Yogeshwar Dayal, J.
(1) This second appeal is directed against the order of the learned Rent Control Tribunal dated 26th February, 1983 whereby the learned Rent Control Tribunal affirmed the order of the Vth Additional Rent Controller, Delhi, dismissing the objections filed by the appellant/tenant to the application under Section 21 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') for delivery of possession.
(2) The premises in dispute namely C-2/274, Vivek Vibar, New Delhi, were let out by the respondent to Sb. Virender Kumar Bhatnagar for residential purposes for a period of two years under the provisions of Section 21 of the Act by an order of the Court dated 29th April, 1978. This order of the Court passed on an agreement between the parties dated 25th April, 1978. The application for permission to let for residence of the aforesaid premises for two years was filed on 28th April, 1978 and the statement of the parties were recorded by the learned Additional Rent Controller and the aforesaid permission was granted for letting. The agreement itself was registered on 29th April, 1978. The lease agreement itself recites that 'it is being let for residential purposes and for no other purpose'. The agreement also contemplates that 'the lessee shall not misuse the premises in contravention of the bye-laws of the D.D.A., Municipal Corporation of Delhi or any of other authority'.
(3) The application for permission itself was supported by the agreement dated 25th April, 1978.
(4) The application under Section 21 for permission to let the premises stated that the premises are located in a locality which is not fully developed. There are no medical and educational facilities in the area and the children of the landlord are at present studying in New Delhi near Palam. The locality is expected to be developed within a period of two years and then the landlord would shift to the premises in question and would require the premises for his personal residence.
(5) In view of this application, the trial Court recorded the statement of the landlord as also of Sh. Virender Kumar Bhatnagar. The statement contemplated that the premises were being let out for residential purposes for a period of two years. Sh. Bhatnagar, who also appeared before the Rent Controller made a statement on solemn affirmation that he had heard the statement of the landlord and that he has no objection and that the agreement dated 25th April, 1978 (Ext.A-2) is correct.
(6) After the period of two years expired, on or about 5th May, 1980, the respondent/landlord filed an application stating inter alias that the premises were let out under Section 21 of the Act and the tenant had failed to vacate and was called upon to deliver possession.
(7) On this application for delivery of possession being served on the tenant, he raised the usual objections which are now a days being taken to the letting under Section 21 of the Act to the effect that the landlord committed fraud on the court ; that the landlord committed a fraud on the tenant ; that the landlord does not require the premises in dispute ; that the premises were let for running a school and the school called St. Vivekanand School is running in the premises ; that the rent is exhorbitant ; that the letting was done under Section 21 of the Act to avoid the fixation of standard rent and that Section 21 of the Act was not applicable and the Controller passed the mindless order. I am giving only the substance of the objections.
(8) The landlord filed the reply to these objections and submitted that there was no fraud on the Controller ; that a definite period of letting was mentioned ; that the purpose of letting was mentioned and, thereforee. Section 21 of the Act was applicable and the Controller gave the permission for letting after applying his mind to the fact of the case and it cannot be called as mindless order.
(9) To this reply the tenant filed the replication and lot to documents. The trial Court thought it fit to have the objections determined after recording evidence of the parties.
(10) The evidence of the objector was fixed before the trial Court on 20th March, 1981. On that dated the appellant/objector examined one witness but the appellant could not be examined as he was not present and the case was adjourned to 3rd April, 1981. Ultimately the case was again adjourned to 15th May, 1981 as the Presiding Officer was not available on 3rd April, 1981. The case was again adjourned to 31st July, 1981 as the lawyers were on strike on 15th May, 1981. On 31st July, 1981 the case was adjourned to 14th August, 1981 on request on behalf of the appellant/objector. The trial Court ultimately fixed it for evidence of the appellant objector for 20th November, 1981. On 20th November, 1981 neither the cousel for the objector nor the objector himself or any witness no his behalf appeared and after waiting, the learned trial Court closed the evidence of the objector/appellant. The appellant on the next date filed an application for recalling the order dated 10th November, 1981 staling inter alias that the cousel for the appellant came to know at about 1.15 p.m. about the closing of the evidence and stated that be was busy in High Court.
