Delhi High Court
M/S Service Bureau Of India vs Smt Aarti Phull on 7 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1029/2013 & C.M.No.15405/2013 (for stay)
% AUGUST 07, 2014
M/S SERVICE BUREAU OF INDIA ......Petitioner
Through: Mr.Parveen Mehdiratta, Advocate.
VERSUS
SMT AARTI PHULL ...... Respondent
Through: Mr.Dhruv Mohan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Challenge by means of this petition under Article 227 of the
Constitution of India is to the impugned order of the Additional Rent
Controller dated 01.8.2013 which has allowed the amendment application
filed by the landlord/respondent (petitioner in the eviction petition) to amend
his eviction petition to correct the typographical mistake of the date of the
legal notice from 07.8.2009 to 10.8.2009.
2. The facts of the case are that the respondent/landlord filed a petition
for eviction of the petitioner/tenant under Sections 14(1)(a) and 14(1)(e) of
the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'). With
respect to an eviction petition for non-payment of rent under Section
14(1)(a), a legal notice has to be served upon the tenant by the landlord
giving the tenant two months time to pay the arrears of rent, and if the tenant
does not pay the arrears of rent within two months, thereafter cause of action
accrues for filing of the eviction petition under Section 14(1)(a) of the Act.
3. In the eviction petition, the petitioner stated that the legal notice under
Section 14(1)(a) of the Act with respect to cause of action under Section
14(1)(a) was dated 07.8.2009. It is, however, not disputed that along with
the eviction petition, the legal notice which was filed was dated 10.8.2008.
When the evidence in the case commenced and evidence by way of affidavit
was filed by the respondent/landlord and he sought to exhibit the legal notice
dated 10.8.2009, the petitioner/tenant objected during the leading of
evidence that the legal notice dated 10.8.2009 cannot be exhibited because it
was beyond pleading, inasmuch as, the pleading/eviction petition of the
respondent/landlord stated the date of the legal notice as 07.8.2009 and not
as 10.8.2009.
4. Most surprisingly, the Additional Rent Controller by an order dated
24.7.2012 made a mountain of a mole hill and refused to overlook the minor
typographical error and passed a detailed order on 24.7.2012 stating that
since in the eviction petition mention was made of the legal notice dated
07.8.2009, but the legal notice which is sought to be exhibited is 10.8.2009,
the legal notice could not be proved in evidence and exhibited. Though the
order dated 24.7.2012 is not challenged before me, I must, however, express
my disapproval of the reasoning in the said order whereby the minor
typographical error of a wrong date of the legal notice stated in the eviction
petition has been allowed to cause substantial injustice to the
respondent/landlord. In fact, at this stage itself the court could have simply
allowed the legal notice to be exhibited by taking the typing error in the
petition as a clerical error, because and admittedly, along with the eviction
petition, the legal notice which was filed was dated 10.8.2009 and not
07.8.2009.
5. Since by the order dated 24.7.2012, the Additional Rent Controller
refused to allow the legal notice dated 10.8.2009 to be proved and led in
evidence, the respondent/landlord was forced to file an application for
amendment of the eviction petition stating that there is a typing mistake in
the same, because the date on the legal notice sent as a cause of action under
Section 14(1)(a) of the Act has been mentioned as 07.8.2009, whereas, it
should be 10.8.2009. As already stated above, a copy of the legal notice
filed with eviction petition was 10.8.2009 and not 07.8.2009, and a copy of
which was also delivered to the petitioner herein (respondent in the eviction
petition), and therefore there is really no surprise to the petitioner.
6. By the impugned order dated 1.8.2013, the amendment application of
the respondent/landlord has been allowed and the eviction petition has been
allowed to be amended to correct the typing mistake with respect to the date
of the legal notice, and the date of the legal notice was to be taken as
10.8.2009 instead of the wrongly typed date as 07.8.2009.
7. Code of Civil Procedure, 1908 (CPC) is a handmaid of justice. Parties
do mistakes in the conduct of their cases. Therefore, the provision for
amendment of pleading is there and amendments such as the present are
almost invariably allowed because no prejudice is caused to the petitioner
(respondent in the eviction petition), and who had received a copy of the
legal notice dated 10.8.2009 along with the other documents which were
filed with the eviction petition. Powers under Article 227 of the Constitution
of India are powers which are meant to be exercised in extraordinary
situations where gross injustice results because of an impugned order.
Powers under Article 227 of the Constitution of India are discretionary
powers, and even if the impugned order is not strictly in accordance with
law, but if the same results in justice, then courts still do not exercise powers
under Article 227 of the Constitution of India to set aside such an order.
8. In view of the above, there is no merit in the petition, and the same is
therefore dismissed, leaving parties to bear their own costs.
VALMIKI J. MEHTA, J
AUGUST 07, 2014
KA
