Smt. Gyano Devi vs Smt. Kanchan Chopra And Anr.
2014 Latest Caselaw 5656 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 C.M.(M) Nos. 1095/2012 & C.R.P. No.140/2012

%                                                     03rd November, 2014

1.    C.M.(M) No.1095/2012

SMT. GYANO DEVI                                         ..... Petitioner
                          Through:       Mr. Deepak Tyagi, Advocate with
                                         Mr. K.K. Gautam, Advocate.

                          versus

SMT. KANCHAN CHOPRA AND ANR.                      ..... Respondents

Through: Mr. Sam Dutta Sharma, Advocate with Mr. Pawar Singh, Advocate.

2.   C. R.P. No.140/2012

SMT. GYANO DEVI                                         ..... Petitioner
                          Through:       Mr. Deepak Tyagi, Advocate with
                                         Mr. K.K. Gautam, Advocate.
                          versus

SMT. KANCHAN CHOPRA AND ANR.                  ..... Respondents
                  Through: Mr. Sam Dutta Sharma, Advocate
                           with Mr. Pawar Singh, Advocate.
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M.(M) No.1095/2012 and C.M.Nos.17283-84/2012

1. This petition under Article 227 of the Constitution of India

impugns the concurrent judgments of the courts below; of the trial court

dated 10.2.2011 and the first appellate court dated 9.8.2011; by which the

application of the petitioner/tenant under Order IX Rule 13 of Code of Civil

Procedure, 1908 (CPC) has been dismissed.

2. The respondent no.1/landlady filed an eviction petition against

the present petitioner/tenant for non-payment of rent under Section 14(1)(a)

of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'). In

the eviction petition, for the date of hearing 7.2.1996, summons which were

sent through registered cover, came back with the endorsement of 'refusal'

by the postman. The subsequent order dated 1.8.1996 records that son of the

present petitioner/tenant appeared in the court and sought time to file the

written statement. Written statement was filed by the petitioner/tenant

through her Advocate Sh. Ved Pal Singh on 4.9.1996. Since the present

petitioner thereafter did not appear in the eviction petition, she was

proceeded exparte vide order dated 31.7.1997. An exparte judgment and

decree was passed on 24.2.1999 and simultaneously an order was also

passed under Section 15(1) of the Act for direction to deposit the rent

inasmuch as since the case of default in payment of rent was the case of first

default, therefore, the petitioner/tenant in case of compliance of the order

under Section 15(1) of the Act would have been entitled to ensure that the

eviction order is not passed on account of protection under Section 14(2) of

the Act. Since the petitioner/tenant failed to comply with the judgment and

decree dated 24.2.1999 including the order of deposit of rent under Section

15(1) of the Act, thereafter an eviction order was passed against the

petitioner/tenant and in favour of the respondent no.1/landlady.

3. In the application, under Order IX Rule 13 CPC filed by the

petitioner herein, evidence was led by both the parties, and the impugned

orders have been passed considering the evidences which were led by both

the parties.

4. As already stated above, as per the record of the Additional

Rent Controller which was dealing with the eviction petition under Section

14(1)(a) of the Act, it was found that there was a report of refusal of the

postman and therefore in fact the petitioner/tenant was already served for

7.2.1996. Additional Rent Controller however in the interest of justice had

directed fresh service and on 1.8.1996 when the son of the petitioner herein

appeared and took time for filing the written statement. Written statement

was then filed through Sh. Ved Pal Singh, Advocate and who has appeared

and deposed in favour of the respondent no.1/landlady as DHW4. Sh. Ved

Pal Singh, Advocate in his deposition confirmed that he was engaged by the

petitioner/tenant to defend the case but he stopped appearing as his fees was

not paid. The petitioner/tenant had approached Sh. Ved Pal Singh, Advocate

through one Sh. Bal Kishan Sharma of South Anarkali and in the cross-

examination of Sh. Ved Pal Singh, Advocate, the petitioner/tenant did not

put any question to challenge this aspect. In fact on the direction of the

court hearing the application under Order IX Rule 13 CPC, the

petitioner/tenant appeared in person in court and she was recognized by her

Advocate Sh. Ved Pal Singh. The first appellate court below also notes that

petitioner/tenant conveniently stated that she came to know of the eviction

order through some police official in police station Krishna Nagar but she

has not named any such official.

5. Powers under Article 227 of the Constitution of India are

extraordinary and discretionary powers. These powers are not meant to be

exercised as if for filing of a second appeal through this petition. There was

a provision of second appeal being Section 39 in the Act and which was

repealed back in the year 1988. Even the provision of second appeal was

only on limited ground of existence of questions of law. Once there is no

provision of second appeal, unless and until gross illegality is found in the

impugned judgments, this court cannot be called upon to exercise its

discretionary and extraordinary jurisdiction under Article 227 of the

Constitution of India once the courts below after considering the facts,

appraising evidence have come to a plausible and possible view. It is not in

the realm of jurisdiction under Article 227 of the Constitution of India to sit

as an original or first appellate court and reappraise evidence. However I am

in spite of the above legal position still, considering the various arguments

which have been urged on behalf of the petitioner/tenant on merits.

