Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17
PETITIONER:
MOHAN SINGH
Vs.
RESPONDENT:
LATE AMER SINGH THR. THE LRS.
DATE OF JUDGMENT: 01/09/1998
BENCH:
A.S. ANAND, M. SRINIVASAN
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
SRINIVASAN,J
The appellant became a tenant under Amar Singh the
grant-father of the present respondents with respect to
premises situate in E-222, of Kailash on 29.6.1979. For the
sake of convenience, the parties will be referred to as
tenant and landlord herein. A joint application was filed
before the Additional Rent Controller (for short A.R.C.),
Delhi under Section 21 of the Delhi Rent Control Act, 1958
hereinafter referred to as the Act for permission to let the
premises for a limited period of two years. The same was
granted on 3.7.1979. On 29.6.1981 another joint application
under Section 21 was filed for permission to create a
limited tenancy for two years. On 30.6.1981 statements of
landlord and tenant were recorded by the A.R.C.. Permission
was granted for a period of three years. On the expiry of
that period the tenant did not vacate the premises and the
landlord filed an application for execution. Notice was
issued to the tenant returnable on 25.1.85. As he was not
served, fresh notice was ordered for 19.4.85. On that day,
the tenant did not appear though served on 24.3.85. The
court directed issue of warrant but in the afternoon, the
tenant appeared before court and filed his objections. An
application was also moved for cancellation of warrant of
possession. By order dated 29.4.85 the A.R.C recorded that
there was no justification for issuance of ex-parte stay to
stop the execution of warrant of possession and ordered
notice of the application to the counsel for the landlord.
The warrant could not be executed and when the matter came
up before court on 31.5.85 the landlord was given time to
file reply to the objections filed by the tenant till
2.8.85. On the latter date, the landlord filed his reply,
and the appellant was given time to file re-joinder till
6.9.1985. No re-joinder was filed on 5.9.1985 and the case
was fixed for hearing arguments on the objections and posted
to 11.10.1985. On that date, the tenant filed replication
and served a copy thereof on the landlord’s counsel.
Arguments were heard and the matter was posted for orders to
18.10.1985. The A.R.C. passed an order on 18.10.1985 that
the objections filed by the tenant could not be dismissed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17
without recording the evidence and granted permission to the
tenant to lead evidence in support of the objection. The
landlord was permitted to repudiate the evidence led by the
tenant. The dis-possession of the tenant was stayed till the
decision on the objections.
2. In the objections filed by the tenant it was contended
that the grant of permission under Section 21 of the Act on
30.6.1981 was wholly vitiated by fraud and misrepresention
and it was contrary to the provisions of Section 21 of the
Act. It was alleged that the Landlord had misled and
misrepresented the relevant facts at the time of grant of
permission that his family will shift from Amritsar where he
was residing but his family was never living at Amritsar and
the premises in question were not required by the landlord
for his residence after the expiry of three years as alleged
by him. It was also stated that the landlord owned a
property bearing number E-3, East of Kailash, where he and
his family were living throughout. It was further stated
that the tenant was in occupation of premises since
29.6.1979 and had continued and remained in possession of
the premises in question and he had never vacated the same
since that date. It was alleged that the landlord wanted to
enhance the rent to Rs.3000/- per mensem which the tenant
had refused to agree and therefore the petition for
execution was filed. It was also stated that the order under
Section 21 was liable to be set aside and quashed and no
warrant of possession in respect of the premises in question
could be issued against the tenant. No plea was raised then
by him that he was not present in the court of A.R.C. on
30.6.81.
3. In the reply filed by the landlord, it was contended
that the tenant being a signatory to the permission granted
by the A.R.C. and a party to the proceedings cold not
challenge the permission so granted by the Court. The
allegations of fraud and misrepresentation were denied. It
was also stated that the landlord was not living in E-3,
East of Kailash as alleged by the tenant.
4. In the re-joinder filed by the tenant on 11.10.85
though it was dated 2.9.85 the earlier allegations were
repeated. According to the tenant, a plea was raised that he
did not appear before the A.R.C. on 30.6.81 and was not a
party to the proceedings. According to the landlord such a
plea was not raised in the said rejoinder. Evidence was
recorded in the proceedings. The matter was being adjourned
periodically for various reasons and ultimately an order was
passed by A.R.C. on 22.10.94 only. In that order there was
no specific reference to the contents of the rejoinder filed
by the tenant. It was found by the A.R.C that as there was
no dispute that the premises were not vacant and available
for letting out when the second permission was taken, the
Court had no jurisdiction to grant permission under Section
21 of the Act. It was held that a fraud was played on the
Court concealing the factum of tenant being in possession of
the premises and the permission was obtained on such
concealment. Consequently the A.R.C. held that the
permission granted under Section 21 of the act was without
jurisdiction and could not be enforced. Accordingly, the
objections of the tenant were upheld and the landlord’s
application for execution was dismissed.
5. An appeal was filed by the landlord under section 38 of
the Act before the Rent control Tribunal, Delhi. The counsel
for the landlord addressed his arguments on 166..2.95 and
the matter was posted to 22.5.95 for the arguments of the
counsel for the tenant. From then onwards, the matter was
being adjourned from time to time and on several occasions
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17
at the request of the counsel for the tenant. On 18.12.95
the arguments were heard and concluded. On that day, an
application was moved on behalf of the tenant for permission
to file additional evidence. The counsel for the landlord
represented that he did not want to file any reply but
advanced his arguments orally on the application also. The
matter was posted to 16.1.96 for orders but the case was
being adjourned repeatedly and ultimately the order was
passed on 21.9.96. The Tribunal allowed the appeal and set
aside the order of the A.R.C. The Tribunal directed the
landlord to approach the trial court for issuance of warrant
of possession in accordance with law.
