ORDER

P.K. BHASIN, J.

1. This review application has been filed by the unsuccessful appellant-defendant for reviewing the judgment dated 20th December, 2010 whereby the appeal filed by it against the judgment and decree passed by the trial Court in a suit for possession and mesne profits etc. filed against it by the respondent-plaintiff directing its eviction from the suit property, was dismissed by this Court.

2. The facts which only are relevant for the disposal of this review application may be noticed first. The respondent-plaintiff (hereinafter to be referred as the plaintiff) had filed a suit for recovery of possession, mesne profits etc. against the review petitioner/appellant/defendant (hereinafter to be referred as the defendant) inter-alia, in respect of the suit property on the ground that after the termination of its tenancy it had no right to remain in possession of the suit property which was let out to it by the plaintiff in the year 1980. The defendant had contested the suit, inter-alia, on the grounds that the plaintiff had no locus standi to file the suit as it was not the owner of the suit property.

3. During the trial, the defendant had examined one official from the Delhi Development Authority as one of its witnesses and he had deposed that the lease of the land on which the suit property was built had been cancelled in the year 1972 and its formal(symbolic) possession was taken over in the year 1984(as noticed already the suit property was let out to the defendant by the plaintiff in the year 1980). Relying upon that statement of its defence witness the defendant had urged before the trial Court that with the cancellation of the lease of the land by DDA the plaintiff could not maintain the suit for possession etc. The learned trial Court dealt with this submission in its judgment in the following manner:-

8.2. According to the statement of DW-9 Shri Satya Pal Singh, LDC, Land & Building (R),Vikas Sadan, Delhi, the lease was terminated during 1972 followed by appeals or representations in different forums. Fourthly, the Delhi Development Authority has cancelled the Lease Deed of the property and there is a re-entry, as narrated by witness DW-9, therefore, the Delhi Development Authority being a paramount lessor is owner of the property. Since, the Delhi Development Authority has cancelled the lease the plaintiff had no authority either to file the present suit or to issue the alleged notice in the year 1995, as the plaintiff has no locus standi.

8.4(ii) Since, the defendant has been brought in the premises as tenant and the defendant was also paying agreed rent to the plaintiff, therefore, by virtue of cancellation of Lease Deed would not tantamount to be negating the status of the plaintiff as landlord...

. The witness DW-9 also narrates that an appeal is also pending before the Lt. Governor of Delhi in respect of cancellation of Lease Deed, therefore, the circumstances suggest that Delhi Development Authority has not possessed the premises physically. The literal meaning of re-entry, being relied by the defendant is of no avail.

8(v) In view of my analytical discussion on the point 8.4(i) to (iv), above, it is vividly clear that the plaintiff has locus standi to file the present suit.

4. Finally, the suit came to be decreed in favour of the plaintiff and the defendant was directed to vacate the suit property. Feeling aggrieved by the decision of the trial Court, the defendant had filed an appeal before this Court. During the pendency of the appeal the defendant had filed an application under Order XLI Rule 27 CPC(being C.M.No. 9422/09) seeking permission to place on record certain documents which showed that the Estate Officer had already initiated proceedings under the Public Premises(Eviction of Unauthorized Occupants) Act for the eviction of the defendant from the suit property as a result of the cancellation of the lease of the land under the suit property by the Delhi Development Authority, the paramount lessor. In respect of that application this Court had recorded the consent of the counsel for the plaintiff on 21.07. 2009 that those documents could be taken into consideration by this Court while deciding the appeal but without prejudice to its stand that the on-going proceedings before the Estate Officer had no effect on the plaintiffs right to get back the possession of the suit property from the defendant.

5. Before this Court also Shri G.L.Rawal, the learned senior counsel for the defendant had mainly pressed into service the point that as a result of the cancellation of the lease of the land underneath the suit property the plaintiff was left with no right to seek possession from the defendant. That plea was, however, rejected by this Court and the appeal was dismissed vide judgment dated 20th December, 2010.

