Balkishan Sharma vs Surinder Aggarwal
2012 Latest Caselaw 5426 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM (M) 1627/2010

                                        Date of Decision: 11.09.2012

BALKISHAN SHARMA                                    ...... Petitioner
               Through:                 Mr. Rakesh Mukhija, Adv.
                                        with Mr.S.Sharma, Adv.

                               Versus

SURINDER AGGARWAL                                ...... Respondent
               Through:                 Mr.Jawahar Chawla, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution assails the order dated 3.11.2010 of District Judge (East)-cum-ARCT, Karkardooma Courts, whereby he dismissed the appeal of the petitioner, directed against the orders of Addl. Rent Controller (ARC) dated 2.5.2009 & 9.7.2009.

2. The petitioner had filed an eviction petition against the respondent under Section 14(1)(a) of the Delhi Rent Control Act (for short the 'Act'). Vide judgment dated 2.5.2009, the petition was disposed of by the ARC observing that the case under Section 14 (1)(a) of the Act stood proved against the respondent. However,

vide order dated 9.7.2009, the ARC, on perusal of the report of Nazir, gave benefit of Section 14(2) of the Act to the respondent. The benefit of Section 14(2) was granted to the respondent, observing that as per the Nazir report, there was compliance of order under Section 15(1) of the Act, except on two occasions. The petitioner/landlord, not being satisfied, carried the matter in appeal before the ARCT vide RCA 30/2010, which came to be dismissed vide the impugned order dated 3.11.2010. This order is under challenge in the instant petition by the petitioner/landlord.

3. Having heard the learned counsel for the petitioner and the respondent and being conscious of the power of this court under Article 227 of the Constitution, I do not see any infirmity or illegality in the impugned order of ARC or that of the ARCT. The learned counsel for the petitioner drew my attention to the Nazir's report to demonstrate that there were eight defaults in compliance of order Section 15(1) of the Act, and not two, as observed by the ARC and ARCT. He submitted that the rent for the period w.e.f. 1.5.2005 to 31.10.2005 i.e. for six months was deposited on 25.10.2005 and likewise, the rent for the month of November and December, 2005 i.e. for two months, was deposited on 20.12.2005. It is in this manner, that the learned counsel for the petitioner alleged there to be eight defaults, and not two defaults as recorded by the ARC.

4. It is settled proposition of law that if there is no material illegality or perversity, the order of the courts below is not to be faulted with or interfered with by this court in its supervisory powers under Article 227 of the Constitution. Firstly, I am unable to agree with the learned counsel for the petitioner that the payment of rent of six months on 25.10.2005, and that of two months on 20.12.2005, in any way, would be taken to be as default on the part of the respondent. This can, at the most, be taken as case of delay in depositing rent of these periods. By any logic, it cannot be said to be the respondent having committed eight defaults in compliance of the order under Section 15(1) of the Act. The order under Section 15(1) of the Act was passed by the ARC on 23.3.2005, and the case finally came to be disposed of on 20.5.2009. Both the parties had examined themselves as their witnesses. Nowhere in the cross examination, the respondent was confronted with the delay in deposit of rent of these months. Not only this, throughout the proceedings of trial going for about four years, the petitioner never ever alleged default on this account. So much so, no application under Section 15(7) of the Act was ever filed by the petitioner for striking off the defence of the respondent on account of the alleged defaults. It is seen that in compliance of the order under Section 15(1), the first deposit was made on 6.4.2005 of the arrears of the rent, and the next deposit was made of six months on 25.10.2005. If the petitioner had any well-founded grievance, he had the right to file an application for striking off the defence of the respondent

under Section 15(7) of the Act. He having not done so, and acquiesced the delay, he cannot be permitted to raise this controversy after such a long time, when the valuable right has accrued to the respondent. The right course for him was to make an application under Section 15(7) of the Act for striking off the defence of the respondent. By having not chosen to do so, the said remedy was not available to him in the present proceedings, after the grant of benefit under Section 14(2) of the Act. In the event of the petitioner having filed an application under Section 15(7) of the Act, the respondent would have got an opportunity to explain the cause of delay at that point of time. What the petitioner failed to do at that point of time, cannot be allowed after the termination of the petition. I do not see any infirmity or perversity in the impugned order, warranting any interference by this court under Article 227 of the Constitution. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

SEPTEMBER 11, 2012/akb