Ashok Kumar Ahuja & Anr vs Gulab Rai Khanchandani
2012 Latest Caselaw 859 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment: 08.02.2012.

+            CM(M) 1438/2011 & CM No. 22420/2011

ASHOK KUMAR AHUJA & ANR                                  ..... Petitioner
                Through              Mr. J.P. Sengh, Sr. Advocate with
                                     Mr. A.C. Bhasin and Mr. Amit
                                     Bhasin, Advs.
             versus
GULAB RAI KHANCHANDANI                                    ..... Respondent
                    Through          None.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated 16.11.2011

passed the Rent Control Tribunal (RCT) endorsing the finding of the

Additional Rent Controller (ARC) dated 27.03.2010 whereby the

eviction petition filed by the landlord Gulab Rai Khanchandani seeking

eviction of his tenant Ashok Kumar Ahuja and another on the ground

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

decreed in his favour; admittedly benefit of Section 14 (2) of the DRCA

had already been granted to the tenant and this being a case of second

default, the ARC had decreed the eviction petition in favour of the

landlord; the impugned judgment had also endorsed this finding.

2 The present petition has been filed under Article 227 of the

Constitution of India. At the outset, it may be noted that the powers of

superintendence to be exercised by the High Court are supervisory

powers and interference in the concurrent fact finding of the two Courts

below is warranted only if there is a flagrant perversity or a manifest

injustice which has accrued to the other party in the absence of which

interference is not called for.

3 Record shows that the landlord had filed the eviction petition

seeking eviction of his tenant from the two shops bearing No. A-4,

ground floor, Inder Puri, New Delhi on the ground that the tenants have

committed a second default in payment of rent.

4 Admittedly the tenant was initially a tenant under Sakhi Bai, the

mother of the petitioner. Vide order dated 13.07.2001 passed in eviction

petition No. 158/1996 the tenant had been given the benefits of Section

14 (2) of the DRCA. On 06.07.2005, the rent of the premises which was

initially `1,500/- per month had been increased to `1,650/- per month to

be effective from October, 2005. Contention of the landlord is that the

tenant had illegally deposited the house tax of the tenanted premises in

their own name without knowledge or permission of the landlord but he

had not remitted the rent for the period w.e.f. October, 2005. Legal

notice dated 08.11.2006 was served upon the tenant asking him to pay

up the arrears of rent from 01.10.2005. Inspite thereof, the rent was not

tendered. Eviction petition was accordingly filed.

5 Written statement had disputed these averments. Contention was

that there was a mutual agreement between the parties that they would

pay rent @ `1,500/- per month till 31.03.2006 and thereafter enhanced

rent of `1,650/- would be paid only w.e.f. 01.04.2006. Further

contention of the tenant was that he had also been requested by the

landlord to deposit the house tax as per the past practice; contention of

the tenant being that he has in fact sent two cheques of `6,001/- and

`4,950/- towards rent for the period from 01.09.2005 to 30.06.2006;

even after the receipt of legal notice, cheque for `4,350/- was sent

clearing rent up to 31.12.2006; further contention being that since an

amount of `9,449/- was already deposited by the tenant qua the property

tax, they have cleared arrears of rent up to 31.12.2006 and they are not

liable for eviction.

6 Evidence was led by the respective parties. One witness was

examined on behalf of the plaintiff and correspondingly one witness was

examined on behalf of the defendant. Contention of the petitioner before

this Court is the that it is an admitted fact that the tenant has paid house

tax and in fact the house tax receipts Ex.RW-1/PX2, Ex. PW-1/7 and

Ex. PW-1/ 8 are in the name of the tenant; the landlord had never raised

any objection to this payment of tax made by the tenant; even otherwise,

there could be no possible reason as to why the tenant would have paid

the house tax; it was clearly with a view that this amount shall be

adjusted against the rent liability of the tenant. Further contention of the

tenant being that on 08.11.2006 i.e. on the date of issuance of legal

notice, if these adjustments are considered, admittedly no amount of rent

was due to the landlord.

7 Both the fact finding Courts have delved into this submission now

urged by the petitioner in deep depth and detail. The tenant in his written

statement has in fact admitted that he was in arrears of rent; this was in

para 8 (VI) of his written statement which was corresponding para to the

eviction petition where the averment of the petitioner was that the tenant

was in arrears of rent. RW-1 in a part of his cross-examination has also

admitted that prior to 2004, he has never deposited any house tax; the

question of a past practice thus being in favour of the tenant for

depositing the house tax did not lie in the mouth of the tenant. The fact

finding returned by the two courts below was based on the oral and

documentary evidence led by the respective parties; conclusion being

that the house tax was deposited by the tenant in the absence of consent

of the landlord; this could not be a compliance of Section 27 of the

DRCA which is a special provision available to a tenant that in case the

landlord is not accepting the rent, he is permitted to deposit the same

before the Controller.

8 Admittedly the tenant has been granted the benefit of Section 14

(2) of the DRCA on 07.01.2003. Legal notice dated 08.11.2006 had

called upon the tenant to pay the arrears of rent, he failed to comply with

the same. His contention that his deposit of house tax should have been

adjusted against the arrears of rent had not been found favour with both

the courts below. These findings of fact were based on cogent evidence.

There is no manifest error or illegality which has been pointed out by

the learned counsel for the petitioner in this fact finding returned by the

courts below which in any manner calls for any interference by this

Court.

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

227 of the Constitution of India and unless and until a flagrant injustice

or a manifest illegality has been committed by the two courts below,

powers of interference are limited. The Apex Court in Waryam Singh

Vs. Amarnath AIR 1954 SC 215 a judgment of the Constitution Bench

has laid down the guidelines which were to be followed by the High

Courts in exercise of its powers of superintendence. This Court is not an

appellate forum. Merely because another view than the view taken by

the court below is a possible view, the High Court may not interfere in

its powers of superintendence. No patent illegality has also been pointed

out by learned counsel for the petitioner.

10 In this background, the impugned judgment does not call for any

interference.

11    Petition is without any merit. Dismissed.



                                             INDERMEET KAUR, J
FEBRUARY 08, 2012
A