Delhi District Court
Also At vs Smt. Sarla Sharma (Since Deceased ... on 15 October, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 36/2016
CNR No. DLWT1-001372-2014
In re:
BATA INDIA LTD.
Having its registered & Head Office at
6A, S. N. Banerjee Road,
Kolkata-700013, West Bengal
Also At:
BATA HOUSE
418/02, Sector -17,
Gurgaon-Mehrauli Road,
Gurgaon-122001 (Haryana) . . . . . . Appellant
Versus
1. Smt. Sarla Sharma (since deceased through her LRs)
1(a) Shri Ashok Sharma
S/o Late Dina Nath Sharma
R/o C-44, Navkunj Apartments,
37,I.P. Extension, Delhi
1(b) Shri Vivek Sharma
S/o Late Dina Nath Sharma
R/o C-44, Navkunj Apartment,
37, I.P.Extension, Delhi-110092
[Respondents 1(a) & 19b) for self]
as well as LRs of Smt. Sarla Sharma
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 1 of 29
1(c) Smt Usha Roy
W/o Shri Mohinder Roy
R/o 133, Lonin Sarani
Kolkata - 700 013
1(d) Smt. Madhu Aurora
W/o Shri Ravi Aurora
R/o B-16/25, DLF Phase - 1
Gurgaon - 1220 002
Haryana
(Respondents 1(c) and 1(d)
[LRs of Smt. Sarla Sharma]
R/o C-44, Navkunj Apartment,
37, I.P. Extension, Delhi-110 092
2. Smt. Rajesh Rani Sharma (since deceased)
Wd/o Late Prem Nath Sharma
C-104, Bathla Apartments 43, I.P. Extension
Delhi-110 092
Through LRs
2. (a) Ms. Anuradha Sharma [daughter]
Wd/o Sh. Rakesh Vohra
2. (b) Ms.Nita Makhija [daughter]
W/o Sh. Kamal Makhija
2. (c) Ms. Kavita Sharma [unmarried daughter]
2. (d) Sh. Nitin Sharma [Son]
R/o C-104, Bathla Apartments
43, I.P. Extension, Delhi-110092
3. Shri Sanjay Sharma (since deceased through LRs)
1/11F, Parsavnath Estate
Pocket-P2, Omega Sector
Greater Noida, U.P.- 201306
3. (a) Ms. Pushpa Sharma
W/o Late Mr. Sanjay Sharma
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 2 of 29
3. (b) Mr. Yash Wardhan Sharma
S/o Late Mr. Sanjay Sharma
3. (c) Ms. Varini Sharma
D/o Late Mr. Sanjay Sharma
All resident of 17. Spruce Meadow
Dr. Monore, TWP, NJ 08831, USA
4. Shri Sandeep Sharma
1/11F, Parsavnath Estate
Pocket-P2, Omega Sector
Greater Noida, UP -- 201306
5. Shri Lalta Parshad Sharma
S/o Late Lakshmi Narain Sharma
House No.128, Satyam Vihar
Rishikesh Road Bhopatwala
Hardwar, Uttarakhand
6. Ms. Karuna Sharma
Wd/o Late Ved Parkash
J-9 lane No.W-15B/10
Western Avenue, Sainik Farm
New Delhi-110 062
7. Shri Mohit Sharma
S/o Late Ved Parkash
J-9 lane No. W-15B/10
Western Avenue, Sainik Farm
New Delhi-110 062
8. Shri. Munish Sharma
S/o Late Ved Parkash
J-9 lane No. W-15B/10
Western Avenue, Sainik Farm
New Delhi- 110 062 .....Respondents
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 3 of 29
Date of filing of the appeal : 15.04.2014
Date of arguments advanced
through Video Conferencing : 07.10.2020
Date of judgment : 15.10.2020
Appearances:
Mr. T. K. Ganjoo, Advocate for the appellant-tenant/JD.
