JUDGMENT
Sanjay Kishan Kaul, J.
1. The petitioner filed eviction proceedings against respondent No. 1, the tenant and other parties alleging them to be sub-tenants. The eviction was sought on grounds of Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, the said Act) for non-payment of rent, under Section 14(1)(b) of the said Act for sub-letting and under Section 14(1)(j) of the said Act for causing substantial damage to the premises.
2. The Court of the Additional Rent Controller (for short, ARC) allowed the petition under Section 14(1)(a) of the said Act giving the benefit of Section 14(2) of the said Act. The petitioner succeeded on the ground of Section 14(1)(b) of the said Act on account of sub-letting to M/s. Wimpy Fast Food Pvt. Ltd. as also under Section 14(1)(j) of the said Act. Benefit of Section 14(11) was given so far as ground of Section 14(1)(j) of the said Act is concerned.
3. Respondent No. 1 availed of the appellate remedy and the appeals were dismissed by the Rent Control Tribunal (for short, the Tribunal). The second appeals filed before this Court are pending consideration. The petitioner sought to take out execution proceedings in respect of the tenanted premises and it is during those proceedings, it transpired that there was some problem in the possession being taken over on account of the fact that the eviction order dated 03.03.1999 had referred to a site-plan Ex. AW6/8, while, in fact, that was not the complete tenanted premises. The total premises consisted of Ex. AW6/8 and Ex. AW7/1 being the two site-plans. The petitioner filed applications under Sections 151 and 152 of the Code of Civil Procedure, 1908 (hereinafter referred to as, the Code) seeking a prayer that the eviction order be corrected by incorporating Ex. AW7/1 in para 46 of page 49 of the judgment dated 03.03.1999 where the reference had been made to the site-plan Ex. AW6/8. This application of the petitioner has been rejected by the impugned order dated 06.05.2004 resulting in the present revision petition.
4. Learned Counsel for the petitioner contended that the eviction petition was filed on 18.04.1970 in respect of the premises bearing shop No. N/5, N Block, Connaught Place, Janpath, New Delhi. The premises have been so specified in column 1 of the eviction petition where the municipal no. of the premises and the name are to be given. In column No. 8 where details of accommodation available together with particulars as regards the ground area, garden and outhouse have been given, it has been stated as under:
1. … Shop No. N/5, N Block, Connaught Place, Janpath, New Delhi.
8. … Shop hall with a loft, store- room and bath room with one room out of outhouses on the back of the building N-Block, Plan attached.
5. Respondent No. 1 was alleged to have parted with possession of the suit premises to one M/s. Wimpy Fast Food Pvt. Ltd., who were carrying on the business of restaurant in the suit premises and along with the eviction petition, two plans were attached. The first plan Ex. AW 6/8 is in respect of the outhouse, while Ex. AW7/1 is in respect of the main shop. The eviction order dated 03.03.1999 itself has defined the tenanted premises to include both what have been set out in Ex. AW6/8 and Ex. AW7/1. The details of these are as under:
(i) Page 3 of the judgment : Thus respondent No. 1 became tenant of the petitioner by operation of law in respect of premises in dispute detailed above comprising of shop hall with a loft, store-room and bath room with one room out of out-houses on the back of the building N-Block as per site plan attached with the petition.
(ii) Page 7 of the judgment : It was not denied by the respondent that he was not a tenant in the premises in dispute. He admitted that tenanted premises consists of main hall, a small room, a bath room, a mezzanine floor and a quarter in the backyard.
(iii) Page 40 of the judgment : Although it was emphatically argued that respondent No. 1 has never divested himself of the physical possession, yet, the evidence on record and particularly mentioned herein above in this judgment has established that M/s. Wimpy Fast Food Private Limited is in possession of premises in dispute.
(iv) Pages 41 and 42 of the judgment : In view of the reasons discussed and case law and evidence mentioned herein above, it is held that petitioner has established and proved on record that premises in dispute was sublet, assigned or otherwise parted with in favor of M/s. Wimpy Fast Food Private Limited by respondent No. 1
6. Learned Counsel for the petitioner contended that there was not even a dispute about the extent of the tenanted accommodation and this is apparent from the fact that neither in the first appeal before the Tribunal nor in the second appeals pending before this Court was any ground taken that a partial eviction order had been passed, but it is only after the problem cropped up in the execution and the impugned order was passed that this plea is sought to be raised. Learned Counsel, thus, submitted that there is no dispute about the extent of the premises, its description or identity and the plans were attached as a measure of abundant caution. In this behalf, a submission was made that the provisions of Order VII Rule 3 of the Code only require the description of the property and not a plan to be attached, which reads as under:
ORDER VII
PLAINT
(3) Where the subject-matter of the suit is immovable property Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
7. Learned Counsel for the petitioner referred to the judgment of the Apex Court in Pratibha Singh and Anr. v. Shanti Devi Prasad and Anr. where in para 17, it has been observed as under:
17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the Court record caused by overlooking of provisions contained in O.7. R. 3 and O. 20. R 3 of the C.P.C. is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to S. 152 or S. 47 of the C.P.C. depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the C.P.C. by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47, C.P.C. A decree of a competent Court should not as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the C.P.C.
