IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : EVICTION MATTER
R.A. NO.7/2000 in C.R.P.No.605/1997
Date of decision: May 14, 2007
AVTAR SINGH ..... PETITIONER
Through: Mr.I.D. Tyagi, Advocate.
VERSUS
GURBUX SINGH ..... RESPONDENT
Through: Mr.C.L.Dhawan, Advocate.
ANIL KUMAR, J.
1. The petitioner has sought review of order dated 6.8.1999 dismissing the Revision Petition of the
petitioner against the order dated 6.3.1997 passed against the petitioner declining leave to defend to him
and passing an order of eviction under Section 14(1)(e) read with Section 25 B (3) of the Delhi Rent
Control Act, 1958.
2. The petitioner has sought review of the order on the ground that there is a mistake apparent on the face
of record in considering the ratio of the judgement cited by the petitioner being Precision Steel Engineering
Works and another vs. Prem Deva Niranjan Rana Tayal AIR 1982 SC 1518; that the impugned order does
not disclose that any effort had been made to show that justice was done to the petitioner as the contentions
of the petitioner in his affidavit seeking leave to defend and contest the Eviction Petition have not been
considered properly; that while deciding the application for leave to defend the Court should have confined
only to the facts placed by the petitioner before the court in the form of an affidavit. The petitioner has also
sought review of the order on the ground that both the daughters of the respondent had got married during
the pendency of the trial though the counsel for the respondent/landlord had admitted the marriage of only
one daughter.
3. The petitioner has also sought review of the order on the ground that during the pendency of eviction
proceedings the residential accommodation available with the landlord in House No. 8977, Naya Mohalla,
Pul Bangash, Delhi was sold and the after the sale of the said House on 26.11.1996 another three and half
storey built house on a 40 sq. yard land was purchased on power of attorney basis in the name of his wife
and one brother. It is stated that this fact came to the notice of the petitioner recently and on the basis of
these new facts the petitioner has sought review of the order dismissing his revision petition.
4. The petitioner has also contended that it is well settled that any order obtained by fraud is a nullity and
cannot be executed and has relied on (1994) 1 SCC Page 1, S.P. Chengalvaraya Naidu vs. Jagannath and
1995 Rajdhani Law Reporter (SC) 1, Chander Shashi vs. Anil Kumar to contend that non- disclosure of
relevant and material document with a view to obtain advantage amounts to fraud and a decree obtained by
non-disclosure of the relevant documents amounts to fraud on court, and any decree thus obtained by
concealing the documents is liable to be set aside.
5. The application for review is contested by the respondent contending, inter alia, that the property bearing
No. XII/8977, Naya Mohalla, Gali Bush Wali, Pul Bangash, Delhi was owned by his father, who died on
4.1.1987 and the rights in the said property devolved upon respondent and his two brothers, namely, Sh.
Bhupinder Singh and Sh. Surinder Singh. The respondent had only one room in that property and the said
property was sold by all the three co-owners, the respondent and his two brothers, by sale deed dated
16.9.1996. From the sale consideration received from the sale of that house another property bearing no.
86, Village Khyala, Navyug Block, Vishnu Garden, New Delhi constructed on a plot of 40 sq. yards was
purchased in the name of the wife of the respondent and his brother Sh.?Surinder Singh. The said property
was purchased by the respondent in the name of his wife from Sh. Sukh Chain Singh, S/o Sh. Pyara Singh,
R/o B-5, J.J.Colony, Khyala, New Delhi-18 by a registered attorney dated 26.11.1996 as a document No.
53507 Additional Book No. 4, Volume 4134 pages 140 to 142.
6. The respondent asserted that since he and his brother Sh.Surinder Singh were not having sufficient
income and because a considerable amount was required by the respondent for the treatment of illness of
his wife Smt. Daljeet Kaur, who was a cancer patient, therefore, even this house at Vishnu Garden, the
respondent was compelled to sell to Sh. Anil Kumar, S/o Sh. Baldev singh, R/o F- 8, Vishnu Garden, New
Delhi for a sum of Rs.75,000/-. After selling the property at Vishnu Garden the respondent has shifted to a
tenanted property situated at property No. 62-B/A1, Paschim Vihar, New Delhi w.e.f. 7.4.2003 and till date
the respondent is living in the tenanted property.
7. The respondent in his affidavit filed in support of the reply filed to the review petition has deposed that
he has been living in the rented premises with his wife, who was a cancer patient and his unmarried
daughter, namely, Ms. Sarabjeet Kaur. It has been admitted by the respondent that his elder daughter Smt.
