JUDGMENT
S.N. Andley, J.
(1) The appellant obtained an order of eviction against Nirmal Banerjee (respondent No. 2) in respect of a garage on March 28, 1966 on the ground of non-payment of rent and subletting in favor of R. L. Taluja (respondent No. 1) from November 3, 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 had been let out to him by the appellant since November, 1965 and being a tenant in his own right, the appellant was not entitled to execute the order of eviction against him by reason of section 25 of the Delhi Rent Control Act, 1958. By his order dated September 1, 1967, the First Additional 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 Rent Control Tribunal, Delhi. The Tribunal, by his order dated August 17, 1968 found that the appellant had let the garage in dispute to respondent No. 1 in November, 1965 at the rate of Rs. 35.00 per mensem. The Tribunal. therefore, allowed the appeal, upheld the objections of respondent No. I and directed that he shall not be evicted from the garage in execution of the order of eviction obtained by the appellant against Nirmal Benerjee (respondent No. 2).
(3) A preliminary objection has been raised on behalf of respondent No. 1 that the appeal is barred by time. This appeal was filed on November 11, 1968 and if the matter had rested there, there would admittedly be no question of limitation because this date was the 58th day from the date of the order of the Rent Control Tribunal. It appears, however, that some columns of the prescribed opening sheet of the memorandum of appeal had not been filled up and on November 14, 1968 the office of this Court suggested that it may be returned to be refiled within a week. The papers were put up before the Assistant Registrar who on November 16, 1968 said “Return”. He, however, did not specify the time during which it was to be returned although the office had fixed the time as “within a week”. The memorandum was actually taken delivery of by the clerk to the then counsel for the appellant on November 18, 1968 and was refiled on December 5, 1968. The refiling was, therefore, beyond the time fixed by the office. It is, therefore, contended that the appeal must be taken to have been filed on December 5, 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 November 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 Krishen v. The Delhi Cloth and General Mills Co., Ltd. and others (A.I.R. (37) 1950 East Punjab 195) 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 the presentation and reception of appeals etc. Rule 2(a) provides,- “EVERYmemorandum 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 form is prescribed for the purpose by the High Court……………………………”
(5) 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 appeal for the reason specified in Order Xli, Rule 3, Civil Procedure Code. Sub-rule (1) of rule 3 of Order Xli of the Code provides that where the memorandum of appeal is not drawn up in the manner prescribed, 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 I 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 accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment 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.
(6) Now, the memorandum in the present appeal was not returned for any of the defects mentioned in Rule I 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 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 authorises the Deputy Registrar to refuse any memorandum of appeal which does not speedy the section of the enactment under which the appeal or application lies.
(7) It, therefore, appears after reading the aforesaid Rules 3 and 5 together that the Deputy Registrar cannot return the memorandum of appeal for non-filling of some columns of the prescribed sheet. Reliance has been placed by respondent No. 1 on Rule 9 in the aforesaid Volume and Chapter of the Rules and Orders of this Court which authorises the Deputy Registrar of the prescribed opening sheet. Reliance has been placed by respondent No. 1 on Rule 9 in the aforesaid Volume and Chapter of the Rules and Orders of this Court which authorises the Deputy Registrar to return for amendment, within a time to be specified in an order to be recorded by him on the petition, any petition not drawn up in conformity with the foregoing directions which are contained in Rules 6, 7 and 8 with respect to specified petitions. Rule 9 would, therefore, not apply to a memorandum of appeal.
(8) The power under Rules 3, 5 and 9 can be exercised by the Deputy Registrar who has to give reasons as required by the aforesaid rules and not by the Assistant Registrar. In this case no order under the aforesaid rules appears to have been made by the Deputy Registrar. The return by the Assistant Registrar, as in this case, cannot be said to be in compliance with the aforesaid rules. Assuming, however, that the Assistant Registrar can exercise these powers, it appears to me that there is no power in the Assistant Registrar to return the memorandum of appeal for a defect other than the non-specification of the section of the enactment under which the appeal lies or noncompliance with Rule 3 of Order Xli of the Code or to fix time turn its refiling. It would, therefore, follow that if a memorandum of appeal suffers from a defect similar to the one as in this case, the memorandum of appeal should not be returned but the party should be asked to rectify the defect and even such a defective memorandum of appeal must be taken to have been properly filed on the day on which it is filed and there is no question of its being taken to have been filed on the date when it is refiled after it has been returned by the office. Reliance has been placed upon the decision reported in Buta Singh v. Chand alias Chanda Singh [1970 (72) Punjab Law Reporter 803] where the memorandum of appeal was entirely blank. That is not the case in this appeal and, therefore, I would not make any comment on the observations that have been made in this judgment. I, therefore, over-rule the objection as to limitation and hold that the memorandum of appeal having been filed within time on November 11, 1968, the appeal was filed in time even though some of the columns of the prescribed opening sheet had not been filled up.
