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2006 DIGILAW 1182 (DEL)

SHARAFAT HUSSAIN v. GURPAL SINGH

2006-07-18

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE respondent filed an eviction petition against late Sh. Sharafat Hussain under Sections 14 (1 ) (a) and 14 ( 1 ) (b) and 0) of the Delhi Rent control Act, 1958 in respect of suit premises No. 2027, Gali No. 156, Main Raod, shanti Nagar, Tri Nagar, Delhi. The premises was stated to be let out in september October, 1984. Initially one shed in corner of the property is stated to have been leased out but the petitioner late Sh. Sharafat Hussain was alleged to have kept the adjacent shed and was subsequently accepted as a tenant in respect of two sheds kept by him. The tenancy was oral and thereafter a written settlement dated 26. 7. 1985 came into existence. The respondent however backed out from the same and sublet/assigned or parted with possession of the suit premises to several persons who are alleged to be running their business illegally. The arrears of rent were stated not have been paid despite demand and unauthorised damage to the property was alleged. The Additional Rent Controller in terms of the order dated 8. 4. 2000 dismissed the petition. ( 2 ) THE respondent aggrieved by the aforesaid order filed an appeal before the additional Rent Controltribunal which has been allowed partially vide order dated 9. 12. 2003. It has been held that the grounds under Section 14 (l) (j) of the said Act have not been made out, but the petitioner was found in arrears of rent and this eviction order was passed under Section 14 (l) (a) of the Act but the benefit of section 14 (2) was given to the petitioner being the first default and thus an order was passed under Section 15 (1) of the said Act directing the petitioner to pay rent at the rate of Rs. 450 per month with effect from 1. 2. 1985 within one month of the date of the order. The case of subletting was found to have been made out under section 14 (1) (b) of the said Act. The petitioner has impugned the said order in the present proceedings. ( 3 ) IT was put to the learned Counsel for the petitioner that the jurisdiction of this Court under Article 227 of the Constitution of India is limited to intervention in case of patent error or erroneous exercise of jurisdiction. The petitioner has impugned the said order in the present proceedings. ( 3 ) IT was put to the learned Counsel for the petitioner that the jurisdiction of this Court under Article 227 of the Constitution of India is limited to intervention in case of patent error or erroneous exercise of jurisdiction. Thus the submission of the Counsel for the petitioner must be confined to that extent. ( 4 ) THE crucial document in question is the settlement dated 26. 7. 1985 which is Ex. AW 1/1. It is the contention of the learned Counsel for the petitioner that the same was never implemented. It is in terms of this settlement that the rent was also agreed upon. This document was not disputed by late Sh. Sharafat Hussain. The appellate Court has found that the rate of rent of Rs. 450 per month was for two shops and thus there was no occasion for the respondent to accept rent lesser than that. The notice issued demanding the rent was also found to be proved and since the demand for payment of rent was not made a ground was made out passing an order under Section 14 (1) (a) of the said Act. ( 5 ) THE second aspect examined is in respect of allegation of subletting. The appellate Court took note of the ration card where none of the petitioners has been shown nor the name of the deceased late Sh. Sharafat Hussain was found. There is presence shown of third parties. Once there is presence of third parties, it is for the tenant to explain their presence and the onus shifts on the tenant. Thus in this behalf also the approach of the Tribunal cannot be said to be faulty. The error committed by the Additional Rent Controller was that despite the admitted presence of the strangers a conclusion was arrived at that the respondent had failed to show such presence or illegal control of the premises by third parties. The premise is wrong in law in view of the judgment of this Court in RCSA No. 390/1980 titled Sh. Kishan Chand v. Sri Chand decided on 18. 7. 2006. ( 6 ) LEARNED Counsel for the petitioner sought to contend that by reference to the judgment of the Supreme Court Mst. Sugani v. Rameshwar Das and Anr. The premise is wrong in law in view of the judgment of this Court in RCSA No. 390/1980 titled Sh. Kishan Chand v. Sri Chand decided on 18. 7. 2006. ( 6 ) LEARNED Counsel for the petitioner sought to contend that by reference to the judgment of the Supreme Court Mst. Sugani v. Rameshwar Das and Anr. , IV (2006) SLT 95=ii (2006) CLT 314 (SC) in that in a second appeal substantial questions of law have to be gone into but if the first appellate Court has erred and an order has been passed contrary to the mandatory provisions of law which have been settled by the Apex Court, the assumption of jurisdiction by the first appellate court is liable to be interfered with Learned Counsel contends that the first appellate Court order is thus not sustainable. ( 7 ) I am not in agreement with the submission with the submission of the learned Counsel for the petitioner. The first appellate Court has rightly interfered with the findings of the trial Court as there was misdirection in law inasmuch as the presence of third parties were undisputedly there in the premises and in such a case the onus was on the tenant to show the nature of presence of such third parties. ( 8 ) LEARNED Counsel also seeks to contend that by reference to the judgment of the Supreme Court in Bandar Singh and Ors. v. Nihal Singh and Ors. , II (2003)SLT 649=11 (2003) CLT 91 (SC) if the findings of the subordinate Courts on facts are contrary to evidence on record and perverse such findings can be set aside by the High Court in a second appeal. Once again in respect of principle of law there is no dispute but there is no such perversity which would called for any interference by this Court. The original tenant has passed away and now the legal heirs have been contesting the matter. ( 9 ) THERE is no patent error or erroneous exercise of jurisdiction by the tribunal so as to call for interference by this Court. ( 10 ) DISMISSED. The original tenant has passed away and now the legal heirs have been contesting the matter. ( 9 ) THERE is no patent error or erroneous exercise of jurisdiction by the tribunal so as to call for interference by this Court. ( 10 ) DISMISSED. ( 11 ) THE petitioners are granted 60 days time to vacate the tenanted premises subject to filing of usual undertaking by the widow and the attorney through whom the petition has been filed, to hand over the vacant and peaceful possession of the suit property, not to create any third party interest and not to part with possession. The undertaking to be filed within a week and will be subject to the right of the petitioner to avail of legal remedy to impugn the present order. Petition dismissed.