N.S. Parthasarthy And Ors. vs Padmini Devi And Ors.
1982 Latest Caselaw 148 Del

JUDGMENT

Yogeshwer Dayal, J.

(1) This petition under Article 227 of the Constitution really calls for understanding the true scope, extent and meaning of the judgment of the Supreme Court in S.B. Noronah v. Prem Kumar Khanna, , wherein the Supreme Court has interpreted section 21 of the Delhi Rent Control Act 1958 (hereinaafter, referred to as "the Act"). It also, in the light of the said judgment, calls for understanding the scope of the powers of the Rent Controller when application is filed before him for possession, aftersanction granted under the said section for creating a tenancy for a limited period has expired.

(2) , petition itself is directed against a seemingly innocuous order of the learned Rent Controller dated 16th November, 1981 which reads as under:-    "INview of the Authority of A.I.R. 1980 Page 193, the allegation of the respondent requires trial. Learned counsel for the petitioner has cited the authority of 1981(2) P.L.R. 103 but in this case allegation of fraud are there. Put up for evidence of the objector-respondent on 15-1-82".  

(3) However, before I discuss the scope of the aforesaid decision of the Supreme Court and the powers of the Rent Controller under section 21 of the Act when an application is presented to it for possession, it is necessary recaptulate the facts of the present case.   

(4) The petitioners before this court are the landlords namely, Shri N.S. Parthasarthy, Shri N.S. Padamambhan and Miss Raji Gopalan(now Mrs. Raji Gopalan) all children of Dr. N.P. Seshadri resident of A-20/1, Lodhi Colony, New Delhi.   

(5) The contesting respondent is the tenant, Mrs. Padmini Devi wife of Col. Sawai Bhawani Singh, Mvc of Jaipur, who is residing at 119, Golf links, the premises in dispute.   

(6) On or about 18-7-1979, an application was filed by the Petitioners before the Rent Controller, purporting to be under section 21 of the Act for creation tenancy for a limited period of two years. It was stated in this application that the petitioners do not require at present the premises consisting :of ground floor and first floor and terrace with one room Wc garage and servant quarters more fully described in the plan attached and marked 'red" excluding Barsati (one room) which the petitioners would like to keep for themselves for the use of their guests that on the request of the respondent the petitioners have agreed to let out their aforesaid premises to the respondent for a limited period of two years subject to the grant of permission by the Rent Controller Delhi for the residence of th respondent and her family members etc. that the agreed rate of rent of the aforesaid premises has been settled at Rs. 4000.00 excluding electricity and water charges that the respondent undertakes to vacate the premises after the expiry of period of two years as the same will be required by the petitioners for their own use and the use of members of the family dependent upon them and therefore, it was prayed that necessary permission under section 21 of the Act to create tenancy for a limited period of two years from the date of the order of the court for the residence of the respondent may be granted.

(7) It is pertinent to notice that this application apart from being signed by the three petitioners' was filed through Shri H. S. Paul Advocate who also signed the same. Along with this application apart from the plan of the property sought to be let out, a proposed deed of lease was also filed. This application was assigned by the Controller to himself and the petitioners were directed to appear before him on 19-7-1979.

(8) When the application came up -for hearing before the Rent Controller on 19-7-1979 the petitioners appeared in person and the respondent appeared throught her attorney Shri P. S. Paul. In the joint statement of the petitioners, apart from noticing the accommodation which was propoied to be let out, it was stated that this accommodation is surplus with the petitioners for limited period of two years. It was also stated by them that they want to let out the same to the respondent for residential purpose at a monthly rent of Rs. 4000.00 with effect from "today" on the terms and conditions stated in the proposed lease marked 'B'. It was stated that petitioner Nos. 2 and 3 will be married after two years and then the premises will be required. This statement of the petitioners was recorded in the presence of Shri H.S. Paul, attorney for the respondent. Statement of Shri H. S. Paul, attorney for the respondent was also recorded who inter alia stated :- "Iam genaral of attorney of the respondent.............................. ........................Respondent wants to take the premises shown in the plan Ex. A I for residential purposes at a monthly rent of Rs. 4000 from today on terms stated in mark 'B' Respondent will vacate the premises on the expiry of two years".