8. In view of the aforesaid observations, it is apparent that while dealing with a decree of immovable property, every endeavor should be made to see that the successful party is not deprived of the fruits of the success of the decree and resort can be had to the provisions of Section 152 or Section 47 of the said Code depending on which is more appropriate. However, the qualification is that it should be an inadvertent error and not affecting the merits of the case.
9. Learned Counsel further referred to the judgment of the Supreme Court in Sheodhyam Singh and Ors. v. Mst. Sanichara Kuer and Ors. where in para 7 it was observed that in case of a mis-description only where the identity of the property is well established, there should be no impediment to execution of the decree. A reference was also made to the judgment in Bhavan Vaja and Ors. v. Solanki Hanuji Khodaji Mansang and Anr. to the effect that though an executing court cannot go behind the decree under execution, but that does not mean that it has no duty to find out the true effect of the decree. In appropriate cases, for construing a decree, the executing court can take into consideration the pleadings as well as the proceedings leading up to the decree. The jurisdiction of the executing court does not begin and end with merely looking at the decree as it is finally drafted.
10. Learned Counsel for the petitioner also emphasized another aspect arising from the nature of proceedings in the present case. The eviction petition was filed under Section 14 of the said Act and insofar as the allegation of sub- letting is concerned, the relevant provision is as under:
14. Protection of tenant against eviction
1) Notwithstanding anything to be contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(b) that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;
11. Learned Counsel submitted that as per Sub-section (1) of Section 14 of the said Act, the decree has to be for recovery of possession of any ‘premises’. The expression ‘premises’ in turn has been defined in Section 2(i) of the said Act as under:
2. Definitions
(i) premises means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes:
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;
(ii) any furniture supplied by the landlord for use in such building or part of the building; but does not include a room in a hotel or lodging house;
14. It was, thus, contended that the complete tenanted premises are envisaged in the definition of the premises as contained in Sub-section (1) of Section 14. Clause (b) of the proviso reproduced herein-before stipulates that an eviction order would follow if the tenant had sub-let, assigned or otherwise parted with possession of the whole or any part of the premises. It was, thus, submitted that even if part of the premises had been dealt with in the manner aforesaid, the resultant decree of eviction would be for the whole premises. Since the tenanted premises were not in dispute, there could be no doubt that the eviction order was liable to be executed in respect of the complete tenanted premises.
15. The application of the petitioner was placed before another Judge, who was acting as the ARC, other than the one who had passed the eviction order. On a conspectus of the judgments cited before the ARC, it was held as a proposition of law that only a clerical or arithmetic error can be rectified by an application filed under Section 152 of the said Act. The ARC has been impressed by the fact that in para 43 of the eviction order, a reference was made to Ex. AW6/8 showing that site-plan was accepted, while Ex. AW7/1 was missed out and this error could not be considered as a clerical or arithmetic error arising from accidental slip or omission and, thus, the remedy would be by way of an appeal or review against the judgment. The directions passed by the Supreme Court in Pratibha Singh’s case (supra) were held to be within the special domain of the Apex Court in view of the exercise of powers under Section 142 of the Constitution of India (for short, the Constitution).
16. Learned Counsel for the respondent raised various objections to the present proceedings. Learned Counsel contended that Sections 151 and 152 of the Code would not apply in the present case in view of the provisions of Section 40 of the said Act, which reads as under:
40. Amendment of orders
Clerical or arithmetical mistakes in any order passed by a Controller or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Controller or the Tribunal on an application received in this behalf from any of the parties or otherwise.
17. There is no doubt that on a reading of the aforesaid provision, a specific provision has been made in Section 40 of the said Act to correct any accidental slip or omission. However, the mere mis-description in the application or a reference to the provisions of the Code instead of the provisions of the said Act would not defeat the application. It has been repeatedly emphasized by the Supreme Court that such technicalities of a wrong provision cited as a heading of the application should not defeat the application. In the present case, in fact, it is the provision of the Code, which has been cited instead of the specific provisions under the said Act and, thus, I find no merits in this plea.
