DEWAN CHAND CHAUDHRY v. R. I. TALUJA — 1973 DIGILAW 112 (DEL)

S. N. Andley, C. J. ( 1 ) THE appellant obtained anorder of eviction against Nirmal Banerjee (respondent No. 2) in respectof a garage on 28/03/1960 on the ground of non-payment of rentand sub-letting in favour of R. L. Taluja (respondent No. 1)froai 3/11/1965. Respondent No. 1 was not a party to the eviction proceedings. ( 2 ) THE appellant applied for execution of the order of eviction whereupon respondent No. 1 filed objections asserting that the garage hadbeen let out to him by the appellant since November, 1965 and being atenant in his own right, the appellant was not entitled to execute theorder of eviction against him by reason of section 25 of the Delhi Rentcontrol Act, 1958 By his order dated 1/09/1967, the Firstadditional Rent Controller dismissed the objection petition of respondent No. 1 and issued warrants for possession of the premises in question. Respondent No. 1 filed an appeal before the Rant Control Tribunal, Delhi. The Tribunal by his order dated 17/08/1968 foundthat the appellant had let the garage in dispute to respondent No. 1 innovember, 1965 at the rate of Rs. 35. 00 per mensem. The Tribunal,therefore, allowed the appeal, upheld the objections of respondent No. 1and directed that ha shall not be evicted from the garage in executionof the order of eviction obtained by the appellant against Nirmalbanerjee (respondent No. 2 ). ( 3 ) A preliminary objection has been raised on behalf of respondentno. 1 that this appeal is barred by time This appeal was filed on 11/11/1968 and If the matter had rested there, there wouldadmittedly be no question of limitation because this dale was the 58thday from the date of the order of the Rent Control Tribunal. It appearshowever, that some columns of the prescribed opening sheet ofmemorandum of appeal had not been filled up and on 14/11/1968 the office of this Court suggested that it may be returned to berefiled within a week. The papers were put up before the Assistantregistrar who on 16/11/1968 said "return". He, however, didnot specify the time during which it was to be returned althought theoffice had fixed the time as "within a week". The memorandum wasactually taken delivery of by the clerk to the then counsel for the appellant on 18/11/1968 and was refiled on 5/12/1968. Therefling was, therefore, beyond the time fixed by the office. He, however, didnot specify the time during which it was to be returned althought theoffice had fixed the time as "within a week". The memorandum wasactually taken delivery of by the clerk to the then counsel for the appellant on 18/11/1968 and was refiled on 5/12/1968. Therefling was, therefore, beyond the time fixed by the office. It is therefore, contended that the appeal must be taken to have been filed on 5/12/1968 and on that, date it will be barred by limitation by 22 days. ( 4 ) THE question is whether the appeal cannot be taken to have been filed on 11/11/1968 even though certain columns of the opening sheet had not been filled up. It is not clear from the remarks of the office as to which of the columns were not filled up, but to my mind, that will not make any difference to the legal position. The Punjab High Court made Rules and Orders which have been applied to this Court also. It has been held by a Division Bench of the East Punjab High court in Tej Krishan v. The Delhi Cloth and General Mills Co. , Ltd. that these Rules have statutory force, proceeding on that basis the relevant Rules may now be looked at. Part A (a) of Chapter I of volume V of these Rules and Orders relates to presentation and reception of appeals etc. Rule 2 (a) provides,- "every memorandum of appeal. . . . . . . . . . . . . . . . . . . . . . . . shall be in the English language and shall be typed in double spacing on one side of the paper only on water marked plain paper unless a printed from is prescribed for the purpose by the High Court***"rule 5 authorises the Deputy Registrar to return for amendment and refiling within a time not exceeding 10 days at a time, and 40 days in the aggregate, to be fixed by him, any memorandum of appela for the reason specified in Order XLI, Rule 3, Civil Procedure Code. Sub-rule (1) of 3 of Order XLI of the Code provides that where the memorandum of appeal is not drawn up in the manner precribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. The requirement as to the form of the memorandum according to Rule 1 of Order XLI of the Code is that it shall be signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf, that it shall be accompained by a copy of the decree appealed from and (unless the Appellate Court despenses therewith) of the judgement on which it is founded and shall set forth, concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative and such grounds shall be numbered consecutively. ( 5 ) NOW, the memorandum in the present appeal was not returned