JUDGMENT
Sanjay Kishan Kaul, J.
1. Late Smt. Nirmal Kanta, owner of property no. E-14, Naraina Vihar, New Delhi had let out
the same to Sh.I.R.Malik in 1980 initially for a fixed period of four years after obtaining necessary permission under Section 21 of the Delhi Rent Control Act, 1958. Eviction proceedings were filed by her in 1987 against the tenant and the petitioner herein, a private limited company, was imp leaded a proforma party on the allegation that at times the rent was paid through the company.
2. The petitioner filed a suit for specific performance against Smt. Nirmala Kanta in the High Court of Delhi in October 1987 alleging that the property had been agreed to be sold to them for which an agreement to sell dated 18.09.1984 had been executed. The agreed consideration was stated to be Rs 4 lakh and payment in part performance of the agreement was stated to have been made. The petitioner claimed to be in possession of the suit property in part performance of the said agreement to sell and it was claimed that it was the said entity which was the tenant. The suit was contested by Smt.Nirmal Kanta. The eviction proceedings initiated by her were, however, adjourned sine die on 17.05.1990 in view of the pendency of the suit. Smt Nirmal Kanta passed away on 08.02.1993. The petitioner failed to implead the legal representatives and thus the suit for specific performance stood abated on 19.05.1995. This order has been upheld right till the Supreme Court.
3. Respondents no.1 and 2, legal heirs of Smt. Nirmal Kanta, filed a fresh eviction petition in the year 1996 against Sh.I.R.Malik. The petitioner was not imp leaded as a party. The petition was filed on the ground of bona fide requirement under Section 14(1)(e) r/w Section 25B of the said Act. The application filed for leave to defend the eviction petition was allowed on 29.11.99 and the matter was contested. Sh. Malik also took the stand that it was the petitioner who was inducted as a tenant in the suit property and later on the possession was recognized in part performance of the agreement to sell.
4. It may be noticed that on a specific query, learned senior counsel for the petitioner appearing in the present matter has confirmed that the petitioner is a private limited company having only three share holders as directors. All the share holders have equal percentage of one-third share each. The shareholders are Sh.I.R.Malik, Sh.Anil Malik and Sh. Sanjiv Malik. Thus the petitioner company is a closely held one with three brothers as shareholders. Interestingly, Sh. Anil Malik filed his affidavit of evidence in support of the defense of Sh. I.R.Malik in the eviction proceedings but did not appear for cross examination. Sh. Sanjiv Malik also appeared in the matter for seeking adjournment on behalf of Sh. I.R.Malik.
5. The Additional Rent Controller allowed the eviction petition which was notchallenged by Sh.I.R.Malik.
6. The second round started thereafter when objections have been filed by the petitioner company raising the plea of being the tenant and in occupation in part performance of the agreement to sell. These objections have been signed by Sh.Sanjiv Malik. The occasion to file these objections arose when the execution petition was filed by respondents no.1 and 2 herein against respondent no.3 after waiting for a period of six months as granted by the Additional Rent Controller to vacate the tenanted premises.
7. The plea of the petitioner was once again the same that they were the tenants and continued in occupation in part performance of the agreement to sell though the suit for specific performance had abated and that order had been confirmed right till the Supreme Court. Once again that aspect was sought to be raked up and pleadings in that suit were sought to be relied upon to show that though initially Smt.Nirmal Kanta had denied the agreement to sell and receipts, subsequently she admitted her signatures though claiming that she was an uneducated lady who thought that the papers were for continuation of the lease. These objections were dismissed by the Additional Rent Controller by the order dated 08.04.2005.
8. The petitioner thereafter filed an appeal before the Rent Control Tribunal (hereinafter referred to as the Tribunal) which was dismissed by the impugned order dated 06.11.2006. It is the said order which is now sought to be challenged under Article 227 of the Constitution of India.
9. It is trite to say that this Court does not sit as a court of appeal to re- appraise or re-evaluate the evidence while exercising jurisdiction under Article 227 of the Constitution of India. The supervisory jurisdiction of the High Court, as observed in Surya Dev Rai v. Ram Chander Rai and Ors. JT 2003 (6) 465, is not to be exercized for re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal and 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 jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has resulted, the High Court may step in to exercise its supervisory jurisdiction. In Mohd Yunus v. Mohd Mustaqim and Ors. , it has been held in para 7 as under:
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 not 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. In view of the aforesaid legal position, the submissions on behalf of the petitioner must be confined to the aforesaid aspect. Learned senior counsel for the petitioner did attempt to take this Court through the impugned judgment and the material placed on record to contend that this Court should seek to derive different conclusions from the evidence placed on record. It may be noticed that for consideration of these objections, evidence has been recorded and thereafter the judgment has been passed. It would thus not be appropriate for this Court to once again re-appraise and re-evaluate the evidence and to come to a different conclusion than what has been arrived at by the courts below. The Tribunal in fact has gone into great depth and has considered the whole matter in a judgment running into 75 pages on this issue of objections. This is despite the fact that the scope of judicial scrutiny by the Tribunal is restricted only to a question of law under Section 38 of the said Act. The legislature in its wisdom has amended the said Act in the year 1988 converting the first appeal into an appeal only on question of law and eliminating the second appeal which lay to this Court.
