JUDGMENT
G. C. Jain, J.
(1) This is a petition under Article 227 of the Constitution of India.
(2) By means of a registered lease deed dated December 8, l978 the petitioner, Dewan Daulat Rai Kapur. let out his 2″ storeyed building-114, Sunder Nagar, Mathura Road, New Delhi to the respondent, R. Chatha Ram, for residential purposes r a limited period of four years ending on December 8, 1982, after obtaining the permission of the Addl. Rent Controller under Section 21 of the Delhi Rent Control Act, 1958 (for short ‘the Act’). The reason given in the application seeking permission under Section 21 of the Act for not requiring these premises for the said period was that his son-in-law, Ashok Chawla was carrying on business in Bombay. He had died on April 13, 1978. There being nobody else, the petitioner was required to go to Bombay and stay there for a period of four years to look after his daughter, her two minor children and their business there and did not require the premises in dispute for this period. Parties statements were recorded by the Addl. Controller. The petitioner deposed : “I am owner of H.No. 114, Sunder Nagar, New Delhi. I want to let out the entire house as shown in plan Ex. A/1 for residential purposes for a period of 4 years. After expiry of four years family member will require. It was never let out u/s. 21 D.R.C. Act. The proposed agreement is Ex. A/2. The tenancy will start from 9-12-78. At present I do not require the same as stated in the application.”
The respondent stated : “I admit the contents of the application u/s. 21 D.R.C. Act and I am ready to take the entire house as shown in plan Ex. A/1 for residential purposes for a period of four years. After expiry of 4 years I shall vacate the premises. The tenancy will start from 9-12-78. The proposed agreement is Ex. A/2.”
On this evidence the permission was granted by the Addl. Controller on December 6, 1978. A registered lease deed was executed on December 8, 1978.
(3) Section 21 of the Act entitles such a landlord to obtain possession of the demised premises after the expiry of the period for which the limit tenancy was created. Such an order was, undisputedly, executable as a decree of the civil court. The petitioner, consequently moved an application for execution of the order on December 9, 1982. Notice of the application was issued to the judgment debtor who filed objections under Section 47 read with Section 151 of the Code of Civil Procedure. He raised several pleas.
(4) One of the pleas raised was that Mrs. Kanwal Inder bad not been validity appointed Addl. Rent Controller. There was presumption of valid appointment. No illegality was pointed out and in any case this plea was not pressed before me. Another plea that the impugned order was mechanical or mindless order had no substance. In his petition seeking permission to create limited tenancy the decree holder had stated that the premises were to be let out for residential purpose and would be used for the purpose of residence only. The reason for his not requiring the premises for a period of four years had been duly given. It was stated that his son-in-law who resided and carried on business at Bombay had died. He wanted to go to Bombay and stay there for four years to look after his daughter, her two minor children and their business. The judgment debtor in his statement made before the Addl. Controller admitted these facts as correct. In these circumstances the twin requirements for granting permission to create limited tenancy had been proved and the order could not be termed as a mindless or mechanical order.