(9) In view of the aforesid application and the statements of the parties, Shri J.D. Kapur, the learned Rent Controller, passed an order statinginter alia that "in view of the statements of the partics made above permission under section 21 Drg Act is granted "to the petitioners to let out their premises to the respondent for residential purposes for a limited period of two years with effect from 'today". It will again not be out of place to mention that the property in dispute was purchased by the petitioners vide a sale deed executed by Smt. Parvati Devi in their favor on 19-2-1979 only and the sale was registered by Land & Development Office on or about 26-3-1979.

(10) After the grant of aforesaid permission, a lease-deed dated. 20.7.1979 was entered into between the petitioners and the respondent (Annexure v. with the petition) which recited the aforesaid facts and the leases deed thereafter stipulated that the Lesser does hereby let out on lease unto the lessee the demissed premises together with the fittings and fixtures" for a limited period of two years commencing from 19.7.1979.

(11) On 24.3.1981, petitioner No. 1 sent a letter to the respondent requesting her to vacate the premises on the expiry of two years' lease on 19.7.1981. It was also stated therein that the premises are required by them for their own use. This request was again repeated by letter dated 23.6.1981.

(12) On 16.7.1981, one finds the same Shri H.S. Paul, who had acted as Advocate for the petitioners' sending a reply on behalf of the respondent, on instructions of the latter, which inter alia stated, ''that letter addressed by you is rather not legal apart from the fact that my client and all the parties on your side had agreed to a fresh lease of four years. Under the circumstances I must address you to kindly stick to the original understanding and enter the fresh contract".

(13) This reply, as noticed earlier, is dated 16.7.1981 which was sent just a couple of days before the expiry of two years' period fixed in the order of the Rent Controller.

(14) On or about 20.7.1981 the petitioners filed an application before the Rent Controller of Delhi praying for the vacant possession of the premises in dispute to be awarded to the petitioner (decree holders) and warrant of possession being directed to be issued. In this application, it was inter alia, stated that vide order dated 19-7-1979 passed by Shri J. D. Kapur, Rent Controller, Delhi, the decree holders were granted permission to let out the aforesaid premises for a period of two years expiring on 18.7.1981. It was also stated that the premises arc required bona fide by the decree holders who are the owners thereof as a residence for themselves and they have to shift to this property and that the decree-holders Have no other reasonably suitable accommodation in their possession. It was also stated that Miss Raji (petitioner No. 3) has since been married to an I.A.S. officer who is posted at New Delhi and they have no residential accommodation except the above premises owned by her Decree holders have to shift to the property in question.

(15) On 22.7.1981, the Rent Controller, instead of issuing warrent for delivery of possession, directed the issuance notice to the respondent for 7.8.1981. On 7.8.1981, the process server reported 'refusal' and service by posting. However, the Rent Controller directed fresh notice for 11.9.1981 but soon after the passing of this order counsel for the petitioners pointed out to the Rent Controller that Dr. Amarjit Singh. Secretaay of the respondent, was present in Court. Dr. Amarjit Singh, however, stated that he is not the secretary of the respondent but the secretary of her husband. He also stated that the respondent lies gone to Bangkok and will come back after a month and he will inform her of the date that the trial court his directed the matter to come up on 11.9.1981. Later, in the day, Shri H S. Paul, Advocate, also appeared on behalf of the respondent and the Rent Cantroller directed that the matter may be put up on 11.9.1981 as already fixed and on that date the respondent may also file her reply.

(16) On 11.9.1981, Shri I.S.Malhotra Advocate, instead appeared for the respondent and he filled by power of attorney and prayed for adjournment to file reply as he had been engaged only on that date and the Court adjourned the matter to 16th October 1981. On 16th October, 1981. The sum and substance of objections was (i) that the application for possession does ncut lie as there was no proper application for grant of permission under section 21 of the Act, (ii) that the petitioners have played fraud on the respondent as well as on the court since a. contractual tenancy had already been treated in favor of the respondent tenant before grant of permission by the Controller and possession of the premises in dispute was already with the respondent when the alleged permission was granted; (iii) that the time of grant of permission, the petitioners had assured the respondent that this was only a formality and that the petitioners shall not enforce the permission so obtained. (iv) that there was no valid and binding agreement as the alleged deed of lease (proposed) was not signed by the respondent. (v) that petitioner No. 3 is not the actual owner but has been imp leaded as a co-owner with a view to getting the premises vacated in case the same is not vacated by the tenant. In any case she has been married and is living with her husband who has sufficient accommodation. (vi) that ground taken for the grant of permission was not genuine and bona fide. In fact the petitioners do not require the premises bona fide. It is alleged that they do not require the premises at present. The petitioners have more than sufficient accommodation. They are taking undue advantage the provision of section 14(1) of the Act. vii) that the petitioners have been asking the respondent to increase rate of rent but as the rent for the premises, as agreed earlier is more than the standard rent, the respondent is not agreeable to increase the same : viii) that the entire proceedings under section 21 of the Act was an eye wash and is not binding on the respondent :

