Delhi High Court

Yogender Kumar Jaiswal & Ors. vs Shashibala & Ors. on 26 September, 2014

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+    C.M.(M) No.898 /2014 & C.M.Nos.16278/2014 (Exemption),
     16279/2014 (u/S 151 CPC), 16280/2014 (Stay)


%                                                       26th September, 2014

YOGENDER KUMAR JAISWAL & ORS.                ......Petitioners
                Through: Mr.Amit Sharma with Mr.Dipesh
                         Sinha, Advocates.

                          VERSUS
SHASHIBALA & ORS.                                            ...... Respondents

                          Through:       Mr.Ravinder Seth, Sr.Advocate with
                                         Mr.S.N.Chaodhary and Mr.Puneet
                                         Sharma, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

Caveat No.860/2014

      Since    appearance    has     been    put   in     on   behalf   of     the

respondents/caveators, the caveat stands discharged.

CM(M) No.898/2014 & C.M.Nos.16278-16280/2014

1. There are some cases which indicate not only heights but

extraordinary heights of malafides. The present petition is one such petition

filed by the tenants. This I am observing because a bonafide necessity

eviction petition is decreed by the Additional Rent Controller after trial. The

judgment of the Additional Rent Controller dated 15.3.2014 was challenged

before this Court by filing of a rent control revision petition being RC.REV

No.222/2014, and which petition after hearing the petitioners/tenants, was

dismissed by a detailed judgment on 04.9.2014. This judgment was

thereafter challenged before the Supreme Court by way of an SLP and the

Supreme Court dismissed this SLP on 17.9.2014 by making the following

observations:-

" The learned counsel for the petitioners sought permission to withdraw the special leave petition with liberty to move before the appropriate forum.

Liberty is granted, if permissible under the law, to file such case, without any liberty to challenge the very same impugned order before this Court.

The special leave petition is dismissed as withdrawn. Signature Not Verified.

Digitally signed by Rajni Mukhi Date: 2014.09.17 16:56:49 IST Reason:

       (Rajni Mukhi)                                        (Usha Sharma)
       Sr.P.A                                                Court Master"

2. The petitioners/tenants claim that in accordance with the liberty which

was granted by the Supreme Court, the Additional Rent Controller was

approached for reviewing of the judgment on the ground that the judgment

notes that the oral arguments took place, whereas no oral arguments took

place, and actually the case was only decided as per the written arguments,

and which as per the petitioners is therefore an error apparent on the face of

the record requiring passing of a fresh judgment.

3 (i). Nothing can be more absurd than the argument which is being urged

on behalf of the petitioners/tenants that the judgment passed in a bonafide

necessity eviction petition should be set aside only because one clerical/

typing error appears in the same i.e the oral arguments were addressed when

oral arguments were assumingly not addressed. I am using the expression

'assumingly' because it is stated on behalf of the respondents that oral

arguments did take place on behalf of some of the parties i.e on behalf of the

landlords and sub-tenant, and consequently there is no typing error.

However it bears note that merely because a typing error assumingly exists

cannot mean that a judgment which is passed on merits discussing all the

aspects can be sought to be set aside in a review petition. Review petition is

with respect to merits of a case. Merits of a case, if are decided by the

judgment, then the merits of the judgment are challenged in a review and not

a so-called typing mistake that the Additional Rent Controller below has

wrongly stated that oral arguments were addressed when they were not.

(ii) Not only the Additional Rent Controller passed a detailed judgment

on merits, thereafter, arguments on merits which had to be addressed by the

petitioners/tenants but allegedly were not addressed could well have been

surely addressed before this Court when the judgment of the Additional Rent

Controller was challenged before this Court in RC.REV.No.222/2014, and

detailed arguments of both the parties were heard before passing of the

judgment dated 04.9.2014 dismissing the rent control revision petition.

Therefore taking that oral arguments were not urged before the Additional

Rent Controller, that cannot mean that the judgment of the Additional Rent

Controller which has been sustained by this Court, and the SLP dismissed,

can be challenged by filing a review before the Additional Rent Controller,

and for which really no liberty was granted by the Supreme Court and the

review contemplated by the order of the Supreme Court dated 17.9.2014 was

a review before this Court.

4(i). It is not the case of the petitioners/tenants that certain arguments were

made on behalf of the petitioners/tenants when the rent control revision

petition was dismissed by this Court on 04.9.2014, and that such arguments

are not noted in the judgment. Therefore, the petitioners/tenants had

obviously enough opportunity to re-argue their case on merits before this

Court before the judgment dated 04.9.2014 was pronounced by this Court

and the rent control revision petition was dismissed. As stated above, this

order has achieved finality because SLP against this petition has been

dismissed by the Supreme Court on 17.9.2014 and the liberty given by the

Supreme Court in the present case is extremely limited and conditioned by

the expression "if permissible under the law". The Supreme Court by its

judgment dated 17.9.2014 made the strict observations of " if permissible

under the law" because obviously review as per Section 25B(9) of the Delhi

Rent Control Act, 1958 (in short 'the Act') is not permissible before the

Additional Rent Controller before whom the petitioners/tenants have

wrongly filed the review petition because the judgment of the Additional

Rent Controller merged with the judgment passed by this Court dated

04.9.2014. Section 25B(9) of the Act reads as under:-

" Where no application has been made to the High Court on revision, the Controller may, exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908)".

(ii) The Additional Rent Controller has thus rightly dismissed the review

petition by referring to Section 25B(9) of the Act, which states that a review

petition cannot lie before the Additional Rent Controller once the judgment

of the Additional Rent Controller merges with the judgment of this Court

dated 04.9.2014 dismissing the challenge led by the petitioners/tenants

against the judgment of the Additional Rent Controller dated 15.3.2014.

5. A review petition would also not lie before this Court because a

review petition only lies if there is an error apparent on the face of the record

or certain most important aspects have been recently discussed which can

change the judgment which is passed, but, none of these aspects are pleaded

in the present case.

6. It is high time that some wholly frivolous litigations must be dealt