Smt. Janki Devi vs Leela Dhar
2012 Latest Caselaw 669 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment: 31.01.2012
+             CM(M) No. 1207/2008

SMT. JANKI DEVI                                          ..... Petitioner
                                Through:   Mr. Rajesh Yadav, Advocate.
                       versus

LEELA DHAR                                             ..... Respondent
                                Through:   None.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Order impugned before this Court is the order dated 24.07.2008

passed by the Additional Rent Control Tribunal (ARCT) endorsing the

finding of the Additional Rent Controller (ARC) dated 01.12.2006

whereby the respondent/tenant had been directed to deposit the rent @ `

660/- per month w.e.f. 01.04.2000 subject to the adjustment of rent

already deposited by him; this was a modification of the earlier order

dated 27.02.2003 passed under Section 15 (1) of the DRCA. Vide order

dated 27.02.2003, an order had been passed under Section 15 (1)

wherein the petitioner had been directed to pay the arrears of rent @

`600/- per month; in this order, the ARC had also noted that this is a

case of first default; accordingly in the judgment dated 01.12.2006, the

tenant was given benefit of Section 14 (2) of the DRCA. This order of

the ARC was the subject matter of an appeal before the RCT who had

dismissed the appeal vide the impugned judgment dated 24.07.2008.

2. The facts are in a narrow compass. Petition was filed by the

landlady Janki Devi seeking eviction of the tenant from the shop

measuring 8'X10' in a part of house bearing No. 4, Libaspur Road, Opp.

Chadha Nuursing Home, Samaipur, Delhi-110042. Rate of rent was

`400/- per month. This eviction petition had been filed on 30.09.2002.

The contention of the landlord was that an earlier eviction petition

which had been withdrawn on a compromise arrived at between the

parties on 18.07.1996, an order under Section 15 (1) of the DRCA had

been passed on 30.09.1995; contention was that even after the

withdrawal of first eviction petition on 18.07.1996, the tenant continued

to default in payments of rent and thus the order of the ARC dated

27.02.2003 holding that this is a case of first default is an illegality and

clearly contrary to the record as this is a case of second default and

should have been treated as such.

3. None has appeared for the respondent although he has been

served.

4. It is not in dispute that every order which is passed by the ARC is

appealable before the RCT under Section 38 (1) of the DRCA; section

38 (1) stipulates that an appeal shall lie against every order of the ARC

which can be assailed within a period of 30 days and if it is later than 30

days as per Section 38(2), it has to be accompanied by an explanation.

Admittedly the order dated 27.02.2003 was not assailed by the

petitioner; after the order dated 27.02.2003 had been passed by the ARC

holding that this is a case of first default, matter had been renotified for

the evidence of the petitioner; evidence of the parties had been led and

the matter was finally disposed of by the judgment of the ARC on

01.12.2006 i.e. three years ten and months after the order dated

27.02.2003. Learned counsel for the petitioner contends that the order

dated 27.02.2003 holding it to be a case of first default had in fact been

challenged before the RCT and this finds mention in his grounds of

appeal. There is however no explanation as to why this order was not

challenged earlier and in view of the specific remedy contained in

Section 38 (2) of the DRCA, this order has since attained a finality; it

could not have been challenged almost four years later. This order dated

27.02.2003 has recorded a categorical finding that this is a case of first

default and as such it was rightly treated to be the first default by the

ARC while disposing of the petition on 01.12.2006.

5. This Court is sitting in its powers of superintendence under

Article 227 of the Constitution; it is conscious of the fact that the right

of second appeal has since been abrogated and this Court as such is not a

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

illegality or injustice which is caused to one party qua the other,

interference is called for and on no other count.

6. After the order of 27.02.2003, the parties had been relegated to

evidence and the case of the landlady was that rent was not `600/- per

month but in fact it was `660/- per month. The ARC had accordingly

passed the judgment on 01.12.2006 holding that the earlier order passed

under Section 15 (1) of the DRCA is modified and instead of tenant

paying `600/- per month, he shall pay `660/- per month for the arrear

period. There is no doubt that before the RCT in the grounds of appeal,

the order dated 27.02.2003 was the subject matter of challenge but that

order had since attained a finality long ago and it not having been

assailed during the period stipulated under Section 38 (2) of the DRCA

for which there was no sufficient reason or cause explained, the RCT

had also rightly noted that the order dated 27.02.2003 had returned a

finding that this order was a case of first default. The judgments relied

upon by learned counsel for the petitioner reported as 1972 AIRCJ 293

Bhoj Dutta Vs. Brij Narain Bagai and 1970 R.C.R. 566 Smt. Sumitra

Rani Vs. M/s Bennel Coleman and Co. Ltd. thus would not advance his

case any further. Moreover in the order of the RCT, it had also been

been noted that the first eviction petition had been withdrawn by the

landlady on 18.07.1996 which was not a disposal on merits; there was

no statement by the tenant that in case he is not able to make the

payment, an eviction order should be passed against him. On no count,

can the petitioner succeed. Petition is without any merit. Dismissed.

INDERMEET KAUR, J JANUARY 31, 2012 A