(9) So far as the merits of the appeal are concerned, the appellant wanted 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 favor. But that is not the function of this Court in a second appeal under the Rent Control Act, 1958 where a second appeal is competent only upon the existence of a substantial question of law. The fact finding is the function of the Rent Controller and of the Rent Control Tribunal.
(10) The findings of the Rent Controller or of the Rent Control Tribunal on facts can be interfered with by this Court in second appeal only 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 arrived at by dealing with all the facts which are urged before the Rent Controller or the Rent Control Tribunal. Non-consideration of relevant facts will also vitiate the finding of fact.
(11) Now, in the present case the Additional Rent Controller found that,- “(1)the garage had been let to one Hanuman Parshad about 4 to 5 years back at the rate of Rs. 45.00 per mensem, that is, Rs. 10.00 per mensem more than the amount at which it was alleged to have been let to respondent No. 1; (2) the appellant had refused to let an adjoining room which had been lying vacant to respondent No. 1; (3) the rent receipt (Exhibit O.1) on which respondent No. 1 relies contains “certain cutting”, inter alia, by changing the figure of 2 into the figure of 3 without bearing any initials of the appellant; (4) the month of October, 1965 has been struck out from the receipt for which the appellant gave an explanation which was accepted by the Rent Controller; (5) the appellant’s attorney asked respondent No. 1 only for Rs. 35.00 as rent for the garage and this was agreed upon without any haggling; (6) there was 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 taken possession of the garage unauthorisedly; (8) the landlord had given an explanation that October, 1965 had been wrongly mentioned in the receipt and that the rent paid under this receipt (Exhibit O.I) was for November, 1965 to January, 1966 and this explanation was accepted by the Rent Controller; (9) the figure 2 has not been touched upon in the counter foil of Exhibit O.1; and (10) no explanation has been given by respondent No. 1 as to why the appellant had agreed to let the garage to him at a lower rent.”
(12) The Rent Control Tribunal in appeal did not, in my view, do justice to the judgment of the Rent Controller. His examination of the evidence is cursory and he did not approach the question from the point of view, as he should have, that a finding of fact by the lower Court should not be lightly interfered with in appeal. The Rent Control Tribunal have the following findings :- “(1)There was no explanation from the appellant as to why the figure of Rs. 210.00 in the receipt Exhibit O.I was not erased if the rent of only two months of November and December, 1965, at the rate of Rs. 70.00 per mensem had been received. He has not correctly recorded the explanation of the appellant which was that this receipt purported to cover the rent for the three months of November and December, 1965 and January, 1966 as the receipt Exhibit O.1 is dated February 4, 1966. (2) The Tribunal further proceeded on the assumption that the appellant had appeared in the witness-box and had admitted in cross-examination that he had received rent of Rs. 105.00 at one time from respondent No. 1 after execution of the receipt Exhibit O.1 and a sum of Rs. 105.00 for the second time. The Tribunal had fallen into two errors. The first error is that the appellant did not appear in the witness-box and it was only his attorney who appeared in the witness-box. The second error is that the attorney had merely stated that he had received cheques for Rs. 105.00 and not that he had received rent at the rate of Rs. 105.00. The conclusion of the Tribunal that this amounted to an admission of the appellant appears to me to be the result of a mis-reading of the evidence. (3) The two reasons given by the Rent Controller (1) that the rent which the appellant was receiving was higher than the rent for which the garage had been let to respondent No. 1 and (2) that the strained relations between the parties indicated that respondent No. 1 had put up a false case were summarily brushed aside by saying that “the possibility of the respondent having agreed to let the premises in dispute to the appellant at a rent of Rs. 35.00 p.m. for making their relations pleasant could not be ruled out was, to say the least, speculative.”
(13) I have merely summarised the reasons and the findings of the Rent Controller and the reasons and the findings of the Rent Control Tribunal and I feel that the Rent Control Tribunal should have examined the evidence more closely to determine whether truth lay on the side of the appellant or on the side of respondent No. 1. I have scrupulously avoided giving my own finding in the matter because I am of the view that such a finding should be given by the Rent Control Tribunal.
(14) In the result, I set aside the order of the Rent Control Tribunal and remand the case to it for re-appreciating the evidence on the record and giving a proper finding of fact. The parties will not be entitled to lead any further evidence and the findings are to be given on the facts as they stand.
(15) Counsel for the parties have been directed to appear before the Rent Control Tribunal on May 1, 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.