JUDGMENT
Sanjay Kishan Kaul, J.
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1. The petitioners are the owner of various portions situated in the Atma Ram Mansion (Scindia House), Connaught Place, New Delhi of which the respondents are the tenants. The petitioners claim that the respondents were in default of payment of rent and thus served upon the respondent a legal notice of demand ExPW1/1 alleging arrears of rent from 01.09.1988 and thereafter filed an eviction petition under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (herein-after referred to as the said Act).
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2. The eviction petition went to trial, but in terms of the judgment and order dated 01.04.2003 of the Additional Rent Controller (herein-after referred to as the ‘ARC’) the same was dismissed on the ground that there were nine different premises and different tenancies and in view thereof a single petition was not maintainable. The Additional Rent Controller thus came to the conclusion that the petitioner had illegally clubbed all the nine tenancies into one which was not permissible. The petitioner aggrieved by the same filed an appeal before the Rent Control Tribunal (herein-after referred to as the ‘RCT’), but the same was also dismissed by the impugned order dated 07.05.2003. The Tribunal held that though under Order 2 Rule 4 of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) a plaintiff could join three causes of action together and not more than that but the question would still remain whether a common notice of all three causes of action or more could have been served on the respondents. Since the case was one of clubbing of nine tenancies, the Tribunal held that it would be appropriate that instead of re-trial being directed, the parties be left to contest a fresh petition if filed by the petitioners.
3. The substratum of the case of the petitioners is based on the agreement executed on 05.08.1974 between the predecessors in interest (erstwhile owners) of the petitioners and the respondents, which is ExRW2/A. The recital of the agreement defines the respondents herein as the tenants who were occupying various portions of Scindia House, New Delhi being the portions in suit in the present case. The erstwhile owners had instituted three eviction proceedings against the respondent on the ground of subletting and/or misuse and the respondent had filed appeals in the Delhi High Court. In terms of the settlement it was confirmed that the respondent would continue to occupy different portions as tenants at the rentals specified in Clause 1 of the agreement the same being exclusive of house tax and water charges. This also resulted in RSA No. 145 of 1973 being withdrawn on 09.08.1974 as per the settlement.
4. Learned Counsel for the petitioners seeks to contend that single eviction proceedings against respondent-tenant would be maintainable. Learned Counsel referred to the impugned order of the ARC to submit that even though the oral testimony adduced on behalf of the petitioners left much to be desired, the same was liable to be ignored in view of ExRW2/A. This was despite the fact that as per settlement also different portions of Scindia House have been specified as tenanted portions with the rent being specified separately for each of the portions. The erstwhile owners also continued to issue separate rent receipts after the agreement and so did the petitioners. The oral testimony of PW1 was only to the effect that the tenancy was created by the previous owners. In his cross examination he claimed lack of knowledge about the date of creation of the tenancies as also the terms of tenancy. Not only the witness stated that he was not aware about the fact that whether the entire nine portions form one single tenancy or whether there were different tenancies. It is this testimony of PW1 which has weighed with the ARC. The witness also deposed that when the property in question changed hands the previous owners had handed over a list showing as to which particular portion was in occupation of which particular tenant as also the separate rent for Page 3352 separate portions but this list was never produced before the court. The sale deed was also never produced.
5. Another material document considered by the ARC is a letter dated 09.07.1988 ExAW1/R-5 the petitioner sent in reply to a notice of the respondent-company dated 28.06.1998 (ExAW1/R-4) The respondent in the notice had claimed that there were independent tenancies in existence for 40-50 years which could not be clubbed and in response thereto the petitioner vide ExAW1/R-5 had asked for information about the date of creation of each tenancy as also the area of the same. A conclusion has thus been derived that the petitioner company was not certain whether it was a case of single tenancy or of separate tenancies. It is in these circumstances that the ARC came to the conclusion that there were nine different tenancies and ExRW2/A was held not to create a single tenancy since nine different premises with separate rents were mentioned.