6. Aggrieved by the judgment of dismissal of its appeal, the review petitioner/appellant filed a Special Leave Petition before the Supreme Court which was disposed of vide order dated 25th April, 2011 which is re-produced below:-

This Court has heard the learned counsel for the parties. The learned counsel for the petitioner seeks permissions to withdraw the Petition with a view to filing review application before the High Court. Permission, to withdraw the Petition, as prayed for, is granted. The Special Leave Petition stands disposed of as withdrawn.

7. Thereafter, the present review application was filed by the defendant wherein it had prayed for the review of the judgment dated 20th December, 2010 passed by this Court dismissing its appeal. It was filed primarily on the ground that even though certain documents were placed on record by the defendant along with an application under Order XLI Rule 27 CPC, referred to already, and those documents showed that the DDA had not only re-entered the suit property but eviction proceedings against the defendant-appellant had also been initiated by the Estate Officer under the Public Premises(Eviction of Unauthorized Occupants) Act, 1971 but still this Court had while dismissing the defendants appeal observed in its judgment that the there was nothing on record to show that eviction proceedings had been initiated against the plaintiff by the Estate Officer. Relevant averments in the review application are re-produced below:-

2 Meanwhile the Estate Officer of Delhi Development Authority started eviction proceedings against both the parties on the premises that since lease hold rights of the Respondent has been cancelled/withdrawn and having lost title as such is not entitled to hold possession constructively and physically and eviction order is sought to be passed. Similarly plea was taken against Petitioner/ review Petitioner that they are liable to be dispossessed as, Respondent has lost lease hold rights from Permanent Lease Holder, i.e. President of India acting through Delhi Development Authority.

3. Show Cause Notice was issued to both the parties from the office of Estate Officer of Delhi Development Authority of the said property in dispute and in response to Show Cause Notice both the parties filed their respective replies. The review Petitioner took a plea before the Ld. Estate Officer that they are ready and willing to pay rent to Delhi Development Authority attorney to the Delhi Development Authority as its lessor/landlord and that possession of review Petitioner cannot be disturbed on this ground also.

4. This Ld. Court was pleased to hear the arguments on various dates and was concluded on 21st July 2009 and by means of Judgment of 20th December 2010 the appeal was dismissed. It is relevant to mention that during the course of hearing of the said appeal before this Ld. Court, Respondent also argued to the pendency of the matter before Estate Officer and the respective replies having filed and even certain documents were placed on record of this Ld. Court.

5. During the course of hearing the review petitioner through their counsel also addressed this Ld. Court on this aspect while submitting therein that eviction proceedings are pending before Estate Officer and said defence have been taken by Appellant/ review Petitioner and if that matter had been considered possibly that fate of the appeal would not have been as held by this Ld. Court.

9. Despite of the aforesaid submissions and even certain documents were placed on record which still form the part of the record of the proceedings of eviction before Estate Officer and was also not disputed during the course of hearing. Whereas this Ld. Court with utmost respect wrongly may be as per oversight on account of lapse of time observed in para 14 of the Judgment that there is nothing on record to show that any eviction proceedings have been initiated against Plaintiff by Delhi Development Authority or that any eviction order has been passed against it by the Estate Officer. Further, it is observed that initiation of eviction proceedings against defendant/ tenant under PP Act cannot come to the rescue since it is a eviction of Plaintiff lease by the title. Paramount. With regard it is submitted that the observation made that no eviction proceedings have been lodged against Plaintiff against record are or there is nothing on record to show accordingly are not correct.What is the effect of lodging eviction proceedings against Plaintiff and holding that there is nothing on record that eviction proceedings are pending against Plaintiff is error apparent to the face of record and the findings are contrary not only to the correct position but material/evidence are available on record whereas the Ld. Court, with utmost respect, has wrongly observed that there is nothing on record or true that Delhi Development Authority has initiated proceedings against Plaintiff. If these facts have correctly been looked into, the fate of the appeal would be otherwise. From the submissions as above said serious error is apparent on the face of the record.

8. In this regard the learned senior counsel Mr. G.L.Rawal drew my special attention to the following observations made by me in para no.14 of the judgment:-

14there is nothing on record to show that actually any eviction proceedings had been initiated against the plaintiff by DDA or that any eviction order had been passed against it by the Estate Officer.