(5) The other pleas are : (1)The respondent. R. Chatharam, being honorary Consul General of the State of Monaco at New Delhi was an “envoy” of a foreign State and could not be sued without the consent of the Central Government as provided under section 86 of the Code of Civil Procedure. No such consent was ever obtained. The Addl. Controller, therefore, was not competent to entertain the application under Section 21 of the Act and the order made by her on December 6, 1978 was a nullity. (2) The order dated December 6, 1978 was not executable except with the Consent of the Central Government as provided under Section 86(3) of the Code of Civil Procedure. (3) The office of the Consul General and official residence of the respondent were in the suit premises. The inviolability of the residence of the Consul General as well as his person was guaranteed under the Diplomatic Relations (Vienna Conventions) Act, and the premises were immuned from any execution. (4) The impugned order was vitiated by fraud and collusion for the reasons: (a) The reason disclosed in the application under section 21 of the Act seeking permission to create the limited tenancy was false and had been created to procure the permission to create the limited tenancy by fraud and collusion ; (b) the purpose was to pressurise and black-mail the respondent to increase the rent after the period of four years and the petition had specifically expressed this intention during the negotiations for the purpose of creating lease; (c) the landlord had sufficient residential accommodation at the time of seeking permission, the premises under suit were lying vacant, the petitioner/decree bolder never resided there and had made false statement regarding his residence in the suit premises; (d) the petitioner never went to Bombay to look after the business of his son-in-law. The alleged business was a family business of the son-in-law and the other family members were in Bombay and looking after the business; (e) the petitioner was presently residing at C-97 defense Colony. New Delhi of which he was the benami owner for the last several years. His averments in the execution application that be was temporarily residing there was false; and (f) the petitioner owned C-244, defense Colony, New Delhi C-1/32, Safdarjung Development Area, New Delhi and 208, Jorbagh. New Delhi. Jorbagh house fell vacant during the period of limited tenancy and was let out by the petitioners. Had he been in personal need he would have occupied the same.
(6) The decree-holder repudiated the averments made by the judgment debtor. The learned Addl. Controller fixed the case for January 20, 1984 for recording evidence. However no evidence could be recorded till date mainly for the reason that the judgment debtor moved several applications seeking interlocutory orders. One was under Order 18 Rule 3A read with Section 151, Code of Civil Procedure seeking permission to appear as his own witness at a later stage. The other was fur directing the petitioner/decree holder to produce documents mentioned in the said application. The third application was under Order 11 Rule 14, Code of Civil Procedure for directing the petitioner to make discovery on oath.
(7) On November 23, 1984 the judgment debtor moved an application under Order 6 Rule 17, Code of Civil Procedure for permission to amend the written statement. By way of amendment he wanted to add the plea that the decree-holder before letting out the premises knew that the judgment debtor was the Consul General of Monaco and the premises had been let out to him because of his status and this fact was deliberately concealed from the court at the time of granting the sanction under section 21 of the Act. This application was opposed but was allowed by the learned Addl. Controller on April 19, 1985 subject to payment of Rs. 300.00 as costs. It was observed that the judgment debtor was only clarifying his position and the decree-holder could be compensated by costs.
(8) Feeling aggrieved the decree-holder filed this petition for quashing the entire proceedings before the learned Addl. Rent Controller and the order dated April 19, 1985 allowing the amendment.
(9) Rule 17of Order 6, Civil Procedure Code . gives a wide discretion to the court to allow amendment necessary for the purpose of determining the real matter in controversy between the parties. The power under this rule is to be liberally exercised. However it must be exercised according to the judicial principles.
(10) In the present case the judgment debtor by proposed amendment wanted to add the plea that the decree holder knew that the judgment debtor was a Consul General of Monaco and played a fraud on the Addl. Controller by deliberately concealing this fact. Is this plea necessary to decide the real controversy between the parties? In my view, the reply must be in the negative. One of the main controversies between the parties was whether the impugned order dated December 6, 1978 was vitiated by faud and collusion for the reasons enumerated above. In my opinion, nothing was to turn on the status of the judgment debtor. Before granting permission to create lease for a limited period under Section 21 of the Act the Controller was required to satisfy (i) that the landlord did not require the demised premises for a limited period only ; and (ii) that the letting was for residential purpose Granting or refusing to grant permission to create limited tenancy did not depend on the status of the would be tenant. It bad no relevancy at all. In the present case status may be relevant for the purpose of Section 86 of the Code of Civil Procedure and the non-executability of the order under the Diplomatic Relations (Vienna Convention) Act. For the purpose of deciding those pleas the previous knowledge of the status of the Judgment debtor was not required. This additional plea which was sought to be raised by way of amendment therefore was not necessary to decide the real controversy between the parties. It may be noted that the case was listed for recording evidence on February 15, 1985. This application was moved on November 23. 1984. It appears that the purpose was to delay, the recording of the evidence. It was apparent from the fact that the notice of the application was issued to the decree-holder for the date fixed for recording evidence. The application was thus malafide. It is settled law that an application for amendment which was made malafide could not be granted. For these reasons the order of the learned Addl. Controller allowing amendment, in my view, was illegal and could not be sustained.
