J P Jain vs Ramesh Chand Aggarwal & Anr.
2012 Latest Caselaw 2519 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment:18.04.2012

+     CM(M) 1502/2011 & CM No.23675/2011 AND
      CM(M) 1506/2011 & CM No.23697/2011


      JP JAIN                                       ..... Petitioner
                             Through      Mr. Sanjiv Bahl, Adv.

                    versus


      RAMESH CHAND AGGARWAL & ANR         ..... Respondents
                  Through Mr. B.B. Gupta, Adv.



      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned is dated 01.12.2011 vide which the Rent Control

Tribunal (RCT) had reversed the finding of the Additional Rent

Controller (ARC) and had held that the rate of rent qua the disputed

premises is Rs.374/- per month; the ARC had drawn a conclusion that

the rate of rent is Rs.250/- per month.

2 At the outset, learned counsel for the petitioner submits that the

RCT could not have gone into a fact finding as an appeal under Section

38 of the Delhi Rent Control Act (DRCA) lies only on a substantial

question of law; contention of the non-applicant/respondent is that the

RCT can well examine the evidence if the conclusion drawn by the ARC

is a perverse conclusion.

3 It is in this background that the arguments have been heard of the

respective parties.

4 This Court is sitting in its power of superintendence under Article

227 of the Constitution of India and interference in fact finding of the

Court below is warranted only if there is a perversity.

5 A perversity has been noted in the finding returned by the RCT.

6 Record discloses that an eviction petition had been filed by the

landlord against the firm M/s Munshi Lal and Sons through its

partners/proprietor; contention was that a shop on the ground floor

bearing No. 4098-99, Nai Sarak, Delhi had been tenanted out to the

tenant at a monthly rate of Rs.411.40 per month. It is not in dispute that

initial rate of rent was Rs.374/- per month and thereafter by way of

statutory increase, it has been enhanced to Rs.411.40 paise.

7 Record further shows that a compromise arrangement had been

arrived at in suit No. 769/1980 in the High Court which was a suit for

partition inter-se between the two brothers J.P. Jain and M.P. Jain and in

terms of the order of the High Court dated 29.05.1981 it had been

agreed that the rent of the premises would be apportioned between two

brothers; 60% of the rent would be paid by J.P. Jain and 40% would be

paid by M.P. Jain. Attention has been drawn to documents Ex. RW-1/2

& Ex. RW-1/4. Ex. RW-1/4 is a letter written by the tenant J.P. Jain to

the erstwhile landlord (Pradeep Khanna) informing him that in view of

the aforenoted judgment of the High Court, the front portion of the shop

has fallen to his share and rear portion of the shop has fallen to the share

of his brother M.P. Jain and in these circumstances, a request was made

to the erstwhile landlord (Pradeep Khanna) to issue separate rent

receipts in respect of the front portion and in respect of the back portion.

This request of the tenant had been considered and accepted by the

erstwhile landlord who had vide Ex. RW-1/4 informed J.P. Jain that a

separate rent receipt for the front portion will be issued.

8 In this background, learned counsel for the petitioner submits that

the finding returned by the RCT reversing the finding of the ARC that

the rate of rent payable by Mr. J.P. Jain is Rs.374/- per month is a

perversity; although admittedly the landlord was not a party to the inter-

se arrangement arrived at in the suit for partition between the two

brothers before the High Court, yet this arrangement was specifically

accepted by the erstwhile landlord who had agreed to issue separate rent

receipts for the front and back portions. In this scenario, if the petitioner

is a honest pay-master and was continuously paying his share of rent

which was Rs.250/- per month, the eviction petition filed by the new

landlord (the present respondent) seeking eviction of his tenant on the

ground of non-payment of rent where the contention raised by the

landlord is that the rate of rent is Rs.374/- per month and not Rs.250/-

per month would gravely prejudice and affect the rights of the tenant.

This has not been considered in the correct perspective by the RCT

while reversing the finding of the ARC. The documentary evidence i.e.

Ex.RW-1/2 and Ex. RW-1/4 has been ignored. This amounts to a

perversity.

9 There is no dispute that the premises have been tenanted out as a

whole to the partnership firm; however in view of the specific

arrangement arrived at between the two brothers which has been

specifically accepted by the erstwhile landlord (second landlord only

stepped into the shoes of the erstwhile landlord), the present petitioner

was liable to pay only Rs.250/- per month for his portion. The impugned

judgment is set aside. The order of the ARC stands restored.

10    With these directions, petition disposed of.



                                             INDERMEET KAUR, J
APRIL      18, 2012
A