JUDGMENT
Sat Pal, J.
(1) This petition has been filed by Smt. Nirmala Kapur (hereinafter referred to as the landlady) under Article 227 of the Constitution of India against the order dated 9th May, 1994 passed by the learned Rent Control Tribunal dismissing the appeal of the petitioner against the order dated 22nd January, 1994 of Shri P.C. Ranga, Additional Rent Controller, Delhi.
(2) Briefly stated the facts of the case are that the landlady filed a petition bearing No.E-9/91 on 18th January, 1991 under Section 14(I)(b) Delhi Rent Control Act, 1958 (in short the Act) against the respondents 1 to 3 (hereinafter referred to as the tenants) and Shri Sanjeev Kumar, (hereinafter referred to as the ‘alleged tenant’) alleging therein that the tenants had wrongfully, without the knowledge and consent of the landlady sub-let, assigned or parted with the possession of the premises bearing No.Y-14B, Green Park (Main), New Delhi to Shri Sanjeev Kumar. It may be noted here that prior to filing of this petition, the landlady had filed against the tenants two other petitions bearing No.E- 284/84 under Section 14(1)(e) and bearing No.E-125/85 under Section 14(1)(a) of the Act which are pending in the Court of Shri N.K. Goel, Additional Rent Controller, Delhi.
(3) Summons in the petition bearing No. E9/91 were issued on I8th January, 1991 both by ordinary process and registered A.D. post for 27th February, 1991. From the lower court records, it appears that the process fee on behalf of the petitioner/landlord was filed in the Court of Shri Rakesh Kapur, A.R.C. on 24th January, 1991 and there is no mention of Registered A.D. covers having been filed Along with the process fee form. The records also show that the alleged subtenant was served on 23rd February, 1991 by ordinary process but the tenants were not served by ordinary process and as per report recorded on the basis of statement of the alleged sub-tenant they were not found at the premises. The records, however, contain three A.D. cards which show that the tenants were served through Manju Sharma who is respondent No.3 in the present case. It may be noted here that the records do not contain A.D. card regarding service on Sanjeev Kumar, the alleged sub-tenant nor the registered cover which could have been received back without service. The records, however, do not contain postal receipts with regard to the Regd. covers alleged to have been sent to the tenants and Sanjeev Kumar.
(4) On 27th February, 1991, the alleged sub-tenant appeared and sought time to file the written statement. The tenants were, however, proceeded against exparte on the ground that despite service they had failed to appear and the case was adjourned to 12th March, 1991. On 12th March, 1991 Sanjeev Kumar filed the written statement and the case was adjourned for filing of replication for 29th May, 1991. On 29th May, 1991 the case was adjourned to 18th September, 1991 and on 18th September, 1991, the case was adjourned to 6th January, 1992 as the lawyers were on strike. On 6.1.92 Sanjeev Kumar did not appear and he was also proceeded against ex-parte. Thereafter the ex-parte evidence of the petitioner was recorded on 22.2.92 and decree was passed on the same date. It may be relevant to mention here that while passing the decree, learned trial court observed that the respondents 1 to 3 (tenants) were not served by ordinary process and therefore ordered by way of caution that a notice would be issued to the tenants of the execution of the eviction order.
(5) Thereafter the petitioner filed the execution petition on 6th April, 1992 and notice on this petition was issued on 24th April, 1992 for 7th August, 1992 to the Judgment debtors both by ordinary process as well as by Regd. post. Since no process fee was filed by the petitioner, the case was adjourned on -7th August, 1992 for 30th October, 1992. On 30th October, 1992 the case had to be adjourned to 29th January, 1993 as the process fee was again not filed by the petitioner. On 29th January, 1993, the case was adjourned to 23rd April, 1993 as the notice had not been received back. The process fee, however, again was not filed in terms of the order passed on 29th January, 1993. Since the Presiding Officer was on leave on 23rd April, 1993, the case was adjourned to 30th July, 1993. On 30th July, 1993 it was observed by the learned trial court in the order that notice was issued to the judgment debtors No. 1 to 3 had been served through Regd.A.D. It was further observed that ordinary process had not been received back and the same be awaited and the case was adjourned to 13th August, 1993. On 13th August, 1993, the Presiding Officer was on leave and as such the case was adjourned to 27th August, 1993. On 27th August, 1993 the case was adjourned to 3rd September, 1993. On 3rd September, 1993 though the tenants (judgment debtors) had not yet been served by ordinary process, it was observed by the learned trial Judge that judgment debtors/respondents were duly served for 30th July, 1993 and since they had failed to appear, warrant of possession in respect of the suit premises was issued for 29th October, 1993.
