Ashok Kumar & Narinder Pal vs Shakuntala Rani & Ors
2011 Latest Caselaw 6261 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 20.12.2011

+CM(M)     No.1115/2007    &    CM              Nos.11089/2007,
14404/2007,16909/2007 & 13829/2008


ASHOK KUMAR & NARINDER PAL           ..... Petitioner
             Through: Mr.Anil Kumar Gupta and Mr. Vineet
                      Jain, Advocates.

                     versus

SHAKUNTALA RANI & ORS                      ..... Respondents
                  Through:         Mr.R.L.Kohli, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 18.7.2007 which had

endorsed the finding of the trial judge dated 18.12.2002 whereby

the eviction petition filed by the landlord Shakuntala Rani and

others seeking eviction of her tenant from the suit property

(comprising of one room measuring 20 x 10 feet, ground floor of

the property no.25/16,Old Rajinder Nagar, New Delhi) under

section 14(1)(c) and 14(1)(d) of the Delhi Rent Control Act (DRCA)

had been decreed.

2. Record shows that the present eviction petition had been

filed under section 14(1)(a), 14(1)(c) and 14(1)(d) of the DRCA.

Contention of the landlord was that the premises had been let out

for a residential purpose but were being misused i.e. for a

commercial purpose which was a user of the shop; further

contention was that the premises were lying unused as a

residence for the last six months. Both these contention had

found favour with the Additional Rent Controller (ARC) who after

discussing the respective evidence both oral and documentary led

by the respective parties had decreed the petition of the landlord.

The Rent Control Tribunal (RCT) had endorsed this finding.

Before the RCT three applications had also been filed along the

appeal; the first application was an application filed under Order

41 Rule 27 of the code of Civil Procedure (hereinafter referred to

as the Code) seeking permission of the court to lead additional

evidence. Contention being that rent receipts which had been

produced in the trial court had merely been marked as A, B and C

but the original receipts had been filed in a pending eviction

under section 14(1)(e) of the DRCA and the said documents are

necessary for the disposal of the present appeal. In the second

application it had been contended that the documents Ex.PW-1/R-

1 to Ex. PW-1/R-3 had been de-exhibited and had been marked as

A, B and C but in view of the averments made in the first

application these documents having been filed in an earlier

pending petition under Section 14(1)(e) of the DRCA the same

now be permitted to be exhibited. The prayer in the third

application was to the effect that the permission be granted to the

tenant to place on the record registration certificate granted to

the tenant for running a shop in the suit premises in view of the

changed policy of the government.

3. The RCT while dealing with the appeal had dealt with all the

aforenoted applications. All the aforenoted applications had been

dismissed. RCT had noted that in fact to satisfy its conscience the

ARC had summoned the record of eviction petition No.148/89

(which was a petition filed under Section 14(1)(e) of the DRCA)

whereby the originals of the purported documents marked A, B

and C had been filed but perusal of the said record had evidenced

that this was not the correct position and documents marked A, B

and C were only photocopies even in the record of the eviction

petition no.148/89 and as such this submission of the petitioner

that the documents which had been de-exhibited and marked A,B

and C should be permitted to be exhibited and additional evidence

to the said extent be allowed had rightly been dismissed. Court

had also noted that the rent receipts Ex.PW-1/R-1 to Ex.PW-1/R-3

which has initially been exhibited clearly evidenced cuttings and

over-writings on the aforenoted documents which had created

suspicion on the authenticity of the said documents; the word

"residence" having been added in different ink in Ex.PW-1/R-1 to

PW-1/R-3. The ARC who had thus de-exhibited these documents

vide its order dated 02.7.2006 had not committed any fallacy. The

first appellate court had accordingly disallowed all the aforenoted

three applications. This finding calls for no interference.

4. At the outset the submission of the learned counsel for the

respondent is to the effect that the this Court is sitting in its

power of superintendence under Article 227 of the Constitution of

India; unless and until a gross injustice or manifest error or

illegality is pointed out by the applicant no interference is called

for in the findings of facts of the courts below. For this

proposition reliance has been placed upon 2002(61) DRJ 267

Sudarshann Khanna Vs. Krishna Kanta Bhasin; wherein a Bench of

this Court had noted that that the provisions of Section 39 of the

DRCA have been omitted and Article 227 of the Constitution of

India is not an appellate forum; it would venture into an

interference only where the findings of the courts below are

perverse or are a consequence of the incorrect exercise of

jurisdiction.

5. It is in this background that the submissions made by the

learned counsels for the respective parties have been appreciated.

6. PW--1 Roshan Lal had come into witness box. He is the

husband of Late Shakuntala Rani and had deposed as her power

of attorney holder; his evidence was to the effect that the

respondent had been let out the disputed shop for a residential

purpose; tenancy was oral; rent receipts were exhibited as Ex.

PW--1/6 to Ex. PW--1/8; counter foils had been perused to return

a finding that the purpose of letting of the shop has not been

mentioned in the said counter foils; the RCT had also noted that

before the ARC no question or suggestion has been given to PW-1

(Roshan Lal) in his cross-examination that the counter foils had

not depicted the correct picture or the premises had been let out

to the tenant for a commercial purpose. This was a serious lacuna

and as such the defence sought to be built up by the defendant

that the premises had been let out for a commercial purpose was

not substantiated.

7. The ARC had de-exhibited the rent receipts vide a detailed

order dated -2.7.2006; his finding was to the effect that these rent

receipts were only photocopies; he had summoned the record of

the eviction petition No.148/1989 to verify the submission of the

tenant that the original of the rent receipts had been filed in that

eviction petition but the perusal of the record had shown this to

be an incorrect fact. The lease deed Ex.PW-1/10 had also been

proved on record evidencing the fact that the premises could be

used only for a residential purpose. The lease deed executed

between the original lessor i.e. the DDA and the owner and its

relevant clauses (i.e. clauses 6,7 and 8) stated that violation of the

terms of the lease deed committed by the lessee would make the

property liable for a re-entry which clearly amounted to a misuser

within the ambit and scope of Section 14(c) of the DRCA. In this

background the submission of the petitioner that the premises had

been let out for a commercial purpose and there was no mis-user

rightly did not find favour with the finding of the two courts below

and the finding of the two courts below on no count suffers from

any infirmity.

8. The ground of Section 14(1)(c) was rightly made out.

Section 14(5) of the DRCA had also been adhered to. Eviction

order could not have been passed unless the misuser was of such

a nature that is was a public nuisance or that it was a case of

damage to the premises or otherwise detrimental to the interest of

the landlord.

9. Admittedly even as per the case of the petitioner the

premises are being used as a shop which is contrary to the user

for which the premises had been let out; which was for a

residential purpose. Ground under Section 14(1)(d) was also

made out.

10. On no count findings of the two courts below suffers from

any infirmity. The impugned order suffers from no infirmity.

Petition is without any merit. Dismissed.

INDERMEET KAUR, J

DECEMBER 20, 2011 nandan