Smt. Khatiza Begum (deceased) through LRs vs Sh. Mehar Illahi

Manmohan Sarin, J.—The present writ petition has been filed by the petitioner, seeking to assail the order dated 3.2.2004, passed by the Additional Rent Controller, Delhi. Learned counsel for the petitioner submits that after the amendment of Section 115 of the Code of Civil Procedure, the present writ petition has been filed instead and is maintainable

He places reliance on Surya Dev Rai v. Ram Chander Rai and Ors.. reported at Judgment Today 2003 (6) SC 465, wherein the Supreme Court taking note of the amendment in Section 115 of the CPC held and summed the situations, where a writ of certiorari by petition under Article 226 or under Article 227 of the Constitution of India would be maintainable. Counsel for petitioner, Therefore, urges that petition is maintainable.

Petitioner assails the impugned order permitting the landlord-tenant to produce at a belated stage, the documents, which are notices of termination of tenancy, subject to costs. It is urged that the affidavit by way of evidence had already been filed by the respondent-landlord and the petitioner had cross-examined him. Petitioner-tenant''s evidence was to be led and at this belated stage, the notices terminating the tenancy are sought to be produced.

The submission, as made by the learned counsel with great zeal appear attractive on the first flush. However, when considered in the back drop of the following facts, the rationale and the approach of the Additional Rent Controller to do justice between the parties by allowing the application can easily be discerned. In this case, it was not as if the petitioner-landlord had come up for the first time and set up the plea of termination of tenancy by the said notices. The eviction petition itself referred to the said notices. The photocopies of the notices had been produced on record from the very inception. The Explanation of the landlord-respondent is that the advocate, who had sent the notices could not make available the office copies, postal receipts and A. D. Card, when the petition was filed, since the files were not traceable. Such an occurrence is not outside the realm of a reasonable probability. There may have been omission by the respondent-landlord but the factum of mentioning of these notices in the petition as well as production of their photocopies lends credibility of version of the termination of tenancy by the said notices. The respondent-landlord only moved the Court once the office copies sent by the Advocate together with postal receipts and A.D. card were made available.

Learned counsel places reliance on the observations made by the trial court in the impugned order that, "reasons cited by the petitioner is not very much satisfactory." This has to be understood in the context of either the absence of the affidavit of the advocate or strict proof of dates when documents were traced being given.

Be that as it may, I am of the view that the trial court has done justice between the parties for disposal of matter on merits. Petitioner, no doubt, may suffer in a sense of proceedings being delayed but the petitioner would also have the opportunity of leading evidence in rebuttal to show that the said notices had not been duly served on him. It is the respondent/landlord whose suit would take further time.

In view of the foregoing discussion, I am of the view that this is not a fit case for interference in the exercise of writ jurisdiction.