(11) To this application for another opportunity being given for leading evidence, it was stated in the reply that there was no agreement for postponement of case. On the contrary it was pointed out that the tenant's counsel had told the landlord that he was interested in taking a date.
(12) The case of the tenant was that even the witnesses were present but this fact was also denied. The learned trial Court, however, after reconsidering the whole matter again declined to grant any further opportunity to the objector and held that it is very surprising that the witnesses who were supposed to attend the Court were not present in Court and no affidavit has been filed of any of the witnesses who were alleged to be present. Even the names of the witnesses who were sought to be examined were not disclosed in the affidavit. He in fact disbelieved the entire version of the objector in seeking another opportunity. He felt that there was no sufficient ground for setting aside the order dated 20th November, 1981. After considering the material brought on the record, the learned trial Court took the view that no case has been made out for sustaining the objections. The learned trial Court also took the view that in view of the decision of this Court in C.M. (Main) No. 5 of 1982 N.S. Parthasarthy and another v. Smt. Padmini Devi dated 23rd April, 1982 and reported as 1982 (22) Dlt 48, the objections were also not maintainable. It was pointed out that the terms of the agreement are contained in a registered document and those terms specifically contemplate the letting out for residential purposes only and no document was being pleaded which may vary the term of the written agreement and thereforee, no oral evidence in the face of the written agreement duly registered could be entertained. Such oral evidence could not be permissible in evidence.
(13) It also took the view that it cannot be said that the order dated 28th April, 1978 whereby the property was let out could be called mindless order within the meaning of Noronah's case reported as S.B. Noronah v. Prem Kumari Khanna : : 1SCR281 .
(14) Mr. Munjal, learned counsel for the appellant, made two submissions:
(I)that the trial Court was wrong in closing the evidence of the appellant in due hurry ought to have given a fresh opportunity to the appellant to lead evidence ; and (ii) that the case satisfies the tests laid down Noronah's case (supra) and, thereforee, the objections are maintainable.'
(15) It may be noticed that the trial Court again declined to give a fresh opportunity even when approached by a specific application. The learned Tribunal also found that the trial Court was right in closing the evidence and was also right in declining another opportunity which was approached for on behalf of the objector.
(16) It will be noticed that on the first date which was fixed for evidence, only one witness was present and was examined. Even the objector was not present on that date. On 20th November, 1981 neither any witness nor the objector was present leaving aside the counsel. No witness had been summoned either for that date. It appears that the only attempt of the objector was to take as much time as possible in collusion with his counsel. A counsel, who had taken a date for evidence, has no business to be absent. The dates are fixed months in advance. He had full notice of it. He had no right to accept brief in any other court on that date. Only because the courts sometimes accommodate the counsel, the counsel think it as a matter of right.
(17) It is well known in Delhi that before the Controllers normally six months dates are given for evidence. The application for delivery of possession was filed as far back as 5th August, 1980 and only one witness had been examined that too was inconsequential witness.
(18) Both the courts were satisfied that the application made by the objector for re-opening the case was not based on correct facts. thereforee, in second appeal, I am not inclined to disagree with the observations made by the trial Court and by the learned Tribunal and also feel that an attempt was made somehow to prolong the pendency of these objections so that warrants of possession could not be issued.
(19) It was observed in Noronah's case that the purpose of Section 21 of the Act was 'no one will part with possession because the lessee will become a statutory tenant and, even if bonafide requirement is made out, the litigative tiers are so many and the law's delays so tantalising that no realist in his senses will trust the sweet promises of a tenant that he will return the building after the stipulated period.' It was because of these reasons that Section 21 was enacted and today the position is that this section has been rendered completely ineffective by misunderstanding the judgment of Krishna lyer, J. in Noronah's case (supra) I had an occasion to analyze the aforesaid judgment of the Supreme Court in the decision reported as N.S. Parthasarthy v. Smt. Padmini Devi (supra) , and I am informed that the Special Leave Petition against the said order was also dismissed by the Supreme Court.