6. In the application for additional evidence filed before
the Tribunal it was stated by the tenant that on 29.6.81 he
was busy in Embassy for obtaining visas and on 30.6.81 he
left the country and purchased the tickets in Germany for
his onward journey and that the photo copies of the passport
and the tickets were enclosed to prove that the alleged
limited tenancy under section 21 of the Act was obtained on
30.6.81 from the court by the landlord on manipulation and
fraud played on the Court. Referring to the said application
for additional evidence, the Tribunal observed in its order
as follows:
"During the pendency of the appeal
an application was made on behalf
of the respondent praying for
permission to file additional
evidence with regard to permission
under section 21 of the Act having
been obtained by the appellant in
absence of the respondent as
according to him on 29.6.1981, the
respondent was busy in Embassy for
obtaining Visas and on 30.6.1981 he
left the country and purchased a
ticket for Germany for his onward
journey which would be evident from
the entries in his Passport and
Visa. That may or may not be so but
the present application appears to
be quite vague and in any case it
appears to me an afterthought
device on the part of the
respondent in as much as no such
plea about his absence before the
Rent controller was taken up by him
in the objection filed in response
to the execution application. In
any case, this evidence would be
wholly irrelevant in view of may
finding that the respondent was not
within his rights to maintain the
objection petition after expiry of
the period of limited tenancy. The
application has therefore no merit
and is accordingly dismissed".
7. The Tribunal found that the A.R.C. erred in
entertaining the objections of the tenant at the late stage
of execution and allowing the same in view of the settled
position of law that such objections could not be raised
after the expiry of the period of tenancy. There was also an
objection by the tenant that the landlord’s appeal was not
maintainable in view of the amended provision in section 38
of the Act which permitted appeals only on questions of law.
That objection was overruled by the Tribunal on the ground
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17
that the petition for execution was filed long before the
said amendment was introduced and the landlord’s vested
right of appeal could not be affected by the subsequent
amendment of 1988. The Tribunal relied upon the judgment of
this court in Garikapati Veeraya versus N. Subbiah Choudhry
and other AIR 1957 S.C. 540. On the above findings the
Tribunal had allowed the appeal of the landlord.
8. The tenant filed a revision petition under Article 227
of the Constitution before the High Court. The only
contention urged before the High Court was that the order
dated 18.10.85 passed by the A.R.C. permitting the appellant
to raise objections to the execution had become final and it
was not open thereafter to the landlord to challenge before
the appellate court the maintainability of the objection on
the ground that it was filed after the expiry of the period
of tenancy. That question was answered against the tenant by
the High Court on the ground that the entire matter was at
large before the appellate Tribunal and it was competent to
decide the entire controversy. Consequently, the revision,
petition filed by the tenant was dismissed.
9. Aggrieved thereby, the tenant prayed for Special Leave
which was granted. Thus this appeal has come in file. The
most important plea raised by the tenant in this appeal is
that he was not in Court on 30.6.81 as he had left the
country in the intervening night of 29th and 30th June, 1981
for Germany from where he was to travel to two other
European countries. According to him the signature on his
alleged statement was not his. When leave was granted,
notice was taken on behalf of the landlord and time was
granted to file objections to the application for stay.
Alongwith the counter affidavit to the application for stay,
the landlord filed an application I.A. 3 of 1997 for
revocation of the Special Leave granted. There was also an
application to bring the respondents on record as the legal
representatives of the deceased landlord Amar Singh. It was
numbered as I.A. 4 of 1997. The latter application was
ordered on 10.3.97. In I.A. 3 of 1997 it was stated that
several false and misleading averments were made in the
petition for Special Leave including the plea that the
appellant was not present in India on 30.6.81 and that he
did not appear before the A.R.C.
10. On 8.11.97 an additional affidavit was filed on behalf
of the landlord in which it was stated that a copy of the
rejoinder filed by the tenant as Annexure to the Special
Leave Petition and found in the paper book (Pages 67 of 73
as at present) was not a correct copy and there was a
deliberate tempering of the same. Alongwith that affidavit a
copy of rejoinder said to have been served on the counsel
for the landlord in the trial court was filed as annexure R-
1. It was also stated in that affidavit that a document had
been interpolated among the records of the Tribunal as Page
79-A though it was not produced before the Tribunal and a
copy of the said document had been filed by the appellant in
this court and found at Page 167 of the Paper Book at
present.
11. The matter came before the Court on 29.1.98. An order
was passed referring to the copy of the rejoinder produced
as Annexure R-1 by the landlord and an opportunity was given
to the tenant to file a detailed affidavit in reply to I.A.
3 of 1997 as well as to the additional affidavit. A
direction was issued to the Registry to call for the records
from the Court of A.R.C Delhi. Then the matter came up again
on 27.3.98. The relevant passport of the tenant was shown to
the court but taken away immediately as xerox copies had
been filed. The Court passed on order that the appeal would
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17
itself be finally disposed and posted the same to August
1998. On 12.8.98 the appeal was heard in part and adjourned
to 13.8.98 for further hearing.
The tenant was directed to produce the passport containing
various visa entries. A direction was also issued to the
Rent Control Tribunal to send records of the case R.C.A.
