GYANENDER KUMAR VERMA v. KAILASH CHAND JAIN & Ors.

landlord-Smt. Rajpati Section 14(1 )(b) of the DRCA. Contention was that the tenant-Smt. Sharbati Devi had sub-let disputed premises in favour of Smt. Shakuntla Devi; premises comprise of a shop bearing municipal number 1793 situated at Dariba Kalan, Chandni Chowk, Delhi. On 09.07.2001, the eviction petition was decreed in favour of the landlord. The appeal was dismissed on 22.10.2001. In second appeal, vide order dated

30.05.2003 passed by the High Court, the. matter was remanded back to the ARC to decide dispute afresh. Certain observations made by the High Court in its order

30.05.2003 have been highlighted i.e. at para 14 (page 54) of the paper book. Contention of the petitioner is that the High Court even at that stage had noted that there was a possibility of the CM(M)Nos.l441/2011 & 118/2012 landlady having exploited situation estranged relationship between the alleged tenant and sub-tenant. On

21.02.2007 after the direction of remand, the eviction petition was again decreed in favour of the landlady. An appeal was filed before the RCT which is yet pending adjudication.

3. The aforenoted three applications had been filed in the proceedings pending before the RCT. The two applications filed by the petitioner seeking initiation of contempt and perjury against the non-applicant have been disposed of on 02.07.2011. The contention of the petitioner before this court is that there are certain discrepant statements which had been made by the landlord which are to the effect that although in the site plan the disputed premises have been described as a shop without a chabutarai thereafter demised premises have been admitted to be a shop with a chabutra; contention being that these are false statements which have been made by the petitioner judicial proceedings which having qualified as a "false statement" on oath falling within rigours of Section 191 of the Indian Penal Code (hereinafter referred to as 'IPC'), the offence became punishable under Section 193 of the IPC and RCT refusing to take cognizance of the perjurj' committed by the landlord as also not having initiated contempt proceedings against the landlord in CM(M)Nos.l441/2011 & 118/2012 Page3ofl0 such a scenario has committed an illegahty.

4. Vehement arguments have been addressed length to substantiate this submission. Contention of the petitioner before this court fraud vitiates all proceedings and if any proceedings before a court of law are qualified by a fraud the entire proceedings would become non-est having no value in the eyes of law; in these circumstances, impugned order rejecting the application filed by the petitioner suffers from an infirmity as the averments made by the landlord in his eviction petition thereafter in his replication as also in the reply to the apphcation under Section 44 of the Said Act clearly show that there is an admission on his part about the existence of the chabutara in or abutting the tenancy premises and for this purpose attention has been drawn to the relevant extracts of the eviction petition, replication and the pleadings in the application under Section 44 of the Said Act.

5. Learned counsel for the petitioner has placed rehance upon the judgment reported in (2012) 2 SCC 60 titled as Iqbal Singh Narano and Ors. vs. Veeran Narana substantiate submission.

6. These vehement subm.ission advanced by the learned counsel for the petitioner have been dealt with in depth and detail CM(M)Nos.l441/2011 & 118/2012 Page4ofl0 // by the RCT as also reasoned findings returned thereupon. The relevant extracts read as follows "5. In paraS of the eviction petition, the respondentNo.l describedthe tenancy premises as follows : "One shop measuring8x3 feet as shown in red in the plan attached." In correspondingpara of the amended written statement filed by the appellant, appellant aven-ed as under: "Allegations in para 7 of the petition are wrong and denied. Correctness of the plan alleged to have been filed by the petitioner is denied. The answering respondent isfiling correct plan of the premises. The measurement of the disputed shop is 8'6" x4' and the height is 7 feet. In front of the shop there is a chabutra measuring 2'00" in width towards the bazar. Above the shop ihere is a mezzanine of the same size with a height of 7'6 ". In the corresponding paraS of the amended replication, the respondent No.l averred as follows : "In reply to paragraph No.8 of the written statement, it is submitted A that the petitioner has no objection in the plan of the respondent being taken as a correct plan. "

6. In para? of the applicationfiled by the appellant under Sec.44 of'the said Act' before this Tribunal, it is averred/stated as follows : "That the premises comprise a portion measuring 8'.6" x 4' x 14'.6" consisting of shop portion, mezzaninemeasuring 8'.6" x 4' x 7'. 6" with CM(M)Nos.l441/2011 & 118/2012 PageSoflO /i an abuttingpiiccachabutrameasuring8'.6" x 2'. At the heightof 8'.4" there are two pucca slabs each measuring5'.10" x 4' and 1.5' x 4' in the mezzanine. The appellants/theirpredecessors in interest have been continuouslyrunningtheirfamily businessfrom the said premisessince 1930 by raising woodenstructure coveringboth the side walls and also the corresponding portions of the chabutra. (The said premises includingthe wooden structure raised thereon are more particularly described in the site plan filed herewith as Annexure A). The respondent No.l had in his evictionpetition omitted the existence of chabutra, but on pointing out this omission, willful or otherwise, the Respondent No.l in response to para 7 of the written statement admitted in para 7 of his replication that the premises comprise not only the shop but also the chabutra. " In the corresponding para of the reply, the respondent averred/stated as follows: "Para 7 of the application is wrong and is denied. The respondent No.2 was the tenant in respcct ofshop a shown in the plan annexed with the petition. The alleged plan is not correct as per the spot. There is no Chabutra in front of the shop. The present application has been filed with malafide intention to construct a Chabutra under the guise of repairs. The shop does not lequite any repairs."

