Dev Dutt v. Rohtash & Ors.

1. This petition under Article 227 of the Constitution of India is preferred by the landlord against the order of the Rent Control Tribunal holding the respondent/tenant to be entitled to the benefit under Section 14 (2) of the Delhi Rent Control Act. 1958. The sole ground for eviction rvas under Section 14 (1) (a) of the Act. The Addl. Rent Controller found a case to ha'i'e been made out b1' the petitioner under Section la (1) (a) of the Act and allorved the petition for eviction on 1" August, 2003 The matter rvas thereafter listed for determining rvhether the respondent/tenant is entitled to the benefit under Section 14 (2) of the Act or not. Report tvas called lrom theNazir of the court 10 deterrnine rvhether the respondent/tenant had complied l'ith the order under Section 15 (1) of the Act. It rvas found that the respondent/tenanl had notdeposited the rent for the month of August, 2002 and for the month of September, 2002 the treasury challan number had not come to the court as yet. The respondentftenanl deposited the rent for month of August, 2002 soon after the Nazir had submitted the report shon'ing default in payment thereof This resulted in delay of eleven months in deposit of rent of August.

2002. The explanation given b1' the respondent/tenant i,r'as that the clerk of the counsel for the respondent/tenant nas getting challan passed and depositing the rent and perhaps he had not moved the application for depositing the rent for the month of August, 2002. !, U- 2009:DHC:8862 ltl,{.d leading to the default. The counsel for the petitioner/landlord states that no application u'as hou'ever moved in this regard.

2. The Addl. Rent Controller vide order daled 5d' August, 2003 held that the respondent/tenant rvas responsible for due diligence in ensuring that the rent rvas deposited in terms of the order Under Section 15 (l) of the Act and having admittedly defaulted, was not entitled to the benefit under Section14 (2) of the Act. Accordingly,. n[1] order ofeviction rvas passed against the respondent/tenant.

3. The respondent/tenant preferred an appeal before the Rent Control Tribunal. n'hich rvas allo*'ed'r,ide order dated 12tr'March, 2004 and the order of eviction n'as set aside. The Tribunal set aside the finding of the Controller of a case under Section 1a (1) (a) of the Act having been made out and remanded the matter to Controller for fi'esh consideration. Consequently the order dated 5tr' August, 2003 (Supra) holding respondent tenant not entitled to benefit of Section 14 (2) rvas also set aside.

4. Upon remand, the Addl. Rent Controller again came to the conclusion of a case under Section 14 (1) (a) of the Act to have been made out. On 16u' February, 2005 i[1] rvas considered rvhelher the respondent/tenant rvas entitled to the benefit under Section14 (2) of the Act or not. The Addl. Rent Controller held that notn'ithstanding the default, the petitioner/landlord had not moved an[1], application for striking off of the defence of the respondent/tenant and had also not brought the defbult to the notice of the court till the passing of the said order; the. respondent/tenant continued to participate in the proceedings; it rvas held that if the petitioner/landlord rvas aggrieved by the default he should have moved an application for striking off of the defence of the respondent/tenant and nherein an opportuniq' u,ould have been given to the respondent/tenant to explain the delay. The Addl. Rent Controller found that elen at the final stage it rvas never the contention of the petitioner/landlord that the default by the respondent/tenant rvas contumacious. The Addl. Rent Controller thus held the respondent/tenant entitled to the benefit under Section 14 (2) ofthe Act.

5. The petitioner/landlord challenged the aforesaid order in appeal before the Renr Control Tribunal and rvhich appeal has been dismissed. The Tribunal has held that fi'om a perusal of the report of the Nazir it appeared that the tenant had been depositing the rent regularll'; e't'en the challans for the month of August & S eptembe r, 2002 n.ere got passed ! al tf from the court. It rvas thus held that the default rvas not intentional but occurred on account of dishonesb, of the clerk of the respondent/tenant and q"hich was found to be condonable. Yet another fact considered b1' the Tribunal \\'as that the respondent/tenant immediately upon coming to knou'of the same had deposited the rent.

6. The petitioner/landlord aggrieved therefrom has preferred this petition. The counsel for the petitioner/landlord has relied upon Jain Motor Co. Vs. Stvayam Prabha 1996 Rajdhani Larv Reporter 163 (SC) to contend that the defuult therein rvas of 11 da1's only and was still not condoned and to also contend that the understanding of the Addl. Rent Controller in the order dated 16u' February, 2005 of the said judgment is erroneous. In support of the same contention reliance is also placed on Soniay Iftmmr Sascena Vs. Meeta Goel 2005 Rajdhani Lar',, Reporter 161. It is urged that it is immaterial whether the defence rvas struck off or not and that if the tenant *'hile depositing rent made a default and offered no explanation and soughl no condonation, then no excuse is entertainable and the tenant becomes liable to ei'iction under Section 14 (2) of the Act. It n'as further held in the said judgment that the question of u'aiver could arise only rvhen there is a conscious abandonmenl of one's rights. Reliance is also placed on Punita Soltrti Vs, Kailash Sethi 2009 Rajdhani Lan' Reporter 53 (Note) to conlend that an allegation of fraud b[1], lanyer's clerlt was no ground. The comsel for the petitioner/landlord also refers to para 16 of Ram Murti Vs. Blnla Nal/r AIR 1984 SC 1392 to contend that though the controller has the porver to extend the time for pal'ment of future rent under Section 15 (1) but onll' rvhen the fuilure of the tenant to make pa)'ments or deposit u'as due to circumstances be1'ond the control of the tenant.