Mr. S. C. Singhal and Sh.Praveen Suri, Advocates for LRs of deceased
respondent Nos. 1, 2 and 6 to 10.
Sh. P. S. Khandelwal, Advocate for respondent Nos. 3, 4 & 5.
JUDGMENT
1. This is an appeal preferred by the appellant-tenant/JD under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') whereby the appellant-tenant/JD has challenged the order dated 29.11.2013 passed by the Court of Sh. Sidharth Mathur, the then Ld. ARC-02 Central, Delhi, whereby the eviction order passed under section 14(1)(e) of the DRC Act was restored in proceedings emanating from an application under Order IX Rule 13 C.P.C in respect of one shop bearing no. VI/4941, and portion of the property no. VI/4965, Kucha Rehman, Chandni Chowk, Delhi-06 in favour of the petitioners/landlords and the subsequent order dated 10.03.2014 passed by Sh. Vinay Singhal, Ld. ARC Central, in Execution proceedings arising out of eviction petition no. 195/08 whereby the review application against earlier order dated 29.11.2013 was dismissed. It is pertinent to mention here that Sh. Deepak Gupta, Ld. Counsel for the appellant-tenant/JD who has also been representing the appellant-tenant/JD at various stages of the present RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 4 of 29 appeal, made a statement at the Bar on 01.09.2014 that he would confine his challenge to the order dated 29.11.2013 only in the present appeal.
FACTUAL BACKGROUND
2. In order to appreciate the controversy in question, it would be expedient to narrate the sequence of events leading to the present appeal. The petitioners/landlords, who are now respondents- landlords/DHs in the present case filed a petition seeking eviction against the respondents/tenants Bata India Ltd. u/s 14 (1) (e) r/w Section 25B of the DRC Act on 01.11.2008. It appears that after institution of the said appeal, petitioner no. 1 Sarla Sharma passed away and her legal heirs were brought on the record viz. her three daughters on allowing an application under Order XXII Rule 3 CPC vide order dated 17.12.2009. The matter came up for hearing on 23.12.2009 on which date the following order was passed:
"E No. 195/08Smt. Sarla Sharma & Ors v. M/s Bata India 23/12/2009 Present: Sh. Praveen Suri, counsel for petitioner.
None for respondent.
He filed amended memo of parties which is taken on record. As per the earlier report, the respondent refused to take the delivery of summons. Process Server Sh. Narender met Sh. Sanjeev, Manager of the respondent Firm at the given address, but he refused to take the delivery of summons without assigning any reason. Similarly, registered AD has been received back with the report "Refusal".
In these circumstances, as per the provision of Sec. 25-B of D.R.C. Act, I declare it a valid service upon the respondent. The respondent has not filed the requisite application for seeking leave RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 5 of 29 to contest the present eviction petition within the stipulated period of 15 days. Till date none has appeared on behalf of the respondent before the court. Thus, as per the provisions of D.R.C. Act, the averments made in the petition are deemed to be admitted by the respondent. Accordingly, an eviction order is passed u/s 14 (1) (e) of the D. R. C. Act in favour of the petitioners and against the respondent in respect of one shop bearing no. VI/4941, and portion of the property no. VI/4965, Kucha Rehman, Chandni Chowk, Delhi-06 having carpet area of approx.868.75 sq. ft. more specifically shown in the red lines in the attached Site Plan.
However, this order shall not be executable before the expiry of six months from the date of this order. File be consigned to Record Room.
(Tarun Kr. Sahrawat) A.R.C.(North)/Delhi"
3. The record bears testimony to the effect that an application under Order IX Rule 13 CPC r/w Section 151 CPC was filed on 08.07.2010 by the appellant-tenant/JD, and the notice of which was issued to the petitioners / landlords and but obvious the application was contested by them tooth and nail. The then Ld. ARC Sh. Devender Kumar Sharma considered the rival submissions and it would be expedient to reproduce the operative portion of the said order on 03.06.2011, since this order is the genesis of the controversy in question, which goes as under:-
"I have given my thoughtful consideration to the submissions advanced on behalf of the parties and perused the record carefully.
