Delhi District Court
Rajinder Kumar Gupta vs Sh. Devender Kumar Jain on 16 October, 2024
IN THE COURT OF MS. MADHU JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH DISTRICT : RENT CONTROL TRIBUNAL
SAKET COURTS, NEW DELHI
RCT ARCT No.12/2024
CNR No.-DLST01-009800-2024
RAJINDER KUMAR GUPTA
S/O LATE SH. KISHAN LAL GUPTA
R/O N-18, GREEN PARK EXTENSION
NEW DELHI - 110016.
..... APPELLANT
VERSUS
SUSHILA DEVI (DECEASED THROUGH LRs)
SH. DEVENDER KUMAR JAIN
S/O LATE SH. OM PRAKASH JAIN
R/O 12-B, YUSUF SARAI
NEW DELHI - 110016.
..... RESPONDENT
Date of Filing : 27.08.2024
Arguments Heard On : 11.09.2024
Date of Decision : 16.10.2024
JUDGMENT
1. The present appeal under Section 38 of Delhi Rent Control Act, 1958 (hereinafter called as 'the DRC Act' ) has been filed by the appellant challenging the impugned order dated 27.07.2024 passed by learned SCJ-cum-RC, South, Saket vide which learned ACJ has dismissed the application under section 151 CPC filed by appellant (applicant before learned SCJ) for placing subsequent developments on RCT ARCT No.12/2024 Page No.1 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) record.
2. The facts in brief are that an eviction petition under Section 14(1)(e) read with section 25B of Rent Control Act was filed by Sushila Devi Jain through her Power of Attorney Sh. Devender Kumar Jain (respondent herein) against the appellant (defendant before learned trial court) inter alia on the ground that the premises bearing Municipal Ward No.164, Shop No.2 of premises No.12/3, Yusuf Sarai Main Market, New Delhi - 16 (hereinafter referred to as the "said property") was let out to father of appellant and after his demise, the appellant became the occupant and since then the appellant is in occupation of the premises and now the respondent required the said shop for her grandson and even the appellant was not paying the rent of tenanted premises regularly. The petition was duly contested by the appellant herein. Both the parties also led their respective evidence and learned trial court after considering the arguments addressed by both the parties and appreciating the evidence on record vide order dated 06.07.2020 passed the Eviction Order in the petition under Section 14(1)(e) of DRC Act with respect to the said property.
3. After passing of the Eviction Order dated 06.07.2020, a review petition was filed on behalf of the appellant (applicant before the learned trial court). During the pendency of this application, another application under Section 151 CPC was moved on behalf of appellant for RCT ARCT No.12/2024 Page No.2 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) placing subsequent developments on record, which was dismissed by the learned trial court vide order dated 27.07.2024 which is under challenge before this court.
4. The appellant has assailed the impugned order on the grounds that :
i) learned trial court has failed to consider the subsequent developments in relation to death of the petitioner by bequeathing the property in the name of 3rd party ;
ii) learned trial court has also failed to appreciate that after the death of Smt. Sushila Devi on 18.05.2021, Devender Kumar Jain moved an application under Order 22 Rule 3 CPC for his impleadment only as by virtue of Will dated 21.12.2018, the above mentioned shop devolved upon him ;
iii) learned trial court has also not considered that in the application, all other legalheirs other than one admitted the contents of the application thereby admitted that they have no interest in the tenanted premises and also admitted the ownership of said shop in favour of Devender Kumar Jain ;
iv) learned trial court has failed to consider that Sh.
Shubham for whose need the eviction petition was filed is an attesting witness to the Will dated 21.12.2018 and he in collusion with Devender Kumar Jain concealed the fact of execution of Will during the pendency of eviction petition thereby played fraud with the Court ;
v) learned trial court has also not considered that RCT ARCT No.12/2024 Page No.3 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) Devender Kumar Jain who was appearing in the petition as attorney of Smt. Sushila Jain closed his evidence on 29.05.2019 when he had complete knowledge about the contents of Will procured by him from Late Smt. Sushila Jain and even her legal heirs also acted upon the said Will during her lifetime and also got executed various documents ;
vi) learned trial court has also failed to consider that another petition filed by Smt. Sushila Jain with respect to the said property on similar ground of settling her grandson has been dismissed vide order dated 06.07.2020 on the ground of concealment of properties and status of her son ;
vii) learned trial court has failed to appreciate that Sh. Shubham Jain for whose alleged bonafide requirement, the eviction petition was filed, is not the family member of Sh. Devender Kumar Jain and he is also not dependent upon Sh. Devender Kumar Jain ;
viii) learned trial court has also failed to consider that no "right to sue" survives in favour of the respondent Sh. Devender Kumar Jain, who has only been impleaded for pursuing the case and not beyond that ;
ix) learned trial court has also failed to appreciate that when there is dispute of ownership between the parties claiming to be the rightful owners which is affecting the rights of tenants, no eviction petition can be filed against the tenant ;
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x) learned trial court has also failed to consider that eviction of partial tenancy is liable to be dismissed as in the present case, the entire premises was let out to father of appellant i.e. Krishan Lal Gupta and after his death, same has been inherited by his sons i.e. appellant herein and Awdesh Gupta and since their tenancy had not been terminated during his lifetime, both the sons are co-tenants and thus, eviction petition could not be filed separately against both the co-tenants as the tenancy had always been one.
