admitted the execution of the two lease deeds which were exhibited as Ex. P1 and Ex. P2. It is contended that the error apparent on the record is non consideration of the legal issues and material available on the record as well as the various judgments of the Hon'ble Supreme Court Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 1/8 and the Hon'ble Delhi High Court. In the grounds for review it is contended that the error apparent on the face of record is that no trial was required to prove that the rate of rent was more than Rs. 3,500/ per month and there was no bar as laid down under the provisions of Delhi Rent Control Act 1958. It is averred that no trial is required for establishing the relationship between the parties being landlord and tenant and the defendant had entered into the suit property as a tenant. Further, it is contended that the error apparent on the face of record is that no trial is required to prove that the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act and even otherwise as per law laid down by the Hon'ble Delhi High Court the notice of the suit is also considered notice for eviction. Further, it is stated that the issue of the defendant having pleaded that he was handed over the photocopies of previous chain of title documents is not an issue which comes in the way of passing of the decree of possession and it is further averred that the plaintiff for the decree for possession does not have to prove the lease deed but only has to prove that the rate of rent was Rs. 3,500/ and the lease was terminated. It is also contended that the judgment in Earthtech Enterprises Pvt. Ltd. Vs. Kuljit Singh Butalia 199 (2013) DLT 194 though mentioned in the impugned order but has not been applied. Further, even as per the best case of the defendant he only had a Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 2/8 photocopy of an unregistered agreement to sell. It is prayed that the impugned order dated 15.07.2014 be set aside to the limited extent whereby the application U/o 12 R 6 CPC has been dismissed and the application U/o 12 R 6 CPC may be allowed decreeing the suit of the plaintiff for the relief of possession.
2. Counsel for defendant submitted that he did not wish to file reply and addressed the oral arguments. He argued interalia that in the judgment of AIR 2003 SC 4149 the question raised had been whether on the execution of agreement to sell by the landlord with the tenant and landlord having received substantial share of the sale consideration the relationship of landlord and tenant inter se between them ceased and fresh rights and obligations flowed under the agreement and the Hon'ble Supreme Court had held that once the sale agreement was entered into the old relationship of landlord and tenant came to an end and the parties entered into a new cloak of seller and purchaser and their relationship was to be governed under the terms of the agreement and it was his contention that in view of the said judgment which was earlier judgment, the judgment in Earthtech Enterprises Pvt. Ltd. (supra) was per incuriam. It was also argued by counsel for defendant that an application U/o 47 CPC was maintainable when there was an error apparent on the face of record and plaintiff had not been able to Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 3/8 point out on the error apparent on the face of record. In this regard he relied on the judgment of 2006 (90) DRJ 108 Sudhier Kumar Gupta Vs. Dr. Inder Chand Jain. He contended that the present application was not maintainable.
3. Counsel for plaintiff countered that the judgment of AIR 2003 SC 4149 was rendered by Hon'ble Supreme Court on 08.02.2000, prior to the 2001 amendment in the Registration Act vide which benefit of Section 53A of Transfer of Property Act, 1882 could only be taken by a party on the basis of a registered document. Counsel for plaintiff also submitted that the expression 'error apparent on the face of the record' was not limited merely to errors of fact but also extended to errors of law as was held in a case decided by Hon'ble Kerala High Court in Aby Abraham Mathew Vs. Hindustan Newspaper Print Ltd. decided on 12.12.2001 wherein the decision of AIR 1958 SC 856 was quoted and it was held that mistake apparent from the record includes obvious errors of law and same should be rectified by resorting to review. The decision of AIR 1971 SC 1474 was also quoted in the said judgment wherein it was observed that it would be an error apparent on the face of record that the law that was applied was not the law which was applicable.