11. Learned senior counsel for the petitioner seeks to stress the aspect arising from an earlier judgment of this Court in CM(M) No. 94/2003 between the parties dated 28.02.2003. This petition was filed on account of the summary dismissal of the objections of the petitioner. This Court held that in view of the conspectus of facts, the objections required enquiry and hearing before they are decided and thus an order could not have been passed for handing over possession by the petitioner. It may be noted that learned Single Judge of this Court took the precaution of noting that the views expressed were prima facie since the matter ought to be decided after evidence. This order was also challenged before the Supreme Court by filing a Special Leave Petition. Leave was granted but when the matter came up for disposal on 12.08.2005, the Additional Rent Controller had already completed the process of adjudication in pursuance to the order of the learned Single Judge of this Court dated 28.02.2003 against which an appeal had been filed before the Tribunal. The Supreme Court thus disposed of the Civil Appeal with a direction that the Tribunal should dispose of the matter expeditiously.
12. Learned Senior Counsel for the petitioner submits that the findings arrived at by the courts below are contrary to the findings given by the learned Single Judge of this Court in CM(M) No. 94/2003. In my considered view the plea is misplaced since the subject matter of CM(M) No. 94/2003 was the plea of the petitioner that the objections filed by it required enquiry and hearing and could not be summarily brushed aside. It is in that context that the submissions advanced by the petitioner were appreciated by the learned Single Judge of this Court holding that prima facie from the allegations made a proper enquiry was necessary.
13. The submissions of learned Senior Counsel for the petitioner once again seek only to raise the issue of the consequences of the agreement to sell and the alleged continued possession of the petitioner in pursuance thereto. It was contended that since the documents were ultimately exhibited, a different stand cannot be taken now and thus the protection is available to the petitioner by virtue of provisions of Order 22 Rule 9 of the Code of Civil Procedure, 1908 (herein after referred to as the said Code) r/w Section 53A of the Transfer of Property Act, 1882. The plea is that this right is de hors the question of abatement of the suit for specific performance. The finding is also sought to be impugned to the extent that late Smt.Nirmal Kanta was held to be a pardanashin lady and in view of the petitioner being a separate legal entity, the petitioner has its own right of representation.
14. I am unable to accept the plea of the learned senior counsel for the petitioner. It cannot be lost sight of that even the suit for specific performance was filed after three years of the alleged date of agreement. There was no explanation for the delay. The suit was prosecuted and thereafter abated. The abatement was upheld right till the Supreme Court. The petitioner thus cannot be permitted to rake up the same issues as raised in the suit for specific performance.
15. In the eviction proceedings subsequently filed by the respondents no.1 and 2, respondent no.3 was the sole respondent. He is 1/3rd share holder of the petitioner company. The other two shareholders are the two brothers. One of the brothers Sh. Anil Malik even filed an affidavit of evidence in the eviction proceedings but ultimately failed to appear. The other brother Mr. Sanjiv Malik was appearing for Sh. I.R.Malik on certain dates. Thus all the shareholders/directors of the petitioner were fully aware of the proceedings going on earlier. In fact this is a fit case where if the corporate veil is pierced, it will be found that the petitioner-entity is nothing else but the three brothers, all of whom had knowledge of the proceedings for eviction and were appearing in the same. It is obvious that in order to defeat the rights of the landlord, one or the other brother comes up to put forth his case and the matter has been dragged on now for almost nineteen years. Sh. I.R.Malik never challenged the eviction order and thereafter the round of objections has started on behalf of the company in which the three brothers are equal shareholders. At the stage of objections, Mr. I.R.Malik disappeared from the scene and was never produced as a witness. In fact the finding reached in para 62 is that it is only Sh. I.R.Malik who might have been dealing with Smt. Nirmal Kanta. The Tribunal has come to the conclusion in para 88 that delivery of legal possession by atonement or the actual atonement is completely missing in the evidence and thus there could be no question of the company being in possession. The petitioner was also held to have failed to prove the documents of their induction as tenants or in part performance of the agreement to sell. Thus Section 53A of the Transfer of Property Act, 1882 and Order 22 Rule 9 of the said Code would not come to the aid of the petitioner.
16. In my considered view the present case is a classic example of gross abuse of the process of court by these three brothers and thus the Tribunal rightly dismissed the appeal with exemplary costs of Rs 50,000/- and further directed that the Rent Controller should determine the market rate of suit premises for use and occupation with effect from the date of passing of the eviction order.
17. The petition is without any merits or substance. The impugned order does not suffer from any patent or jurisdictional error. The petition is dismissed with costs of Rs 10,000/-