(6) Pursuant to the warrant of possession issued by the learned trial court, the tenants were dispossessed and immediately thereafter they filed an application under Order 9 Rule 13 read with Section 151 Civil Procedure Code on 14th October, 1993 and in this application it was submitted that the eviction decree had been obtained by the landlady by fraud as the tenants were never served.
(7) After hearing both the parties, the learned Additional Rent Controller by his order dated 22nd january, 1994 allowed the application of the tenants and set aside the ex-parte eviction order dated 22nd February, 1992. He further directed the decree holder/landlady to restore the possession of the suit premises to the tenants within 10 days of the passing of the said order.
(8) Aggrieved by the order dated 22nd January, 1994 passed by the Additional Rent Controller, the petitioner filed an appeal bearing Rc No.42/94 before Rent Control. Tribunal, Delhi. The Rent Control Tribunal by order dated 9th May, 1994 dismissed the appeal of the petitioner and directed her to restore back the possession of the suit premises to the respondents 1 to 3 within 10 days from the dale of the order. The present petition under Article 227 of the Constitution of India has been filed against (he order dated 9th May, 1994 passed by the learned Rent Control Tribunal and order dated 22nd January, 1994 passed by the learned Additional Rent Controller.
(9) Mr. Rohtagi, the learned senior counsel appearing on behalf of the petitioner submitted that the tenants (respondents 1 to 3 herein) were duly served with the summons of the eviction petition through registered post and as such presumption of service was raised against them under Section 27 of the General Clauses Act and under Section 114 of the Evidence Act. He, however, submitted that such a-presumption could be rebutted by the addressee by adducing evidence and since no evidence had been recorded in this case, the courts below erred in setting aside the ex-parte eviction order. He, therefore, contended that both.the impugned orders dated 22nd January, 1994 and 9th May, 1994 were liable to be set-aside and the case should be remitted to the trial court to hold a proper enquiry into the matter as to whether the signatures of the tenants were forged on the summons or the tenants were validly and duly served. In support of his contention, learned counsel placed reliance on two judgments of the Supreme Court in the cases of Her Charan Singh Vs. Shiv Rani & Ors., Air 1981 Sc 1284 and M/s. Green View Radio Service Vs. Laxmibai Ramji & Anr., and two judgments of this Court in the cases of S. Kumar Vs. Shri Bhagwant Singh, and Shri Madho Lal Vs. Shri Roop Chand, 1970 Rcr 607.
(10) Mr. Sharma, learned counsel appearing on behalf of the tenants submitted that admittedly the tenants were not served by ordinary process. He drew my attention to the process fee form filed on behalf of the petitioner on 24.1.91 for service on the tenants for 27th February, 1991 and submitted that there was no .mention of filing of the registered covers on the said process fee form. He further submitted that the postal receipts for sending the Regd. A.D. covers to the tenants and the alleged sub-tenant were also not available in the trial court records. He also drew my attention to the three A.D. cards and submitted that these A.D. cards contained the postal stamp of G.P.O. and not the Hazari Courts Post Office from where the postal covers on behalf of the courts in Tis Hazari were got posted, though there was no order of dusty service. He further submitted that the alleged signatures of Smt.Manju Sharma on these A.D. cards were formed. He also submitted that Sanjeev Kumar, the alleged sub-tenant was a fictitious person and. this was evident from the fact that he was alleged to have accepted service from the process server and after filing the written statement, he discontinued appearing and was proceeded ex-parte. He further submitted that neither A.D card with regard to service on Sanjeev Kumar nor the unserved postal cover were available in the trial court records. Relying on the aforesaid facts, the learned counsel submitted that in fact there was no service on the tenants. He further submitted that even the learned Additional Rent Controller while passing the ex-parte eviction order had given a note of Caution to the effect that a notice would be issued to the tenants of the execution of the eviction order.
