CM (M) No.842/2010 Page 1 of 19 * HIGH COURT OF DELHI : NEW DELHI CM (M) No.842/2010 & CM No.11414/2010 % Judgment reserved on: 5th July, 2010 Judgment delivered on: 15th July, 2010 1. Mr. Suraj Bhan, S/o Sh. Chandgi Ram, Shop No. 2081, on Plot No. 46, Narela Mandi, Narela, Delhi. 2. Sh. Gopi Ram (Since Deceased) Through his LR‟s a. Smt. Sharrati Devi. b. Sh. Har Prakash. c. Sh. Kishan Kumar. d. Sh. Naresh Kumar. e. Sh. Suresh Chand. f. Sh. Ramesh Chand. g. Sh. Phool Chand. h. Sh. Ram Chand. i. Sh. Laxman. All R/o 2131/1, Nai Basti, Behind Narela Mandi, Delhi. j. Smt. Kaushalaya Devi, W/o Satya Narain, Available at Shop No. 2081, On Plot No. 46, Narela Mandi, Narela, Delhi. CM (M) No.842/2010 Page 2 of 19 k. Smt.Kanta Devi (Rani) W/o Sh. Naresh Kumar, Shop No. 2081, On plot no.-46, Narela Mandi, Narela, Delhi. All through: Their duly constituted Attorney, Sh. Parveen Kumar, Shop No. 2081, on Plot No. 46, Narela Mandi, Narela, Delhi. ….Petitioners. Through: Mr. J. P. Singh, Sr. Adv with Mr. Rajiv Aneja and Mr. Sumeet Batra, Advs. Versus 1. Sh. Bharat Singh, Since Deceased Through L.R‟s a. Sh. Om Prakash Mittal, R/o, 75757/9-A, Tell Mill Road, Ram Nagar, Delhi-110055. b. Smt. Suraj Mukhi. W/o Late Sh. Rishal Chand, R/o-34, Extn. No. 3, Nangloi, Delhi-110041. c. Smt. Dhanpati, W/o late Sh. Om Prakash Gupta, U-9/C, LIG Flats, Rampura Goan, Delhi. d. Smt. Laxmi Devi. W/o Late Sh. Suraj Bhan Beniwala, R/o 61, Sanatam Mistri Lane, First Floor, Orya Para, Dalika, Hawrah, Wesh Bengal. CM (M) No.842/2010 Page 3 of 19 2. Sh. Kripa Ram (Since deceased) Through his L.R‟s a. Smt. Khillo. b. Sh. Hari Prakash Mittal. c. Sh. Jagdish Prasad. d. Smt. Asha W/o Sh. R. K. Gupta. e. Smt. Anita W/o Shm Madan Gopal Poddar. f. Smt. Sharda, W/o Sri Niwas Aggarwal. g. Smt. Resham, W/o Sh. Kanshi Ram, All C/o Sh. Hari Prakash Mittal, Room No. 8, First Floor, 196, China Bazar Street, Kolkatta-700001. 3. Sh. Tara Chand (Since Deceased) Through his L.R.‟s a. Sh. Dev Kumar b. Sh. Ram Kumar c. Sh. Raj Kumar d. Sh. Prem Lal all R/o 2067, Narela Mandi, Narela Delhi And Purported to be R/o H. No. 2574-T/21. Narela, Delhi. e. Smt. Raj Dulari, W/o Sh. S. C. Gupta, R/o D-14, Rana Pratap Bagh Road, Adarsh Nagar, CM (M) No.842/2010 Page 4 of 19 Delhi. f. Smt. Satya Wati W/o Sh. S. C. Gupta, C/o Anil Medical Hall & General Store, Visharatwade, Alandi Road, Pune-15. g. Smt. Shakuntla C/o Dr. Om Prakash, R/o Village & Post Office Kilai, Distt. Rohtak, Haryana. ….Respondents. Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present petition has been filed under Article 227 of the Constitution of India, praying for setting aside order dated 26th March, 2010 passed by Ms. Bimla Makin, District Judge-VIII, Rent Control Tribunal (for short as „Tribunal‟) Delhi and in consequence thereof set aside orders dated 16th October, 2008, 8th September, 2008, 12th May, 2008 and 14th January, 2008 passed by Mr. Amit CM (M) No.842/2010 Page 5 of 19 Kumar, Additional Rent Controller, Delhi and further to set aside order dated 8th May, 2008, passed by Sh. Chander Sekhar, Rent Control Tribunal. 2. The facts as apparent from the record of this case are that, respondent no. 1 Sh. Bharat Singh (Since deceased) and respondent no. 2 Sh. Kirpa Ram (Since deceased) filed an eviction petition on the grounds under Section 14 (1) (a), (c) and (j) of Delhi Rent Control Act, 1958 (for short as Act) stating that suit property i.e Shop no. 2081, on plot no. 16, Narela Mandi, Narela, Delhi, was let out to petitioner nos. 1 and 2 (since deceased ) at a monthly rent of Rs.66/10/ 9 and the same had not been paid by petitioner nos. 1 and 2 since 1st July, 1962 for which recovery suit was instituted against them. It was further alleged that rent from 1st July 1962 is due as on date of filing of this petition (2nd March, 1996). 3. It was also alleged that property was let out for commercial purposes but petitioner nos. 1 and 2 are using part of it for residential purposes which is detrimental to the respondents interest and petitioners have caused or permitted to cause substantial damage to the suit property. 4. It was further alleged that 1/3rd share in this shop had been sold to Sh. Tara Chand (since deceased), respondent no. 3 herein, on 5th June, 1965 by way of registered Sale Deed. No relief was claimed against respondent no. 3. 5. Respondent no. 3 never appeared before the trial court and always remained ex parte. CM (M) No.842/2010 Page 6 of 19 6. In the written statement filed by present petitioners, they took the plea that they are the owners of this property as they have purchased it from Smt. Bhagirathi, who was also one of the co-owners apart from the respondents and thus they are not liable to pay any rent to the respondents being co-owner of this property. 7. Other defence taken in the written statement was that property has been used for shop, godown and residence since start of the tenancy and there is no nuisance or detrimental use against the interest of the respondents. Further no substantial damage has ever been caused by the petitioners. 