No.749 of 1994 through a special messenger and the matter
was posted for 13.8.98 for further hearing. On that day, the
arguments were concluded and judgment was reserved as the
counsel for the appellant prayed for some more time to
produce the passport. The matter was posted to 20.8.98 in
Chamber at 1.30 p.m. The counsel for the parties were
permitted to supplement the arguments by submitting two page
written submissions. On 20.8.98 counsel for the tenant
submitted that the passport was not traceable by his client.
In the written submissions filed on behalf of the tenant it
was stated that inspite of the best efforts the old
passports which were joined together were not traceable and
the photo copies thereof filed earlier may be treated as
court record.
12. Learned counsel for the tenant has put forward the
following contentions:
(a) The order of the A.R.C. dated 30.6.81 if null and
void as it was procured by the landlord by playing fraud on
court.
(b) The Rent Tribunal was absolutely wrong in holding
that the tenant’s objections were belated and not
entertainable over looking the fact that such a plea was not
available to the landlord since it had been negatived by the
A.R.C. in his order passed on 18.10.85 which became final as
it was not challenged by the landlord.
13. The first contention has two limbs. One is that the
tenant had left India around 2.00 a.m. on 30th June, 1981
for Germany and he did not appear before the A.R.C. and give
any statement. The signature at the bottom of the statement
was not his and it was forged. learned counsel invited us to
compare that signature at the bottom of the statement was
not his and it was forged. Learned counsel invited us to
compare that signature with the admitted signatures of the
tenant. According to him to disparity is so glaring that
anybody would say that the disputed signature is not that of
the tenant. He pointed out that even before the Tribunal,
his client sought for examination of a handwriting expert in
order to ascertain the authenticity of the signature but the
Tribunal did not consider the application.
14. We have already pointed out that the tenant did not in
his objections to the execution filed on 19.4.85 raise the
plea that he was not present in the Court of A.R.C. on
30.6.81. Nor did he contend that the signature in the
statement recorded by the A.R.C. was not his. An explanation
for this omission has been attempted in the S.L.P. In para
5 thereof it is averred as follows:-
"The petitioner was served on 19.4.85 and immediately
on the same date 2.30 P.M. he got filed the objection
petition in haste and at the time he was not aware of the
details of his visit during the year 1981". The averment
that he was served on 19.4.85 is false as he was served on
24.3.85 (vide A.R.C’s order dated 29.4.85). Further, the
explanation is hardly satisfactory. The tenant claims to be
having business connections in several countries and is
undoubtedly worldly wise. It he was not party to the order,
he would have put forward the plea in the forefront. The
failure to raise the plea in the earliest opportunity is a
definite pointer against the genuineness of the version.
15. Assuming for a moment that his explanation is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17
acceptable, did he raise the plea in the second opportunity
which he got when he filed a rejoinder on 11.10.85? Our
answer to this question is undoubtedly in the negative and
we proceed to give our reasons immediately. The rejoinder
bears the date 2.9.85. We had earlier set out the chronology
where from it will be seen that the A.R.C posted the matter
to 6.9.85 for filing rejoinder. if the rejoinder was ready
on 2.9.85 there was no reason why it was not filed on
6.9.85. The A.R.C. posted the matter for arguments on
11.10.85 on which date the rejoinder was filed in Court and
obviously it was served on the counsel for the landlord only
at that time in Court. It is claimed by the tenant that in
Para V thereof the following plea was raised.
"The respondent was inducted as a tenant under the
permission granted in Misc. Petition No. 304 of 1979
executed between the parties and the respondent has not
appeared before the Additional Rent controller and is not a
party to the limited period of tenancy created under Section
21 of Delhi Rent control Act on 30.5.81".
According to learned counsel for the landlord the above
sentence was differently worded in the rejoinder originally
when it was filed in Court as could be seen from the copy of
the rejoinder served on his counter - part before the A.R.C
The relevant sentence in para v in the said copy reads as
follows:
"The respondent was inducted as a tenant under the
permission granted in Misc. Petition No. 304 of 1979
executed between the parties and the respondent has
continued in possession of the premises even after the
expiry of the limited period of tenancy created under
Section 21 of Delhi Rent control Act".
The portion "not appeared before the Additional Rent
controller and is not party to" is found in the former while
the latter contains the words "continued in possession of
the premises even after the expiry of." Further the portion
"on 30.6.81" is also not found in the latter.
16. A mere look at the original record shows even to the
naked eye that the aforesaid portion was a later
interpolation after erasing the matter which was already
typed. It is also clear that the last portion "on 30.6.81.
had also been typed much later and it was not there
originally. It is quite evident that the rejoinder filed in
Court had been tampered with by the tenant at a later point
of time in order to enable him to raise a plea that he was
not present in Court on 30.6.81. The sentence as it is found
in the copy of the rejoinder served on the counsel for the
landlord in open court on 11.10.85 is quite in accord with
syntax and the context. The sentence begins with a reference
to what happened in 1979. The statement that he continued in
possession even after that tenancy expired is in natural
sequence. There was no occasion in that sentence to refer to
the absence of the tenant from Court 30.6.81. The sentence
in the original record as it reads now is very clumsy and
unnatural. Obviously the entire sentence as it is found in
the landlord’s copy was intended to be and is reiteration of
the statement made in para 5 of the objections filed on
19.4.85 that "the respondent/objector "is in occupation and
possession of the premises since 29.6.1979 and has continued
and remained in possession of the premises in question".
17. "If really the tenant had raised the plea that he was
not present tin Court in 30.6.81 and his signature had been
forged, it would not have been done in this insignificant
manner in a portion of a sentence which may easily go
unnoticed. On the other hand such a plea would have been put
forth prominently in the fore front of the rejoinder and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17
tenant’s advocate would have lost no time to bring it to the
notice of the Court. The order of the A.R.C. dated 18.10.85
does not indicate the raising of such a plea.