The first objection taken is that the application is time barred and delay cannot be condoned in view of the judgments reported in 2009(14) SCALE 672 and AIR 2003 SC 4591. However, perusal of the application makes it clear that same was filed on 06/07/2010 and the alleged knowledge of the order to applicant is stated to be 22/06/2010 and thus, it cannot be said at this stage that application has been filed beyond the limitation period.RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 6 of 29
From the perusal of the documents filed on record it is not clear that who was in the employment of the respondent/applicant at the relevant period of service nor the said fact has been disclosed in the entire application that who was the store Manager or the competent person to receive the summons during that relevant period except the certificate issued by one Mr. A.K. Dutta without having any seal wherein it has been mentioned that Mr. B. Kapoor and Mr. Brij Bhushan both salesmen were employed at the branch of the applicant in the suit premises without filing of details of date of their employment or any other document showing their transfer/posting with the respondent at the suit premises. However, since the respondent/applicant denied the service, therefore, considering the allegations raised on behalf of the respondent/applicant is being given liberty to lead evidence on the point of service but subject to deposit of the occupation charges at a rate of Rs. 25,000/- per month in view of the judgment of Hon'ble Supreme Court in S.L.P (C) no. 6319 of 2007, titled as Mohammand Ahmed & Anr. Vs. Atma Ram Chauhan & Ors. reported in 179 (2011) DLT 532 from the month of July 2010 i.e. after expiry of statutory period as provided U/s. 14 (7) of D.R.C. Act. upto the month of June 2011 within one month and subject to deposit of the further occupation charges at the said rate from the month of July 2011 on or before the 15 th of each English Calender month during the pendency of the present case as the premises is situated in Chandni Chowk area and is consisting of more than about 800 sq. ft. as stated during the course of arguments. It is made clear that the amount so deposited will not be allowed to be withdrawn during the pendency of the present application and in case respondent fails to succeed said amount will be payable to the petitioner without prejudice to his rights and contention and if the applicant will succeed, he will be entitled to withdraw the said amount.
Application is disposed off accordingly. It is further made clear that if applicant fails to comply the condition imposed, the application will be deemed to have been dismissed.
Put up for applicant's evidence on 12/08/2011.
Devendra Kr Sharma A.R.C.(North)/Delhi.03.06.2011"
4. The proceedings continued for recording the evidence of RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 7 of 29 the parties and the evidence of the applicant/appellant-tenant/JD got concluded and was closed on 16.03.2012, and thereafter, the petitioners/ landlords were called upon to lead their evidence and on their behalf Sh. Nitin Sharma LR of deceased respondent no. 2 Smt. Rajesh Rani Sharma (in the present appeal) was examined and the same was concluded in terms of statement made by their counsel Sh. Praveen Suri in the Court on 05.02.2013. However, fresh controversy aroese which is seemed to emerge from order dated 03.01.2013, which is a crisp hand written order passed by Sh. Sonu Agnihotri, the then Ld.ARC/North, Delhi and again to understand the whole situation it would be expedient to reproduce the short order evidence which goes as under:
"03/01/13 Pr: Sh. Parveen Suri, cl. for petitioner / non-applicant.
Sh. Sushant Kumar, cl. for respondent/applicant. PW-1 Nitin Sharma Report of Ahlmad perused. cl. for petitioner has submitted that he has certified copy of Ex.R2/P1 & that of cl. for respondent does not object, it may be taken on record. Heard.
Cl. for respondent has submitted that he does not have any objection if certified copy of Ex.R2/P1 be taken on record and matter may be proceeded further. Heard.