8. The eviction petition was initially adjourned sine-die on 5th November, 1964 for the reasons that the title of the property was in dispute which could only be settled by Civil Court. Hence the parties were directed to establish their title and then reopen the case. 9. Thereafter, there was series of litigations between the parties which attained finality on 3rd August, 2000 when Special Leave Petition filed by present petitioners against judgment of this Court given in RFA No. 345/1979 and RFA No. 19/1971, was dismissed. 10. Prior to that, this Court in litigation between respondents and petitioner no. 2 pronounced its judgment on 1st December, 1999 in RFA No. 19/1971, RFA No. 16/1971 and RFA No. 345/1979, wherein it was held that respondents are owner of this property and petitioner nos. 1 and 2 have no right, title and interest in this CM (M) No.842/2010 Page 7 of 19 property. The suit of respondents was decreed by this Court and that of petitioner nos. 1 and 2 was dismissed. 11. It is worthwhile to mention here that all the original parties in this case have expired and their legal heirs have been brought on record in SAO No. 231/84, which was second appeal filed by respondents against order of Additional Rent Controller (for short as „Controller‟) 12. On 14th January, 2008, in the eviction petition, the Controller passed an order under Section 15 (1) of the Act holding; “That respondents are entitled to the arrears of rent and as such petitioner nos. 1 and 2 were directed to pay rent or deposit the rent at the rate of Rs. 66.10 anna per month w.e.f July, 1965 till 30th November, 1988 and from 1st December, 1988 till 31st December, 2007 at the said rate along with 15 per cent interest as required after the amendment of 1st December, 1988 in the Act within 30 days from 14th January, 2008.” 13. Petitioners thereafter, preferred an appeal against order dated 14th January, 2008, passed by Controller. However, the same was dismissed as withdrawn on 8th May, 2008 by Sh. Chander Shekhar („Tribunal‟). 14. After withdrawal of their appeal petitioners filed an application before the Controller seeking extension of time to comply with order dated 14th January, 2008, passed under Section 15 (1) of the Act. 15. Vide order dated 12th May, 2008, the Controller dismissed the application of petitioners holding: CM (M) No.842/2010 Page 8 of 19 “That record also shows that appeal was dismissed on 08.05.08 and even thereafter, the respondents did not make any effort on the next working day to deposit the amount which is as meager as Rs.66/- per month. I find no force in the contention of the counsel for the respondent since when Hon‟ble Supreme Court of India has already decided against the respondents, there was no occasion of this court to hold otherwise passing of the orders u/s 15 (1) of DRC Act was a mere formality when the service of notice is not disputed in the WS/reply by the respondents. The case pertains to the year 1966 and the respondents by one mean or the other are trying to delay the trial of this case. In facts, I find no merits in the present application seeing extension of time for compliance of the orders under section 15(1) of DRC Act. the application is motivated and the same is, therefore, dismissed”. 16. Thereafter, vide impugned judgment dated 8th September, 2008, the Controller held that relationship between the parties is not at all in dispute and petition under Section 14(1) (a) of the Act was allowed, while petition filed under Section 14 (1) (c) and (j) of the Act was dismissed. 17. Later on, vide order dated 16th October, 2008, the Controller declined the benefit of Section 14 (2) of the Act and passed an eviction order on the ground of non-payment. 18. Order dated 16th October, 2008, of the Controller was challenged by the present petitioners by filing an appeal under Section 38 of the Act before the Tribunal. 19. The Tribunal, vide impugned judgment dated 26th March, 2010, dismissed the appeal of the present petitioners. CM (M) No.842/2010 Page 9 of 19 20. This is how the present matter has reached before this court. 21. It is contended by learned counsel for the petitioners that under Section 15 (1) of the Act, an obligation has been cast upon controller to calculate and quantify the amount of rent to be paid by the tenant and if the same is not done, then order passed under Section 15 (1) of the Act is untenable and cannot be complied with by the tenant. Therefore, the same is required to be set aside. 22. It was further contented that it is never the duty of either tenant or landlord to calculate the rent and on this point learned counsel referred a decision of Supreme Court reported as; “Rakesh Wadhawan Vs. M/s Jagdamba Industrial Corporation and Others, AIR 2002, SC 2004.” 23. Other contention of learned counsel is that ,if the rent is not calculated by the controller and parties deposit the same on their own calculation, then the controller cannot simplicitor deny the tenant relief under Section 14 (2) of the Act and proper opportunity ought to have been given to the tenant to make good the shortfall, if any. In the present case, petitioners never got any proper opportunity to deposit the actual arrears of rent due and payable as the same never quantified by the Controller. 