(17) On 6.11.1981 the petitioners filed rejoinder (reply to the objections). In this reply the allegation that the respondent had already been inducted as a contractual tenant before the grant of permission under section 1 of the Act war denied. It was inter alia, stated that the petitioners had themselves moved an application under Section 21 of the Act for permission through Shri H S.Paul. Advocate and it was only after the recording of the statements of the parties and on being satisfied that the Controller had, by order dated 19.7.1979 granted the requisite permissoin to the petitioners to let out the premises for a period of two years. A proposed lease deed was also presented and after the grant of permission the respondent agreed in writing to take the premises in question for a period of two years commencing from 19.7.1979 for residential purposes. A cheque dated 19.7.1979,for Rs. 90,000.00 drawn by the respondent tenant on Bank of India, Khan Market, New Delhi, Was given as rent at the rate of Rs. 4000.00 per month for the premises in dispute. It was also stated that it is totally mischievous to allege that the respondent was in actual possession of the premises prior of the grant to the permission by the Rent Controller.

(18) It was also stated that the proposed lease deed was filed unsigned by the respondent but after the grant of the permission, a lease deed wag executed between the parties. This lease deed dated 20.7.1979 wherein it is recited that the tenancy would commence from 19.7.1979 has not been denied during the course of hearing.

(19) It is also pleaded that the judgment' debtor (tenant) cannot deny the title of petitioner No. 3 who is a co-owner of the property. It was reiterated that Smt. Raji Gopalan has been recently married and she has no accommodatiod to live properly and contemplating her marriage the premises were let out only for a period of two years. It was also stated that petitioners 1 and 2 are shortly going to be married and they also require the premises in dispute.

(20) It was further stated that several times before the expiry of the stipulated period the petitioners had been intimating the respondent that the premises are required for their own residence and the respondent should therefore vacate the same. The respondent in reply dated 16.7.1981 lent through Shri H.S. Paul had raised a false plea that the parties had entered into a fresh contract for four years. This plea was completely false and mischievous. The respondent has been raising different pleas at different times and in order to harass the petitioners the respondent Smt. Padmini Devi has alse illegally occupied the room on the second floor of the property by committing trespass. It was prayed that possession of this room be also awarded to the petitioners.

(21) These were the pleadings before the Rent Controller when the impugned order dated 16.11.1981, reproduced earlier, was passed.

(22) At this stage, one may notice the aforesaid decision of the Supreme Court in Naronah's case (supra) 1979(2) R. C. R. 455. This was a pyculiar case on its own facts. So far as the facts can be is ascertained from the judgment, the premises had been let out in that case in 1960 for a term and thereafter from time to time possession of the tenant was continued by fresh leases and increase in rents. Every time recourse was taken to grant of sanction by the Rent Controller under section 21 of the Act as if the letting was for residential accommodation. The Supreme Court found that for all these years a residential school was being run in the premises and that is the purpose expressed and recited in all the earlier leases but for the last lease deed of December, 1975 when the purpose for which the lessee took the premises was described as residential. It was on these facts that Krishna lycr,J. took pains to explain the essential ingredients of Section 21 of the Act before the Controller grants permission as contemplated by the aforesaid provision. The Supreme Court pointed out various conditions which must be satisfied before grant of permission by the Rent Controller. The Supreme Court noticed that Section 21 of the Act runs counter to the general scheme of the Act. It also noticed that the Controller to the general scheme of the Act. It also noticed that the Controller must be satisfied on every condition which attracts Section 21 and if any of them is absent the section cannot apply. The Supreme Court also noticed that section 21 over-rides section 14 and therefore, the Controller should not pass amindless order. What it meant by the expression "mindless" order was that the Rent Controller should satisfy himself about all the conditions before granting permission and it, should not grant the premission in a mechanical fashion. The conditions spelt out by the Supreme Court, while interpreting Section 21 of the Act, were: (i) that the landlord docs not require the demised premises for a particular period only. This means that he has to indicate to the authority before which sanction is sought for letting as to what is the particular period for which the landlord can spare the accommodation, (ii) that the letting must be for residential purpose i.e. the house must be made over as a residence. If it is let for a commercial purpose, section 21 of the Act will not apply; and (iii) that the Controller's permission is obligatory where he is specifying the particular period for which for gives permission and further qualifies the permission for use as a residence. The Rent Controller has to satisfy himself that there cnnditions arc fulfillled before he grants permission under section 21 of the Act.