Certified copy of Ex.R2/P1 filed by Cl. for petitioner. It will be taken into account for further proceedings in present matter. It is lunch time. Cl. for respondent has requested for Adj. Not opposed. Heard. Allowed. Be put up for remaining xxx of PW-1 on 05/02/13. At this stage, Cl. for respondent has requested that order dt: 03/06/11 passed by Court may be modified to the extent that respondent may be permitted to deposit occupation charges for 3 months together for practical convenience. Adjournment not opposed. Heard. In view of respective submissions, it is directed that order dt: 03/06/11 stands RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 8 of 29 modified to the extent that occupation charges shall be deposited by respondent once in 3 months before 15 th of next month in which charges for that month became due".
5. Perusal of the record further shows that an application was moved by the petitioners/ landlords viz. Decree Holder under Section 151 CPC dated 07.05.2013 for issuance of warrants for possession for the default committed by the JD in complying with the order dated 03.06.2011. A reply dated 11.10.2013 was filed by the appellant- tenant/JD and then the impugned order dated 29.11.2013 came to be passed which goes as under:
Ex. No. 34/10Sarla Sharma (through LR's) Vs M/s Bata (India) Limited 29.11.2013 Present: Sh.S.C.Singhal,Counsel for all the DH except DH no.5 to7.
Sh. P S. Khandelwal, Counsel for the DH no.5 to 7.
Sh. Sushant Kumar, Counsel for the JD.
Arguments heard on the application of the DH filed U/s 151 CPC for dismissal of the application of the JD U/o IX rule 13 CPC and consequent issuance of warrants of possession of the tenanted shop in question.
It has been alleged in this application that the JD has not complied with the order dated 03.06.2011 in its letter and spirit whereby conditional permission was granted to it to prosecute its application U/o IX Rule 13 CPC. It has been asserted that the JD via order dated 03.06.2011 was directed to deposit the arrears of occupation charges @ Rs. 25000/- p.m. w.e.f. July 2010 to June 2011 and to continue deposit these occupation charges on monthly basis w.e.f. July 2011 on or before the 15 th of each English Calendar month during the pendency of its application. However the JD did not make the deposits for various months and also majority of the deposits were made in a belated manner, thus defeating the very purpose of the said order not only resulting in protraction of the adjudication but also the DH could not timely reap the benefits of the said order.
In its reply, the JD has contested the aforesaid application by alleging that the omissions occasioned in the compliance of the said order were neither intentional, nor deliberate but they RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 9 of 29 happened due to the administrative and practical delays / functioning involved on part of the parent company qua the release of the occupation charges. During the course of the arguments, he has fairly admitted that the recent occupation charges for October 2013 also have not been deposited, though, the charges from November 2013 till January 2014 have been duly deposited. Its counsel also argued that the omissions and delays can very well be compensated by imposition of appropriate costs.
Having heard the rival contentions, the short background of the case needs to be discussed. The present eviction petition was filed U/s 14(1) (e) DRCA. It was allowed on 23.12.2009 after the respondent failed to apply for leave to defend. Thereafter the application U/o IX Rule 13 CPC was filed by the JD on the ground of its non-service. This application was contested by the DH whereupon the order dated 03.06.2011 was passed. Having come to the opinion that the question of the service of the respondent involves triable issues, the Ld. Predecessor ordered the parties to lead evidence qua the said application subject to the condition that the JD would deposit the arrears of occupation charges @ Rs.25000/- per month w.e.f. July 2010 to June 2011 and would also continue to deposit the said charges on monthly basis w.e.f. July 2011 on or before the 15th of each English calendar month during the pendency of the application. However it was also opined in the said order that if the JD fails to comply the aforesaid conditions qua the occupation charges, its application U/o IX Rule 13 CPC shall be deemed to have been dismissed retrospectively. It is not disputed between the parties that the JD has deposited the charges for the months of April 2012, June 2012, August 2012 & October 2012 to March 2013 in a delayed manner. It is also admitted that the charges for months of July 2012, September 2012 and April 2013 have never been deposited. The report of the Nazir filed in respect thereof has been fairly conceded to be correct by both the counsels. As already been admitted by the counsel for the JD, the charges for October 2013 have also not been deposited till date.
