JUDGMENT
Santosh Duggal, J.
(1) This is landlady’s petition filed under Article 227 of the Constitution of India, feeling aggrieved by an order passed by the Rent Control Tribunal dated 15th November 1990, whereby respondent/tenant’s appeal was allowed. The controversy now falls in a very narrow compass, but before that facts are required to be -noticed.
(2) The petitioner let-out premises bearing No. 61-A, Dda Flats, Prashad Nagar, New Delhi to the respondents for limited period of three years with effect from 25th September 1982 after obtaining permission of the Rent Controller under section 21 of the Delhi Rent Control Act, 1958 (for short ‘the Act) on 24th September, 1982. The period of limited tenancy expired on 24th September 1985, and after waiting for the premises to be vacated, the landlady filed an execution application on the last day available to her, namely, on 24th September 1985, seeking vacant possession of the premises.
(3) The record reveals that notice was ordered to be issued to respondent but he could not be served. Thereafter the petitioner’s counsel applied for warrants of possession straightaway without notice to the tenant, placing reliance on a judgment of this Court 1982 Rajdhani Law Reporter 442, N.S. Partha Sarthy V. Padmini Devi. It is only after warrants of possession were issued that the respondent tenant came forward and filed objections to the execution and issuance of warrants of possession. In the objections filed on 30th November 1987, a number of objections were taken alleging fraud having been committed by the landlady while obtaining permission, as well as suppression and concealment of facts and other related pleas. Another plea taken was that on the expiry of period of limited tenancy on 24th September 1985, the respondent had been accepted as a regular tenant by the landlady on a monthly rent of Rs. 825.00 which he alleged to have been paying since after the expiry of the limited tenancy.
(4) The learned Addl. Rent Controller seized of the matter at the time, examined the documents which came on record as also reply of the landlady and finding that the objections did not merit any consideration, dismissed the same by order dated 9th March, 1990. .
(5) On appeal being filed before the Rent Control Tribunal, all objectons, based on allegation of fraud, concealment etc. at the time of passing of the order under section 21 of the Act, were given up and the only plea pressed was that of creation of a fresh tenancy after expiry of limited tenancy. The Rent Control Tribunal had felt it to be a case which should have been put to evidence, taking note of one cheque which was issued in July 1987 for a sum of Rs. 825.00 by the respondent in favor of the petitioner which, according to the respondent, was the rate of rent agreed between the parties after the expiry of the limited period tenancy, and that the controversy as to whether the rate of rent after 24.9.1985 was Rs. 700.00 or Rs. 825/. – p.m. be decided only by evidence, and in this view of the matter, it was felt by the learned Tribunal that summary dismissal of the objections was not justified.
(6) I have heard the learned counsel for the parities and gone through the records. The only plea required to be examined is as to whether there was a fresh tenancy in favor of the respondent, after the expiry of period of limited tenancy. No terms of the agreement are spelt out except for the allegation that there was an increase of rent from Rs. 700.00 to Rs. 825.00 p.m. which the respondent asserted to have been paying ever since. Apart from the fact that mere increase of rent, without anything else, does .not give rise to the presumption of novation of contract, resulting in creation of fresh tenancy; in this particular case when the earlier tenancy was a short duration tenancy, governed by the provisions of section 21 of the Act, -creation of an oral tenancy thereafter, has to be made out on very plausible and acceptable principles. The malafides of the respondent are apparent from the fact that in the objections which he Filed in the beginning, apart from the fact that he took up a number of objections, which he later on withdrew at the stage of appeal, he made a very clear assertion that he had been paying rent @ Rs. 825.00 p.m.
(7) It is a matter of record that after he was constrained to produce the receipts of rent on an application being moved by landlady under section 15(2) of the Act, during the pendency of the objections, because dispute arose as to for what period rent had been paid, it transpired that the receipts of rent were issued up to June 1987 at the rate of R$. 700.00 p.m. and paid in/cash. These receipts are on record, and have come from the custody of the respondent himself, and wholly belie him.