(23) The next stage, which is crucial for decision of the present case, is as to the scope of inquiry whan after the period for which tenancy was created has expired, the landlord applies for possession. What is the of that inquiry ? Is the Controller at that stage sitting as scope a court trying a regular suit seeks to challenge the initial, order as being vitiated by fraud or is competent to examine it as an executing court who is executing its order after the expiry of the lease for which permission had been granted ? This again is answered by Krishna Iyer, J. in paragraph 23 of the aforesaid judgment wherein it is observed : WEmake it clear that the Controller ii concerned with delivery of possession at the expiry of the lease of 1975 and he will, therefore, examine the position with reference to that lease only. The appellant tenant urged a further contention that because there was fraud the court could not assist the party in fraud even if both sides were involved in fraud. He invoked the doctrine of in pari delicto potiorest condition defendantis. We arc not inclined to examine these contentions but leave it open to the executing court to go into such pleas as arc permissible at the executing stage. Beyond that he has no jurisdiction but within that has duty to decide."

(24) In fact, the order granting permission under section 21 of Act is it composite order i e. granting of permission as well as passing of an executable decree for ejectment after the exyiry of the period of lease permission for which is being granted. The period of limitation as prescribed by the Rules is six months for making an application for execution from the time of the expiry of the period of lease.

(25) Again, section 21 contemplates that on application being made for possession, notwithstanding anything contained in section 14 or in any other law, the Rent Controller may place the landlord in vacant possession of the premises. No fresh order for ejectment even is contemplated. As soon as the application is filed, the section contemplates issuance of warrant for delivery of possession to the landlord. This itself shows that the jurisdiction at that stage, which is to be exercised by the Controller, is in the nature of a court executing its earlier order. That is why, Krishna Iyer, J. as noticed earlier, observed "but leave it open to the executing court to go into such pleas as are permissible at the execution stage."

(26) If that is the scope of inquiry namely, to try the objections to the execution of the order as an executing court, then what is the scope of the limit to that power ? This question is again answered by a decision of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others; . This case related to objections to the validity of the decree in execution and the question raised was what is the extent of that jurisdiction Shah, J. speaking for the Supreme Court, observed in paragraph 6 of the judgment as under: "6.A Court executing a decree cannot go behind the decree between the parties or their representatives: it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the partics".

Shah, J., again, inparagraph 7 of the judgment observed : "7.When a decree which is anullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding. If the objection appears on the face of the record ; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction...............".

(27) It will be noticed that the ground on which the decree in that case was being attacked in the executing court was that the court had no inherent jurisdiction to pass the decree. But the Supreme Court declined to give this jurisdiction to the executing court as in its view, for purposes of deterinining whether the court who passed the decree had jurisdiction to try the suit. It is necessary to determine the facts on the decision of which the question depends and since the objection did not appear on the face of the record, the Supreme Court held that the executing court cannot enter upon inquiry into those facts.

(28) If that is the limit to the jurisdiction of the executing court, we was to examine what is meant by collusion and fraud as noticed by Krishna Lyer, J. in Noronah's case (supra) as giving a ground for challenge before the Controller when application is filed by the landlord for possession after the expiry of the period for which permission was granted.

