1 IN THE COURT OF SHRI S. K. SARVARIA DISTRICT JUDGE & INCHARGE (N/W), ADDL. SESSIONS JUDGE/ADDL. RENT CONTROL TRIBUNAL, ROHINI DISTRICT COURTS, DELHI [CASE NUMBER] AND [CASE NUMBER] Smt. [ENTITY] W/o Sh. Anil Kumar, R/o Plot No. 19, Sector2, Pocket7 Rohini, Delhi110085. Also At Sector7, Rohini Post Office, Near Niharpur Village, Delhi110085. Appellant VERSUS Smt. [ENTITY], W/o Sh. Sita Ram R/o House No. 144, Mangolpur Kalan, Delhi110085. Respondent Date of institution: 02.04.2011 and 29.04.2011 Date when arguments were heard: 06.06.2011 Date of order: 07.07.2011 [ENTITY] vs. [ENTITY] 2 JUDGMENT :
1. By this judgment, I shall decide two appeals bearing [CASE NUMBER] and [CASE NUMBER] filed by the same appellant against the same respondent as both appeals between the same parties are in respect of the same premises bearing No. 19, Sector2, Pocket7, Rohini, Delhi110085 consisting of two rooms, one kitchen, one toilet and bathroom and adjoining balcony of the first floor (in short tenancy premises). I am dictating this common judgment in [CASE NUMBER] and a true copy of the same shall be placed in [CASE NUMBER] which shall be disposed of accordingly.
2. In the [CASE NUMBER], the order dated 13.01.2011 is challenged by the appellant/tenant by which Ld Additional Rent Controller (in short ARC) allowed the eviction petition filed by respondent/landlady under [SECTION] of [ACT] (in short Act) and held that the appellant/tenant was in arrears of rent since 01.01.2004 to 01.12.2006 while discarding the plea of appellant/tenant that she has paid rent upto 2005 by money order in October 2005. On the basis of admission of the appellant/tenant the rate of rent was held to be Rs 2000/ per month by discarding the case of the respondent/landlady that it was Rs 2400/ per month. The appellant/tenant was directed to make [ENTITY] vs. [ENTITY] payment of arrears of rent at the rate of Rs 2,000/ per month w.e.f 01.01.2004 after adjusting amount already paid by her during the trial as per the order passed under [SECTION] of the Act. [ENTITY] was directed to prepare separate miscellaneous file for the purpose of benefit under [SECTION] of the Act and the report of [ENTITY] was directed to be called to ascertain the compliance of direction for payment of rent w.e.f 01.01.2004 as aforesaid.
3. Subsequently, after obtaining the report of [ENTITY] regarding non compliance of the order dated 13.01.2011 passed by Ld ARC, the second impugned eviction order dated 13.04.2011 was passed by declining benefit under [SECTION] of the Act and directing the appellant/tenant to vacate the tenancy premises and hand over its possession to respondent/landlady within one month from the date of order dated 13.04.2011. This order dated 13.04.2011 is subject matter of the second appeal bearing [CASE NUMBER] also filed by appellant/tenant.
4. I have heard Ld counsel for parties, written arguments filed on behalf of parties and have gone through the trial court records, and relevant provisions of law.
[ENTITY] vs. [ENTITY]
5. The relationship of landlady and tenant between the parties in respect of tenancy premises is not disputed. The dispute was with regard to rate of rent and according to the landlady it was Rs 2400/ p.m while according to appellant/tenant it was Rs 2,000/ p.m. Ld ARC relying upon the admission of appellant/tenant has held the rate of rent to be Rs 2,000/ p.m. The challenge in the appeal is made with regard to arrears of rent. The contention of the appellant/tenant before Ld ARC was that rent up to September 2005 stood paid by money order in October 2005 while according to respondent/landlady the appellant/tenant was in arrears of rent w.e.f 01.01.2004 onwards. Ld ARC returned the finding that appellant/tenant was in arrears of rent w.e.f 01.01.2004. This finding is challenged on the ground that there was no evidence to the effect that the appellant was in arrears of rent. It is argued that as per [SECTION] of the Act, it was the duty of landlady to issue rent receipts. These were not issued. The landlady in the crossexamination has admitted that her husband keeps account of the rent paid by the tenants, the non production of the account or non examining of the husband of landlady leads to adverse inference against the respondent/landlady so the finding as to arrears of rent w.e.f. 01.01.2004 is not in accordance with law and factual position. It is also argued that a part of the arrears of rent w.e.f 01.01.2004 is barred by time so Ld ARC could not direct the appellant/landlady to deposit time barred arrears of rent. It is also argued that [ENTITY] vs. [ENTITY] the evidence of the appellant/tenant remained unchallenged so it should have been accepted. Reliance is placed upon [PRECEDENT].