9. Referring to these lines in para 14 of the judgment Mr. Rawal had vehemently argued that if this Court had taken note of the fact that the defendant had placed on record all the documents alongwith its application under Order XLI Rule 27 CPC showing that already eviction proceedings had been initiated by the Estate Officer and if those documents had been noticed the fate of the appeal might have been different.

10. A reply was filed by the counsel for the plaintiff to this review application wherein it was pleaded that:-

2) With regard to para 2 of the application it is admitted to the extent that the Estate Officer of Delhi Development Authority(DDA) has started eviction proceedings against Shri R.P. Kapur. It is denied that the leasehold right of the respondent has been withdrawn and having lost the title as alleged. It is also denied that the respondent is not entitled to hold possession as alleged. It is denied for want of knowledge that any Notice has been issued to the Appellant. In the Notice issued by DDA to the Respondent there is no mention of the name of the Appellant nor has anybody appeared before the Estate Officer in the presence of the representatives of the Respondent. It is submitted that the Appellant if appeared before the Estate Officer is at the back of the Respondent or in the absence of the Respondent. The Appellant has not been given a copy of the alleged reply having being filed before the Estate Officer by the appellant.

4) With regard to para 4 of the reply so far as it is a matter of record and needs no reply and the rest of the para is wrong and the same is denied. This Honble Court has already dealt in detail in the judgment that even if eviction proceedings are initiated under the Public Premises (Eviction of Unauthorized Occupants) Act 1971 would not entitle the tenant to resist the Plaintiff/Landlord prayer for decree of possession after termination of tenancy.

9) With regard to para 9 of the reply it is a matter or record and needs no reply and the rest of the para is wrong and the same is denied. However, this Honble Court has rightly observed in the judgment dated 20th December, 2010 that initiation of eviction proceedings against the Defendant/tenant under Public Premises Act cannot come to the rescue of the Appellant/Tenant and rest of the para is absolutely wrong and hence vehemently denied.

11. In order to find out whether this Court actually committed any factual error which is apparent on the face of the record, as is the grievance of the review-petitioner, it would be appropriate to go to those paras of the judgment sought to be reviewed where the submissions advanced from both the sides on this aspect of the matter were dealt with. Those paras are re-produced below:-

9.The first ground of challenge put in the forefront by Mr. Rawal, learned senior counsel for the appellant, was that the perpetual lease in respect of the land underneath the building which was let out to the defendant having admittedly been cancelled way back in the year 1972 and the premises re-entered also(symbolically) in the year 1984, as had been confirmed during defendants evidence by the official from Delhi Development Authority examined by the defendant as DW-9, the plaintiff could not have been given a decree of possession in respect of the property which belonged to the Government. In support of this submission Mr.Rawal drew my attention to the cross-examination of PW-1 Shri R.P.Kapoor, who was the karta of plaintiff, R.P.Kapoor(HUF), and also the defendants landlord, where he had admitted that the lease of the premises in suit had been cancelled by the DDA on account of misuse. My attention was also drawn to the evidence of defence witness DW-9, an official from DDA, who had deposed that the lease of the premises in question stood cancelled in the year 1972 but later on the Lt. Governor had restored the same on certain conditions but since the plaintiff had not fulfilled those conditions the termination of the lease was maintained by the Lt. Governor and formal possession was taken over by the Junior Engineer on 13/07/84 and eviction proceedings were ordered to be initiated by the Estate Officer under the Public Premises(Eviction of Unauthorised Occupants) Act,1971. Mr. Rawal contended that even though physical possession of the premises was not taken over from the plaintiff but for all practical purposes it stood taken over from the plaintiff and the defendants possession became the possession under the paramount lessor and so the trial Courts view that since physical possession had not been taken over by DDA the plaintiff could get a decree of possession was not legally correct. It was also contended that the trial Court had placed reliance on some judgments on the principle of estoppel embodied in Section 116 of the Evidence Act where the tenanted premises had not been re-entered by the paramount lessor, as is the position in the present case, and so those judgments had no application and had been wrongly relied upon by the trial Court while coming to the conclusion that the defendant was estopped from challenging the title of the plaintiff because of it having admitted that it had been let out the premises in dispute by the plaintiff...