6. The substratum of the submissions of the learned Counsel for the petitioner arises from the judgment of the Apex Court in Roop Kumar v. Mohan Thedani whether the scope and ambit of Section 91 and 92 of the Evidence Act, 1872 (hereinafter referred to as the Evidence Act) has been discussed. On the basis of the observations made in the judgment, learned Counsel sought to contend that the oral testimony on behalf of the petitioner ought to have been ignored in the teeth of ExRW2/A which was an undisputed document. The Apex Court held that Section 91 of the Evidence Act merely forbids proving the contents of writing otherwise than by writing itself and is governed by the ordinary rule of law of evidence known as the best evidence rule. Thus in reality it is only declaring a doctrine of substantive law that in case of a written contract all proceedings in contemporaneous oral expressions of the thing are merged in the writing or displaced by it. Thus any other evidence is excluded from being used either as a substitute for such instruments or to contradict or alter the same. This was held to be a matter of both principle and policy. Section 91 reads as under:
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof off the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein-before contained.
Exception 1 – When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing he is appointed need not be proved.
Exception 2 – Wills admitted to probate in India may be proved by the probate.
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Explanation 1 – This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2 – Where there are more originals than one, one original only need be proved.
Explanation 3 – The statement, in any document, whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
It would also be useful to reproduce some of the observations of the Supreme Court made in para 17 to 19 and 21 as under:
17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men’s rights depended, were liable to be impeached by loose collateral evidence. (See Starkie on Evidence p.648)
18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing.
19. Sections 91 & 92 apply only when the document on the fact of of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document which limitation improved by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying adding or subtracting from its term. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92 and similarly Section 92 would be inoperative without the aid of Section 91.
21. The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing. It is conclusively presumed, between Page 3354 themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.
7. I am afraid that the aforesaid judgment does not really come to the rescue of the petitioner. No doubt where a written document exists, oral testimony to the contrary cannot be relied upon. Section 91 of the Evidence Act, as enunciated by the Supreme Court, expounds the exclusion of extrinsic evidence as inferior evidence cannot be admitted when law requires that the superior evidence would nullify the same. Thus when parties have put an agreement into writing, then the same must be held to constitute a full and final statement of their intentions. A reading of ExRW2/A shows that the agreement was entered into between the erstwhile owners and the respondents arising from the litigation between the parties. The agreement only recognizes that the respondent is a tenant in respect of various portions. The portions have been separately set out and their rents specified separately. It would be useful to re-produce the para 1 of the said agreement which is as under:
The landlords confirm that the tenants shall continue to occupy as tenants under them the following premises at the rentals shown against them:
i) 8. Scindia House Rent Rs. 84.91 p.m.
ii) 12, Scindia House Rs. 575.00
iii) 13, Scindia House Rs.345.00
iv) 9 & 10, Scindia House Rs.276.00
v) 42 & 48 Scindia House Rs.339.83
vi) 48, Scindia House Rs. 72.19
vii) 7, Scindia House Rs. 72.19
viii) 9, Scindia House Rs. 16.87
ix) Washing Site between
Nos. 3 and Nos. 9 & 10
Scindia House Rs. 20.00
8. The erstwhile owners continued to receive rents and issue rent receipts separately and so did the petitioners. It would be difficult to derive conclusion from the said document that a single tenancy has been created by reason of that document. No doubt the landlord and tenant are the same in respect of different tenancies, but that itself would not amount to intent of clubbing the tenancies by the said agreement. The petitioners in their wisdom led oral evidence. The oral evidence did not support the petitioner but the witness in fact denied any relevant knowledge about the matter. Even if such evidence was to be ignored ExRW2/A would not result in conclusion of creation of one tenancy.
9. In analyzing the aforesaid It must also be kept in mind that the present proceedings are in the nature of supervisory jurisdiction vested in this Court by Article 227 of the Constitution of India. The observations of the Apex Court in Mohd Yunus v. Mohd Mustaqim and Ors. may be usefully re-produced as under:
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The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record much less an error or law. In this case, there was in our opinion no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned subordinate judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him nor in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.
10. The aforesaid thus leaves no manner of doubt that it is not the function of this Court in exercising jurisdiction under Article 227 of the Constitution of India to derive a different conclusion on the basis of the same material sitting as a court of appeal. The observations in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) SC 465 also support the view that in exercise of such supervisory jurisdiction this Court is not to indulge in re-appreciation or re-evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. It is only where a subordinate court has assumed jurisdiction which it does not have or has failed to exercise jurisdiction which it has or the jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has resulted, would the High Court be required to step in. If the plea of the learned Counsel for the petitioner is decided on the aforesaid parameters, that would also be ground not to interfere with the findings of the courts below on the issue of creation of a single tenancy.