18. A more important circumstance is that there was no
whisper by the tenant in his deposition rendered as late as
on 10.10.86. At that time, the petitioner was not in any
haste or hurry. By then, he had all the time in the world to
gather all the details of the tours undertook by him in 1981
and stated them in his evidence. Nothing prevented him from
stating on oath that he was not in India at the relevant
time and no statement was made by him before the A.R.C. on
30.6.81. Far from saying so, the tenant admitted his
presence in court on 30.6.81 in the following words in his
deposition:
"When the second permission
u/s 21 was obtained then I knew
that the petitioner had never
shifted Amritsar. I never told the
Court that the petitioner had never
shifted to Amritsar because I
wanted the house on rent".
19. Admittedly the tenant was represented by a lawyer in
the said proceedings. It there had been a plea in the
rejoinder that he had not appeared before the A.R.C. and was
not a party to the limited period of tenancy created on
30.6.81 even junior most lawyer would have elicited the said
fact at the beginning of the chief-examination itself. Even
if the lawyer had failed to do so. The tenant would have
volunteered such a statement in the course of his evidence.
The fact that there was no such statement by the tenant in
his deposition shows not only that there was no plea in the
rejoinder to that effect when the evidence was recorded by
the A.R.C. but also that the plea raised later is false.
20. It is also significant to note that the abovesaid
sentence in the rejoinder is as vague as possible. It stops
with merely referring to the no-appearance of the tenant
before the A.R.C and does not go to the extent of saying
that the tenant was out of the country at that time. The
plea that the tenant had left India in the night of
29th/30th June 1981 was not raised at any time before the
A.R.C or before the Appellate Tribunal till 18.12.95 when an
application was moved by the tenant for permission to file
additional evidence. For the first time in the proceedings,
the tenant raised the plea in the said application that he
had left the country on 30.6.81. Even at that stage the
tenant did not choose to give the details of his alleged
flight to Germany from India. Neither the name of the
airline nor the time of the flight was disclosed to the
Court. Alongwith the said application for additional
evidence the tenant claimed to have produced a photo copy of
the passport and a ticket alleged to have been purchased in
Germany for his onward journey to other countries.
21. If there was a plea in the rejoinder that the tenant
did not appear before the A.R.C and was not a party to the
proceeding, the A.R.C. who passed an order on 22.10.94 in
favour of the tenant would certainly have referred to the
same and given it as his first reason for holding that the
order dated 30.6.81 was not enforceable. For the first time,
reference is made to the said plea as having been raised in
Para 5 of the rejoinder in the written submission filed on
behalf of the tenant before the appellate Tribunal on
15.1.96. Obviously, the interpolation in the rejoinder was
made some time prior to that. It is also worthy of notice
that in the application for additional evidence there was no
statement that a plea had already been raised in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17
rejoinder filed before the A.R.C. We have no hesitation
therefore to hold that the rejoinder filed by the tenant
before the A.R.C had been tampered at a later point of time
and in all probability when the matter was pending before
the appellate Tribunal in order to support a new plea raised
for the first time by the tenant.
22. Learned senior counsel for the tenant has submitted
that the copy of the rejoinder produced before the
landlord’s counsel does not contain any initial of the
tenant’s counsel and it cannot be considered to be genuine.
According to him, the said copy was not the one served on
the landlord’s counsel in the court of the A.R.C. The
argument is obviously one in despair. A comparison of the
copy filed by the landlord’s counsel with the rejoinder in
the Court record shows that certain corrections had been
made in ink in paragraphs I and II at pages 1 and 2 thereof.
The hand-writing is the same in both and we have no doubt
that whoever corrected the original rejoinder carried out
the correction in the copy before serving it on the counsel
for the landlord. So also, some corrections are typed. They
also correspond with each other. In this connection it is
interesting to read the version of the tenant in his
affidavit filed in this Court on 20.3.98. In para 3-4 (p.189
of the paper book) it is stated as follows:-
"However, the petitioner
cannot say for sure which copy was
delivered on the other side since
that is done by the counsel
generally. However, the petitioner
now faintly remembers that some
corrections might have been by the
counsel before signing and filing
the rejoinder in trial court on
2.9.1985 and he had signed a number
of copies of the rejoinder and
ordinarily his signatures or the
counsel’s signatures would have
been there on the copy as
supplied/given to the landlord".
The above explanation is palpably false and is hereby
rejected. We are convinced that the copy produced by the
landlord’s counsel is none other than that served on his
counter-part in the court of the A.R.C.
23. Irrespective of the existence of the plea in the
rejoinder, we would consider the question whether the tenant
has proved his absence from the court of the A.R.C on
30.6.81. The burden is on him to prove the same. he has
miserably failed to do so. We have seen the original record
of the A.R.C. in which the statements of the landlord and
the tenant were recorded on 30.6.81. The paper has been torn
exactly across the signature of the tenant and pasted with a
cellotape. We have a grave suspicion that it was
deliberately torn and pasted like that so that it will
become difficult to compare the signature of the tenant in
that statement with his admitted signatures. Significantly
in the copy of the proposed agreement filed by the landlord
and the tenant jointly before the A.R.C. the portion
containing their signatures has been completely torn and not
available at all. The tenant has admittedly signed the
proposed agreement and he was a party thereto. The
impossibility of comparing the disputed signature with the
admitted signatures is one reason for our not granting the
prayer to have the disputed signature examined by a
handwriting expert.