(29) Krishna lyer, J. in the aforesaid case, while interpreting section 21 of the Act, has spelt out the conditions for the applicability of this section before permission is granted. If any of those conditions is not satisfied it will be, in the language of Krishna lyer, J a"mindless order". Is will then. be a case of 'fraud' on the powers of the Controller. It is in this sense that. Krishna lyer, J. felt that it will be open to the Controller to examine whether the sanction u/s. 21 of the Act is vitiated by fraud Or not 'Fraud' here means 'fraud' in obtaining order i.e. obtaining an order which ' the Controller had no jurisdiction to pass as, in that event, one of the essential conditions for passing that order had not been satisfied. If any other interpretation is put, it will be beyond his jurisdiction as an executing court. 'Fraud' is to be understood as fraud on the powers of the court. Again it is observed by Krishna lyer, J. in this connection that "we make it clear that the Controller is concerned with delivery of possession at the expiry of the lease of 1975 and he will, therefore, examine the position with reference to that lease only." '

(30) A somewhat similar view was taken by a Division Bench of this Court in Vijay Kumar Bajaj v. Inder Sain Minocha:198. Rent Control Journal 286 though the question raised was slightly different. The Division Bench also held that the agreement for creation of tenancy for a limited period may be entered into. between the parties but the said agreement does not require registration.

(31) Having noticed the scope of enquiry by the Controller at the second stage, what then is the position in the present case ?

(32) At the stage when the application was filed for permission and the statements, of the parties were recorded all the requisites of Section 21 of the Act for the grant of permission were fully satisfied. The statements of the parties had been recorded on oath in the presence of each other. None of them objected to the correctness or otherwise of the statements made by them at that time. The lease executed thereafter which is filed with the petition as Annexure V shows that it was executed on 20.7.1979 between the parties commencing from 19.7.1979 for a period of two years when the premises were let out for residence. What was filed before the Controller was 'proposed lease' which was not signed on behalf of the respondent. But thereafter the aforesaid lease drafted on 20.7.1979 was signed by the respondent and the same has not been disputed. It is in this light that we may examine what were the objections which the respondent had filed before the ' Controller against delivery of possession and to what extent the Controller, as an executing court, could go into it.

(33) The written agreement of lease shows that it commenced from 19.7.1979. Therefore, no evidece can be received that the lease commenced from an earlier time other than by way of a written agreement. What is pleaded in the objections is that the respondent was already a contractual tenant before the grant of permission. No written agreement is even pleaded. Even the date of commencement of that lease is not disclosed. Thus, this plea is meaningless and cannot be gone into by the executing court.

(34) Section 91 and 92 of the Evidence Act completely debar receipt of any such evidence. Under section 91 of the Evidence Act, when the terms of a contract have been reduced in the form of a document no evidence can be given in proof of terms of such a contract except the document itself Under section 92 of the Evidence Act, if the terms of such a contract Rave been reduced to writing and have been .proved, no evidence of any oral agreement can be admitted as between the parties to such document for the purpose of contradicting, varying adding or substracting from its terms. The exceptions to this genearal rule are provided in provisions 1 to 6 to Section 92 of the Evidence Act, Provision 1, 3 and 6 read as under :- "PROVISO(1) Any fact may be proved which would invalidate any document or which would entitle any person to any decree of order relating thereto, such as fraud intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2) ......................................... .............................. Proviso (3) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4) ....................................... ................................. Proviso (5).............................................................................. Proviso (6) Any fact may be proved which shows in what manner the language of a document is relate to existing facts".

(35) As I have stated earlier lease deed dated 20-7-1979 has not been challenged in the objections. According to the respondent-tenant in the objections she challenged permission on the basis of fraud in the proposed agreement dated 12-7-1979 to the effect that the respondent was already a tenant and it is pleaded that she should be permitted to lead evidence in that behalf. The answer is two-fold. For one thing, the lease is dated 20-7-1979 and it definitely mentions the date of commencement. No evidence can be led to the contrary except by way of written agreement No other written agreement is pleaded. It is the own case of the tenant that the lease dated 12-7-i 979 (proposed) which was filed before the Controller was not executed by her or signed by her. Therefore no help can be sought by the tenant from the said proposed agreement by virtue of exception covered by proviso (1) of section 92 of the Evidence Act.

