George Gomes vs Smt. Raj Karni Kapoor (Since ...
2011 Latest Caselaw 4092 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 23.08.2011

+             CM(M) No. 973/2011 & CM Nos.15566-67/2011

GEORGE GOMES
                                                  ........... Petitioner
                          Through:   Mr. M.S. Vinaik, Advocate.

                     Versus

SMT. RAJ KARNI KAPOOR (SINCE DECEASED THROUGH LEGAL
HEIRS)
                                       ..........Respondent
                   Through: Nemo.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?             Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated

09.05.2011 which has endorsed the findings of the trial Judge

dated 15.04.2008 whereby the eviction petition of the landlord

under Section 14 (1)(h) of the Delhi Rent Control Act (DRCA) had

been decreed.

2 The present eviction petition had been filed under the

aforenoted provision; the tenanted premises comprised of three

bedrooms, two bathrooms, kitchen, loft, balcony on front of the

property bearing No. E-39, First Floor, Lajpat Nagar-III, New

Delhi. Contention was that the defendant had acquired an

alternate accommodation i.e. residential SFS Flat No. 38, Basant

Enclave, New Delhi and as such benefit of Section 14 (1)(h) of the

DRCA be accorded to the plaintiff.

3 The defendant in his written statement had denied this

contention; he had stated that he has no concern with this flat in

question as the same was sold to one Sunayna Behl who is now

the owner. This defence of the defendant had been shattered in

the evidence. The Court had noted that the defendant has not

come to the Court with clean hands; he had denied the very

existence of this alternate accommodation had belonged to him

whereas the evidence had showed otherwise.

4 The ARC in its order had examined the evidence led by the

defendant on this score i.e RW-1 & RW-2. In the evidence, the

witnesses had taken a contrary stands; RW-1 had stated that this

property had been let out by him to one Kulwant Singh on

01.06.1988; RW-2 was Kulwant singh; the contradiction in their

versions had been noted; RW-1 had stated that Kulwant Singh was

working in Ashoka Hotel whereas Kulwant Singh had come into

the witness box and had denied this statement. The whole case set

up by the defendant at the time of evidence was that this fact

about alternate allotment in favour of the defendant was known to

the plaintiff as way back as in 1985; this could not be

substantiated.

5 RCT vide its impugned judgment had affirmed the finding of

the ARC who had noted that there was nothing on record to show

that the plaintiff had come to know about this purchase of the flat

by the defendant as way back as in 1985; testimony of PW-1 on

this score that she had come to know about this only in 2006 was

believed by the impugned order. The impugned order had in these

circumstances correctly noted that the provision of Article 66 of

the Limitation Act have no applicability whatsoever. The vehement

contention of learned counsel for the petitioner is that Article 66

of the Limitation Act has not been construed in its correct

perspective; delay and latches had come in the way of the plaintiff

to get her claim decreed under Section 14 (1)(h) of the DRCA.

This contention as already noted was ill-founded; ARC was the

first fact finding Court and it had disbelieved this submission.

Appeal under Section 38 of the DRCA is maintainable only on a

substantial question of law; RCT had nevertheless examined the

evidence and disbelieved this version. This court is sitting in a

supervisory jurisdiction. It is not an appellate forum. The right of

second appeal under Section 39 of the DRCA has now been

abrogated; the supervisory jurisdiction of this court is not a

substitute for an appellate forum; unless and until there is a

patent illegality or a manifest error apparent on the face of the

record which has caused a grave injustice to another, interference

is not warranted. This is not one such case where interference is

called for. Petition is without any merit.

6     Dismissed.


                                             INDERMEET KAUR, J.
AUGUST 23, 2011
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