24. It is not the case of the tenant that he was in India
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17
but did not attend the court. His only case is that he had
gone out of India and was not in a position to attend the
Court. Such a plea could easily have been proved by
producing the relevant official documents such as passport
and visa as well as a copy of the air ticket. the plea was
itself raised only at the appellate stage but the relevant
documents were not produced even then, In the application
for additional evidence the tenant claimed to have produced
photo copies of the passport and the ticket purchased in
Germany for onward journey. The said ticket even if genuine
would not prove in any manner that he was in Germany on the
relevant date. The ticket could have been purchased by any
person on his behalf. Even the said photo copy of the ticket
did not relate to the year 1981. That fact is admitted by
the tenant in his affidavit filed in this Court on 20.3.98.
In paragraph 7 it is stated thus:
"That it is further submitted that
the copy of the ticket, which is
enclosed at page 167 of the paper
Book is not unfortunately the
ticket which was used by the
petitioner for going out of the
Germany by mistake some other
ticket relating to previous travel
in the year 1980 has been annexed.
The confusion created because the
dates in the ticket are of the same
date but of different year. This
therefore can be ignored."
The only other document which was filed before the appellate
Tribunal was the Xe-rox copy of some pages of the passport.
Initially the relevant page which contained the visa issued
by the German Embassy was not filed before the Tribunal. It
is evident from the records as rightly pointed out by the
learned counsel for the landlord that the relevant page may
have been introduced into the records of the Tribunal on a
later date. that page bears the number 79A and it finds
place between 77 and 79. We find that all the pages in the
record of the Tribunal are number serially by taking both
sides of each paper into account. Even if the reverse side
is blank it is counted for numbering and on the next page
the next number is given. The numbers written actually are
only odd numbers such as 1,3,5,7 and so on. There is no page
in the entire record excepting the aforesaid one bearing a
number containing an alphabet in addition to numerical. If
the document had been filed alongwith the or the document
filed with the application for additional evidence it should
have borne the number 81 and so on. There is no reason why
the paper after 77 should be numbered as 79A. Even so it
should have been numbered as 77A or 78A as it is placed
before 79. In the affidavit filed by the landlord on 8.11.97
it is emphatically stated that before the counter-affidavit
dated 27.1.97 was filed in this court he had inspected the
records of the appellate court (wrongly mentioned as trial
court) and at that time the said paper was not in the court
records and that the tenant had got the same interpolated in
the court records thereafter as page 79A. In our opinion
this accusation made by the landlord appears to be well
founded. In the absence of any explantion for the number 79A
found on the said page, an inference can be drawn that the
same was interpolated in the records of the Tribunal at a
later point of time and was not filed alongwith the
application fort additional evidence.
25. The aforesaid document now found at page 79A of the
records of the Tribunal is the same as that found on page
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17
167 of the paper book in the appeal in this court. It
purports to be a visa issued by the German Embassy at new
Delhi on 26th June, 1981. It is for the period 30th June,
1981 to 20th July, 1981. At the top there is a rectangular
seal which reads as follows:
------------------------------
Bundesrepublik
Deuischland
A-30-June 1981
Flugshafen
Frankfurt/Main14
--------------------------------
After a copy of the document was served on the landlord it
appears that the latter approached the German Embassy at New
Delhi in order to verify the authenticity and correctness of
the same. In Paragraph 6 of the affidavit filed by the
landlord on 8.11.97, it is stated thus:
"Further in order to verify the
authenticity of the said document,
the answering respondent sent a
photocopy of the same to the German
Embassy in Delhi for verification
of the same. The communication
dated 15.4.1997 received from the
German embassy clearly shows that
the said document is not genuine
and is a forged document. The
petitioner has relied upon the
immigration stamp in the said
document to claim that he arrived
in Germany on 30.6.1981 whereas ’A’
in the Immigration Stamps stand for
Ausreise = departure and not
arrival. Further the name of the
country Deutchland in Immigration
Stamp is spelt incorrectly and the
date is not from a rotating stamp
which is used by the customs
authorities. It is submitted that
the appellant has resorted to
forgery to mislead this Hon’ble
Court and it is submitted that it
is a fit case where apart from
revoking the special leave granted,
criminal proceedings should be
initiated against the appellant. A
copy of the letter dated 15.4.1997
is annexed hereto as Annexure R-2."
26. In the letter filed as Annexure R-2 referred to above,
it is stated thus:
"TO WHOM IT MAY CONCERN
The genuineness of the
Visa/Immigration Stamp of the
Federal Republic of Germany in
Indian passport No.R-244359
enclosed herewith look doubtful,
since it shows the following
deficiencies: Spelling Mistakes
a) name of the country
"Deutschland" is spelt incorrectly
as "Deuischland" in the Immigration
Stamp;
b) In the Visa Stamp "Gebuhr" means
Fee, it is spelt incorrectly as
"Gebchr"
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17
c) Name of the city "Frankfurt" in
the Immigration Stamp appears to be
incorrectly spelt as "Frankfort".
"A" in Immigration Stamp indicates
departure (A=Ausreise) but not
arrival. Arrival is indicated by
"E" (E=Einreise).
The date (30 Juni 1981) in the
Immigration Stamp is not from a
rotating stamp. Customs used
rotating stamps.
The round embassy seal in the
bottom left corner appears faked
and requires further investigation.