10. On the other hand, learned counsel for the plaintiff contended, since the physical possession of the premises in dispute had not been taken over by DDA till date the right of the plaintiff as a landlord to seek possession of the tenanted premises from the tenant does not get extinguished.. .....

11. Mr. Rawal also argued that now in the year 2007 the Estate Officer had served a notice upon the defendant-appellant to show cause as to why it should not be evicted from the premises in dispute being in unauthorized occupation of the premises belonging to and under the management of the Government and its copy had been placed on record alongwith an application dated 11th July,2009 under Order 41 Rule 27 CPC and the counsel for the respondent had on 21st July,2009 consented that that document could be considered by this Court while deciding this appeal. So, even this development has to be taken note of by this Court, contended Mr. Rawal, as a subsequent event taking place during the pendency of this appeal.

14. In my view, the mere fact that the Delhi Development Authority had cancelled the lease in respect of the land underneath the premises in dispute in the year 1972 because of misuser and had also ordered initiation of eviction proceedings against the plaintiff-landlord under the Public Premises(Eviction of Unauthorised Occupants) Act, 1971 in the year 1984 that would not entitle the defendanttenant to resist the plaintifflandlords prayer for a decree of possession after termination of its tenancy since there is nothing on record to show that actually any eviction proceedings had been initiated against the plaintiff by DDA or that any eviction order had been passed against it by the Estate Officer. The initiation of eviction proceedings against the defendant-tenant under the Public Premises(Eviction of Unauthorised Occupants) Act in the year 2007 cannot come to its rescue since it is the eviction of the plaintifflessee by the title paramount i.e. Delhi Development Authority which would have made the difference as far as the plaintiffs right to claim possession from the defendant is concerned. In this regard a useful reference can be made to a judgment of the Supreme Court in Vashu Deo vs. Balkishan reported as (2002) 2 Supreme Court Cases 50 [LQ/SC/2002/31] in which the facts were that the tenant of the disputed shop had sublet the same and because of that subletting the landlord, which was a Trust, had initiated eviction proceedings against the tenant. The tenant had also initiated separate proceedings against his sub-tenant for eviction on account of non-payment of rent for some period. The sub-tenant had attorned directly in favour of the owner-Trust and a direct tenancy agreement had also been executed between them. The sub-tenant had resisted the eviction petition filed against him by his landlord on the ground of his having attorned directly in favour of the superior lessor i.e. the owner Trust. Accepting that plea, the trial Court dismissed the eviction petition. However, the High Court held that the sub-tenant could not have directly attorned in favour of the Trust and eviction of the tenant was ordered. The sub-tenant then approached the Supreme Court but his appeal was dismissed and it was observed that mere institution of a suit for eviction by the Trust against its tenant will not amount to eviction of the tenant by title paramount and that the relationship between the Trust and its tenant would not come to an end unless and until the eviction case filed by the Trust was decreed and that decree had attained finality. In the present case, as noticed already, there is nothing on record to show that DDA had initiated any proceedings for eviction of the plaintiff under the provisions of the Public Premises(Eviction of Unauthorised Occupants) Act and so there is no question of eviction of the plaintiff by title paramount. Consequently, the defendant was estopped from contending that after creation of the tenancy with the plaintiff its title to the premises in dispute had extinguished because of its eviction by title paramount....................................... I am, therefore, of the view that the learned trial Court had rightly rejected the plea of the defendant that the suit for possession was not maintainable because of the cancellation of the lease in respect of the land underneath the premises in dispute in favour of the plaintiff by DDA.

12. After giving my thoughtful consideration to rival submissions I find no merits in this review application as there is no error apparent on the face of record. The crux of the discussion leading to the dismissal of the appeal was that since no eviction order has been passed in the proceedings initiated by the Estate Officer, much less the same attaining finality, the plaintiffs right to claim possession of its property from the defendant had not extinguished in view of the legal position laid down by the Honble Supreme Court in Vashu Deos case (supra). Since, admittedly no eviction order has been passed in respect of the suit property by the Estate Officer the observation made by me in para 14 of judgment dated 20th December, 2010, which according to the defendant/review petitioner constitutes an error apparent on the face of record really does not amount to an error apparent on the face of record justifying review of the judgment date 20.12. 2010.

13. I, therefore, dismiss this review petition.