6. Counsel for the petitioner/tenant has urged before this court the

following arguments:-

(i) The petitioner does not put signatures and only puts thumb

impressions and which according to counsel for the petitioner/tenant

becomes clear from the fact that the bailiff in the execution report itself

found that the report/warrants issued by the court contain the thumb

impression of the petitioner/tenant and not signatures of the

petitioner/tenant. It is thus argued that a fraud has been played upon the

petitioner/tenant because petitioner/tenant had never signed any vakalatnama

in favour of Sh. Ved Pal Singh, Advocate or the written statement.

(ii) The vakalatnama filed by Sh. Ved Pal Singh, Advocate shows that the

same does not contain any address of Sh. Ved Pal Singh, Advocate, and

therefore the petitioner/tenant was prevented from filing any complaint

against Sh. Ved Pal Singh, Advocate in the bar council in the absence of any

details of the Advocate in the vakalatnama.

(iii) The trial court in the main eviction proceedings records that son of the

petitioner/tenant appeared on 1.8.1996 and sought time to file the written

statement but there is no proof that who appeared on 1.8.1996 was in fact the

son of the petitioner/tenant.

(iv) The power of attorney holder of the respondent no.1/landlady, and

who is the respondent no.2 herein namely Sh. Prakash Chand, was not duly

authorized in terms of the power of attorney executed by the respondent

no.1/landlady on 5.12.1996 and therefore the evidence led on behalf of the

respondent no.1/landlady by the respondent no.2 cannot be looked into and

therefore the application under Order IX Rule 13 CPC had to be allowed.

7. Let me take up each of the arguments urged on behalf of the

petitioner/tenant and deal with the same.

8. The first argument raised that the petitioner/tenant only puts her

thumb impressions and does not sign and that the same is allegedly clear

from the cross-examination of the bailiff Sh. Raj Kumar as DHW3

conducted on 28.9.2005, that argument is a misconceived argument because

what are the signatures of the petitioner/tenant and whether the

petitioner/tenant does not sign at all and only puts her thumb impressions

was in the special knowledge of the petitioner/tenant and only she could

have led clinching documentary evidence to prove this aspect. The present

respondent no.1/landlady could not be asked to prove the negative. I

therefore put a specific and pointed query to counsel for the petitioner/tenant

as to whether petitioner/tenant has filed any bank account opening form and

related documents or any other unimpeachable public record to show that the

petitioner/tenant never signed but only puts her thumb impressions, and to

which query it is not disputed that no such evidence is led before the trial

court that in a bank account the present petitioner/tenant only puts her thumb

impressions and does not sign. Also counsel for the petitioner/tenant

concedes that no evidence has been led before the trial court with respect to

any ration card or any record or any other unimpeachable

public/governmental authority which showed that the petitioner/tenant

never used to sign but used to put only her thumb impressions. I cannot

believe that any public record or any unimpeachable record would not have

existed showing that the present petitioner/tenant only used to put her thumb

impressions and did not sign if the case of the petitioner/tenant was true.

Therefore, in my opinion, since the respondent no.1/landlady could not have

been asked to prove the negative and the petitioner/tenant has in fact

concealed vital evidence in her knowledge as to whether any public record

contained her signatures or only her thumb impressions and which she was

required to bring as per Section 106 of the Evidence Act, 1872, hence in my

opinion the petitioner's/tenant's argument has to be disbelieved. The first

argument therefore urged on behalf of the petitioner/tenant is without any

substance and the same is rejected because it cannot be ruled out that the

petitioner/tenant may be putting her thumb impressions in certain places and

signatures at other places or may have even deliberately put only her thumb

impression on the bailiff's report. These are aspects of evidence and this

Court cannot re-appraise evidence under Article 227 of the Constitution of

India.

9. The second argument urged on behalf of the petitioner/tenant

that no complaint was filed against Sh. Ved Pal Singh, Advocate with the

bar council because there were no details with regard to the address

contained in the vakalatnama is misconceived inasmuch as even if no details

were contained in the vakalatnama with respect to the address of Sh. Ved Pal

Singh, Advocate, however, surely once Sh. Ved Pal Singh, Advocate

appeared as a witness of the respondent no.1/landlady as DHW4 and gave

details, and it is not the case of the petitioner/tenant that Sh. Ved Pal Singh

Advocate is not an Advocate, the very fact that the petitioner/tenant even

now has not filed a complaint against Sh. Ved Pal Singh Advocate shows

that in fact Sh. Ved Pal Singh Advocate was her Advocate in the eviction

petition under Section 14(1)(a) of the Act and through this Advocate the

petitioner/tenant had filed her vakalatnama as also her written statement.