(Signed)
Rehienbeck
ATTACHE
27. Learned senior counsel for the tenant vehemently argued
that no reliance should be placed on the aforesaid letter
which was written on the basis of a photo copy and the
proper course to be adopted by the court is to sent the
passport in which the original visa is entered to the
Embassy and get its opinion as to the authenticity thereof.
when the matter was being argued on 12.8.98 he offered to
produce the original passport on the next date. We adjourned
the matter to 13.8.98 at 2.00 P.M. but learned counsel
wanted further time. We granted one week therefrom for
production of the passport and posted the matter to 20.8.98
in the chambers at 1.30 P.M. But as stated earlier, the
passport is not forthcoming. It is very strange that the
passport which was flashed before the court on an earlier
occasion before the matter was heard is now missing after
the court is fully apprised of the facts of the case. This
is eminently a fit case to draw an adverse inference against
the tenant from the non-production of the passport. Itself
it had been produced, there is no doubt that it would have
been found out that the Visa/immigration stamp of the
Federal republic of Germany was not genuine but a fabricated
one. We have already pointed out that the tenant had
tampered with the records in Court more than once and has
been developing his case stage by stage. The plea that he
was not in the country was raised for the first time in
December 1995 i.e. nearly 11 years after the warrant of
possession was issued against him be the A.R.C. Further, we
find that in there photo copies of the two other visa stamps
made by the German Embassy with reference to other periods
the immigration stamps are not only different in shape but
the spellings of the relevant words are correct. The
spelling mistakes found in the disputed visa are not found
in the photo copies of the other visas of the same country.
In such circumstances we hold that the tenant has not proved
the genuineness of the visa/immigration stamp of the Federal
Republic of Germany. Nor has he proved that he was not in
India on the relevant date and the relevant time. Hence the
first limb of the contention that the order of the A.R.C.
dated 30.6.81 was vitiated by fraud fails and is rejected.
28. The second limb of the contention is that on 29.6.81
and 30.6.81 the premises was not vacant as it was occupied
by the tenant and the application under Section 21 was not
maintainable. According to the tenant the said
jurisdictional fact was concealed form the ARC and his
permission for creating a limited tenancy was obtained. It
is also the contention of the tenant under this limb that
the landlord was never the resident of Amritsar and always
living in another premises in New Delhi and that he did not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17
require the premises at the expiry of the limited tenancy.
According to the tenant the aforesaid facts were also
concealed from the A.R.C. It is with respect to this limb of
the contention that the learned counsel for the landlord has
submitted that it was not open to the tenant to raise such a
plea of fraud after the expiry of the tenancy and if threre
was any such fraud, he should have approached the A.R.C.
with an appropriate application before the expiry of the
tenancy. In support of the said contention learned counsel
for the landlord has cited some of the recent rulings of
this Court. Before considering the said aspect of the matter
it is better to clear the facts in this regard.
29. The contention that there was a subsisting tenancy on
29.6.81 and 30.6.81 is factually fallacious. The tenant has
in more than one place in the objection filed by him before
the A.R.C and in his deposition dated 10.10.86 stated that
the earlier limited tenancy commenced on 29.6.79. What is
relied on at present is that the first order granting
permission for limited tenancy was passed on 3.7.79. The
records and the proceedings relating thereto are not
available. In the absence of such records and on the face of
the express admission made by the tenant that the tenancy
commenced on 29.6.79 we have to proceed on the footing that
the permission granted on 3.7.79 was post facto and the
tenancy expired on 28.6.81. Hence, when the application was
filed on 29.6.81 for permission under Section 21, there was
no subsisting prior tenancy. Now that we have found that the
tenant has failed to prove his alleged absence from the
court on 30.6.81, it follows that both the landlord and the
tenant were present before the A.R.C. and made statements as
recorded on 30.6.81 Factually there is no concealment or
suppression of the facts and much less fraudulently by the
landlord before the A.R.C. There was nothing wrong in the
A.R.C. accepting the statements of landlord and tenant made
before him.
30. On the above facts we will consider the relevant
rulings in chronological orders. in J.R. Vohra versus Indian
Export House Pvt. Ltd. (1985) 1 S.C.C. 712 a Bench of three
Judges held that when the landlord applies for eviction
after expiry of limited period of tenancy The Rent
controller must issue warrant for recovery of possession as
a matter of course and is not obliged to issue a prior
notice to the tenant or before issuing a notice make an
enquiry into allegations of fraud, collusion or mechanical
application of mind in granting permission for creation of a
limited tenancy made by the tenant.
31. In Smt. Ddhanwanti Versus D.D. Gupta (1986 3 S.C.C 1 it
was held that obtaining permission for letting out the
premises to the same tenant for limited periods more than
once after expiry of each such period would not by itself be
sufficient to prove that the premises were available for
being let out for the indefinite period without actually
showing the absence of the landlords’ intention to occupy
the premises. It was held that such successive grants of
permission were not vitiated.
32. In Pankaj Bhargava and another versus Mohinder Nath and
another (1991 1 S.C.C. 556 Bench of Three Judges considered
the matter at some length. After referring to Dhanwanti’s
case (supra) the bench observed that in one sense successive
grants of permission would share the characteristic of post
facto grant. The bench referred to the ruling in J.R. Vohra
(supra) and quoted extensively therefrom. It will be
advantageous to extract the following passage from the
judgment of the Bench:
"...In Vohra case this Court laid
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17
down that a tenant who assails the
permission under section 21 on the
ground that it was procured by
fraud - a ground not dissimilar to
the one urged in the present case -
must approach the Rent control
during the currency of the limited
tenancy and for an adjudication of
his pleas as soon as he discovers
facts and circumstances which,
according to him, vitiate the
permission. it was held that
whether it was a ’mindless’ order
or one procured by fraud practised
by the landlord or was the result
of a collusion between landlord and
tenant there was no justification
for the tenant to wait till the
landlord made his application for
recovery of possession but there
was every reason why the tenant
should have made an immediate
approach to the Rent Controller to
have his pleas adjudicated as soon
as facts and circumstances giving
rise to such pleas comes to his
knowledge.
