Delhi District Court
Kaldeep Singh Brar S/O Late Sh. Gurnaik ... vs Basant Kumar Vadhera on 6 May, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH)-CUM-ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 11/2012
ID No.: 02406C0034722012
Kaldeep Singh Brar s/o late Sh. Gurnaik Singh
Through its Attorney
Sh. K. S. Gahunia s/o Sh. Bhag Singh
R/o J110, South Extension,
PartI, New Delhi. ... Appellant
Versus
Basant Kumar Vadhera
through its legal representatives
A. Naval Vadhera
s/o late Sh. Basant Kumar Vadhera
R/o 46, Ferus Road, Hinckley,
LE10OSE, U.K.
B. Anil Vadhera
s/o late Sh. Basant Kumar Vadhera
R/o ELW Slead Road, Seven Kings Esse,
London, 1G38AX, U.K.
C. Binu Malhotra
d/o late Sh. Basant Kumar Vadhera
R/o 227, Concord Drive,
Freehold, NJ07728, USA
D. Dolly Kapur
d/o late Sh. Basant Kumar Vadhera
R/o Flat No. E406, Sarvpriya Aptts.,
ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 1 of 9
Sarvpriya Vihar, Panchseel Park,
New Delhi. ... Respondents
Instituted on: 13.02.2012
Judgment reserved on: 06.05.2013
Judgment pronounced on : 06.05.2013
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act (hereinafter referred to as "the DRC Act") is directed against the order dated 26.09.2011 passed by Sh. Balwant Rai Bansal, Additional Rent Controller (South) (hereinafter referred to as "the ARC") on the file of eviction case no. E2/2009, whereby the application of the appellant under Order 12 Rule 6 read with Section 151 CPC was dismissed, it having been fund devoid of any merit.
2. The appeal against the order dated 26.09.2011 was preferred on 10.02.2012. An application under Section 14 of Limitation Act read with Section 38(2) DRC Act was also filed referring in this context to the impugned order having been earlier challenged before Hon'ble High Court through Civil Misc. (Main) no. 106/2010 and the same having been withdrawn with liberty given for appropriate legal remedy to be pursued before the ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 2 of 9 appropriate legal forum, on it being pointed out that the appeal was maintainable against such an order. The appeal, thus, sought time that had been consumed in the proceedings before Hon'ble High Court to be excluded under Section 14 of Limitation Act.
3. It appears that the particulars pertaining to the petition filed before Hon'ble High Court were not correctly indicated in such application in as much as the same could not have been filed in the year 2010 against an order which was passed on 26.09.2011. On this being pointed out, it has been submitted in the course of hearing that there was error in pleadings in that the petition had been registered as Civil Misc. (Main) No. 106/2012, copy of the order dated 27.01.2012 having been submitted at Page 306 of the paper book.
4. Thus, application under Section 14 Limitation Act has been considered with facts read as suitably corrected on the basis of certified copy of the order dated 27.01.2012 of Hon'ble High Court mentioned above.
5. I have heard Sh. Sukhbir Sejwal, advocate proxy for the appellant and Sh. Ajeet Kadian, advocate on the application for condonation of delay as well as main appeal.
ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 3 of 9
6. Strictly speaking, for invoking the benefit of Section 14 of Limitation act, the appellant must show the relevant documents indicating the date on which the order dated 26.09.2011 was challenged by way of Civil Misc. (Main) no. 106 of 2012 before Hon'ble High Court. It is only then that the period which requires to be excluded can be computed. On being asked, the appellant was unable to show any material in such regard. Be that as it may, having regard to the order dated 27.01.2012 of Hon'ble High Court, taking a liberal approach, the delay is condoned and the appeal is considered on merits.
7. The appellant is prosecuting a petition under Section 14(1)(d) DRC Act which was preferred on 18.02.2006. The petition alleged that the tenant Basant Kumar Vadhera (respondent, since deceased and substituted by his legal representatives) inducted in the premises for residential purposes had not been living, either himself or through any of his family members, in the property in question for the past 10 years and that he had permanently abandoned the property, having settled an USA and having acquired US citizenship. The petition was contested by the tenant Basant Kumar Vadhera through reply whereby it was contended that such case under Section 14 (1) (d) DRC ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 4 of 9 Act could not be maintained as the purpose of letting was residentialcumcommercial. It was stated that there was no landlordtenant relationship between the parties.