Davinder Kaur has got married to Sh. Charandeep Singh. During the arguments, it has also been stated by
the respondent counsel that the wife of the respondent Smt. Daljeet Kaur, who was a cancer patient, has
died during the pendency of this review petition after the affidavit dated 28.10.2005 was filed by the
respondent.
8. The respondent has also opposed the application for review of the order dated 6.8.1999 dismissing the
revision petition of the petitioner on the ground that the same is barred by time and the petitioner has failed
to make out any ground as to how it is within time as no date has been disclosed as to when the alleged
subsequent facts came to his knowledge.
9. The respondent has categorically deposed that his wife, who was a cancer patient was undergoing
treatment at National MRI Scan Centre, Punjabi Bagh, New Delhi, Apollo Hospital and at G-1, Mala
Hospital and he also produced the record pertaining to the treatment of his wife at these hospitals, who was
discharged in July, 2005 being a terminal patient and thereafter she was looked after by respondent and his
daughters at his rented house. In these circumstances, the respondent has contended that his requirement for
the tenanted premises is bona fide, even considering the subsequent events and the petitioner is not entitled
for review of order dismissing the petition of the petitioner filed by him against the eviction order passed
against him because even subsequent events do not disclose such facts which will disentitle the respondent
from an order of eviction in respect of demised premises. It is contended that petitioner has been able to
delay the recovery of possession from him and even the application for review was filed on 6.1.2000 and
has been got adjourned by the petitioner on one ground or other. The petitioner also died during the
pendency of review petition and his legal representatives were substituted in his place.
10. The respondent had filed the eviction petition on 20.9.1995 on the ground of his bona fide requirement,
contending that petitioner is a tenant in respect of two rooms, one kitchen and bathroom on the ground floor
of property No. 6779, Ward No. XV, Mohalla Nabi Karim, Pahar Ganj, New Delhi and he is the owner and
the premises was let out for residential purposes and is required bona fine by him. As he was in occupation
of only one room on the first floor of his father?s property at 8977, Naya Mohalla, Pul Bangash, Delhi he
required the demised premises for himself and his family members dependent upon him which included his
wife and two unmarried daughters. The leave to defend application was filed on 28.11.1995 and the reply
was filed by the respondent to leave to defend application on 25.1.1996. On the date the reply to leave to
defend application was filed, the respondent had not sold the property of his father where he was in
occupation with his two brothers at Pul Bangash and, therefore, this fact about the sale of property at Pul
Bangash could not be incorporated in reply to leave to defend as the property was sold on 16.9.1996 much
after filing the reply to leave to defend application.
11. After consideration of respective pleas the Additional Rent Controller dismissed the application for
leave to defend and passed an eviction order under Section 14 (1) (e) of Delhi Rent Control Act, 1958.
Against the said order the petitioner filed the revision petition and while dismissing the revision petition,
the arguments advanced by the petitioner were considered. While deciding the revision petition of the
petitioner, the fact pertaining to sale of property at Pul Bangash was also considered and considering that
the said property had been sold, it was held that the requirement of the respondent in respect of himself, his
wife and one unmarried daughter and one married daughter is not extinguished. The Court considered the
requirement of the respondent as bona fide and in the circumstances the revision petition was dismissed.
12. This is no more res integra that subsequent facts can be considered by the Court especially when the
petitioner has been able to delay the disposal of his review petition by one means or others by taking
adjournments on different dates. During this period, if the respondent had to sell even the house at Vishnu
Garden, which was purchased by the respondent in the name of his wife and his brother on account of
illness of his wife Smt. Daljeet Kaur who was suffering from cancer, the sale of the property at Vishnu
Garden and the respondent moving to a rented premises cannot be termed mala fide, nor the subsequent
facts have erased the requirement of the respondent for himself and his family members or these
subsequent events disclose such facts which will disentitle him from an order of eviction.
13. The petitioner while filing the application for review on 6.1.2000 had contended that he came to know
recently about the subsequent facts, however, he did not disclose the date when he came to know about the
subsequent events about the sale of the property by the respondent alongwith his two brothers at Pul
Bangash. In any case the fact pertaining to sale of property at Pul Bangash was raised before this Court on
6.8.1999 when the revision petition of the petitioner was considered and dismissed. The petitioner in his
application for review has relied on the acquisition of another house at Vishnu Garden which is a house
constructed on a plot of 40 sq. yards, which was purchased by the respondent in the name of his wife and
his brother on 26.11.1996. As to when the petitioner came to know about this fact has not been disclosed in
the application for review of order dated 6th August, 1999. If the petitioner is seeking review of the order
passed on 6.8.1999 dismissing his revision petition, he was liable to make out a case when he filed the
application for review on 6.1.2000 that he could not be aware of the acquisition of another property by the
respondent on 26.11.1996 earlier.