The above contentions are disputed on behalf of respondent/ landlady in toto.
6. Unlike an appeal against the judgment/decree of civil court, the appeal before Additional Rent Controller has limited scope. The scope of the appeal under [SECTION] of the Act is now quite limited by insertion of a few words by the [ACT]. The powers of the Additional Rent Control Tribunal is drastically cut and only questions of law can be raised in the appeal under [SECTION] of the Act. The finding of fact recorded by the ARC is binding on this Tribunal. The ARC is the final authority so far as findings of fact are concerned, these findings cannot be disturbed in appeal. The following case law would substantiate these views.
In [PRECEDENT], 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.
[ENTITY] vs. [ENTITY] It is prohibited for Additional Rent Control Tribunal to reappreciate the facts and change the finding of fact given by Additional Rent Controller."
In [PRECEDENT], 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 [ENTITY] vs. [ENTITY] 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 P1, certificate of registration under the [ACT] in the name of petitioner No. 2 with regard to the premises at F14, Vikas Marg."
In [PRECEDENT] 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 reappraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under [SECTION] 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 [ENTITY] vs. [ENTITY] 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 [PRECEDENT] has held that even where there was a close relationship between the tenant and the alleged sub tenant, who was the soninlaw of the tenant, the exclusive possession of the soninlaw was held to be tantamount to subletting. The subtenancy 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 [PRECEDENT] it was held as under: "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] of the said Act has been confined to only a question of law and second appeal to this Court has been abolished."
[ENTITY] vs. [ENTITY] 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] 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 [SECTION] of the [ACT] 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 [PRECEDENT]. 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 [ENTITY] vs. [ENTITY] [SECTION] of the [ACT], 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.
7. In view of the above case law, it is clear that only question of law can be raised in appeal. The findings of Ld. ARC as to arrears of rent by appreciation of evidence is certainly a finding relating to fact and the same cannot be challenged in [CASE NUMBER]. Although, it certainly is question of law that time barred arrear of rent should not be directed to be paid or deposited by the appellant/tenant. The eviction petition is filed before Ld ARC on 20.04.2007 but the arrears of rent pertained to the period 01.01.2004 to 01.12.2006 so a part of the arrears w.e.f January 2004 to March 2004 pertained to time barred arrears of rent not legally recoverable and so cannot be considered for the purpose of ground of eviction given in [SECTION] of the Act. But, this period with regard to time barred arrears of rent being an insignificant part of whole of the period of arrears of rent w.e.f 01.01.2004 to 01.12.2006, the same does not materially affect the impugned eviction order passed by Ld ARC. Therefore, J.C [ENTITY] vs. [ENTITY] Enterprise's case (Supra) does not help the appellant.
In view of the above, I do not find any merit in the appeal bearing [CASE NUMBER].
8. As regards [CASE NUMBER] against the impugned order dated 13.04.2011 passed by Ld ARC, he by obtaining the report of [ENTITY] observed that it was admitted case that appellant/tenant has not cleared the arrears of rent at the rate of Rs 2000/ p.m w.e.f 01.01.2004 up to date as per direction passed in judgment dated 13.01.2011 so he (Ld. ARC) has held that the appellant/tenant is not entitled for grant of benefit of protection of first default under [SECTION] of the Act, therefore, Ld ARC passed the eviction order in favour of respondent/landlady and against appellant/tenant with regard to tenancy premises. The said order is also in accordance with law due to the direct inevitable consequence of non compliance of the judgment dated 13.01.2011 passed by Ld ARC directing the appellant/ tenant to clear the arrears of rent as aforesaid. Therefore, second appeal bearing [CASE NUMBER] has also no merit.
9. In view of the above, both appeals bearing [CASE NUMBER] are dismissed. The true copy of this judgment in appeal be placed in [ENTITY] vs. [ENTITY] [CASE NUMBER]. The trial ARC's record be returned along with copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). Both the appeal files be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 07th July 2011 ([ENTITY]) DISTRICT JUDGE AND INCHARGE (N/W) ADDL. SESSIONS JUDGE ADDL. [PRECEDENT] [ENTITY] vs. [ENTITY]