(11) Learned counsel for the tenants further submitted that the alleged service on the tenants of the execution petition was also formed and this was evident from the conduct of the petitioner in the execution proceedings. He submitted that on 24th April, 1992 notice on the execution petition was issued to the judgment debtors both by ordinary process as well as by Regd.A.D. post for 7th August, 1992, but no process fee was filed by the petitioner for two consecutive dates of hearing. Thereafter once the process fee was filed and again the process fee was not filed in terms of the order passed on 29th January, 1993. He further submitted that the process fee form did not indicate the the registered covers were filed by the decree holder for service of the execution petition. Further the postal receipts showed that the registered covers were sent through Distt. Courts Post Office on 20.7.1993 but the A.D. cards bore the stamp of 26.7.93 of Civil Lines Post office. He also submitted that the alleged signatures of the tenants on the A.D. cards regarding service of the execution petition were formed and the tenants were never served of this execution petition. He further submitted that as per the trial court records, the tenants were never served by ordinary process even in the execution proceedings.
(12) Relying on the fads stated hereinabove, learned counsel for the tenants submitted that there was enough material before the learned Additional Rent Controller and the learned Rent Control Tribunal to come to the conclusion that the tenants were never served and the order allowing the application of the tenants under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure which has been upheld by the learned Rent Control Tribunal was perfectly legal, valid and justified and the order directing the petitioner to restore the possession of the promises to the tenants was also legal and valid. He also contended that since the conclusion of the facts of the courts below were based on the material on record this was not a fit case to exercise powers under Article 227 of the Constitution of India and as such the petition should be dismissed. In support of his contention learned counsel placed reliance on three judgments of the Supreme Court in the cases of M/s. India Pipe Fitting Co. Vs. Fakruddin M.A.Baker & Anr., 1978 Sc 45; Chandavurker Sita Rutna Rao Vs. Ashalata. S. Gauram, and Mani Nuriman Daruwala & Bharucha (dcceased) through Lrs.& Ors.Vs.Phiroz N. Bhatena & Ors. Air 1991 Sc -1494.
(13) He further contended that since the ex-parte eviction order had already been set-aside, the petitioner be directed to restore the possession of the suit premises to the tenants forthwith. In support of this contention, he placed reliance on a judgment of the Supreme Court in the case of Gurjoginder Singh Vs. Smt. jaswant Kaur & Anr., .
(14) Learned counsel further submitted that the petitioner was not entitled to any relief as she had concealed the material facts in her petition bearing No.E-9/91 filed under Section 14(l)(b) of the Act. He submitted that before filing this petition the petitioner had earlier filed two petitions against the tenants bearing Nos.E-284/84 under section 14(1)(e) and No. E-125/85 under section 14(1)(a) of the Act which were still pending in the Court of Shri N.K. Goel, Additional Rent Controller, Delhi but she deliberately did not mention about filing of these petitions in the column No. 19 “any other relevant information” of the present eviction petition. He further submitted that the petitioner had obtained the ex-parte eviction order on 22.02.92 and she got served a notice dated 18.3.93 through her counsel Shri Jugal Kishore Seth, Advocate, but in that notice though earlier eviction petitions filed under Section 14(l)(a) and under section 14(1)(e) were mentioned, but deliberately there was no mention of ex-parte eviction order dated 22.02.1992. He, therefore, contended that non-disclosure of relevant and material facts on the part of the petitioner amounted to fraud and as such the petitioner was not entitled to any relief. In support of this contention, learned counsel placed reliance on a judgment of the Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by l.rs. VS. lagannath (dead) by Lrs. & Ors., (1994)1 Scc 1.