7. Thepleadings of the parties in the evictionproceedings before the Ld. Addl Rent Controller ipso facto do not suggest unequivocal admission as regards the description of the tenancy premises. Merely because the respondent No.l replication stated that the plan of the appellant (respondent in the eviction proceedings) may be taken as correct, it cannot be construed to mean that there is an unequivocal admission offact as regards the the existence of chabutra in or CM(M)Nos.l441/2011 & 118/2012 PageooflO abuttingthe tenancypremises. By such averment, I consider, the respondentNo.l left the subjectto be consideredby the Ld. Addl Rent Controller. The impugned evictionorderpassedby the respectiveLd. Addl. Rent Controlleris asper the site plan filed by the respondentNo.l and not the appellant. In other words, the correctnessofthe siteplan ofthe tenancypremisesfiledby thepetitioneris accepted by the Ld. Addl.Rent Controller. Such site plan of the tenancy premises has no referenceto any chabutraeitherabuttingorformingpart ofthe tenancypremises.In this background,in my consideredview, the averment/statementmade in the reply to the applicationfiled by the appellant U/s 44 of 'the said Act' that the plan of the appellantis not correctasper the spot andthat, there is no chabutrainfront ofthe shop and the applicationisfiled with a malafide intentionto constructa chabutra under the guise of repairs, by itself cannot be construed to be a false statement. Even otherwise, such statement in the reply refers to the thenfactual status and not the past. Was the chabutra actually in existence on the date offiling of 'the said application' by the appellant or on the date offiling of the reply thereto by the respondent No.l, there is no material on record. Needless to say, the eviction petition was filed in the year 1982 and the amended written statements filed in 1983/1985. Statement of the respondent in the reply denying the existence of chabutra in the year 2005 in the absence of any material contrary thereto, is not sufficient to say that the respondent made any patently false statement. Then, assuming, there a factually false statement as regards the existence of any chabutra forming part of the tenancy premises, there is nothing on record to show that by any such alleged false statement, the respondent No.1 took any advantage. Needless to say, 'the said application' came to be withdrawn by the appellant herself since after the replyfiled by the respondent No.l and no application for the same or similar relief, ever came to be filed thereafter, at least none is pointed out. B^en that is so, it cannot be said that there was any obstruction in the administration of justice. No doubt, filing offalse affida\nt is reprehensible and condemnable, the Court cannot remain oblivious of the fact that judicial hypersensitiveness is equally not warranted in each and eveiy case. Reliance placed upon 1995 RLR 295 (SC) CM(M)Nos.l441/2011 & 118/2012 DhananjaySharma Vs. HaryanaState &Anr. andAIR 2000 RLR 124 (SC) Murray. & Co. Vs. AshokKumar Nevetiaby the Ld. Counselfor the appellant, in the given facts and circumstances of the case, is therefore, wholly misconceived. In DhananjaySharma'scase (supra), the police officerswere heldguilty ofcontempt, as they had made one detenu to file a false affidavitin their support. In Murray's case (supra), byfiling an undisputedfalse affidavit, an attempt was made to delay deliveryofpossessionofproperty.Facts and circumstancesof the said cases are at much variance and quite distinct. Keeping in view the totality of the facts and circumstances, I do notfind any merit in any of'the subject applications'. "

7. The RCT had examined the site plan as also the averments made by the landlord in his eviction petition as also in his reply filed by the landlord to the pending proceedings under Section 44 of the Said Act; the intention on the part of the landlord who had allegedly made a "false statement" which the necessary ingredient for an offence to be punishable under Section 193 of the IPG was clearly not made out and rightly so. It is also not the case of the petitioner before this court that by making any such A allegedly false statement the landlord has taken any advantage of this statement; impugned order has correctly noted that in these circumstances the offences as proposed to have been committed made by the petitioner i.e. an offence of perjury and contempt are not made out; intent is the necessary ingredient which was clearly absent in this case.

8. Impugned declining to initiate perjury CM(M)Nos.l441/2011 & 118/2012 contempt proceedings against the tenant in no manner suffers from any infirmity.

9. The impugned order had also dismissed the third apphcation filed by the tenant under Section 151 of the Code on the aforenoted submissions noted by it. This was also rightly so. The RCT having correctly drawn a conclusion that since perjury and contempt cannot be initiated against the tenant for the aforenoted reasons; the question of a fraud having being played upon the tenant by the landlord in this scenario did not arise. The third application of the landlord was in fact bordered on the submission that a fraud has been committed by the tenant upon the landlord because of his mis-statement pursuant to which eviction order dated 21.02.2007 and the subsequent order of review dated

26.03.2007 are non-est and void. This submission how urged can be taken up a ground of appeal before the RCT and if the petitioner is aggrieved by the findings of the ARC which as per ^ him are not evident from the record, the tenant is at liberty to take up this as a ground of appeal before the RCT. This submission made in the present apphcation does not by itself qualify to be a fraud permitting the court to set aside the eviction order dated 21.02.2007 and subsequent order dated 26.03.2007.

10. The present petitions are clearly an abuse of the process of CM(M)Nos.l441/2011 & 118/2012 Page9ofl0 the court and wastage of its precious time; both these petitions are dismissed with respective costs of ? 5,000/- each to be deposited with the Delhi High Court Legal ServicbCommittee. February 10, 2012 INDERMEET KAUR, J CM(M)Nos.l441/2011 & 118/2012