18. Learned Counsel for respondent No. 1 also sought to raise the plea that the application under Section 152 of the Code, in any case, would not be maintainable in execution proceedings. Learned Counsel referred to judgment of the Supreme Court in Dwaraka Das v. State of Madhya Pradesh and Anr. 1999 (1) SCALE 376 to contend that Section 152 of the Code provides only for correction of clerical or arithmetic mistakes in judgments or orders from any accidental slip or omission, but does not contemplate passing effective judicial orders after the judgment, decree or order. After the judgment, the court became functus officio and was not entitled to vary the same. Thus, an omission sought to be corrected, which goes to the merits of the case, is beyond the scope of Section 152 of the Code for which proper remedy for the aggrieved party is to file an appeal or review application. In the particular case, the trial court had held the respondent State liable to pay future interest only despite the prayer for grant of interest with effect from the date of alleged breach, which was held to imply that the Court had rejected the claim insofar as pendente lite interest was concerned, which could not be held to be an accidental slip or omission or mistake.
19. In this behalf, a controversy was raised as to whether the application filed by the petitioner was in the eviction proceedings or the execution proceedings. On perusal of the application, it is found that the application was originally made in the eviction proceedings. It appears, however, that at the stage of filing, both the eviction petition and the execution nos. were referred to and learned Counsel for the petitioner explained this by stating that since the Court of the ARC was the court which both decrees and executes the order, it was desired that the application should be filed in the manner it was so filed. In my considered view, nothing much turns on this objection as, really speaking, what the petitioner was seeking was the correction of the accidental slip / omission and even if the application has been placed in the execution file, though filed both in the eviction petition and the execution, such technicality would not defeat the prayer made by the petitioner.
20. Learned Counsel for respondent No. 1 also sought to contend that the executing court cannot go beyond the decree and cannot modify the original decree. As a legal proposition, there is no dispute about the same, but the question remains as to whether the effort was really to modify the decree or it was only to correct an accidental slip or omission. Not only this, the judgments referred to by learned Counsel for the petitioner show that if there is no problem in deciphering the property and its true extent, then technicalities should not defeat a decree relating to such immovable property.
21. Learned Counsel raised another technical objection on the ground that the earlier eviction order was passed on 03.03.1999, but there is also a subsequent order dated 10.05.1999, which has been passed on account of alleged non- compliance by the respondent of the directions contained in respect of the proceedings under Section 14(1)(j) of the said Act and though the correction was sought in both the orders, the present petition only seeks to challenge the order dated 03.03.1999. Here again, I do not find force in the contention of learned Counsel for respondent No. 1 for the reason that if the order dated 03.03.1999 stands corrected, then consequence would flow also for the order dated 10.05.1999.
22. Learned Counsel for respondent No. 1 made an effort to contend that the present case was really not one of an accidental slip or omission, but the matter was examined by the ARC in detail and consciously an order was passed only in respect of Ex. AW6/8. I am unable to agree with the submission of learned Counsel for respondent No. 1.
23. The observations of the Supreme Court in Bhavan Vaja’s case (supra) are material in this behalf where it has been emphasized that while construing a decree, pleadings and other proceedings can be taken into account. There was really no dispute about the extent of the tenanted premises. There were two plans filed one for the outhouse and one for the main shop and both plans were exhibited. The eviction petition itself set out the extent of the tenanted premises both in column 1 and column 8 as referred to aforesaid. The judgment of which execution is sought also in various paragraphs referred to the extent of the tenanted premises in the same manner. Merely because the ARC at that time while passing the final decree referred to one of the plans instead of the two plans will not mean that this is a deliberate attempt on the part of the ARC to pass an eviction order in respect of part of the premises while not doing so for the remaining part. This would be contrary to the complete judgment itself where the sub-tenancy has been found in respect of the complete tenanted premises. In fact, this is how even the respondent understood the judgment till such time as the impugned order gave another opportunity to the respondent to raise further pleas to somehow defeat the eviction order. In a case where there is no dispute about the extent of the premises, there was no mandatory requirement even to file a plan. The reliance placed by learned Counsel for the petitioner on the provisions of Order VII Rule 3 of the Code is appropriate. The plan was filed as a mere abundant caution, but inadvertent mistake in mentioning only one of the plans instead of both the plans while passing the decree of eviction though describing the whole tenanted premises, has given rise to all this unnecessary litigation and delay in execution of the eviction order. I am of the considered view that there is no merit in this objection.
