Delhi High Court
Smt. Sarla Aggarwal vs Day Night Couriers Pvt. Ltd. on 16 January, 2004
Equivalent citations: 2004(73)DRJ1
Author: R.C. Jain
Bench: R.C. Jain
JUDGMENT R.C. Jain, J.
1. This Civil Revision under Section 25B(8) of the Delhi Rent Control Act 1958 (hereinafter referred to as the "Act") is directed against the order of the learned Additional Rent Controller, Delhi, dated 2.1.2003 thereby granting leave to contest an eviction petition filed by the petitioner herein.
2. Briefly stated the relevant facts giving rise to the present revision are that the petitioner herein has filed an eviction petition under Section 14(1)(a) of the Act seeking eviction of the respondent-tenant on the ground of bona fide need of the premises for her own use and the use of her family members. The petition was made with the averments and allegations that the petitioner is the owner/landlady of the SFS Flat No. L-382, Sarita Vihar, New Delhi. She has let out a portion of the said flat consisting of Two bed rooms, drawing and dinning, two bathrooms, kitchen and Scooter garage to the respondent for residential purposes at a monthly rent of Rs. 3,300/- per month vide registered rent Agreement dated 1.12.1991 which was duly renewed on 6.11.1995. Both the petitioner and her husband are retired government servants and have a married son, his wife and children and they require the suit premises for their own use and occupation as the house occupied by them at Faridabad is not suitable for residence. It was also averred that the respondent have their own DDA Flat at Hastsal, Uttam Nagar, Delhi. The respondent having been served with special summons, filed an application seeking leave to contest the eviction petition inter alia on the grounds that the need of the petitioner as reflected in the petition is not bona fide as she has sufficient alternate suitable accommodation available at Faridabad in Sector 37 and the application has been filed mala fide with a view to rent out the premises at higher rent. It is alleged that in the month of July or August, 1997, the petitioner has insisted upon the respondent to enhance the rent and threatened him to vacate the suit premises so the respondent was forced to file a civil suit which was, however, ultimately compromised between the parties. It was pleaded that the premises was let out to the respondent for residential-cum-commercial purpose and has been used for the office purpose by the respondent. It is alleged that the petitioner had earlier referred the matter to Arbitrator in June, 2001 with a view to pressurise the respondent to vacate the suit premises. In reply the averments and allegations made in the application were denied and controverter on behalf of the petitioner.
3. Through the impugned order the learned Controller has allowed the application of the respondent and granted him leave to contest the eviction petition mainly on the ground that the existence of relationship of landlord and tenant between the parties was not firmly established and rather it was doubtful in view of certain recitations appearing in the Rent Agreement of 1991, Extension Agreement and the suit filed by the respondent before the Arbitrator. Yet another reason which weighed with the Controller was that the petitioner owns a house at Faridabad and for all intents and purposes is to be treated as a part of Delhi being in close proximity and touches the border of the State of Delhi and, therefore, availability of such accommodation to the petitioner was also relevant and the aspects raised friable issues.
4. I have heard Mr. Rakesh Munjal, Sr. Advocate representing the petitioner-landlady and Mr. N. S. Jain, learned counsel representing the respondent and have given my thoughtful consideration to their respective submissions.