5. The appeal is duly contested on behalf of the respondent but no reply has been filed.
6. Besides filing written arguments, learned Counsel for the appellant argued that after passing of the eviction order dated 06.07.2020, a review application was filed by the appellant as there were subsequent events and development which were required to be considered by the trial court as the same would defeat the eviction petition filed by the respondent Smt. Sushila Devi Jain on the ground of bonafide requirement. Thus, in order to prove the falsity of the case, those facts were material and necessary for the outcome of the eviction petition and accordingly, review petition was filed. Learned counsel further argued that during the pendency of said review petition, it also came to the knowledge of the appellant that respondent Devender Kumar Jain has impleaded himself the only legalheir of RCT ARCT No.12/2024 Page No.5 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) Smt. Sushila Jain as per Will dated 21.12.2018 in the execution proceedings and some of the legalheirs are disputing the Will executed by deceased Smt. Sushila Devi Jain and consequently, another application under Section 151 CPC was filed. However, learned trial court dismissed this application. Learned counsel submitted that in order to arrive at a fair conclusion of eviction petition, it is necessary to bring all those facts on record and thus, the impugned order dated 27.07.2024 be set aside and appeal be allowed. In support of his submissions, learned counsel has also relied upon the following judgments :
a) Koyilerian Janaki Vs. Rent Controller, Manu/SCOR/00016/2000 ;
b) A Piyush Hasmukhlal Vs. International Society, AIR 2015 Orissa 43 ;
c) MM Quasim Vs. Manohar Lal Sharma,
Manu/SC/0473/1981
d) Mangal Builders & Ors. Vs. William Mager
Landlord, SLP No.9616-9617/2015 decided on 06.04.2017
e) Sk Sattar Sk Mohd. Choudhari Vs. Gundappa Ambadas Bukate, 1996 6 SCC 373
f) Jagdish Dutt & Anr. Vs. Sharam Pal & Ors., 1999 3 SCC 644
7. Rebutting the arguments addressed on behalf of the appellant, learned counsel for the respondent argued that RCT ARCT No.12/2024 Page No.6 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) learned trial court has rightly dismissed the application as the matter has already been decided and eviction order has already been passed. It has been submitted that in order to delay the proceedings of execution petition, the appellant is filing one application after another. It has also been submitted that even learned trial court while passing the impugned order dated 27.07.2024 has also observed that appellant has not left any stone unturned to delay the disposal of the review petition by filing frivolous application and consequent to which no effective orders could have been passed in the execution petition filed by respondent. Learned counsel argued that there is no irregularity in the order of the learned trial court and thus, the appeal is liable to be dismissed.
8. I have heard learned counsels for both the sides and also perused the written submissions filed by the appellant. I have also gone through the trial court record.
9. The first question which arises for consideration is whether the appeal is maintainable under Section 38 of DRC Act or not. Needless to say, the present appeal has been preferred against dismissal of the application under Section 151 CPC filed by the appellant before the learned trial court seeking to place on record subsequent development about the death of petitioner and the alleged Will propounded by one legal heir Devender i.e. respondent herein and also filing of possession suit by the Supreme Landlord after filing of RCT ARCT No.12/2024 Page No.7 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) review petition.