4. The counsel for plaintiff also relied on the judgment of Sh. Sudhir Sabarwal Vs. Rajesh Pruthi i.e. CM (M) 1087/2013 and CM No. 16069/2013 Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 4/8 decided on 07.08.2014 where in it has been held that the jurisdiction, if any, to stay eviction proceedings pending a suit for specific performance is of the court where the suit for specific performance is pending and the court where the suit for ejectment/eviction is pending ought not to restrain its hands merely because the suit for specific performance has been filed. Counsel for plaintiff argued that merely because the defendant had filed the suit for specific performance this court was not required to stay its hands qua the relief of possession sought by the plaintiff. It is of course a separate and undisputed fact that in the suit filed by the defendant before the Hon'ble Delhi High Court there is a stay order in operation vide order of the Hon'ble Delhi High Court dated 10.01.2014 wherein the parties have been directed to maintain the status quo as on that date with regard to the possession as well as title of the suit property.
5. I have heard the arguments advanced by counsel for the parties and perused the record. The perusal of the application of the plaintiff for review really shows that there is a challenge as to the correctness on the merits of the impugned order and the grounds stated for review really appear to be more in the nature of grounds of appeal/ revision, not disclosing any error apparent on the face of the record. I do not agree with the contention of counsel for plaintiff that there has been non consideration of the settled law Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 5/8 warranting any review. The perusal of the order dated 15.07.2014 would show in fact that all the judgments cited by both the parties have been duly considered by this court and if the grievance of the plaintiff is that the court has not properly interpreted the proposition of the law then the appropriate remedy for the plaintiff is to challenge the order dated 22.05.2014 through appropriate proceedings eg. appeal/revision. It is well settled law that an error which is not evident and has to be detected by a process of reasoning cannot be said to be an error apparent on the face of the record justifying the exercise of power of review and it is not permissible for even an erroneous decision to be reheard and corrected. In the judgment cited by the plaintiff i.e. Sudhir Sabarwal (supra) the Hon'ble Delhi High Court observed that there was nothing available on record to show that the tenancy had ended with alleged agreement to sell and with reference to alleged Bayana/advance payment no such averment had been made in the written statement and it had been held that in view of the legal position that a mere agreement to sell did not create any right in the property save the right to enforce the said agreement and in view of the discussion that mere agreement to sell would not terminate the landlordtenant relationship unless there is specification to that effect in the agreement the Hon'ble Delhi High Court had held that the application of the plaintiff U/o 12 R 6 CPC was liable to be allowed. In the Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 6/8 present case, however the defendant has raised the specific ground of the agreement to sell being executed between the parties including making the part payment towards the sale consideration and purported copy of agreement to sell which has been placed on record by the defendant does in fact make a mention of the defendant being already in possession of the suit premises as tenant and has been referred to as purchaser. In the impugned order dated 22.05.2014 it has been noted by this court that the defendant has not made any clear cut and unequivocal admissions in favour of the plaintiff and the two important aspects raised by the defendant which take the defence of the defendant out of the ambit of an outright moonshine defence and are triable issues are regarding the existence of two identically worded rent agreements both bearing the nomenclature of lease deed and the argument that this aspect would be relevant for the purpose only of determining the aspect of mesne profits/damages is not sustainable for the reason that the defendant's defence in regard to the existence of the two lease deeds is that the amount qua one of the lease deeds i.e. of Rs. 4,500/ was being received towards the sale consideration. There is equal onus on the parties to establish their construction of the document which can only be ascertained by trial. The plea of defendant regarding handing over of photocopies of the purported previous chain of title documents by the plaintiff Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 7/8 is the other aspect which this court considered showed that the defendant's defence was not entirely sham. The fact that the defendant does not have a positively good defence would not in the facts of the present case be a reason to consider the defence so utterly sham as to not grant the defendant an opportunity to prove his case in trial. In any case, if the plaintiff seeks to challenge the reasoning and correctness on merits of the impugned order the same can only be done through the appropriate proceedings of appeal or revision, the grounds for review of an order being extremely limited. The application of the plaintiff does not disclose any ground which show a patent error apparent on the face of the record warranting review of the impugned order. For the foregoing reasons the plaintiff's application U/o 47 R 1 r/w Section 151 CPC is hereby dismissed.
Announced in the open court ANJANI MAHAJAN
On 01.11.2014 Civil Judge - 10 (Central)
01.11.2014
Suit No. 114/13 Sh. Balbir Thapar Vs. Sh. B.P. Singh 8/8