This second argument is therefore rejected.

10. The third argument urged on behalf of the petitioner/tenant of

there being no identity proof of the son of the petitioner/tenant taken by the

court on 1.8.1996, is also an equally frivolous argument because courts do

not have to compulsorily always ask for identity of persons who appear in

courts and in good faith courts do take the statements of the persons who

appear as to their relations with the party to the suit. I may note that it is not

open to the petitioner/tenant to argue against the judicial record that the

person who appeared on 1.8.1996 in the trial court was not her son inasmuch

as, as held by the Supreme Court in the case of State of Maharashtra Vs.

Ramdas Shrinivas Nayak & Anr. (1982) 2 SCC 463 that unless and until

judicial record is challenged at the earliest by the person against whom such

judicial record exists, the judicial record becomes final and the same cannot

be challenged in collateral proceedings. In fact this argument now pales into

insignificance as the petitioner/tenant is found to have appeared through an

Advocate who filed a vakalatnama and a written statement on behalf of the

petitioner/tenant and who has deposed before the trial court as DHW4. The

third argument is therefore rejected additionally keeping in mind that before

the son appeared in the trial court on 1.8.1996 in the main eviction petition

under Section 14(1)(a) of the Act, actually there was a refusal report of the

postman for the earlier date being 7.2.1996.

11. The final argument urged on behalf of the petitioner/tenant that

power of attorney holder of the respondent no.1/landlady i.e the respondent

no.2 was not a valid power of attorney holder and therefore his evidence

cannot be looked into is a misconceived argument because all the aspects

and findings of the courts below are based on the evidence not only of the

respondent no.2 herein but also of the evidence of Sh. Ved Pal Singh,

Advocate as also of two government officials/court officials. Also, in the

present case, the issue really was not only of any evidence on behalf of the

respondent no.1/landlady herein but of the evidence to be led by the

petitioner/tenant in her special knowledge as per Section 106 of the

Evidence Act, 1872 with respect to whether the petitioner/tenant does not

sign and only puts her thumb impressions and which aspect has also been

held against the petitioner/tenant in terms of the detailed discussions above.

12. In view of the above, the present petition is wholly frivolous

and being an abuse of the process of the law. The

respondents/landlords/plaintiffs are being unnecessarily harassed by the

petitioner/tenant because actually a connected petition being C.R.P.

No.140/2012 has also been today simultaneously decided by this court and

which revision petition has been filed by the present petitioner/tenant against

the judgment of the trial court decreeing the suit for possession filed by the

respondents/plaintiffs under Section 6 of the Specific Relief Act, 1963

because the petitioner/tenant after she was dis-possessed in execution of the

judgment and decree obtained by the respondents/landlords/plaintiffs, the

petitioner/tenant again took illegal possession of the suit property and

therefore the respondent no.1/landlady had to file a suit for possession which

was decreed by the judgment and decree dated 28.7.2012 and 13.9.2012

passed by the court of Sh. Raj Kumar, JSCC, ASCJ/G, Judge North-East,

Karkardooma Courts, Delhi. The present petition is therefore dismissed

with costs of Rs.50,000/- which shall be paid by the petitioner/tenant to the

respondent no.1/landlady within a period of six weeks from today.

+ C.R.P. No.140/2012

13. At the outset, counsel for the petitioner/tenant agreed that the

decision/fate of this revision petition will depend upon the decision in

C.M.(M) No.1095/2012 filed by the petitioner/tenant and that if C.M.(M)

No.1095/2012 is dismissed, this petition will also have to be consequently

dismissed. I have by a detailed judgment of today's date dismissed the

C.M.(M) No.1095/2012, holding the same to be totally lacking in substance

and an abuse of the process of the law. Since the C.M.(M) No.1095/2012 is

dismissed, the present petition under Section 115 of the Code of Civil

Procedure, 1908 (CPC) challenging the judgment and decree passed by the

trial court decreeing the suit for possession filed under Section 6 of the

Specific Relief Act, 1963 filed by the respondent no.1/landlady/plaintiff is

also dismissed in view of the statement made on behalf of the

petitioner/tenant at the commencement of the hearing. This petition is also

an abuse of the process of the law and is dismissed with costs of Rs.50,000/-

because the petitioner/tenant had the gumption of illegally entering into

possession of the suit property although possession was legally taken by the

respondent no.1 /landlady/plaintiff in the execution of the eviction decree

passed under Section 14(1)(a) of the Act. Costs be paid within a period of

six weeks from today.

VALMIKI J. MEHTA, J NOVEMBER 03, 2014 Ne