14. In the present case, since the respondent was to disclose that the property at Pul Bangash has been sold
on account of financial necessities and another house at Vishnu Garden has been acquired, the review
petition of the petitioner is not rejected on the ground that it was filed after the period of limitation expired
for getting the order of dismissal dated 6.8.1999 reviewed, however, all the subsequent events contended by
the parties are considered.
15. Considering all the facts in the proper prospective it cannot be inferred that there has been such nondisclosure
of relevant and material documents which would amount to fraud because of which the eviction
order passed in favor of respondent is liable to be set aside. The respondent was having one room in the
house at Pul Bangash, where he was a co-owner with his two brothers and where he had only room. On
account of extreme paucity of accommodation and financial hardship, that property had to be sold. The
other house which was purchased from consideration of the sale of the house at Pul Bangash was also
having a very small residential accommodation compared to his requirement which also he had to sell on
account of financial hardship which the petitioner faced on account of his wife suffering from cancer, who
ultimately died and because of which he even had to sell the property at Vishnu Garden also and had to
shift to a tenanted accommodation. These are subsequent facts and are being considered by the Court and
because of these subsequent events, it can not be inferred that the respondent has committed a fraud
because of which the eviction decree passed against the petitioner would be liable to be set aside. The
subsequent events also do not disclose such facts which will disentitle the respondent from an order of
eviction which has already been passed in his favor.
16. The Judgments relied on by the petitioner S.P.Chengalvaraya Naidu (Supra) is distinguishable from the
facts of the present case. In that case a suit was filed by the respondent without disclosing the deed of
release executed by him relinquishing his rights in the property and he had obtained a preliminary decree
for partition. Since the respondent had relinquished the rights in a property he could not seek partition of a
property in which he did not have any right and in the circumstances on account of non-disclosure of facts
which would have disentitled the respondent to get any decree, the preliminary decree obtained by the
respondent was set aside on the ground of fraud. In Chander Shashi (Supra) it was held that anyone who
takes recourse to fraud and deflects the course of judicial proceedings and the same interferes with the
administration of justice, such persons are required to be properly dealt with not only to be punished for the
wrong done but also to deter others from indulging in similar acts which shake the faith of people in the
system of administration of justice. This was observed by the Apex Court on account of false, forged and
fabricated documents produced to obstruct or defeat justice and the contempt proceedings were initiated
against such person. Apparently, the case relied on by the petitioner are distinguishable. The petitioner had
to sell his father?s property where he was a co-owner with his two brothers and where he had only one
room on account of various factors which fact has been considered at the time of disposal of the revision
petition and the fact pertaining to the sale of said property could not be incorporated in the reply to leave to
defend application filed on 25.1.1996 because by that time the property had not been sold which was sold
subsequently on 16.9.1996. In the circumstances on this account it cannot be inferred that there has been
any fraud committed by the respondent because of the time taken in disposal of the eviction petitions even
on the ground of bona fide requirement. The non-disclosure of the fact that the property at Vishnu Garden
has also been sold by the respondent on account of illness of his wife, who was suffering from cancer who
died subsequently and shifting of the respondent to a tenanted premises will not be such a non- disclosure
so as to tantamount to a fraud in the present facts and circumstances.
17. The ratio of the cases relied on by the petitioner are distinguishable. It is no more res integra that
decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio
and not every observation found therein nor what logically follows from the various observations made in
it. The ratio of any decision must be understood in the background of the facts of that case. It has been said
long time ago that a case is only an authority for what it actually decides, and not what logically follows
from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in
the precedential value of a decision. Circumstantial flexibility, one additional or different fact may make a
world of difference between conclusions in two cases. The Supreme Court in Bharat Petroleum Corporation
Ltd and Anr. v. N.R.Vairamani and Anr., AIR 2004 SC 778 had observed:- `` Court should not place
reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor
as provisions of the statute and that too taken out of their context. These observations must be read in the
context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes.
To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into
lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as
statutes.
18. The petitioner while contesting the eviction petition by filing leave to defend application apparently
took incorrect pleas that the property, which was owned by the respondent with his brothers, had been
devised by his father to someone else by a will and besides the property of respondent?s father at Pul
Bangash where he was in occupation of only one room with his other three brothers, there is another
property at Pul Bangash owned by the respondent without giving the particulars thereof.
19. The application for review was also filed by the petitioner on 6.1.2000 and he has been able to delay the
disposal of the same by seeking adjournments and by other methods. The application for review was also
dismissed in default, however, subsequently it was restored.