The reason why this
requirement was built in working
the rights and obligations under
Section 21 was the need to
reconcile and harmonise certain
competing claims that arise in
administering the scheme of Section
21. This Court, referring to those
competing claims observed:
"What then is the remedy
available to the tenant in a case
where there was in fact a mere
ritualistic observance to the
procedure while granting permission
for the creation of the limited
tenancy or where such permission
was procured by fraud practised by
the collusion between the strong
and the weak?. Must the tenant in
such cases by unceremoniously
evicted without his plea being
enquired into? The answer is
obviously in the negative. At the
same time must he be permitted to
protract the delivery of possession
of the leased premises to the
landlord on a false plea of fraud
or collusion or that there was a
mechanical grant of permission and
thus defeat the very object of the
special procedure provided for the
benefit of the landlord in Section
21?. The answer must again be in
the negative..."
The manner in which the court
harmonised and reconciled these
competing and conflicting claims
and interests was by insisting upon
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17
the tenant to approach the Rent
controller for adjudication of his
pleas as soon as he discovered that
the initial grant of permission
stood vitiated. This was evolved as
part of policy of law for the
reconciliation of divergent and
competing claims. It was held:
"...In our view these two
competing claims must be harmonised
by insisting upon his approaching
the Rent Controller during the
currency of the limited tenancy for
adjudication of his pleas no sooner
he discovers facts and
circumstances that tend to vitiate
abinito the initial grant of
permission. Either it is a
mechanical grant of permission or
it is procured by fraud practised
by the landlord or it is the result
of collusion between two unequals
but in each case there is no reason
for the tenant to wait till the
landlord makes his application for
recovery of possession after the
expiry of fixed period under
Section 21 but there is every
reason why the tenant should make
an immediate approach to the Rent
Controller to have his pleas
adjudicated by him as soon as facts
and circumstances giving rise to
such pleas come to his knowledge or
are discovered by him with due
diligence..."
The court proceeded to point out that any appeal to the
remedy based on concept of nullity and collateral attack is
inappropriate and that in a collateral challenge the
exercise was not the invalidation of a decision, but only to
ascertain whether the decision existed in law at all and
rely upon incidents and effect of its non-existence. It was
held that the permission granted under Section 21 must be
presumed to be valid till set aside and the doctrine of
collateral challenge will not apply to a decision which is
valid ex hypothesi and which has some presumptive existence,
validity and effect in law. The bench pointed out the
distinction between nullity stemming from lack of inherent
jurisdiction or a proceeding that wears the brand of
invalidity on its forehead on the one hand and on the other
a dispute as to existence or non-existence of facts which
require investigation into and adjudication upon their
existence or-existence on the basis of evidence. The Court
said:
"...If the parties before the Rent
Controller admitted that the fact
or the event which gives the
Controller jurisdiction is in
existence and there was no reason
for the Controller to doubt the
bona fides of that admission as to
a fact of event, the Controller is
under no obligation to make further
enquiries on his own as to that
factual state. The test of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17
jurisdiction over the subject-
matter is whether the Court or
Tribunal can decide the case at all
and not whether the Court has
authority to issue a particular
kind of order in the course of
deciding the case".
33. The above ruling is sufficient to negative the
contention of the tenant in the present case. It is
therefore not open to him to challenge the validity of the
permission granted on 30.6.81 after the expiry of the
tenancy.
34. Learned counsel for the tenant placed reliance on
Shrisht Dhawan (Smt.) verus M/s. Shaw Brothers (1992) 1
S.C.C. 534. In that case, the Bench has in fact relied on
the ruling in Pankaj Bhargava’s case (supra). The Bench has
clearly held that the objection to the validity of the
permission for limited tenancy should be made immediately on
the tenant becoming aware of the fraud, collusion etc. and
that the tenant may be permitted to raise objections after
the expiry of lease in exceptional circumstances only. It
has also been held that the burden to prove fraud or
collusion is on the person alleging it. No exceptional
circumstance has been made out in this case to enable the
tenant to challenge the order dated 30.6.81 after the expiry
of the tenancy. The ruling in Shrisht Dhawan (supra) does
not help the tenant in this case.
35. There is not merit in the second contention that the
order dated 18.10.85 had become final and therefore it was
not open to the landlord to argue before the appellate
Tribunal that the tenant was not entitled to raise objection
to the validity of the permission after expiry of the
tenancy. The order dated 18.10.85 was of interlocutory
nature and on a prima facie view it permitted the parties to
adduce avidence after holding that the objections of the
tenant required consideration. That would not prevent the
landlord from contending before the appellate Tribunal that
the tenant was not entitled to raise objections to the
validity of the permission after the expiry of the tenancy
as per the law laid down in J.R. Vohra and Pankaj Bhargava
(supra). Thus both contentions of the tenant deserve to be
rejected and the appeal has to suffer dismissal.