11. The second limb of submissions of the learned Counsel for the petitioner arises from the challenge to the findings arrived at by the RCT. Provisions of Order 2 Rule 4 of the Code only prescribe joining three causes of action but not more than that. The provision reads as under:
Only certain claims to be joined for recovery of immovable property
No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except –
a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof:
b) claims for damages for breach of any contract under which the property or any part thereof is held; and
c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
12. Learned Counsel submits that in terms of the aforesaid provision the causes of action can be joined only in respect of three aspects as set out therein. There is no restriction on the number of causes which can be clubbed together unlike the criminal law. Thus it is the three nature of claims as set Page 3356 out in (a) to (c) of Rule 4 of Order 2 of the said Code which can be clubbed irrespective of number of cases.
13. Learned Counsel also relied upon provisions of Order 1 Rule 3 of the said Code to contend that if common questions of law or facts arise, separate proceedings need not be initiated. The said provision reads as under:
Who may be joined as defendants – All persons may be joined in one suit as defendants where –
a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
b) if separate suits were brought against such persons, any common question of law or fact would arise.
14. I am in agreement with the submissions of learned Counsel for the petitioner insofar as the aforesaid aspect is concerned. Order 2 Rule 4 permits joining of causes of action in a suit of the nature as specified in the said clause. There is no such restriction that only three causes of action can be clubbed. The provisions of Order 1 Rule 3(b) of the said Code also make it clear that if separate suits were brought against persons which would result in common question of law or fact all persons may be joined in one suit as defendants. In the present case the tenant is only one. The tenancies as held above are separate. Thus the only question to be examined is whether in view of the existence of such separate tenancies, the causes of action can be clubbed in view of Order 2 Rule 4 of the said Code r/w Order 1 Rule 3 of the said Code.
15. Learned Counsel for petitioner to advance the aforesaid plea has referred to the judgment of the Supreme Court in S.M. Gopalakrishna Chetty v. Ganeshan and Ors. . It was held in the context of the Madras Rent Legislation that a single petition with regard to two different tenancies in the same premises was maintainable even where one was for residential purpose and the other was for non residential purpose. Learned Counsel also relied upon the judgment of the learned single Judge of this Court in Mohd Yusuf v. Ram Nath 1972 RLR (N) 36. The case dealt with the factual matrix where there were two separate tenancies between the same landlord and tenant. It was held that a single petition could be filed if there is common question of law and fact. Two premises had been let out in the same building but separately in the said case.
16. In the end reference was also made to the judgment of the learned Single Judge of the Punjab and Haryana High Court in Gobind Ram v. Godha Ram 1979 (2) RCR where it was held that even if two rooms had been let out to the tenant on two different dates and therefore there were two separate tenancies, a single petition for eviction of the tenant was competent and there was no legal bar on the landlord claiming eviction of the tenant from a totality of the premises irrespective of the fact that whether they had been rented out under one rent note or two rent notes.
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17. The aforesaid judgments do support the plea of the petitioner that separate tenancies would not ipso facto imply that one eviction petition would not be maintainable. The prerequisite however remains that there should be a common question of law and fact involved. The present case is one where the allegation is of non payment of rent in respect of the different tenancies in respect of different spaces in the same building by the same tenant. The arrears were not cleared despite notice as alleged by the petitioner/landlord. There is thus a common question of law and fact which is involved in the present case. A common thread permeates the dispute. The rent to be paid already stands specified in ExRW2/A for different portions.
18. In my considered view in such a situation the petition could not have been thrown out on the objection of there being one eviction petition. The evidence had been led by the parties and ARC ought to have come to the conclusion one way or the other both in respect of service of the notice, the effect of the same and as to whether the necessary ingredients had been made out by the petitioner under Section 14(1)(a) of the said Act. In spite of the same, the petition has been dismissed only on the ground of non maintainability of a single petition.
19. I am thus of the considered view that despite the jurisdiction vested in the ARC to decide the matter on merits, the petition was thrown out only on the technical ground of the petition being not maintainable on account of multiple tenancies. The impugned order thus suffers from a patent error and failure of the ARC and RCT to exercise jurisdiction vested in them by law.
20. The impugned orders are accordingly set aside and the matter is remanded back to the ARC to decide the eviction petition filed by the petitioner on merits holding that the single petition filed by the petitioner against respondent-tenant in respect of different tenancies in the same building was maintainable.
21. The parties are left to bear their own costs.