Madan Lal Jain vs Smt. Kaushalaya Devi Ahuja
2005 Latest Caselaw 619 Del

JUDGMENT

O.P. Dwivedi, J.

1. Through this petition under Article 227 of the Constitution of India, petitioner has challenged the eviction order dated 15th July, 2004 passed by the learned Rent Control Tribunal, Delhi in R.C.A. No. 42/2004 thereby affirming the eviction order dated 25th May, 2004 passed by learned Additional Rent Controller, Delhi in Eviction Petition No. E-18/2002 under Section 14(1)(a) of the Delhi Rent Control Act (hereinafter referred to as 'the Act) on the ground of non-payment of rent, it being a case of second default.

2. Appellant herein was a tenant under the respondent in respect of two shops bearing private Nos. 2 and 3 on the ground floor of the property bearing No. IX/6558, Nehru Gali, Gandhi Nagar, Delhi - 110 031. In the para No. 11 of the eviction petition, it was mentioned that monthly rental of shop No. 2 is Rs.96/- and that of shop No. 3 is Rs.103/-. It was alleged that tenant/appellant was in the arrears of rent with effect from 1st January, 2001 in respect of both the shops and he failed to tender the arrears of rent within two months of the receipt of notice of demand dated 16th July, 2001. In the earlier eviction petition bearing No. E-146/1987 which was also in respect of these two shops, the tenant/ appellant had availed the benefit of Section 14 of the Act vide order dated 3rd April, 1997 passed by the learned Additional Rent Controller. Therefore, the tenant is not entitled to any benefit under Section 14(2) of the Act it being a case of second default. The tenant/appellant contested the eviction petition denying the arrears of rent and also service of demand notice. After considering the materials on record, learned Additional Rent Controller held that notice of demand dated 16th July, 2001 was duly served on the appellant who was in the arrears of rent w.e.f. 1st January, 2001 and that he had not cleared the entire arrears of rent within two months from the service of notice of demand. Learned ARC found it to be a clear case of second default and therefore, passed the eviction order on 25th May, 2004. The appellant challenged the said order before the learned Tribunal in R.C.A No 42/2004 which has been dismissed by the tribunal vide order dated 15th July, 2004. Learned Tribunal has affirmed the finding of the learned ARC regarding arrears of rent being due from 1st January, 2001 and non-payment thereof by the appellant despite service of demand notice dated 16th July, 2001.

3. In this petition under Article 227 of the Constitution of India, this Court is not supposed to examine the findings of fact as recorded by both the courts below regarding arrears of rent and service of demand notice. The jurisdiction of this Court under Article 227 of the Constitution of India is to ensure that subordinate courts or the tribunals function within the limits of their authority. It does not extend to correction of mere error of fact by examining the evidence and re-appreciating it. An error of fact, even though apparent on the fact of the record, is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227 of Constitution of India. Reference in this connection may be had to Bathutmal Raichand Oswal v. Laxmibai R. Tarta and Anr. (1975) 1 Supreme Court Cases 858 and Achutananda Baidy v. Prafullya Kumar Gayen and Ors. (1997) 5 Supreme Court Cases 76.

4. It is also not in dispute that in an earlier eviction petition being E-146/87, learned ARC had come to the conclusion that tenant/appellant was in the arrears of rent with effect from 1st September, 1984 which he had not paid despite service of demand notice dated 29.1.1987 and as such he was in default. Since the tenant had complied with the order passed under Section 15(1) of DRC Act by the learned ARC, he was given benefit of Section 14(2) of the Act being the case of first default.

5. The impugned order was assailed by learned counsel for the appellant mainly on the ground that there are two separate tenancies in respect of two shops bearing private nos 2 and 3 in the property bearing No. IX/6558, Nehru Gali, Gandhi Nagar, Delhi - 110 031 and monthly rate of rent of the said two shops are also different. Therefore, single eviction petition in respect of two separate tenancies was not maintainable. Learned counsel for the appellant referred to the provisions of rule 4 of Order II CPC which prohibits joinder of any cause of action with the suit for the recovery of immovable property. According to learned counsel for the appellant, the respondent should have filed two separate eviction petitions though for the sake of convenience, they could have been consolidated and tried together. Rule 7 of Order II CPC is a complete answer to this. It reads as under : -

Rule 7 : Objections as to misjoinder : - All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

6. In the present case, the appellant, in his written statement, had never taken any objection regarding mis-joinder of causes of action. Even in the earlier eviction petition bearing No E-146/87 which was filed in respect of both the shops, no such objection was taken. No objection regarding misjoinder of causes of action appears to have been pressed before the Tribunal. Under the circumstances, such an objection regarding misjoinder of causes of action must be deemed to have been waived and cannot be entertained for the first time in the present petition under Article 227 of the Constitution of India.

7. Learned counsel for the appellant next contended with reference to Vinod Kumar Arora v. Surjit Kaur (1987) 3 SCC 711 that a pure question of law can be entertained for the first time before the High Court or the Apex Court. As already noticed, in a case where an objection regarding misjoinder of causes of action is not raised at the first available opportunity, law raises a presumption of waiver under Order II Rule 7 CPC. Had there not been such a legal presumption of waiver, this Court would have been inclined to entertain the said objection. In view of the specific presumption of waiver contained in Order II rule 7 CPC, this question cannot be allowed to be raised for the first time in this petition. Moreover, it cannot be said that this is purely a question of law. The question as to whether there were separate tenancies or single tenancy will be a mixed question of fact and law. The circumstance in which the tenancy commenced will have to be examined. It, thus, cannot be said that this is purely a question of law. For this reason also it cannot be entertained at this stage.

8. It was next contended by learned counsel for the appellant that in this case no order under Section 15(1) of the Act was passed by the learned ARC and therefore, tenant has had no opportunity to claim benefit under the provisions of DRC Act. This argument is clearly misplaced. The tenant/appellant has already been given benefit of Section 14(2) of the Act in the earlier eviction petition being E-146/87. In the case of second default, non-passing of order under Section 15(1) of the Act, is of no consequence because even if the tenant had complied with such an order, he cannot claim any benefit under Section 14(2) of the Act again. In the case of Shri Madan Lal Sethi v. Shri Amar Singh Bhalla reported in 1980 (2) RCJ 543, it was held that if an order is passed under Section 15(1) in case of second default, it would be for the benefit to he landlord in the sense that if the tenant commits default in complying with such an order, the landlord may apply for striking of the defense under Section 15(7) of the Act. But so far as the tenant is concerned, he gets no advantage whatsoever because even if he complies with the order passed under Section 15(1) in the case of second default, he cannot get any benefit under Section 14(2) of the Act.

9. It was next contended by learned counsel for the appellant that the notice of demand is invalid because in this case there was composite notice of demand and that too in the form of reply to appellant's notice. The Act does not prescribe any particular form of notice. All it requires is that there must be a demand in writing. It can be in the form of notice or in form of letter or reply or any correspondence exchanged between the parties.

10. In the case of K.R. India v. Dr. G.A. Adinayayana 2004 (1) DCR 145, the Apex court observed that even for the purpose of filing complaints under Section 138 of the Negotiable Instruments Act, there is no reason as to why a consolidated notice for two complaints cannot be issued. If the consolidated notice was found to contain sufficient information envisaged by the statutory provision and there was a specific demand for the payment of the dues, mere fact that it was a consolidated notice, will not invalidate the same.

11. No other point was raised before me.

12. In the result, this petition fails and is hereby rejected.