7. This court is conscious of the fact that jurisdiction is being exercised under Article 227 of the Constitution of India, the legislature har.ing, by' u'a1' of the Amendment Act, 1988 taken ai,vav the pro'i'ision of second appeal to this court against the order of the Tribunal. The parameters in *hich the jurisdiction r.urder Article 227 is exercised are much stricterthan in an appeal underthe erstivhile Section 39 of the Act. The High Court does not act as a court of appeal or a court of error; it can neither revien' nor re-appreciate the evidence. It cannot substitute its on'n decision in place of that of the lorver court/Tribunal. Reference in this regard can be made to Slmntslmd Ahnmd an[4] Ors. v. Tilak Rai Baiai (2003) 9 SCC 1. Yet again in Chanda,tarkar Sita Ratna Rao t,. -J ! 3/l[6] Aslmlsta S. Guraru (1986) 3 SCR 866 it r,r'as held that unless there rvas an)/ grave miscarriage of justice or flagrant violation of laiv calling for intervention, the jurisdiction under Article 227 of the Act could not be exercised. Reference can also be made to Bathutnml Raiclmnd Oswal v. Laxnibai R. Tarta AIR 1975 SC 1297 s'here also it'n'as held that it is bnll' a superior court in exercise of statutoryf power as a court of appeal n'hich can correct an error of fact and the High Court in exercise of porver under Article 227 of the Constitution of India should not convert itself into a court of appeal. Yet another test laid do*m in Stote of Malmraslfira Vs. Mitittd 2000(7) SCALE 628 is that interference is permissible onll' on finding that the inferior tribunal's conclusion is based upon exclusion of some admissible ei:idence or consideration of some inadmissible evidence or *fien the inferior tribunal had no jurisdiction a[1] all or if the conclusion or finding arrived al is such l'hich no reasonable man could arrive at on the material on record.

8. Seen in this light, it has to be determined n'hether the discretion rvhich is yested in the Addl. Rent Controller in condoning the delay can be interfered tvith in the present case or not.

9. The counsel for the petitioner rvould contend that in the same proceedings vide order dated 5tl' August, 2003 it had been held that no case for exercise of discretion in fa'r'our of the tenant u'as made out and the tenant n'as no[1] held entitled to the benefit r.nder Section 14 (2) of the Act. It is suggested that the controller post remand could not interfere u'ith that part of the order since the remand rvas limited to the findings under Section 14 (1) (a) of the Act. Ho\\'er"er, the fact remains tha1fte order dated 5ft August, 2003 rvas also set aside though consequenl to the sefling aside ofthe earlier order daled l't August, 2003 finding a case under Seclion 14 (1) (a) of the Act to har,e been made out. Thus it cannot be urged that post remand, the controller was bound by the order dated 5tl' August. 2003.

10. The counsel br the petitioner has also contended that no application br condonation had been filed. But in my vieil, that ivould also be immaterial. The couns belorv have nevertheless gone into the explanalion furnished. The courts have in holding the tenant 1o be entitled to the benefit under Seclion 14 (2) of the Act have been sn'aved b1'the fact thal the lenant had been regularlv depositing the rent: that the default 1'as of 4/- $ t) one month onl[1],; that immediatell' on coming to knorv of the default the renl u.as deposited and the challan for the defaulted monlh also had in fact been got cleared from the court.

11. Even otherrvise it is common knorvledge that the litigants in the matter of deposit of rent depend upon the clerks of the advocates engaged by them. Normalll, the orders under Seclion 15 (1) of the Act remain for several l'ears and unless it is shonn that the conduct=during the enlire time is contumacious, it cannot be said that a slip in deposit of rent fo? a month or tn'o when otherrvise the lenant has been regular l,ould be such as to deprive the tenant of the available statutory benefit under Section 14 (2) of the Act. Thus i[1] cannot be said that the finding/conclusion or the exercise of discretion by the courts belorv is rvithout any basis at all or on material not relevant or inadmissible. This courr thus in the exercise ofjurisdiction under Article 227 is not inclined to interfere n,ith the discretion so exercised b[1], 16" courts belorv. The petition is accordingly dismissed. No order as 10 costs.

SAHAI ENDLAW, J DECEN{BER 08,2OO[9] Pp 5/- /+