(11) Mr. Raj Panjwani, learned counsel for the judgment debtor, contended that the order dated April 19, 1985 allowing the amendment was an appealable order and consequently it could not be assailed by a petition under Article 227 of the Constitution. I do not agree. The said order did not, in any way, determine or affect any rights or liabilities of the parties expressly or impliedly and therefore, was not appealable, (sec Shri Sita Ram Talwar v. Shri Jai Deva Sharma (1973 Rcr 417).
(12) Mr. Madan Bhatia, learned counsel for the decree holder, strenuously contended that the objection petition filed by the judgment debtor was frivolous and it was a case of gross abuse of the process of the Court. The only object, urged the learned counsel, was to delay the delivery of the possession which was made further clear by the conduct of the judgment debtor in not allowing the recording of the evidence up to this date. It was argued that the petition under Section 21 of the Act was not a “suit” and did not attract the provisions of Section 86 of the Code of Civil Procedure. In any case, the judgment debtor who was honorary Consul General of the State of Monaco at New Delhi was not an ‘envoy’ within the meaning of the term used in Section 86, Code of Civil Procedure and therefore, provisions contained in Section 86 did not bar the making of the order of its execution. It was also contended that the provisions Diplomatic Relations (Vienna Convention) Act, were not applicable to the honorary Consul General. For Counselors there was separate conventions. He also argued that according to the case set up by the judgment debtor he knew at the very beginning that a fraud was being played on the Court and in fact decree holder did not require the premises even after the expiry of four years and these pleas were being set up only to get the rent enhanced after four years. In these circumstances, according to the learned counsel, it was duty of the judgment debtor to approach the Court immediately to avoid the order obtained on the alleged fraud. He, however, kept quiet for full four years and consequently he was estopped to challenge the said order on the ground of fraud on the principles of equity, law as well as according to judicial pronouncement in J.R. Vohra v. India Export House Pvt. Ltd. & Another ).
(13) Mr. Raj Panjwani, learned counsel for the judgment debtor, raised a preliminary objection that all these pleas which the decree-holder wanted to be decided in this petition under Article 227 of the Constitution had not been gone into by the learned Addl. Controller and in the circumstances this court in exercise of its powers under Article 227 cannot, for the first time, determine these pleas.
(14) To examine this plea, the question which the decree-holder wants to be decided in this petition may be noted. These questions are : )Whether the application under Section 21 of the Act was a “suit” and an honorary Consul General was an “envoy” within the meaning of the terms used in Section 86, Civil Procedure Code . ? (2) Whether the provisions of Diplomatic Relations (Vienna Convention) Act were applicable to an honorary Consul General ? (3) Whether the judgment debtor was estopped on principles of equity, law and on the basis of judicial pronouncements from raising the plea that the impugned order was fraudulent on the grounds given in the objection petition ?
(15) Article 227(1) reads as Under : 27.(1)Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.”
(16) This Article gives power to superintendence to the High Court. This power has to be exercised in order to keep subordinate courts and tribunals within the limits and bounds of their authority and not for correcting mere errors. This power, however, does not vest the High Court with any unlimited prerogative to correct all species of hardship of wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes. (See D.N Banerjee v P.R. Mukherjee (1953) S.C.R. 302.). The jurisdiction under Article 227 is an extra-ordinary jurisdiction. It is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it was an appellate jurisdiction or if it gives unfettered or unrestricted power to the High Court to do whatever it likes. (See Miss M aneck Custodji v. Sarfazah Nawabali Mirza, . The High Court in exercise of its powers under Article 227 cannot function as a Court of appeal and is generally bound by the findings of fact recorded by the subordinate courts and tribunals, however, erroneous these may be.
