PREM CHAND Vs. SUBHASH CHAND SAINI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution assails the order dated 11.11.2010 of Addl. Rent Controller (ARC), Central whereby the review petition of the petitioners herein, as filed under Section 25-B (9) of Delhi Rent Control Act (for short the Act'), for seeking review of the order dated 14.10.2009, was dismissed.

(2.) This petition raises a very short question for consideration of this Court. The petitioners are the tenants in respect of the suit shop.

(3.) So far as the facts regarding another tenant Anil Kumar having been granted leave to defend in respect of the shop, similarly situated as that of the petitioners, and further that the respondents/landlords challenged the same by filing CM (M) 1261/2009 and the same having been dismissed by this Court, is not in dispute. I have gone through the order dated 14.10.2009, whereby leave to defend was declined to the petitioners and also order dated 22.8.2009 of ARC whereby leave to defend was allowed to Anil Kumar. This was clearly a case of discovery of new and important facts by the petitioners that the respondents were in possession of certain additional accommodation. It is not only that the review is warranted only in the case of mistake or error apparent on the face of the record, but under Order 47 Rule 1 CPC, the discovery of new and important matter, which was not within the knowledge of the petitioners or which could not be produced even after the exercise of due diligence, was the recognized ground warranting review. Further, the Court was also empowered to review for any other sufficient reason. The petitioners, instead of choosing to file revision against order dated 14.10.2009, chose to file review under Section 25-B (9) of the Act. But, filing of review does not preclude the petitioner to file revision against the order of 14.10.2009. The petitioner have not chosen to file revision petition under Section 25-B(8) of the Act against that order of 14.10.2009, but has challenged the impugned order as also the order dated 14.10.2009 in the instant petition under Article 227 of the Constitution. Having regard to the entire factual matrix and to avoid miscarriage of justice, I treat this petition as under Article 227 of the Constitution read with Section 25-B(8) of the Act. Having taken note of the fact that leave to defend has been granted to another similarly situated tenant on the ground of availability of some additional accommodation with the respondents, which was not known to or discovered by the petitioners at the time of disposal of their leave to defend application, I am of the view that the order dated 14.10.2009 of ARC has resulted in miscarriage of justice to the petitioners. It is not because of error, mistake or fault on the part of the ARC, but because of the fact of the petitioners having not been able to disclose about the availability of alleged additional accommodation with the respondents. This being a subsequent event having come to the knowledge of the petitioners, notice can be taken of these facts by this Court. Thus, instead of confining to set aside the impugned order and thereby giving partial justice, I am of the considered view that the petitioners can be taken to have raised triable issue with regard to the alleged additional accommodation with the respondents. This aspect cannot be outrightly brushed without giving an opportunity to the petitioners to prove the same and test the bona fide of the respondents. Thus, both the impugned orders whereby leave to defend was declined, as also review petition was dismissed, are liable to be set aside. These are hereby set aside and resultantly, leave to defend is granted to the petitioners in the peculiar facts and circumstances of the case. Both the parties shall appear before the Court of concerned Additional Rent Controller on 13th September, 2012 for further proceedings.