R.K.Surekha vs J.P.Jain & Sons (Huf)
2012 Latest Caselaw 383 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment : 19.01.2012

+ CM(M) No. 517/2001 & CM Nos. 854/2001 & 1025/2001


R.K.SUREKHA                                          ..... Petitioner
                          Through     Mr. Anil Airi, Adv.

                     versus

J.P.JAIN & SONS (HUF)                           ..... Respondent
                     Through          Mr.Pramod Kumar, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The order impugned is the order dated 27.07.2001 which

has been passed by the Additional Rent Control Tribunal (ARCT)

endorsing the finding of the Additional Rent Controller (ARC)

dated 03.12.1999 whereby the eviction petition filed by the

landlord under Section 14 (1)(a) of the Delhi Rent Control Act

(DRCA) had been decreed.

2 Record shows that an eviction petition has been filed by the

landlord J.P. Jain & Sons (HUF) under Section 14 (1)(a) & (d) of

the DRCA against his tenant R.K. Surekha. The provisions of

Section 14 (1)(a) are relevant for the controversy in dispute before

this Court. Both the fact finding courts i.e. the ARC and the ARCT

had decreed the eviction petition in favour of the landlord on the

ground that the tenant was in arrears of rent and inspite of notice

of demand having been served upon him, he had not tendered the

rent within the stipulated time period of two months; he was liable

for eviction under Section 14 (1)(a). The Court had also noted that

the defence of the defendant had been struck off on 29.10.1999

against which admittedly no appeal has been filed by the tenant;

the contention of the tenant is that since the final arguments were

concluded within a short period thereafter i.e. on 16.11.1999 and

the judgment was delivered by the ARC on 03.12.1999, the order

striking out his defence dated 29.10.1999 was challenged in the

main appeal itself.

3 Record shows that prior to filing of the eviction petition, a

legal notice dated 17.03.1993 was sent by the plaintiff to the

defendant at two addresses i.e. at his address at 1/10B, Asaf Ali

Road, New Delhi as also the second address i.e. M-14 B, NDSE

Part-II, New Delhi. This notice as per evidence on record was

dispatched on 19.03.1993. The eviction petition further states that

a cheque dated 20.05.1993 of Rs. 6,000/- was delivered to the

landlord on 24.05.1993.

4 Both the courts below had noted that since the defence of

the defendant cannot be read as his defence has been struck off

vide an order dated 29.10.1999 which has since attained a finality,

in terms of averments made in the eviction petition and the details

as noted in the legal notice sent by the landlord, it is clear that the

tenant was in arrears of rent as the legal notice dated 17.03.1993

was dispatched on 19.03.1993 and the payment of arrears of rent

on 24.05.1993 was outside the stipulated period of two months;

eviction decree had accordingly followed in favour of the landlord.

5 At the outset, learned counsel for the respondent has

pointed out that this Court is sitting in its power of

superintendence under Article 227 of the Constitution of India and

unless and until there is a flagrant injustice which is caused by

one party to the other and there has been manifest error of law

committed by the two courts below, interference under Article

227 of the Constitution is not called for. To support his

submission, learned counsel for the respondent has placed

reliance upon the judgment reported as AIR 1975 SC 1297

Babhutman Raichand Oswal Vs. Laxmibai R. Tarte and Another;

the contention being that mere errors of facts are not permitted to

be corrected by the High Court in its power of superintendence

under Article 227 of the Constitution; the evidence cannot be

reappreciated.

6 With this background, the arguments of learned counsel for

the respective parties have to be appreciated. The first and

foremost point is that the defence of the defendant has been

struck off on 29.10.1999 and this order has attained a finality.

There is a little explanation as to why this order was not

challenged and why the tenant waited for the judgment to follow

on 03.12.1999 where he took it up in first appeal before the ARCT.

The pleas of the petitioner alone can be read and since the

defence of the defendant has been struck off, his defence pleaded

in the trial Court cannot be looked into. The legal notice sent to

the petitioner has been proved as Ex.AW-1/2; postal receipts are

Ex. AW-1/3 & Ex. AW-1/4; A.D. card is Ex. AW-1/5. This document

shows that the legal notice has been duly served upon a

representative of the tenant on 20.03.1993. Since the defence of

the tenant cannot be looked into, the averments in the eviction

petition qua this stand are read; eviction petition discloses that a

cheque dated 20.05.1993 had been tendered by the tenant to the

landlord which was delivered only on 24.05.1993; it is not in

dispute that this cheque was credited in the account of the

landlord on 27.05.1993. The date of credit may not be relevant but

the date of receipt of the cheque is 24.05.1993 which clearly

shows that the time period of two months for payment for arrears

of rent had elapsed till that time and as such the tender of arrears

of rent on 24.05.1993 by a cheque dated 20.05.1993 was not a

valid tender. Benefit of Section 14 (2) of the DRCA also could not

have been granted to the petitioner since his defence has already

stood struck down. The eviction petition under Section 14 (1)(e) of

the DRCA was thus rightly decreed. This fact finding has been

endorsed by both the courts below.

7 This Court sitting in its power of superintendence; it cannot

interfere as no flagrant error has been pointed out. Moreover, it

would be relevant to state that in the grounds of appeal filed

before this Court (page 11 of the paper book) in sub-para 40, the

petitioner has admitted that there was an unintentional delay on

the part of the petitioner in depositing the future rent; meaning

thereby that he has himself admitted that there was a delay by

him in depositing the arrears of rent. As such the arguments

advance till now that the arrears of rent have been paid in time

hold no good.

8 The impugned order decreeing the eviction petition filed by

the landlord under Section 14 (1)(a) of the DRCA suffers from no

infirmity. Petition is without any merit. Dismissed.

INDERMEET KAUR, J JANUARY 19, 2012 A