(17) Can the High Court in exercise of the powers of superintendence under Article 227 determine, for the first time, questions of law without there being any determination of those questions by the subordinate courts or tribunals ? In my view, the reply must be in the negative. The High Court in exercise of the powers under Article 227 would not be competent to act as a court of original jurisdiction. Power of Superintendence in my judgment, would not include the power to determine even pure questions of law which questions have not been determined by subordinate courts or tribunals.
(18) Article 227 of the Constitution provides for judicial review of the orders of the subordinate courts. There must, therefore, be an order requiring review. In the absence of any order the question of exercising powers under Article 227 does not arise . The High Court in exercise of the powers under Article 227 cannot decide questions of law or fact or mixed questions of law and facts for the first time. Abroad are the expressive expression designedly used in Art. 226 any that order which should have been made by th(r) lower authority could be made by the High Court. The very width of the power and the disinclination to meddle except where gross injustice of fatal illegality and the like are present inhibit the exercise but do not abolish the power.”
Relying on these observations contained in para 79 of the decision of the Supreme Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, , learned counsel for the decree-holder contended that this Court under Article 227 was competent to make orders which could be made by the Additional Controller. I do not agree. In that case, the dispute relating to discharge/dismissal of workmen was referred for arbitration by the Industrial Tribunal. The arbitrator held the action of the Management warranted. The High Court reversed the award and directed their reinstatement. Before the Supreme Court, it was argued that the High Court could not direct reinstatement and it was the duty of the High Court to send back the case to the arbitrator to reconsider the issue. This contention was negatived. It was held that the High Court was competent to make the same order which the arbitrator could make. The above observations of the Supreme Court, made in this context, do not help the decree-holder at all. In the basis of these observations it cannot be said that this court, acting under Article 227, could record the finding on the questions of law without there being any finding on there points by the subordinate courts.
(19) Mr. Madan Bhatia, learned counsel for the decree-holder, vehemently contended that the Additional Controller had failed to perform the statutory duty. He had no jurisdiction to enquire into the pleas raised by the judgment debtor and had usurped jurisdiction which did not vest in him and by doing so allowed his process to be grossly abused by the judgment debtor and compounded the wrong committed by him by subjecting the decree- holder to unleashing upon him proceedings which became an instrument of harassment, oppression and grave mis-carriage of justice and therefore, it was the duty of this court to interfere and record findings on these pleas which were frivolous.
(20) On a careful examination of these arguments, I do not find much substance in them. The fault which can be found, if at all, with the learned Addl. Controller was that he allowed delay in disposal of the matter. Because of delay alone this Court in a petition under Article 227 could not take upon it the task of deciding these questions. The first two pleas raised by the judgment debtor relate to the jurisdiction of the Court. His contention is that the order sought to be executed was a nullity being violative of the provisions contained in Section 86, Civil Procedure Code . and unexecutable because of the bar of Section 86, Civil Procedure Code . and Diplomatic Relations (Vienna Convention Act. The executing court was competent to go into these pleas. In V.D. Modi v. R. A. Rehman, it was observed : “WHEN a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution.”
(21) The third plea was that the impugned order was vitiated by fraud and collusion. “It is perfectly open to the Controller to examine whether the sanction under Section 21 is a make believe vitiated by fraud and collusion.” (S.B. Noronah v. Prem Kumari Khanna. ). In V.S. Rahi v. Ram Chambeli, , the Supreme Court held :
“WHILE it is true that the Court should proceed with the initial presumption that the order under Section 21 of the Act was a regular one, the Court should still examine the material placed before it by the tenant inducted under that provision in order to satisfy itself that there has not been any misuse of the said provision by the landlord taking advantage of the helpless situation in which the tenant was placed at the time when such order was obtained.”