(36) Reliance was also placed on provisos (3) and (6) of lection 92 of the Evidence Act. I fail to understand how proviso (3) has an applicability to the facts of the present case. There is no condition precedent attaching to any obligation under the lease dated 20-7-1979. It is not even pleaded, In fact, what is pleaded is that there was no valid binding agreement as the alleged deed of lease (proposed) was not signed by the respondent.

(37) Reliance so proviso (6) is also misplaced as the language of the lease deed dated 20-7-1979 is very clear and no fact is required to be proved which may show as to in what manner the language of a document is related to existing facts. There is, in fact, no such pleading in the objections which may attract applicability of proviso 3 and 5 to Section 92 of the Evidence Act.

(38) It is then argued that the admission of the landlords in paragraghs 1 and 2 of their reply to the tenant's objections may be looked into wherein it is admitted that a sum of Rs. 90,000.00 was paid by cheque on 19-7-1979. For one thing, this is not pleaded by the tenant for invalidating the lease dated 20-7-1979. Again, it is not pleaded by the tenant for invalidating the permission granted by the Controller by its order dated 19-7-1979. The respondent tenant cannot take advantage of a statement of fact mentioned by the landlord to show that the permission granted by the Controller and the consequent lease deed were acted upon.

(39) It was submitted that clause (4) of the lease-deed docs not tally with the existing fact Of payment of Rs96,000.00 and, therefore, the. tenant is entitled to explain why this variation occurred between clause (4) and the .recital vis a vis the existing facts under proviso 6 to Section 92 of the Evidence Act. As I have stated earlier, there is no such plea by the tenant in his objection petition. No help can, therefore, be sought from proviso 5 to Section 92 of the Evidence Act at this stage.

(40) The only effect of payment of Rs. 96,000.00 as advance rent for a period of two years and its receipt by the petitioners would be that the latter becomes liable to penalties prescribed under section 48 of the Act. But in view of Section 49(2) of the Act, no court can take cognizance of any offence under the Act unless a complaint of the offence is made within three -months from the date of the commencement of the offence. Since no complaint to this effect has been filed within three months of the commencement of the offeence, no action is called for at this stage in regard to payment of advance rent. After the conclusion of the hearing of the present petition and after orders had been reserved by Goswami, J. an application was filed on behalf of the tenant before the learned Judge for re-hearing, of the matter. Goswami, J. however, declined to hear the matter. It was then posted before me and' it was at this stage that five miscellaneous applications were filed namely, Gr. M. 320 of 1982, C.Ms. 1982 of 1982, 337 of 1982, 353 of 1982 and 356 of 1982.

(41) CR.M. 320 of 1982 is an application purporting to be under section 340 of the Code of Criminal Procedure for initiating an inquiry in respect of Annexure Iii filed with the rejoinder of the petitioners. Annexure Iii to the rejoinder is a certificate issued by Shri B. Ramadorari, Development Commissioner, Handlooms, Ministry of Commerce, New Delhi to the effect that Shri N.P. Seshadari, Joint Development Commissioner Handlooms,Ministiy of .Commerce, New Delhi to the effect that Shri N.P. Seshadari, Joint Development Commissioner for Handlooms, Ministry of Commerce is being posted as Director, Tea Promotion, Sydney and in view of this he has to vacate the Government accommodation at A-26/1, Lodhi Colony, immediately. I do not find anything against the petitioners for initiating and inquiry under S 340 Cr. P.G It is neither expedient nor in the interest of justice to do so. The application is accordingly dismissed.

(42) C.M. 336 of 1982 is an application where by the tenant prays that 1,1/2 months time may be granted to the tenant to lead evidence. This application would have some meaning if any objections were raised by the respondent-tenant in her objection petition which could be considered by the executing court. That having not been done, this application is also dismissed.

(43) C, 337 of 1982 was filed for taking on record the affidavit of Dr. A.S. Paul, dated 24 2.1982. In the affidavit sought to be filed. Dr. A.S. Paul described himself as the Secretary of the respondent-tenant. This affidavit states the fact that the proposed transfer of Shri N P. Seshadri, father of the petitioners' has not yet matured. Even if this application is allowed, it makes no difference to the merits of the controversy in this petition. C.M. 337 of 1982 is accordingly dismissed.