24. Other contention is that the District Judge (Tribunal) erred in absolving the Controller or Nazir from their duty of quantifying/calculating the actual rent by saying that Nazir did not get any time for submitting the report despite the fact that Nazir never submitted its report in the present matter. CM (M) No.842/2010 Page 10 of 19 25. Another contention made by learned counsel is that respondents were landlord only qua 1/3rd of undivided suit property i.e. shop no. 2081 in Narela Mandi and were owners of 1/3rd of undivided portion of other two properties i.e. shop no. 2067 and 2080 at Plot No. 32 and 45, in Narela Mandi. Thus, a serious miscarriage of justice has been done by the Controller while awarding the entire amount of rent for 1/3rd undivided portion. 26. Lastly, it is contended that intention of the appellants was to comply with the order but in the judicial file, there was no calculation/report submitted by Nazir, that the alleged amount as referred in the order as Rs.56,141.45/- has been mentioned or any report is given thereto. Thus, the Tribunal and the Controller in a mechanical manner passed the order without application of judicial mind. 27. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court in this Article is limited. Article 227 of The Constitution of India reads as under; “227. Power of superintendence over all courts by the High Court- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. CM (M) No.842/2010 Page 11 of 19 (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein; Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed forces.” 28. In Waryam Singh and another Vs. Amarnath and another, AIR 1954, SC 215, the court observed; “This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in –„Dalmia Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.” 29. In Mohammed Yusuf Vs. Faij Mohammad and Ors., 2009 (1)SCALE71, Supreme Court held; “The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the Learned trial court and Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety”. 30. In State of West Bengal and Ors. Vs. Samar Kumar Sarkar, JT 2009 (11) SC 258 Supreme Court held; „10. Under Article 227, the High Court has been given power of superintendence both in judicial as well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the CM (M) No.842/2010 Page 12 of 19 Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is an error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence. 12. In Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta (AIR1975SC1297) this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. High Court‟s function is limited to see that the subordinate court or Tribunal functioned within the limits of its authority. The Court further said that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.‟ 31. In Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing Mohansing Pardeshi Deceased through his Heirs and Legal representatives, JT 1995(7)SC400, Apex Court observed; “The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.” 32. In light of principles laid down in the above decisions of Supreme Court, it is to be seen as to whether present petition under Article 227 of the Constitution of India against impugned orders is maintainable or not. 33. It is an admitted case of the petitioners that order under Section 15(1) of the Act was passed by the Controller on 14th January, 2008, directing the CM (M) No.842/2010 Page 13 of 19 petitioners to deposit the arrears of rent from July, 1965 till December, 2007, within a period of 30 days. 34. Admittedly, the petitioners did not deposit any rent/arrears of rent in terms of order dated 14th January, 2008. Instead petitioners preferred an appeal against order of the Controller. For reasons best known to the petitioners they withdrew the appeal on 8th May, 2008. 35. After withdrawal of the appeal, petitioners filed application before the Controller seeking extension of time to comply with order dated 14th January, 2008. While dismissing the application of the petitioners, the Controller observed; “That record also shows that appeal was dismissed on 08.05.08 and even thereafter, the respondents did not make any effort on the next working day to deposit the amount which is as meager as Rs.66/- per month.” 36. This shows about the callous attitude on behalf of the petitioners, who had no intention to comply with the order dated 14th January, 2008. Under these circumstances, the Controller vide his order dated 16th October, 2008, was justified to decline the benefit of Section 14 (2) of the Act and rightly passed eviction order on the ground of non-payment. In this regard, relevant findings of the Controller read as under: “I have heard the submissions. As per the orders of 15(1) DRC Act, the respondents were directed to pay interest only w.e.f. 01.12.88 and as such I find no reason to agree with the counsel for the petitioner that they are entitled to interest even for the arrears of rent accrued up to 30.11.1988 and the petitioners are entitled to interest only w.e.f. 