Delhi High Court
Mr. Jugvinder Singh vs Mrs. Phool Chatrath on 19 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 757/2014
% 19th August, 2014
MR. JUGVINDER SINGH ......Petitioner
Through: Mr. Rohan Kanhai, Advocate.
VERSUS
MRS. PHOOL CHATRATH ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This is a petition filed under Article 227 of the Constitution of India
against the concurrent judgments of the courts below; of the Additional Rent
Controller dated 12.8.2011 and the Rent Control Tribunal dated 13.3.2012;
by which the eviction petition filed by the respondent/landlord for non-
payment of rent under Section 14(1)(a) of the Delhi Rent Control Act, 1958
(in short 'the DRC Act') has been decreed.
2. The case of the petitioner/tenant was that he was not the tenant
inasmuch as he had agreed to purchase the suit property under the agreement
CM(M) No. 757/2014 Page 1 of 5
to sell dated 20.6.2005 and that the petitioner/tenant had paid a sum of
Rs.1,50,000/-.
3. I may note that the court of the Additional Rent Controller has noted
in para-4 of its judgment dated 12.8.2011 that the suit for specific
performance filed by the petitioner/tenant relying upon an agreement to sell
has been dismissed. As of today, this judgment stands as it has not been set
aside, and therefore, the petitioner/tenant cannot seek to place reliance upon
the said agreement to sell. Though counsel for the petitioner argues that
petitioner has recently filed a regular second appeal under Section 96 of
Code of Civil Procedure, 1908 (CPC) in this Court against the judgment
dated 25.1.2008 dismissing the suit for specific performance however, I am
doubtful that if a judgment of the year 2008 can be successfully challenged
by an RFA filed in the year 2014. In any case, I need not observe anything
further in this regard because the issue in the present case is really that the
petitioner/tenant had failed to comply with the order of the deposit of
pendente lite rent and future rent month by month passed under Section
15(1) of the DRC Act on 10.9.2010, and consequently, the defence of the
petitioner/defendant was struck off. Not only the defence was struck off, by
an order dated 15.11.2010, the review petition against that judgment dated
15.11.2010 was dismissed on 27.11.2010. An appeal filed by the
CM(M) No. 757/2014 Page 2 of 5
petitioner/tenant against the order dated 10.9.2010 and 15.11.2010 was also
dismissed on 6.4.2011. Therefore, the order with respect to striking off the
defence of the petitioner/defendant has become final. There is hence no
evidence of the petitioner/tenant whereas on the other hand
respondent/landlady has led evidence and proved her case.
4. On the aspect that there has occasioned a default in compliance of the
order passed under Section 15(1) of the DRC Act is concerned, that aspect
was not seriously disputed before this Court, inasmuch as defaults are a
matter on record. Since the order under Section 15(1) of the DRC Act has
not been complied with the petitioner will not be entitled to the benefit of
Section 14(2) and eviction has to follow. The aspect that the case of non-
payment of rent inspite of service of demand notice under Section 14(1)(a)
of the DRC Act has been proved and this has been discussed in para 7 of the
impugned judgment of the first appellate court dated 31.3.2012 which reads
as under:-
"7. Trial court record shows that petitioner Smt. Phool Chatrath
categorically stated in evidence which was brought on record by
way of her sworn affidavit as deposed in para 6 and 7 that the
respondent never paid rent by cash and always paid monthly rent
by account payee cheque but then after April 2009 he had not paid
the rent at all. She further deposed that a legal demand notice
dated 13.10.2009 Ex.PW1/3 was issued by her and was sent by
registered post. She proved postal receipt as Ex.PW1/4, UPC is
Ex.PW1/5 and acknowledgment card as Ex.PW1/6, prima facie
proving that demand notice served upon the appellant. Cross
CM(M) No. 757/2014 Page 3 of 5
examination on the petitioner is worth quoting in extensor which is
as under:-
"I know the contents of my affidavit Ex.P1. I am owner of
the flat mentioned above and jointly in the name with my husband.
The suit property is in my name which was allotted to me by DDA.
The suit property is LIG flat and consists 2 bed rooms, 1 drawing
cum dinning, kitchen, bathroom and balcony with terrace. It is
correct that I have filed other case against the respondent for non-
payment of rent in the year 1995 and matter was compromised on
the statement of the respondent. The respondent made the payment
of rent only by way of cheques. It is wrong to suggest that the
respondent paid the rent in cash. The respondent has paid rent
upto April 2009 and thereafter no rent has been paid by the
respondent. It is wrong to suggest that I am deposing falsely."
Ld. ARC has rightly observed that cross examination nowhere brings any material
at all to doubt the petitioner's case."
5. There was a Section 39 in DRC Act which allowed filing of second
appeals on substantial questions of law. This provision of second appeal has
been deleted by Act 57 of 1988. Therefore, if a second appeal could not be
filed, and which also could only be on limited grounds, a petition under
Article 227 of the Constitution of India does not lie as if it is a substitute for
a second appeal under Section 39 under the Act.
6. In view of above, the present petition under Article 227 of the
Constitution of India will not lie. Powers under Article 227 of the
Constitution of India are not meant to be exercised sitting as a second
appellate court and in any case is not available to challenge the judgments of
the courts below in facts such as the present where the defence of the
CM(M) No. 757/2014 Page 4 of 5
petitioner/defendant stands struck off for an admitted non-compliance of the
order passed under Section 15(1) of the DRC Act.
7. Dismissed.
AUGUST 19, 2014 VALMIKI J. MEHTA, J.
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