(44) C.M. 353 of 1982 is an application under Order 6 rule 17 read with order 6 rule 5 Civil Procedure Code . for amendment of the objections which had been filed in the executing court. This application is suppoited by an affidavit of Dr. A.S. Paul, Secretary to the respondent. This application has been opposed on behalf of the petitioners, inter alia, on the ground that Dr. A.S. Paul is not authorised to file affidavit, nor does he himself say in his affidavit that he is so authorised. It is also stated in the reply that amendments prayed are mala fide. The proposed amendments arc mentioned in para 5 of the application.

(45) The sum and substance of the proposed amendments is:- (i) that the agreement of letting had been concluded by the partics on 30.6.1979 and one month's rent of Rs. 4000 was paid in cash on 1.7.1979. The key of the premises was handed over to the tenant on 1.7.1979. Thereafter the tenant engaged different persons for doing paint Work, electrical fittings and carpenter's work. Some luggage was also transported into the premises on 11.7.1979. (ii) That clause (4) of the alleged proposed lease-deed and the alleged lease-deed was a fraud on the Controller because payment of Rs. 90)000.00 'as advance rent for two years was in clear violation of Section 5(2)(b) of the Act. The claim and acceptance of Rs. 96,000.00 has rendered the alleged agreement of tenancy void in view of the provisions of section 23 of the Contract Act. As the alleged agreement of tenancy is void, provisions of Section 21 of the Act are not applicable. (iii) That another reason for agreeing to be a party to the fraudulently obtained permission was that Dr. N.P. Seshadari, faiher of the petitioners, had refused to give any rent receipt or any other thing to the respondent as proof of tenancy until and unless the respondent concluded with him in getting the permission under section 21 of the Act. He also gave a vailed threat that he would have premises vacated on the ground of the tenant being a licensee if the statement under section 21 of the Act was not made in court. (iv) That after endorsement of the cheque dated 19.7.1979 for Rs. 96,000.00 is advance rent for two years, the Secretary of the respondent demanded rental with effect from 197.1979 to 31.7.1979 which was lying with the petitioners in cash as well. The said amount was later refunded vide a cheque by the petitioners. to the Secretary of the respondent and this fact can be proved on summoning the evidence from Punjab National Bank Ltd. Lodhi Road, New Delhi. (v) That the respondent has spent Rs. 2.50 lakhs on fittings and fixtures and therefore, the petitioners are estopped from filing petition under section 21 of the Act. (vi) That the husband of petitioner No. 3 was posted at Madras before marriage and continues to be posted there even now. (vii) That the petitioners and their father resoled from original agreement and demanded enhancement of rent to Rs. 3000.00 per month and that too advance for four years. The respondent was not prepared to acceed to that. (viii) That none of the petitioners has any status to reside in the premises in question.

(46) Looking at the manner in which this case was heard before Goswami, J. and the fact that it was not unfit after the judgment was reserved that this application was filed, it appears to me that when the respondent's counsel found it difficult to spel out fraud' as contemplated in Noronoha's case (supra) the respondent choose to file this application.

(47) I am one with the petitioners that this application is an abuse of the process of the court and has been filed mala fide. Surely, these facts must have been within the knowledge of the respondent when statement on her behalf was recorded on oath before the Controller. The respondent tenant is not a petty person who could be pressurised by the landlords. She is, as it transpires, the daughter-in-law of the late Maharaja of Jaipur, who had earlier been staying in another premises wherefrom she had been evicted through process of the court. Certainly such a person could not be administered any veiled threat by the father of the petitioners.

(48) It appears to me that the ministerial employees of the respondent are going out of their way in filing mala fide applications in the court to subvert the process of law.

(49) It will not be out of place to mention that the attorney and the Secretary of the respondent are both brothers of Shri H.S. Paul, Advocate, who had first appeared on behalf of the petitioners and then against all professional ethics he appeared for the respondent. These persons have taken the court for a ride.

(50) All these facts sought to be pleaded by way of amendment, as stated earlier, must have been within the knowledge of the respondent and/or her ministerial employees. But with a view to drag on the proceedings, applications after applications have been filed. The very fact that a cheque for Rs.96,000.00 , though contrary to section 5 of the Act, (which feature of the case has already been dealt with above) was given by the respondent and accepted by the petitioners on 19.7.79, any story that it was let out before that is merely coined to delay the proceedings. In any case, the applicant has been taking contradictory stands from time to time.