for any of the defects mentioned in Rule 1 of Order XLI of the Code because the ground for returning the memorandum of appeal was only that some columns in the prescribed opening sheet had not been filled. Although, rule 2 (a) of the Rules and Orders of this Court REFERRED TO to above specifies the form in which a memorandum of appeal is to be presented, it does not say that any memorandum of appeal not so presented will not be taken to have been duly presented. Another provision in the Rules and Orders of this Court is in rule 3 of the aforesaid Volume and Chapter which authorities the Deputy Registrar to refuse any memorandum of appeal which does not specify the section of the enactment under which the appeal or application lies. ( 6 ) IT, therefore, appears after reading the aforesaid Rules 3 and 5 together that the Deputy Registrar cannot return the memorandum of appeal for non-filing of some columns of the prescribed opening sheet. ( 6 ) IT, therefore, appears after reading the aforesaid Rules 3 and 5 together that the Deputy Registrar cannot return the memorandum of appeal for non-filing of some columns of the prescribed opening sheet. Reliance has been placed by respondent No. 1 on Rule 9 in the aforesaidvolume and Chapter of the Rules and Orders of this Court which authorises the Deputy Registrar to retrun for amendment, within atime to be specified in an order to be recorded by him on the petition,any petition not drawn up in conformity with the foregoing directionswhich are contained in Rules 6, 7 and 8 with respect to specified petitions. Rule 9 would, therefore, not apply to a memorandum of appeal. ( 7 ) THE power under Rules 3, 5 and 9 can be exercised by thedeputy Registrar who has to give reasons as required by the aforesaidrules and not by the Assistant Registrar. In this case no order underthe aforesaid rules appears to have been made by the Deputy Registrar. The return by the Assistant Registrar, as in this case, cannot be saidto be in compliance with the aforesaid rules. Assuming, however, thatthe Assistant Registrar can exercise these powers, r appears to me thatthere is no power in the Assistant Registrar to return the memorandumof appeal for a defect other than the non-specification of the section ofthe enactment under which the appeal lies or non-compliance with Rule3 of Order XLI of the Code or to fix time for its refiling. It would,therefore, follow that if a memorandum of appeal suffers from a defectsimilar to the one as in this case, the memorandum of appeal shouldnot be returned but the party should be asked to rectify the defect andeven such a defective memorandum of appeal must be taken to have beenproperly filed on the day on which it is filed and there is noquestionof its being taken to have been filed on the date when it is refiled afterit has been returned by the office. Reliance has been placed upon thedecision reported in Buta Singh v. Chand alias Chanda Singh, where thememorandum of appeal was entirely blank. That is not the case in thisappeal and, therefore, I would not make any comment on the observations that have been made in this judgment. Reliance has been placed upon thedecision reported in Buta Singh v. Chand alias Chanda Singh, where thememorandum of appeal was entirely blank. That is not the case in thisappeal and, therefore, I would not make any comment on the observations that have been made in this judgment. I, therefore, over-rulethe objection as to limitation and bold that the memorandum of appealhaving been filed within time on 11/11/1968, the appeal wasfiled in time even though some of the columns of the prescribed openingsheet had not been tiled up. ( 8 ) SO far as the merits of the appeal are concerned, the appellantwanted to place before me the facts of the case and the evidence produced by the parties to pursuade me to give a finding in his favour. Butthat is not the function of this Court in a second appeal under the Rentcontrol Act, 1958 where a second appeal is competent only upon theexistence of a substantial question of law. The fact finding is the function of the Rent Controller and of the Rent Control Tribunal. ( 9 ) THE findings of the Rent Controller or of the Rent Control Tribunal on the facts can be interfered with by this Court in second appealonly if it is found that such findings are perverse or a result of the misreading of the evidence. At the same time the finding must be arrivedat by dealing with all the facts which are urged before the Rent Controller or the Rent Control Tribunal. Non-consideration of relevantfacts will also vitiate the finding of fact. ( 10 ) NOW, in the present case the Additional Rent Controllerfound that,- (1) the garage had been let to one Hanuman Parshad about 4to 5 years back at the rate of Rs. 45. 