24. There is another set of technical objections raised by the respondent on the question of maintainability of the present petition. These objections arise on account of the fact that the said Act provides for an appeal to the Tribunal under the provisions of Section 38 of the said Act as also the plea that the Rent Controller is not a court and, thus, the present revision petition under Section 115 of the said Act would not be maintainable. The provisions reads as under:
38. Appeal to the Tribunal
(1) An appeal shall lie from every order of the Controller made under this Act only on questions of law to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette: Provided that no appeal shall lie from an order of the controller made under Section 21.
(2) An appeal under Sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller:
Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) The Tribunal shall have all the powers vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal.
(4) Without prejudice to the provisions of Sub-section (3), the Tribunal may, on an application made to it or otherwise, by order transfer any proceeding pending before any Controller or additional Controller to another Controller or additional Controller and the Controller or additional Controller to whom the proceeding is so transferred may, subject to any special directions in the order of transfer, dispose of the proceeding.
(5) A person shall not be qualified for appointment to the Tribunal, unless he is, or has been, a district judge or has for at least ten years held a judicial office in India.
115. Revision – (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears –
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.
Explanation. In this section, the expression any case which has been decided includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.
25. Learned Counsel submitted that the nature of the application filed by the respondent was, in fact, barred by Section 43 of the said Act, which reads as under:
43. Finality of order
Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.
26. It was, thus, submitted that the only remedy of the petitioner was to file an appeal before the Tribunal under Section 38 of the said Act. Learned Counsel also emphasized that Sub-section (2) of Section 115 of the Code bars this Court from reversing an order in which an appeal lies to a subordinate court or to this Court.
27. Learned Counsel referred to the judgment of learned Single Judge (as he then was) in Raj Kumari Kapoor v. C.K. Dass 1997 IV AD (Delhi) 98. It was held that the remedy for a person aggrieved by an order passed by the Rent Controller including interlocutory order is to file an appeal before the Tribunal. Such orders, which affect the valuable rights of a party, would be judicially reviewed in appeal by the Tribunal. It may be noticed that an appeal lies only on a question of law. It was, however, simultaneously observed that the Rent Controller would certainly fall within the jurisdiction of superintendence of the High Court under Article 227 of the Constitution. Learned Counsel also referred to judgment of the Apex Court in Central Bank of India v. Gokul Chand 1967 III DLT 1, which held that the object of Section 38 of the said Act was to give a right of appeal to a party aggrieved by some order which affects his rights or liabilities. The expression every order of the Controller made under this Act was held to be of a wide magnitude, but would not include interlocutory orders, which are merely procedural and do not affect the rights and liabilities of the parties.
28. I am unable to accept the plea of learned Counsel for respondent No. 1 that the present petition would not be maintainable on account of the appeal being provided. The observations made in the Central Bank of Indias case (supra) itself make it clear that though words of wide amplitude have been used, the orders, which are merely procedural and do not affect the rights and liabilities of the parties, would not be appealable. The order, in the present case, arose from an application filed only to correct the accidental slip or omission, but it was rejected. This Court, of course, has taken a contrary view. It cannot be, thus, said that this order would be an appealable order within the meaning of Section 38 of the said Act.
29. Insofar as the exercise of revisionary jurisdiction is concerned, the views expressed in Raj Kumar Kapoors case (supra) were in the context of the Rent Controller not being a court subordinate to the High Court under Section 115 of the said Code. The present case as stated above was not one which affected the valuable rights of the parties where an appeal would lie to the Tribunal. Further, the superintendence of the High Court under Article 227 of the Constitution certainly exists. It is this Court which is exercising both jurisdiction under Article 227 of the Constitution and the revisionary jurisdiction. I am, thus, of the considered view that it is not appropriate to throw out this petition on the technicality and this Court must exercise jurisdiction so that a decree passed by a competent court is not defeated on account of a mere omission or accidental slip.
30. The impugned order is set aside and it is made clear that the eviction order as it stands is in respect of the tenanted premises No. N/5, N Block, Connaught Place, Janpath, New Delhi consisting of Shop hall with a loft, store- room and bath room with one room out of outhouse on the back of the building N- Block, Connaught Place and more particularly as incorporated in Ex. AW 6/8 and Ex. AW7/1.
31. The petition is allowed leaving the parties to bear their own costs.