36. But the matter does not end there. We have found that
the records of the A.R.C. and the Rent Tribunal have been
tampered. We have also drawn an inference that the visa
alleged to have been issued by the German Embassy on 26.6.81
to the tenant and the Immigration Stamp found thereon are
not genuine. Prima facie, the circumstances indicate that
the tenant had committed the aforesaid offences. The tenant
has also made an attempt to hoodwink this Court and succeed
in his appeal. he was successful in getting the Special
Leave and an order staying dispossession. Tampering with the
record of judicial proceedings and filing of false
affidavit, in a court of law has the tendency of causing
obstruction in the due course of justice. it under mines and
obstructs free flow of unsoiled stream of justice and aims
at striking a blow at the rule of law. The stream of
justice. It undermines and obstructs free flow of unsoiled
steam of justice and aims at striking a blow at the rule of
law. The stream of justice has to be kept clear and pure and
no one can be permitted to take liberties with it by soiling
its purity. Since, we are prima facie satisfied that the
tenant has filed false affidavits and tampered with judicial
record, with a view to eradicate the evil of perjury, we
consider it appropriate to direct the Registrar of this
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17
Court to file a complaint before the appropriate court and
set the criminal law in motion against the tenant, the
appellant in this case namely Mohan Singh.
37. Before parting with this case, we have one more
observation to make. on a study of the records in this case,
we find that a very distressing state of affairs prevails in
the court of A.R.C. and Rent Tribunal. We are told by
learned counsel that the situation is the same, if not worse
in subordinate courts on the regular civil side. We found
that the rejoinder of the tenant said to have been filed in
the Court on 11.10.85 does not contain any endorsement by
the counsel for the landlord acknowledging receipt of a copy
thereof. We were informed by counsel that there is no
practice of serving such papers on the other side in advance
and getting the acknowledgment of service endorsed on the
same. It was stated that such papers would be handed over
across the table to the counsel in open court and some
times, the Presiding Officer would enter the same in the
court diary. We were also told that there is no rule in that
regard. That is a very unsatisfactory situation. A rule
should be made that papers intended to be filed in Court in
matters in which the other side has entered appearance
should be served on the opposite party under acknowledgment
endorsed thereon.
38. It is seen that the copy of the rejoinder served on
counsel for the landlord in the Court of the A.R.C. does not
bear the initial or the signature of the tenant or his
counsel, nor is there any endorsement that it is a true copy
of the original rejoinder. A rule should be made that any
paper served on the counsel for the opposite side must bear
the endorsement that it is a true copy of the original filed
in the Court and it should be signed by the counsel or the
party.
39. The original rejoinder found among the records of the
A.R.C. bears a rubber stamp on each page with the date being
smudged completely. From that stamp nobody can say that it
was filed in Court on 11.10.85. We accepted that date to be
the date of filing because of the entry made by the A.R.C.
in his notes. We have however a doubt whether the document
which is now on file was the same as the one which was filed
before the A.R.C. The reason for entertaining such a doubt
is that while the date stamp in other documents filed in
that Court are clear and legible, the date stamp on this
document is alone smudged. In the place of the date somebody
has written in ink a figure which looks like 11. The
Presiding Officer should take care to see that any paper
filed in Court bears the date stamp clearly on every page
and he should put his initials and date on each page
clearly. Such a procedure would ensure to some extent that
papers filed in Court are not tampered with.
40. We have referred to the application for additional
evidence filed by the tenant before the Rent Tribunal and
the fact that one of the documents said to have been filed
along with the application was not filed at that time and
interpolated into the records much later. We also find that
the application was not filed at that time and interpolated
into the records much later. We also find the application
was not given a separate number. The rejection of the
application was made part of the order in the main appeal.
It would have been better if the application had been given
a separate number and an order had been passed thereon
separately. But that is not a matter of grave concern. What
is to be noted is that in the application, the documents
sought to be file as additional evidence were described
vaguely in Paragraph 5 as photo copies of the passport and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17
the ticket. it is absolutely necessary that every
application for permission to file additional evidence
should contain a list of documents giving full particulars
thereof such as date, parties thereto and description. Apart
from that each document should also bear a certificate of
endorsement made by the counsel or the party that the said
document was the one referred to in the affidavit or
application of the party. The application must also specify
the number of pages of each document filed therewith.
Whenever such applications are filed in pending matters, the
copies thereof and copies of the documents sought to be
filed as additional evidence should be served on the order
side after being duly certified as true copies by the
applicant or his counsel. Appropriate rules have to be
framed in this regard also.
41. The above are the matters which have come to our notice
in this case. There are several other matters relating to
practice and procedure which require proper attention. In so
far as the Act is concerned, Section 56 enables the Central
Government to make rules. Rule 23 of the rules framed under
the Act provides that the Controller and the Rent Control
Tribunal are as afar as possible be guided by the provisions
contained in the Code of Civil Procedure, 1908. It is
absolutely necessary for the Controller and the Rent Control
Tribunal to see that the provisions of the Stature, rules
and the Code of Civil Procedure are strictly complied with
in all the proceedings before them.
42. We are informed that even for the civil courts in the
Union Territory of Delhi, no rules of practice have been
framed by the High Court. It is a sad state of affairs that
the High Court of Delhi has not given its thought in this
regard. It is high time that the High Court framed
appropriate rules of practice to be observed by all the
courts in the territory subordinate to it. We direct the
Registry to send copies of this judgment to the concerned
department of the Central Government as well as the High
Court of the Central Government as well as the High Court of
Delhi so that appropriate rules may be made by them
respectively with regard to the proceedings under Delhi Rent
control Act and the proceedings in the regular civil courts.
We request the High Court to give its immediate attention to
this matter and also cause periodic inspection of the courts
subordinate to it and issue such circulars as may be
necessary in order to plug the loopholes then and there.
43. In the result, the appeal is dismissed with the above
direction. The tenant shall pay a sum of Rs.20,000/- by way
of costs to the respondents. The tenant shall also deliver
possession of the premises in question to the respondents on
or before 26.9.1998.