(51) C.M. 350 of 1982 is thus also dismissed.

(52) In C.M. 356 of 1982 it is stated that the applicant used to pay the bills presented to her by her secretary, Shri P.S. Paul with supporting documents) if any. The bills and the documents were then returned to Shri P.S. Paul along with the payment. Shri Paul used to prepare bills and retain documents for the sole purpose of obtaining payments from the applicant. "THEbills and documents pertaining to the expenditure done in the premises in the month of July, 1979 are, therefore, not traceable with Shri P.S. Paul, despite efforts."

(53) It is also stated that the applicant has got the documents reconstructed in respect of payments made to Shri Amir Alam, who did the paint work and Shri Darshan Lal, who transported luggage in the premises as well as Shri Hanif, who did wooden Work in the said premises. These persons have been named in the list of witness as they still remember about the payments received and the work done by 'them because according to them, it was a note worthy engagement, the applicant being the wife of Col. Sawai Bhiwani Singh, Mvc, ex-ruler of Jaipur. The documents allegedly got re-constructed have been attached with the application with the prayer that they be taken on record and the witness be allowed to prove them.

(54) Two of the documents are dated 13.3.1982 and the third document is dated 14.3.1982. The application is supported by the affidavit of Shri P.S.Paul, who describes himself as the Secretary of the respondent.

(55) Since the objections have been held by me as not falling within the scope of inquiry by the executing court, it is pointless to allow these documents to be placed on record or to permit them to be proved. CM. 356 of 1982 is accordingly dismissed.

(56) Shri Jaspal Singh, learned counsel for the respondent submitted that this Court should not interfere under Article 227 of the Constitution with the impugned order because if the proceedings had remained in the trial court, he would have applied for amendment of the objection and if prayer for amendment had been rejected, he would have been entitled to go to the Rent Control Tribunal and then this Court could be seized of .the matter at the stage of second appeal.

(57) It will be noticed that the powers of this Court under Article 227 of the Constitution are very wide in order to prevent abuse of the process of the court. No doubt, this power has to be exercised sparingly and in extraordinary cases. If the learned trial court acting as executing court fails to comprehened its own powers and makes the parties go through onerous and protracted trial for no rhyme or reason, it is but the duty of this Court to exercise powers of superintendence under Article 227 of the constitution. None of the objections filed by the petitioners are such which can begone into by the executing court.

(58) I am satisfied that this is a fit case where the attempt of the respondent to take the court for a ride, by leading evidence in a matter which the executing court had no jurisdiction to record should be thwarted at the earliest stage.

(59) In Noronah's case (supra), the Supreme Court observed that : "PARLIAMENTwas presumably keen on maximising accommodation available for letting Realizing the scracity crisis. One source of such spare accommodation which is usually shy is potentially vacant -building or part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back. If an officer is going on. other assignment for aparticular period or the owner has official quarter so that he can let out if he is confident that on his retirement he will be able to re-occupy such accommodation may add to the total lease-worthy houses. The problem is felt most for residential uses. But no one will part with possession becouse the lessee will become a statutory tenant and even, if bona fide requirement is made out the legisative tiers are so many and the law's delays so tantalising that no realist in bids senses will trust the sweet promises of a tenant that he will return the building after the stipulated period. So, the law has to make it self creditworthy. The long distance between institution of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure. Section 21 is the answer. The law seeks to persuade the owner of premises available for letting for a particular or a limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord invacant possession.................................................. .......................

(60) Since the objection do not come within the rules laid down by the Supreme Court, in Noronah's case the trial court ought to have dismissed the objections and should have ordered for the issuance of warrant for possession.

(61) I would accordingly quash the order of the Rent Controller dated 16.11 1981, dismiss the objections of the tenant filed before the Controller (dated 16.11.1981) and, in exercise of power under Article 227 of the Constitution, direct the Rent Controller to issue warrant forthwith for possession of the premises in dispute against the respondent tenant and in favor of the landlord petitioners.

(62) The petitioner will also be entitled to full cost of the present proceedings.