(8) It was, only when faced with this situation that he changed his position, and came up with an affidavit, which he filed on 16.12.1988, stating that although he was paying rent @ Rs. 825.00 p.m., but the receipts Were issued by the landlady only for Rs.700.00 . This is a postition which came apparently when confronted with the receipts of rent, which he himself had produced. .Inspite of the fact, that the objections were very detailed, there was not even a whisper that although he was paying rent @ Rs. 825.00 p.m., receipts were being issued for Rs. 700.00 only. The evidence of a solitary cheque having been issued in July 1987 for a sum of Rs. 825.00 is being pleaded in support of the contention about the rent having been increased to Rs. 825/ – p.m., but again the plea is that rent for the next month was paid in cash, for which no receipt was issued.
(9) The limited tenancy, as already noted, expired as far back as on 24.9.1985, and one isolated cheque issued in July 198, i.e. after about two years of the expiry o’f the limited tenancy, cannot be an evidence of rate of rent being @ Rs. 825.00 p.m. particularly when for the subsequent period no rent receipt has been produced showing that the rent was being paid at the rate of Rs. 825.00 p.m.
(10) The Rent Control Tribunal in this case seems to have lost the entire perspective of the scope and object of section 21 of the Act. It has been settled time and again that it is a self-contained provision, and the order of grant of permission under section 21 is, in fact, in the nature of a self executing order, and as soon as the period expires, the landlord is straight way entitled to issuance of warrants of possession. It is only in very strong circumstances where there is lack of jurisdictional fact at the time of grant of permission, such as premises being not vacant when the permission is granted, or the premises not being residential, that the tenant can be heard, but there too, he should come within the period of limited tenancy or as soon as he discovers the fact entitling him to continue in possession of the premises, inspite of the original tenancy being under section 21 of the Act.
(11) The entire case law has been summed up, and complete guidelines laid down in the Latest judgment of the Supreme Court in the case reporter as , Smt.Shrisht Dhawan Vs. M/s. Shaw Brothers, laying down that it is only a jurisdictional fact, such as on the existence or non-existence of which depends the assumption or refusal to assume jurisdiction by the Rent Controller, that can be gone into in objections, and no other plea is entertainable, particularly when it is made after the tenant has enjoyed full period of limited tenancy, and comes up with objections in reply to the execution filed by the landlord.
(12) In the present case, objections have come more than two years after the expiry of the limited tenancy, having been Filed on 28th November 1987. When the induction of the respondent originally was with the permission of the Court for a limited period, and by means of written agreement pursuant to an order under section 21 of the Delhi Rent Control Act, it was incumbent on him to come and bring to the notice of the Rent Controller that he had now been allowed to continue in the Premises under some fresh tenancy agreement. His lack of bonafide is manifest on record. Not only that he failed to approach the court on his own but evaded receipt of notice of execution and only when, pursuant to a judgment of this Court, warrants for possession were issued, that he came up with the objections, by which time he had gained more than two years, even after the expiry of period of limited tenancy. The plea of oral tenancy, in this setting of facts, was not entertainable, at the stage it had been made, and the falsity of his position as to increase of rent is exposed from the rent receipts produced by him. His explanation, in coming with the plea of rent being actually Rs. 825.00 p.m. but receipts being issued for Rs. 700.00 deserves outright rejection, being blatantly belated.
(13) As already discussed, there was no such plea in the objections originally filed, but only after receipts of rent had to be produced by him which were found to be for Rs. 700.00 for each month up to June 1987 that he made further improvement in this case. This case, in fact, is a very sad reflection on the adversial proceedings in our judicial system that even in a case of limited tenancy, a tenant by filing such like objections can continue in possession for a period of seven years, even after expiry of original period of three years.
(14) The learned Tribunal has certainly gone into error in not appreciating the true scope ar.d object of the provisions of section 21 of the Act, and in holding that the plea, which was not even legally tenable, ought to be put to evidence, simply because of one isolated cheque issued after almost two years of the expiry of limited period of tenancy, and that too for one month; all other receipts being at the original rate of Rs. 700.00 p.m.
(15) I, therefore, find this a fit case where this error has to be corrected by accepting this petition under Article 227 of the Constitution. I accordingly allow the petition with costs and hold the petitioner entitled to immediate recovery of possession of the tenancy premises. copy of this order be sent to the concerned Addl Rent Controller, who is now, according to Mr. Chaudhary.Smt.Sunita Gupta, Addl. Rent Controller, and the file of the execution application be also returned immediately, to be placed before the said Addl. Rent Controller on 16th October, 1992, on which date she shall issue warrants for delivery of possession of the tenancy premises to the petitioner. Counsel’s fee Rs.2000.00 .