(20) It will be noticed that Noronah's case was a peculiar case on ifs own facts. It was a case where the property was let four times to the same person under Section 21 of the Act. On first three occasions it was for non-residential purposes spectifically, namely for running of a school. It was the 4th agreement under Section 21 of the Act which was for residential purposes though the same school was still continuing for which the permission was given under Section 21 of the Act. It was in these circus stances Krishna lyer, J. took pains in pointing out the duty of the Rent Controller before granting of permission and also pointed out the essential requirements before the grant of permission by the Controller.
(21) Both the Controller and the Rent Control Tribunal have given concurrent views that those conditions as spelt out in Noronah's case were complied with before the permission to let the premises in dispute was granted by the learned Additional Rent Controller under Section 21 of the Act.
(22) After the first stage of permission under Section 21 of the Act we come to the next stage, which is a crucial for decision of the present case. What is the scope of inquiry when after the period for which the tenancy was created has expired, the landlord applies for possession Is the Controller at that stage sitting as a court trying a regular suit which seeks to challenge the initial order as being vitiated by fraud or is competent to exa the it as an executing court who is executing its order after the expiry of the lease for which permission had been granted As I have noticed in N.S. Parthasarthy's case, this question was again answered by Krishna Iyer, J. in paragraph 23 of the aforesaid judgment wherein it is observed :
'WE make it clear that the Controller is concerned with delivery of possession at the expiry of the lease of 1975 and he will, thereforee, examine the position with reference to that lease only. The appellant- tenant urged a further contention that because there was fraud, the Court could not assist the party in fraud even if both sides were involved in fraud. He invoked the doctrine of in pari delicto potior est condition defendant is. We are not inclined to examine these contentions but leave it open to the executing court to go into such pleas as are permissible at the execution stage, beyond that he has no jurisdiction but within that he has a duty to decide.'
(23) In fact the order granting permission under Section 21 of the Act is a composite order i.e. granting the permission as well as passing of an executable order for ejectment after the expiry of the period of lease, permission for which is being granted.
(24) Shah, J. speaking for the Supreme Court in Vasudev v. Dhanjibhai Modi v. Rajobhai Abdul Rehman and others : : 1SCR66 observed in paragraph 6 of the judgment as under :
'A Court executing a decree cannot got behind the decree between the parties or their representatives; it must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.'
(25) It will thus be noticed that the ground on which the decree in that case was being attacked in executing Court was that the Court had no jurisdiction to pass it.
(26) It will also be noticed that the present case was a case of first letting of a newly built residential bungalow on a lease granted by the D.D.A. for residential purposes. The landlord himself is a government servant, who, I am also informed, had suffered a decree for eviction from his tenanted premises for having built the disputed house for residential purposes.
(27) In the present case both the parties signed a lease deed which was registered and yet we have the objector who has cheeks to tell the court that he did not know the terms and that he was made a fool. It is high time that these types of surgery in court are nipped in the bud. In no case any latitude can be given in such surgery. The tenant was Sh. Virender Kumar Bhatnagar who is supposed to be a Patron of a school and that school is alleged to be running in the premises. No payment was even alleged to be made to the landlord by any such school towards payment of rent. Rent has throughout been paid by Sh. Virender Kumar Bhatnagar.
(28) Mr. D.D. Chawla, learned counsel for the respondent has taken a preliminary objection that the appeal itself was not duly constituted as the certified copy of the judgment of the trial Court has not been filed till today nor there is any Explanationn in this behalf and cites numerable judgments of the Punjab High Court and this Court in this regard.
(29) I, however, need not go into this preliminary objection since the appeal itself is being decided on merits.
(30) There is thus no merit in the appeal. The same fails and is dismissed with costs. The costs are assessed at Rs. 1,000.00 . The appellant is however, granted time to vacate the premises by 30th April, 1985.