Rudra Dutt Sharma vs Smt. Shobha Ghosh & Another
1999 Latest Caselaw 819 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the dismissal of the petition by the Additional Rent Controller, the petitioner has filed the present revision petition. Eviction petition was filed against the respondents under Section 14(1)(e) of the Delhi Rent Control Act (for short 'DRC Act'). According to the petitioner, one room was let out to the respondent on 1.1.1983 @ Rs. 400/- per month on the first floor, however, respondent paid rent for two months i.e. January, 1983 and February', 1993 and thereafter stopped paying rent. In the same premises, one room on the first floor was let out initially to one Som Nath Ghosh, respondent No. 2 herein. I will also be disposing of the revision petition bearing CR No. 571/1998 filed against Shri Som Nath Ghosh by a separate order. Respondent No. 2 Som Nath Ghosh was inducted as a tenant on 8.9.1981. Some of these facts are important for the disposal of present revision petition as well as CR 571/1998. It is the case of the petitioner that on 7.3.1982 a verandah was also given to the said Som Nath Ghosh and the initial rent from Rs. 190/- was increased to Rs 290/- when respondent No. 1 Shobha Ghosh did not make the payment of rent after February' 1983. Som Nath Ghosh filed a suit on 31.3.1983 claiming that he was the tenant not only in respect of one room and verandah but also another room in which respondent- Shobha Ghosh was a tenant. In the said suit, Sub Judge held that "The suit premises is wrongly described by the plaintiff. He is tenant of only one room and verandah at the rate of Rs. 290/- per month". That suit was dismissed of the Sub Judge on 21.1.1986. Aggrieved by the said dismissal of the suit, Som Nath Ghosh preferred an appeal which was also dismissed.

2. Not satisfied Som Nath Ghosh filed an application for fixation of standard rent claiming that standard rent of the premises should be fixed at Rs. 5/- per month. In the said application for fixation of standard rent in spite of the fact that Som Nath Ghosh's own suit whereby he claimed that entire first floor of the premises in question under his tenancy was negatived by the Civil Court, yet he maintained the same in the new application for fixation of standard rent that the entire first floor was under his tenancy. That application was also dismissed. Mr. J. C. Mahindroo, learned counsel appearing for the respondent Som Nath Ghosh, has stated that appeal against the said order is still pending before the Rent Control Tribunal.

3. In the present case, order under Section 15(2) of the DRC Act was passed against respondent No. 1 Shobha Ghosh, as she has failed to pay the rent after passing of the order under Section 15 of the DRC Act. Aggrieved by the passing of the order under Section 15(2) of the DRC Act, respondent-Shobha Ghosh preferred an appeal before the Rent Control Tribunal, which was dismissed. Second appeal was also dismissed in the High Corut. Since Shobha Ghosh, respondent No. 1 herein, has not paid rent, nor tendered or deposited in terms of the earlier order passed by the Additional Rent Controller, an order under Section 15(7) of the DRC Act striking out the defense of respondent No. 1 Shobha Ghosh, was passed.

4. Mr. Suresh Gupta, learned counsel appearing for the petitioner, has contended that once the defense of the respondent Shobha Ghosh was struck off, there was nothing before the Additional Rent Controller as far as the case of Shobha Ghosh was concerned and on the basis of the evidence and material on record, order of eviction ought to have been passed by the Additional Rent Controller. Mr. Gupta has contended that in para-7 of the impugned order, the Additional Rent Controller has recorded the finding that respondent's plea that she was not a tenant, was to be ignored. When the Additional Rent Controller has returned the finding that she was the tenant, admittedly respondent's defense was struck off under Section 15(7) of the DRC Act as the respondent has not tendered, paid or deposited the rent pursuant to the order passed under Section 15(1) of the DRC Act, Additional Rent Controller fell in error in passing the impugned order on the pleading filed by Som Nath Ghosh, respondent No. 2, Paragraphs 10, 11 and 12 could not have been taken into consideration by the Additional Rent Controller in view of the fact that the defense of respondent No. 1 Shobha Ghosh was struck off. There is an error apparent on the face of the record which has resulted in manifest injustice to the petitioner. I, therefore, set aside the impugned order and pass a decree of eviction under Section 14(1)(e) of the DRC Act in favour of the petitioner against respondent No. 1-Shobha Ghosh, however, the decree shall not be executed for a period of six months from the date of order.

5. Revision Petition is allowed accordingly.