01.12.88. However, for the reasons that orders u/s 15 (1) DRC Act dated 14.01.08 were to be complied with within 30 days which admittedly was not done. The appeal filed by the respondents against this order was withdrawn CM (M) No.842/2010 Page 14 of 19 by them of their own and also considering the fact that their application for extension of time was rejected by this court and most importantly considering the fact that their battle to be of owner of the property was lost up to the Hon‟ble Supreme Court of India in 2000. I find no reason to hold that the default is not willful. The respondents despite all these adverse findings against them as early as in 2000 from the Hon‟ble Supreme Court of India took the risk of not compliance of the orders of their own and now, they cannot claim that there are still entitled to the benefit of section 14(2) DRC Act. There is another side of the matter that is the rent from 01.07.1965 up to 30.11.1988 for 281 month @ Rs.66.60 paisa (approximately) comes to Rs.18,714.60 paisa, the rent from 01.12.1988 to 15.3.2008 at the same rate for 231 ½ months comes to Rs.15,417.90 paisa, the interest on this amount of Rs.15,417.90 comes to Rs.22,048.95 paisa which in all comes to Rs.56,181.45 paisa. Against this amount only a sum of Rs.38.355/- has been deposited by the respondent which otherwise is not a complete deposit and all these cumulative facts, I am of the opinion that the respondents have committed a willful and deliberate default in compliance of orders 15(1) DRC Act and as such are not entitled to the benefit of 14(2) DRC Act. Appeal against this order was withdrawn by them, the application for extension of time was rejected and in facts, they are declined the benefit of section 14(2) DRC Act and an eviction order is passed on the ground of non-payment of rent in respect of the suit premises i.e. Shop no. 2081 on Plot No. 46, Narela Mandi, Delhi. More specifically shown red in the site plan Ex. PW 1/2.” 37. Order dated 16th October, 2008 was challenged before the Tribunal. The Tribunal rightly, vide impugned judgment dated 26th March, 2010, dismissed the appeal of the petitioners holding that: “I have considered the arguments advanced by the advocates for the parties. I have carefully gone through the CM (M) No.842/2010 Page 15 of 19 written submissions filed on behalf of the appellant and the respondent and have perused the trial court record carefully. The first ground of the appeal was the passing of the order dated 14.1.2008 U/s 15 (1) of the Delhi Rent Control Act. Ld. Counsel for the appellant calculated the rent alongwith interest as Rs.38,355/-. That amount was given by the appellants to their advocate for depositing in the court but ld counsel neglected to deposit the rent. On 12.5.2008 the appellants came to know that the amount given by them to their advocate was not deposited by him in the court. So immediately on 13.5.2008 they deposited the amount in the court. This contention raised by ld counsel is contrary to the record. After passing of the order dated 14.1.2008 the appeal was preferred by the appellants before the Rent Control Tribunal and that appeal was unconditionally withdrawn by the appellants on 8.5.2008 and on 9.5.2008 an application was moved by the appellant herein before ld ARC seeking extension of time to comply with the order dated 14.1.2008 and it was written in this application that: “Since the order was challenged by the respondents before the appellate court and as advised by the ld counsel, the amount in terms of the order dated 14.1.2008 was not deposited and ld Rent Control Tribunal was pleased to direct the respondents to move this Hon‟ble Court for extension of time and without any further delay the respondent is filing the application for extension of time.” So there was no even a whisper in this application that this amount was given by them to their advocate who did not deposit it in the court. In the grounds of appeal it was projected that the appellant honestly gave the rent amount to the advocate for depositing it in the court but it was the advocate who committed default in depositing the rent in the court and the appellant should not be penalized for negligence of his advocate whereas the case is otherwise and even in the order dated 12.5.2008 ld. ARC observed that during the period of last four months no application for extension of time was moved by the appellant and hence there was a willful default on their part and there was no ground to grant extension of time and only after rejection of this application for extension of time CM (M) No.842/2010 Page 16 of 19 for depositing the rent on 12.5.2008 the appellant deposited the rent on 13.5.2008. It was also submitted on behalf of the appellant that Nazir never gave any report that what was the rent due and what was the shortfall. In fact there was no occasion for the Nazir to give any report because after passing of the order on 14.1.2008 the appellant never approached the Nazir for any calculation that what amount was to be deposited by them. For the first time on 13.5.2008 without moving an application to the Nazir for