“ITis, however, urged that the appellants who had colluded with the respondent when permission was granted under Section 21 of the Act should not be now allowed to resile from the stage they had taken then. It is true that the appellants who were the weaker of the two parties did not question the truth of the statements made by the respondent when the permission was granted. But such collusion, if any, between the two unequal parties does not confer any sanctity on the transaction in question. In cases of this nature, it is always open to the weaker of the two parties to establish that the transaction was only a camouflage used to cover its true nature. Collusion implies the existence of two or more parties who can deal with each other independently with the object of entering into an arrangement which may serve as a cloak to cover up the real state of affairs. When one party can dominate over the will of the ether, it would not be a case of collusion but one of compulsion. The above view is fully in consonance with the spirit behind the rule of oppression which is recognise j as an exception to the doctrine that a partly cannot recover what he has given to the other party under an illegal contract.”
(22) It is, therefore, not a ca?e where the subordinate Court, i.e. Additional Controller usurped the jurisdiction which did not vest in him. It is not a case of total stultification of Section 21 of the Act, as contended by the learned Counsel for the decree-bolder.
(23) In Shiv Nath Ji v. Jorna Kashinath, Vii 1883 2nd Bombay 341 a Full Bench of the Bombay High Court held : “THECourt, having called up the record or proceedings, of a subordinate Court, will itself investigate the facts on which a jurisdiction has been assumed or declined ; on which it depends whether the subordinate Court could or could not legally deal with the matter in question, either at ail, or on the principle to which it has referred the case ; or according to which its mode of inquiry, or of action, may or may not have been in contradiction, rather than obedience, to the rules of procedure, or the principles implied in them, to such a material extend as to defeat the purpose of the law.”
(24) There observations, in my view, do not help the decree-holder. As noticed above, the pleas required to be decided were such which the learned Addl. Controller had jurisdiction to decide. Their jurisdiction did not depend on facts which this court was required to investigate. The decree-holder wants this court to decide the pleas which the Addl. Controller was competent to decide.
(25) In State of West Bengal v. Swapan Kumar Guha & Others, the High Court quashed the criminal proceedings because the Fir did not disclose any cognizable offence. This order was upheld by the Supreme Court. The High Court however had not decided any question of law or fact. which was required to be decided by the Subordinate Court. This authority therefore has no application.
(26) It is settled law that the authorities must act within the letter and spirit of the law. In this case however it cannot be said that the learned Addl. Controller had usurped jurisdiction or had exceeded the jurisdiction. The only thing which could be said against him, if any, was that there was delay in the progress of the case. On account of this delay this Court under Article 227 would not take upon itself the task of deciding questions of law. The purpose can be served by issuing suitable directions.
(27) In N.S. Parthasarthy and Ors. v. Mrs. Padamini Devi & Another, 1982(1) Rcr 642 the pleas raised by the judgment debtor were held to be not permissible at execution stage. This is not the case here. The judgment debtor in his objection petition has raised the pleas which, as stated above, were permissible at the execution stage.
(28) The decision of this court in Jitender Kumar Jauhar v. Shri Krishan Chopra, 1986(2) All India Rent Control Journal, 123 does not help the decree- holder much because in the present case the objection is that the impugned order was a nullity. Moreover the Supreme Court has taken the view that the pleas sought to be raised by the judgment debtor v,ere open in these proceedings.
(29) Reliance was placed on some other decisions also. In none of these cases, however, it was held that the High Court in exercise of its powers under Art. 227 can decide legal pleas, not decided by the subordinate courts competent to decide those pleas. To accept this contention of the decree- holder is likely to create problems In many suits and applications legal issues arise. Most of the litigants then would prefer to rush to the High Court to get those issues decided avoiding the subordinate courts as well as the first appellate courts. This cannot be allowed.
(30) For the reasons aforesaid, I partly allow the petition and set aside the impugned order, dated April 19, 1985 allowing amendment, and instead dismiss the application for amendment. The learned Add). Controller is directed to decide the preliminary points mentioned on page 9 within three months from today. Parties are directed to appear before the learned, Addl. Controller on August 30, 1986. He would fix a short date for bearing arguments on the said pleas and give day to day bearing as far as possible. Parties are left to bear their own costs.