00 per mensem, that is, Rs. 10. Non-consideration of relevantfacts will also vitiate the finding of fact. ( 10 ) NOW, in the present case the Additional Rent Controllerfound that,- (1) the garage had been let to one Hanuman Parshad about 4to 5 years back at the rate of Rs. 45. 00 per mensem, that is, Rs. 10. 00per msnsem more than the amount at which it was alleged to havebeen let to respondent No 1 ;470 (2) the appellant had refused to let an adjoinging room whichhad been lying vacant to respondent No. 1; (3) the rent receipt (Exhibit O. I) on which respondent No. 1relies contains "certain cutting", inter alia, by changing the figureof 2 into the figure of 3 without bearing any initials of the appellant ; (4) the month of October, 1965 has been struck out from thereceipt for which the appellant gave an explanation which was acceptedby the Rent Controller ; (5) the appellants attorney asked respondent No. 1 only forrs. 35. 00 as rent for the garage and this was agreed upon without anyhaggling ; (6) there wag previous litigation between the appellant and respondent No. 1; (7) on 3/11/1965 the appellant had lodged a complaint against respondent No. 1 with the Police about his having takenpossession of the garage unauthorisedly ; (8) the landlord had given an explanation that October, 1965had been wrongly mentioned in the receipt and that the rent paidunder this receipt (Exhibit O. I) was for November, 196 5/01/1966 and this explanation was accepted by the Rent Controller ; (9) the figure 2 has not been touched upon in the counter foil ofexhibit O I and (10) no explanation has been given by respondent No. 1 as towhy the appellant had agreed to let the garage to him at a lowerrent. ( 11 ) THE Rent Control Tribunal in appeal did not, in my view, dojustice to the judgment of the Rent Controller. His examination of theevidence is cursory and be did not approach the question from the pointof view, as he should have, that a finding of fact by the lower Courtshould not be lightly interfered with in appeal. The Rent Control Tribunal gave ins following findings ;- (1) There was no explanation from the appellant as to why thefigure of Rs, 210. The Rent Control Tribunal gave ins following findings ;- (1) There was no explanation from the appellant as to why thefigure of Rs, 210. 00 in the receipt Exhibit O. I was not erased if therent of only two months of November and December, 1965, at therate of Rs. 70. 00 per mensem had been received. He has not correctly recorded the explanation of the appellant which was that thisreceipt purported to cover the rent for the three mouths of November and December, 1965 and January 1966, as the receipt Exhibito. 1 is dated 4/02/1966. (2) The Tribunal further proceeded on the assumption that theappellant had appeared in the witness box and had admitted in cross-examination that he had received rent of Rs. 105. 00 at one time fromrespondent No. 1 after execution of the receipt Exhibit O. 1 and asum of Rs. 105. 00 for the second time. The Tribunal had fallen intotwo errors. The first error is that the appellant did not appear inthe witness box and it was only his attorney who appeared in thewitness-box. The second error is that the attorney had merely statedthat he had received cheques for Rs. 105. 00 and not that he had receivedrent at the rate of Rs. 105. 00. The conclusion of the Tribunal thatthis amounted to an admission of the apellant appears to me to bethe result of a mis reading of the evidence. (3) The two reasons gives by the Rent Controler (1) that the restwhich the appellant wasreceiving was higher than the rent for whichthe garage had been let to respondent No. 1 and (2) that the strainedrelations between the parties indicated that respondent No. 1 hadput up a false case were summarily brushed aside by saying that thepossibility of the respondent having agreed to let the premises indispute to the appellant at a rent of Rs. 35. 00 p. m. for making theirrelations pleasent could not be ruled out was, to say the least,speculative ( 12 ) I have merely summarised the reasons and the findings of therent Controller and the reasons and the findings of the Rent Controllertribunal and I feel tbai the Rent Control Tribunal should have examined the evidence more closely to determine whether truth lay onthe side or the appellant or on the side of respondent No. 1. I havescrupulously avoided giving my own finding in the matter because Iam of the view that such a finding should be given by the Rent Controltribunal. ( 13 ) IN the result, I set aside ths order of ths Rent Control Tribunal and remand the case to it for re-appreciating the evidence on therecord and giving a proper finding of fact. The parties will not be entitled to lead any further evidence and the findings are so bs given onthe facts as they stand. ( 14 ) COUNSEL for the parties have been directed to appear before the Rent Cantrol Tribunal on 1/05/1973. On that date, the Rent Control Tribunal will fix a date for hearing of the appeal before him. Costs of this appeal shall abide the event.