(15) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records carefully. From the trial court records, I find that summons in the petition filed by the petitioner under Section 14(1)(b) of the Act were issued on 18th january, 1991 both by ordinary process as well as Regd. post for 27th February, 1991. Admittedly the tenants were not served by the ordinary process in this petition. The process fee form filed by the petitioner on 24th January, 1991 for service on the tenants for 27th February, 1991does not show any word to the effect that the Regd.covers were filed by the petitioner Along with the process lee form. Even the postal receipts for sending the Regd.covers to the tenants and the alleged sub-tenant are not available in the records. The three A.D. cards regarding alleged service on the tenants for 27.2.1991 contain the stamp of G.P.0. and not of Tis Hazari Courts Post Office from where the Regd. covers on behalf of the Tis Hazari Courts are sent and there is no order of dusty service. Further there is no A.D. card regarding service on the alleged sub-tenant by Regd.A.D. post nor the unserved postal cover is available. From these materials on record, it is clear that there was no service on the tenants by Regd.A.D. post. Since there is no proof of Regd. covers having been sent to the tenants in the present case, presumption of service cannot be raised against them under Section 27 of the General Clauses Act and under Section 114 of the Evidence Act and as such the ratio of the judgments of the Supreme Court in the cases of Har charan Singh (supra) and M/s.Green View Radio Service (supra) and two judgments of this Court in the cases of S.Kumar (supra) and Shri Madho Lal (supra) is not applicable to the facts of the present case.
(16) Even in the execution proceedings admittedly the tenants were not served by ordinary process and the process fee form does not show that the Regd.covers were filed by the petitioner along with the process fee form. Further the postal receipts indicate that the Regd. covers were handed over to Distt. Courts Post Office on 20.7.1993 but the A.D. cards bear the date stamp of 26.7.1993 of Civil Lines Post Office.
(17) Further the limitation of the High Court, while exercising power under Article 227 of the Constitution, is well settled. In this connection, a reference may be made to the following observation of the Supreme Court in the case of Babhutmal Raichand Oswal VS. Laxmibai R. Tarte & Anr., which was approved in a subsequent case M/s.india Pipe Fitting (supra) that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.” Again in the case of Mani Nariman Daruwala (supra), the Supreme Court observed that “in the exercise of jurisdiction under Article 227 of the Constitution, the High Court can set aside or ignore the findings of tact of an inferior Court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or Tribunal who has come or in other words it is a finding which was perverse”.
(18) From the facts mentioned hereinabove which have duly been noticed in the impugned judgment of the learned Rent Control Tribunal and further the tact that the petitioner in her notice dated 18th March, 1992 sent to the tenants through her counsel Shri Jugal Kishore, Advocate had concealed the tact of having obtained the ex-parte eviction order on 22.2.1992 particularly when the notice contains the facts of the earlier eviction petitions filed by the petitioner under Section 14(l)(a) and 14(l)(e), it cannot be said that there was no material before the learned Additional Rent Controller to allow the application of the tenants under Order 9 Rule 13 read with Section 151 Civil Procedure Code and set-aside the exparte order of eviclion. In these circumstances, I am of the view that this is not a fit case for selling aside the finding of fact recorded by the learned Additional Rent Controller and learned Rent Control Tribunal, in exercise of jurisdiction under Article 227 of the Constitution.
(19) In view of the above discussion, the petition is dismissed with costs. I quantify the costs as Rs.2500.00 . Since the petition filed on behalf of the petitioner has been dismissed, I direct restoration of the possession of the suit premises to the tenants (respondents 1 to 3 herein) within 10 days from the dale of this order, in terms of the law laid down by the Supreme Court in the case of information” Singh (supra). It is, however, clarified that such restoration will abide by the result of the eviction petition. With this order, the main petition and application stand disposed of.
(20) The lower court records be sent back forthwilh.