5. Mr. Rakesh Munjal, Sr. Advocate, representing the petitioner seeks to assail the impugned order as patently erroneous on the submission that there existed clear and unambiguous admissions on the part of the respondent about the existence of relationship of landlord and tenant between the parties not only in the present proceedings but also in the previous litigation between the parties as also before the Arbitrator. In this connection he has referred to various documents and more particularly the admissions appearing in the reply to the quit notice which was issued by the respondent just before filing of the present petition. According to him the learned Controller had posed a non-existence and imaginary controversy in this regard when there was none. On the other hand Mr. N. S. Jain, learned counsel representing the respondent submitted that a revision under Section 25B(8) of the Act against an impugned order granting leave to contest is not maintainable as this is an interlocutory order. In support of his contention he has placed reliance upon two decisions of this Court one in the case of Amarjit Singh, Ashwani Kumar v. Y. K. Sabharwal 1980 Rajdhani Law Reporter 612 and the other in the case of Ram Lubhaya v. Ram Parkash 1982 Rajdhani Law Reporter 35. In the former case order of the Controller permitting amendment of the petition for eviction was challenged under Section 25B(8) of the Act and the Court held that such an order could not be challenged through a civil revision petition and a revision could lay only against a final order of eviction. In the second case, the Court held that revision under Section 25B(8) does not lie against an interlocutory order like granting leave to defend on limited ground. The said opinion of the Court was based on the Supreme Court decision in the case of Vinod Kumar Chawdhary v. Smt. Narain Devi Taneja . In the said case the Supreme Court held as under:
" The remedy against an order of the Controller refusing recovery of possession of the premises in dispute is by way of revision only as laid down in the proviso to Section 25B(8) 79 Rajdhani LR 493, Affirmed; 1977 Rajdhani LR 566; ; 1979 Rajdhani LR 26 and 1979 Rajdhani LR 159, Approved.
The order covered by sub-section (8) (and therefore, by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under sub-section (4) or sub-section (7) of Section 25B.
Sub-section (8) no doubt in terms speaks only of an order or the recovery of possession of any premises" and dos not mention one which refuses the relief of eviction to the landlord; but then the expression " order for the recovery of possession of any premises" has to be construed, in the context in which it appears, as an order deciding an application for the recovery of the possession of any premises.
Sub-section (8) governs an application covered by sub-section (1) of Section 25B and expressly takes away the right of appeal or second appeal, while providing the remedy of revision instead. As the provisions of sub-section (8) are exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications, friable under Chapter IIIA, such applications fall outside the category of those which can be disposed of like other applications under sub-section (10) read with the provisions contained in other chapters of the Act."
6. Taking note of the said legal position the learned Single Judge of this Court took the view that no revision is maintainable against an interlocutory order passed by the Controller on an application for recovery of possession and gave the following reasons :
" The learned counsel lays stress on the word "any" used in the judgment as reproduced above. The Supreme Court while interpreting Section 25B(8) of the Act has observed that the Expression "order for the recovery of possession of any premises" used in section 25B(8) of the Act, has to be construed, in the context in which is appears, as an order deciding an application for the recovery of possession of any premises. Thus, the Supreme Court held that an order for the recovery of possession referred to in Section 25B(8) of the Act means an order deciding the application for the eviction of tenant. This decision may be either by accepting or dismissing the eviction application. Thus the Supreme Court used the word " any" to mean that it was either an order accepting an eviction application or an order rejecting the same. Moreover, sub-section (8) or its proviso does not speak "any order u/s 25B . Thus I am of the view that section 25B(8) of the Act applies only to an order which is a final order either accepting or rejecting an application filed by a landlord for the recovery of possession of any premises against an tenant."
7. No authority taking a contrary view has been cited at the bar. The above view taken by the learned Single Judge is also in consonance with the laudable object of expeditious disposal of the eviction petitions through summary proceedings as laid down under Section 25B. If every interlocutory order made under Section 25B(8) is left to be challenged by revision, it will certainly frustrate the very object with which this provision has been enacted. Besides it is apparent that through the impugned order the learned Controller has not yet finally decided the eviction petition and has not refused to pass the eviction order giving a right or remedy to the petitioner to assail the same before the High Court.
8. This Court is, therefore, of the view that the present revision petition u/s 25B(8) of the Act against the impugned order is not maintainable and is liable to be dismissed. Ordered accordingly. However, as the leave has been granted only to the limited questions in regard to the existence/non-existence of relationship of landlord and tenant between the parties and about the availability of alternate suitable accommodation to the landlady, these issues can be answered expeditiously. Learned trial court is directed to dispose of the eviction petition in accordance with law within a period of four months from the date of communication of this order.