JUDGMENT
R.S. Sodhi, J.
1. This petition is directed against the judgment dated 7.2.2003 of the Rent Control Tribunal in RCA No.152/2000 whereby the learned Tribunal has dismissed an appeal preferred against the order dated 27.1.2000 passed by the Rent Controller, Delhi vide which the learned Rent Controller allowed the objections of Madan Lal holding that the eviction order dated 1.5.1989 in petition No.E419/1988 passed against Ajay Kumar in respect of tenanted premises is not executable against Madan Lal, the respondent. The Tribunal also awarded a special cost of Rs.10,000/- to the respondent.
2. Brief facts of the case as noted by the Rent Control Tribunal are as follows:-
“…..the appellant preferred an eviction petition against Judgment debtor Ajay Kumar under Section 14(1)(a) of the DRC Act claiming that said Ajay Kumar was inducted in property WZ-291/5, G Block, Hari Nagar, Jail Road, New Delhi as a tenant on 14.4.87 vide rent deed executed by the Judgment Debtor. The Judgment debtor was in arrears of rent from 1.12.87 and failed to pay the arrears of rent @ Rs.250/- inspite of notice of demand dated 6.9.88. In the said petition Ajay Kumar, Judgment debtor filed a written statement admitting the averments set out in the petition but claiming that the appellant’s predecessor was an aged and sick person and was readily available for receiving the rent. The Judgment-Debtor thereafter absented. An exparte eviction order has been executed and in pursuance of the said eviction order the possession of the property was obtained by the appellant.
The respondent preferred objections in the execution department of the case under section 25 of DRC Act read with order 21 rule 99 and 101 CPC and section 151 CPC claiming that the premises in question had been let out to the respondent by deceased decree holder @ Rs.100/- per month in 1969. The respondent carried on the business in the name and style of Pappu Refreshment in the said premises Along with his son Ashok Kumar and his wife. The respondent has been dispossessed in the execution of the order on 7.6.90 in collusion with the son of the respondent Ajay Kumar the Judgment Debtor who had strained relations with the respondent. The eviction order was obtained by playing fraud and manufacturing the forged documents. The respondent is the lawful tenant since the inception of the tenancy in the year 1969. In May 1989 the deceased decree holder threatened to take forcible possession of the property. The respondent had to file suit No.498/89 which was assigned to the court of Sh.Pardeep Chadha. In the said suit the deceased made statement on 10.12.89 that the deceased would not dispossess the respondent without due process of law from the shop in dispute. In view of this statement the said suit was withdrawn with the observation of the court, the deceased decree holder Rattan Lal shall be bound by his statement. In flagrant violation of the said judgment the respondent has been evicted in execution of the order. It was also claimed that the respondent had deposited the rent for the period from 1.12.86 to March 1987 in the court after the money order was refused by resorting to the provisions of Section 27 of the DRC Act. No objections were filed by the deceased decree holder in the matter of the said deposit. It was, thus, claimed that the decree of eviction was obtained by fraud and by committing purgery.
The said objections of the respondent were contested by the appellant. The appellant admitted that the respondent was the tenant in the premises but claimed that the respondent had surrendered his tenancy in april 1987 when his son Ajay Kumar Judgment Debtor was inducted as a tenant at a monthly rental of Rs.250/- instead of Rs.100/- and the area of the accommodation was extended. Ajay Kumar had executed the Rent Note with regard to the creation of tenancy in his favor. A bonafide eviction order was passed against Ajay Kumar. The respondent was never in possession of property and even at the time of execution of the order.
The aforesaid contentions of the parties were heard by the court below. Parties led their evidence and also filed the documentary evidence in support of their contentions. Court below ultimately held that the respondent was the tenant in the premises and eviction order was obtained by the appellant in eviction petition No.491/88 is not executable. Feeling aggrieved of the same the present appeal has been preferred.”
3. Counsel for the petitioner submits that Shri Madan Lal having witnessed the Rent Note between the petitioner and Ajay Kumar could not turn around and claim an independent tenancy. He also submits that even the rent that was sought to be deposited under Section 27 of the Delhi Rent Control Act was not accepted by the Controller and, therefore, it cannot be said that he had no right title or interest in the premises in question.
4. On the other hand counsel for the respondent submits that this entire gamut is a fraud on the court inasmuch as the petitioner and Ajay Kumar have colluded to create a fictitious Rent Note and have gone on to obtain a decree of eviction. Even though Ajay Kumar was never the tenant of the premises in question and Madan Lal continued to be in the premises from the inception of his tenancy.
5. Heard counsel for the parties and have gone through the material on record with their assistance. It appears to me that the question of fact have been adjudicated upon by two courts below holding that Madan Lal was a tenant of the premises in question and not Ajay Kumar. This question of fact cannot be disturbed in Civil Miscellaneous Main under Article 227 of the Constitution of India.
6. CM(M) 171/2004 is dismissed. CM.APPL.2159/2004 also stands dismissed.