Judgment:
Jaspal Singh, J.
(1) The respondent before me admits to be a tenant in the premises. He, however, claims that agreed rate of rent is Rs 50.00 p.m. though petitioner alleges that it is Rs. 500.00 p.m. They are crossing swords on yet another issue. The petitioner says that respondent has been in arrears of rent w.e.f February, 1985 while the respondent has taken the stand that he has paid rent up to Feb. 1988 and thereafter had been depositing the same u/S. 27 of the Delhi Rent Control Act (the Act). What, however, is not disputed is that the petitioner served a notice of demand and thereafter filed a petition for eviction of the respondent u/S. 14(1)(a) of the Act.
(2) The Arc accepted the stand taken by petitioner and passed an order u/S. 15(1) of the Act @ of Rs. 500.00 p.m. with effect from Feb. 1988. The respondent preferred an appeal. The R.C. Tribunal varied the order and directed payment of rent @ of Rs. 50.00 p.m. It was thereafter, the turn of the petitioner to find the order unpalatable. Hence this CM(M) petition.
(3) The learned counsel for the petitioner submits that as he had filed before the court as many as 10 counter-foils of rent receipts duly signed by the respondent showing the agreed rate of rent to be Rs. 500.00 p.m. and as with the consent of the respondent those counter-foils had been sent to the Central Forensic Science Lab. for opinion of handwriting expert which had opined that the signatures on those counter-foils of rent receipts were in the handwriting of the respondent thereforee, Tribunal ought to have held the agreed rate to be Rs. 500.00 p.m. He has also leaned heavily on a reply dated 30.1.91 sent by respondent through his counsel to one of the notices of the petitioner. It is claimed that the said reply contained an admission that the rent agreed to was Rs. 500.00p.m. The particular sentence extracted from that reapply and to which my pointed attention was drawn runs :
'IT is right that my client is a tenant at the rate of Rs. 500.00 per month. He is a tenant at the rate of Rs. 50 per month.'
(4) On the other hand it is argued on behalf of respondent that petitioner (?) had never been issued any rent receipt, that the counterfoils placed on the record are pure fabrications and that they do not bear the signatures of the respondent. As per the learned counsel for the respondent the house tax of the premises js being assessed keeping in view the rate of rent as Rs. 50.00 p.m. and in support my attention has been drawn to the survey report prepared by the officials of the Mcd which records the rent of the premises to be Rs. 50.00 p.m. My attention has also been drawn to one of the notices admittedly issued by the petitioner to the respondent. It is dated 22.2.88. The submission is that had the respondent been in arrears of rent the petitioner would certainly have claimed the same through it. I may clarify that by the said notice petitioner asked respondent to vacate the premises and threatened legal proceedings in case peaceful vacant possession of the premises was not delivered to him within one month of the service of the notice. it was nowhere asserted therein that the respondent was also in arrears of rent. As per the learned counsel for the respondent it was in fact, the respondent who, in response to that notice had alleged that the agreed rate of rent was Rs. 50.00 p.m. and that rent receipts were not being issued and that it was only thereafter, as a counter-blast, that the notice of demand was issued and proceedings instituted.
(5) The submissions as detailed by me above do present the entire canvass and depict the stand taken by the parties pitched against each other. Has the learned Tribunal gone wrong in assessing the scenario This is the question which stares at me and craves for an answer.
(6) As far as the report of the handwriting expert is concerned, undoubtedly it is there but then it has not so far been tested on the anvil of cross-exam. The court cannot allow the petitioner to take its advantage before the respondent has even exercised his legal right to test its authenticity, veracity and correctness. The scale cannot be allowed to tilt in such a manner. This much, for the present, with regard to the opinion of the expert. I, however, do agree that it was rather premature for the learned Tribunal to debunk the opinion of the expert as of hardly any worth.
(7) True, the counter-foils of the rent receipts are there. But then they have not been admitted by the other side. He denies having put his signatures on them. He debunks them as fabrication. It is a stand which cannot be said to be an after-thought. Much before the filing of the petition-nay much before even the issuance of (he notice of demand, the respondent had asserted that the agreed rate of rent was Rs. 50.00 p.m. and that no rent receipt was being issued. He can ill-afford to ignore it. That is, probably, why the learned Tribunal also found himself unsaved by the presence of those counter-foils. I, with respect, join my voice of assent. More so because the survey report of the Mcd shows that the tenant had all along been asserting the agreed rate of rent to be Rs. 50.00 p.m.
(8) Coming to the so-called admission in the reply of the respondent to the petitioner's notice; less said the better. A bare persual of the sentences extracted above from the said reply would show that in reality the first sentence is the result of typographical mischief. The next sentence : 'He is a tenant at the rate of Rs. 501- p.m.' makes the position clear. Admission, to make itself worthy of reliance, must be clear and unambiguous. Here there is no admission and even if it may be taken to be one, it stands self-condemned in the very next breath.
(9) The learned counsel for the petitioner submitted that the Tribunal had totally ignored Pritam Dass vs. Kumari Jiva Rani 1981 (2) Rcj 495. His contention was that following the said judgment the Tribunal ought to have, by taking a prima facie view, passed an order u/S.15(1) of the Act at the rate of Rs.500.00 p.m. w.e.f. February 1985. In other words, according to him, the Tribunal had no option but to pass an order on a prima facie view of the matter and since the impugned order was passed not on formation of a prima facie view but on the basis of the admission made by the tenant thereforee the sanctity of the F.B. stood violated. I regret my inability to agree to this contention. True, a dispute raised by the tenant with regard to the rate of rent or even with regard to the period for which the rent is payable would not oust the jurisdiction of the Controller as far as the passing of an order u/S. 15(1) is concerned. It is also true that the Controller has full power to modulate his order keeping in view the kind of evidence put forth before it at the time of the passing of the order. But then the F.B. nowhere lays down that the Controlled must necessarily and forthwith pass an order u/S. 15(1) and hat too by taking a prima facie view of the material placed before it. There may be situations where the Controller may think it desirable, advisable or even necessary not to pass an order u/S. 15(1). The Controller may also, keeping in view the nature of the facts and the material placed before it, defer the passing of an order u/S. 15(1) till the recording of the evidence. Of course, as per the F.B. it is 'open' to the Controller to pass an order u/S.15(1) of the Act on a prima facie view of the evidence. The expression 'open to the Rent Controller' does not and cannot be taken to mean 'incumbent upon the Controller'. Option of course is there but no compulsion. And, that is why the F.B. observed :
'Of course, the Rent Controller may in a given case not pass an order u/S.15(1) of the Act if he feels that the circumstances so warrant.........'
I hope, for one can hope only, this would remove the grievance so expressly ventilated against the Tribunal.
(10) The Tribunal was faced with material which looked hazy. He wanted to be surefooted on a slippery pitch. Keeping in view the nature of the material placed before him, he could defer the passing of the order. He did not, and wisely so. The order is there. What he did is that he based it on the admissions made by the tenant. What is wrong with such an approach Was it not legally permissible
(11) I find no fault with the order. Rather, in the circumstances of the case, I regard it as pre-eminently just and appropriate. I, thereforee, confirm it. However, a word of caution. Nothing said in this order shall be read as an expression of opinion on the merits of the case.