20. The facts as has been disclosed by the respondents in reply to the averments made in the application for
review by his affidavit dated 28.10.2005 have not been refuted by raising such pleas on the basis of which
eviction order passed in favor of respondent and approved by this Court by dismissal of the revision
petition of the petitioner, will be liable to be reviewed. Even on account of subsequent facts, which can be
taken into consideration, it cannot be inferred that bona fide requirement of the respondent and family
member has extinguished. The respondent requires one room for himself, one room for his unmarried
daughter and a room even for his married daughter besides one drawing room. The respondent is living in a
tenanted premises with his unmarried daughter and his wife who was suffering from cancer has died
because of her illness the respondent had to sell his house and move to the rented accommodation and a
copy of the rent agreement has been produced by the respondent.
21. In the circumstances even on the basis of subsequent facts, the bona fide requirement of the respondent
has not extinguished and there are no grounds to review the order dated 6.8.1999 dismissing the revision
petition of the petitioner against the order of eviction dated 6.3.1997 passed by the Additional Rent
Controller against the petitioner on the ground of bona fide requirement on account of subsequent facts.
22. The petitioner has sought review of the order on the ground that there is a mistake apparent on the face
of record in considering the ratio of the judgement cited by the petitioner being Precision Steel Engineering
Works and another vs. Prem Deva Niranjan Rana Tayal AIR 1982 SC 1518; that the impugned order does
not disclose that any effort had been made to show that justice was done to the petitioner as the contentions
of the petitioners in his affidavit seeking leave to defend and contest the Eviction Petition have not been
considered properly; that while deciding the application for leave to defend the Court should have confined
only to the facts placed by the petitioner before the court in the form of an affidavit.
23. It is well settled that review of an order cannot be exercised as an ?appeal in disguise?. A distinction
has been drawn between a review of an order and an appeal and that there is no overlapping between the
two. A review can be filed only when there is an error apparent on the face of record. In
MANU/SC/0705/1999 Ajit Kumar Rath v. State of Orissa and Ors it was held that the power to review is
not an absolute power and is circumscribed by the restriction indicated in Order 47 of the Code of Civil
Procedure. Such power can be exercised on account of some mistake or error apparent on the face of the
record or for any other sufficient reason. A review cannot be sought merely for fresh hearing or arguments
or correction of an erroneous view taken earlier. The power of review can be exercised only for correction
of a patent error of law or fact which stays in the face without any elaborate argument being needed for
establishing it. In the case of Parsion Devi and Ors. v. Sumitri Devi and Ors. MANU/SC/1360/1997 the
Supreme Court has held as under: `` It is well settled that review proceedings have to be strictly confined to
the ambit and scope of Order 47 Rule 1 CPC. Under Order 47 Rule 1 CPC a judgment may be open to
review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not
self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent
on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be
reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be
allowed to be an appeal in disguise. An error which is not self evident and has to be dictated by a process of
reasoning can hardly be said to be an error apparent on the face of the record.
24. The concept of finality of judgment has to be enforced with its normal rigor. If the practice adopted by
the applicant in the present case, is permitted to grow, it will amount to undermining the concept of finality
as in every case, the party who is not satisfied with the order, would seek a rehearing of the matter in the
disguise of review. Merely because a party is not satisfied with the order of the court or it is possible to take
another view on reasonable interpretation on law and facts, would by itself be no ground for review of a
judgment/order. The petitioner wants reconsideration of facts disclosed by him on the basis of ratio of Prem
Deva Niranjan Rana Tayal AIR 1982 SC 1518. He wants that the order of Additional Rent Controller
declining leave to defend to him and passing an order of eviction against him be reconsidered as justice has
not been done to him and contentions raised by him in leave to defend application has not been considered
properly. The petitioner is entitled for fresh arguments or fresh hearing. The errors alleged by the petitioner
are not self evident and has to be detected by a process of reasoning which is not permissible and which can
not be resorted to in the facts and circumstances. Therefore, there are no grounds for the review of order
dated 6th August, 1999 dismissing the revision petition of the petitioner against the order of eviction
passed against him.
25. Therefore, in the present facts and circumstances the application of the petitioner for review of an order
dated 6.8.1999 is dismissed. Since an eviction order was passed against the petitioner on 6th March, 1997
which was confirmed in the revision petition by order dated 6th August, 1999 the petitioner shall be liable
to be restored the vacant possession of the premises comprising of two rooms, one kitchen, bathroom on the
ground floor in property No. 6779, Ward No. XV, Mohalla Nabi Karim, Pahar Ganj, New Delhi as detailed
in the eviction petition to the respondent forthwith. However, considering the facts and circumstances,
parties are left to bear their own costs.
Sd./-
May 14, 2007 ANIL KUMAR, J.