10. Before proceeding further, it is pertinent to mention here that in the judgment titled as Ved Parkash Kapur Vs. Harish Chander Rastogi 3 (1967) DLT 341, it has been inter alia held as under :
"(3) The question as to the kind of orders which can be treated as orders under the Act within the meaning of section 38 of the Delhi Rent Control Act, came up for consideration before a Division Bench of the Punjab High Court in the Central Bank of India v. Gokal Chand. After an exhaustive survey of the various authorities having a bearing on the question, Kapur, J. observed as under :-
"Having considered all the judgments on the subject, I am of the opinion that the best guide for interpreting section 38 of the Delhi Rent Control Act, 1958, is provided by the decision of the Supreme Court in Shankar Lal Aggarwal's case and every order made by the Rent Controller either under the express provisions of the Act or under the provisions of the Code of Civil Procedure incorporated into it by virtue of section 37(2) would be appealable provided such an order finally decides a dispute between the parties or deprives a party of a substantial and important right and is not a mere formal or interlocutory order. In other words, every such order would be appealable except merely procedural orders or orders which do not affect the rights and liabilities of the parties."
11. Further, in Vinod Kumar Chowdhry Vs. Smt. Narain Devi Taneja, (1980) 2 SCC 120 it has been observed that the remedy against any order made in eviction petition under RCT ARCT No.12/2024 Page No.8 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) Section 14(1)(e) whether allowing or dismissing any application, shall be by way of revision before the Hon'ble High Court and not by way of appeal under Section 38 & 39 of the Act.
12. The judgment of Vinod Kumar Chowdhry (supra) was thereafter followed by the Hon'ble High Court in R.S. Bakshi & Anr v. H.K. Malhari & Anr, 2001 SCC OnLine Del 1344 , to hold, "even against an order granting leave to defend to the tenant, the remedy of the landlord was in form of a petition under Sub-section (8) of Section 25B of the Act before this Court and not in form of an appeal under Section 38 of the Act.
13. Also, in Central Bank of India vs. Sh. Gokal Chand 1967 AIR 799, the Hon'ble Supreme Court of India had considered the scope of appeal viz-a-viz interlocutory orders and held :-
"The object of s. 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of s. 38(1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are merely procedural Raj Rani & Ors. vs. Kamlesh Kumari and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under s. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document RCT ARCT No.12/2024 Page No.9 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under s. 37(2) is an order passed under the Act and is subject to appeal under s. 38(1) provided it affects some right or liability of any party".
14. Now coming to the facts of the present case. The eviction petition under Section 14(1)(e) of DRC Act has already been decided by the learned trial court vide order dated 06.07.2020. Subsequently, the review application was filed on 28.07.2020 seeking review of the order dated 06.07.2020 on the ground that appellant has come to the possession of certain documents and facts pertaining to the properties of Late Smt. Sushila Devi Jain i.e. petitioner in the eviction petition and her family members. It may be mentioned that this application is still pending adjudication before the learned trial court. During the pendency of this application, another application was filed by the appellant on the ground that subsequent developments took place in respect of supreme landlord and thus, the eviction decree RCT ARCT No.12/2024 Page No.10 of 12 Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs) cannot be executed at all on the basis of these developments, which has been dismissed by the learned trial court vide order dated 27.07.2024 which is under challenge before this court.
15. Learned trial court while dismissing this application has observed that this application has been filed mainly to reiterate the grounds for reviewing the judgment and decree dated 06.07.2020, which have already been outlined in the review petition. Further, the review petition is pending since last four years and appellant in order to delay the disposal of review application, is submitting frivolous applications.
16. As mentioned above, according to Section 38(1) of DRC Act, appeals are intended for orders that directly impact a party's rights or liabilities. The application under Section 151 CPC dismissed by the learned trial court does not affect the rights of the parties because the review application is still pending. Since the review application remains unresolved, any dismissal of a procedural application cannot alter the substantive rights at stake. Moreover, in view of the aforesaid authoritative pronouncements, dismissal of the application under Section 151 CPC, is not appealable and therefore, the present appeal before this Tribunal is not maintainable. Hence, the same is dismissed. However, nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
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17. The judgments relied upon by learned counsel for the appellant does not help the appellant in any manner as the facts and circumstances of the present case have no bearing on the facts and circumstances of those cited in these authoritative pronouncements.
18. A copy of this order along with trial court record be sent back.
19. Appeal file be consigned to record room.
Digitally signed madhu byDate:madhu jain jain 2024.10.16 16:19:07 +0530 Announced in the open court (MADHU JAIN) on 16 October 2024 th Principal District & Sessions Judge, South, Saket Courts, New Delhi RCT ARCT No.12/2024 Page No.12 of 12
Rajinder Kumar Gupta Vs. Sushila Devi (Deceased Through LRs)