8. The respondent Basant Kumar Vadhera denied having permanently settled in USA or having acquired US citizenship. He claimed that his daughter Smt. Dolly Kapur and family member have been residing in the tenanted premises. He further stated in the pleadings that after her marriage had ended in divorce, his daughter Dolly Kapur had been residing in the tenanted portion. He also questioned the maintainability of the case on the ground that there were two tenancies one in respect of the first floor portion at Rs. 770/ per month and the other in respect of second floor at Rs.1000/ per month. He claimed his daughter Smt. Dolly Kapur had been using a part of the premises for her medical practice.
9. The appellant had earlier also moved an application under Order 12 Rule 6 CPC seeking a decree on the basis of admissions. It was, interalia, pointed out at that stage that in another similar litigation between the parties on a petition under Section 14 (1) (a) DRC Act, the contention about relationship of landlord and tenant between the parties and it being a composite ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 5 of 9 tenancy had been upheld and the order under section 15(1) DRC Act passed had been duly complied with. The said earlier application under Order 12 rule 6 CPC came to be dismissed by the ARC vide order dated 29.05.2007 with observations that the that the questions of fact that were arising cannot be decided without the parties being called upon to lead evidence. It has nowhere been the case of the appellant that the said order was challenged or the matter arising out of his prayer under Order 12 Rule 6 CPC was reopened for fresh consideration. Thus, the view taken by ARC on this score by way of order dated 29.05.2007 attained finality.
10.It appears from the material on record that the parties are locked in yet another litigation wherein a petition seeking eviction on the grounds under Sections 14 (1) (b) and (c) DRC Act has also been pending trial. The appellant contends that in the course of the proceedings in the said third case, the counsel for the tenant Basant Kumar Vadhera had made a submission to the effect that his client was living in America and never comes to Delhi. Besides this, it has been contended that Smt. Dolly Kapur (daughter of the tenant) had also admitted the fact that she has been residing in another property in Panchsheel Park, New ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 6 of 9 Delhi and had never resided in the premises in dispute. It is the contention of the appellant that Dolly Kapur, aged 65 years with grown up children of her own and engaged in her own independent business could not be treated as a dependent of the tenant who was a nonresident Indian.
11.The fresh application under Order 12 Rule 6 CPC sought a decree of eviction petition under 14 (1) (d) DRC Act on the basis of "admissions" and contentions to above effect referring in this context to "subsequent events" wherein the petition under section 14 (1) (a) DRC Act had resulted in order dated 19.12.2007 upholding the contention of the appellant about existence of landlordtenant relationship between the parties and the tenancy being a composite one for both floors put together.
12. The Ld. ARC rejected the prayer under Order 12 Rule 6 CPC observing that the view to above effect taken by the ARC in the other case under section 14 (1) (a) DRC Act had already been considered and the view taken on the earlier application under Order 12 Rule 6 CPC through order dated 29.5.2007 could not be dissociated from.
13.Having heard both sides, I find that the view taken by the ARC in the impugned order cannot be faulted. There cannot be ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 7 of 9 repetitive applications of the kind made under Order 12 Rule 6 CPC in the course of same proceedings. The order dated 19.12.2007 may have confirmed the existence of landlord tenant relationship between the parties but it cannot be treated as an admission about the purpose of letting, contrary contentions in which regard have given rise to an issue of fact which is yet to be settled between the parties.
14.On being asked, it has been submitted that the admission of Smt. Dolly Kapur about she being a resident of Panchsheel Park has come on record in the form of affidavit dated 21.03.2006 (copy whereof has been submitted at page 106 of the paper book). In my considered view, merely because Smt. Dolly Kapur has indicated some other property as her residence in the said affidavit sworn on 21.03.06, it cannot provide clinching material to puncture the defence taken by the respondent tenant in this written statement or an admission of the nature required for purposes of decree without trial under Order 12 Rule 6 CPC.
15.For the foregoing reasons, I do not find any substance in the appeal and the same is dismissed.
16. The trial court record along with copy of the judgment be sent ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 8 of 9 back.
17.The file of the appeal be consigned to record room.
Announced in open Court today
on this 06th day of May, 2013 (R.K. GAUBA)
District & Sessions Judge (South) &
Additional Rent Control Tribunal,
Saket, New Delhi.
ARCT No. 11/12 Kaldeep Singh Brar Vs. Basant Kumar Vadhera thr. LRs. Page 9 of 9