The aforesaid circumstances clearly shows that the charges for 04 months have never been deposited and that of another 09 months have been deposited with delay. In majority of instances, the delay has been huge running from one month to six months. Like the charges for October 2012 were deposited after a delay of 06 month and 01 day, the charges for November 2012 were deposited after a delay of 05 months and 01 day, the charges for December 2012 were deposited after a delay of 04 months and 01 day, the charges for January 2013 were deposited after a delay of 03 months and 01 day, the charges for February 2013 were deposited after a delay of 02 months and 01 day and the charges for March 2013 were deposited after a delay of 01 month and 01 day.
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 10 of 29The question which now arises is whether the said delays and non-deposits were intentional or not. The consistency of the defaults and the non-deposits clearly depicts them to be intentional and deliberate. Had it been a case involving only one or two delayed deposits or non-deposits, the omissions of JD to comply with the directions dated 03.06.2011 might not have been considered as deliberate. However the case involves consistent and repeated delayed deposits and non-deposits which brings them in the purview of intentional omissions been committed in utter disregard of court directions. Moreover the failure on part of JD to apply for the condonation of the delay caused in making the deposits or to seek permission to deposit the left over charges strengthens the observation that the omissions were intentional. No party cannot be allowed to take benefit of its own wrongs. The JD cannot hide behind the excuses involving administrative or departmental lapses / delays caused on part of the parent company. The order dated 03.06.2011 was passed on the application of the JD itself, who was totally aware about its contents and repercussions. In my view after the passing of the, said order, the JD should have been vigilant enough to see that it was complied on time in its letter and spirit without any defaults. If case would have been about only one or two defaults or delayed deposits, the administrative / departmental lapses occasioned on part of the parent company might have been accepted as plausible excuses. But the record involves numerous delayed deposits and non-deposits pointing towards the fact that the JD is now making up this excuse of administrative / departmental lapses or delays to shield its deliberate omissions. These delays and non-deposits clearly smacks of mala fides. The acts of mala fides cannot and should not be condoned. Everyone is to be treated equally before the Law, be that a company or an individual. However when the omissions on the part of a company or department are not deliberate, the Courts can take a liberal approach keeping in view the time consumed in the red tapism or the administrative hassles involved in their functioning. However this lenient approach cannot be taken in case like the present one where the omissions of the JD have been found to be deliberate. The landlords in this case have been on the receiving end. They seems to be suffering a double jeopardy. The eviction order passed in their favour is yet to be executed and their occupation charges have either not been paid or have been paid in a delayed manner. The JD by his tricky, lethargic and dilatory tactics have been enjoying the fruits of his wrongs. It had been taking the court for a ride by openly flouting its directions acted 03.06.2011. Litigants like the JD needs to be given a stern message that court directions are not something which can flouted as per their whims and fancies. Rather the dictate RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 11 of 29 of the court is meant to be adhered in its entirety sans any deliberate attempts to disregard it. Thus the JD deserves to be stripped off the protective shield of the order dated 03.06.2011 after having disobeying the conditions imposed therein.
Resultantly the application in question of the DH U/s 151 CPC is allowed whereby the pending application of the JD U/o IX Rule 13 CPC is deemed to have been dismissed.
The W/P regarding the tenanted shop in question bearing No. VI/4941 and portion of property no. VI/4965, Kucha Rehman, Chandni Chowk, Delhi-110006 having carpet area of approximately 868.75 sq. feet as shown in red in the site plan of the DH be issued on filing of PF returnable for 21.02.2014.
The DH shall appear before Ld. ACJ at 2 pm on 16.01.2014 at 2:00 p.m. The concerned Bailiff shall be at liberty to break open the locks and to seek police assistance to execute the W/P. The SHO concerned shall be duty bound to answer the request of concerned Bailiff for police assistance, if any so made.
One copy of this order is directed to be kept in the connected EP No. 195/08 wherein the trial of the application of the JD U/o IX Rule 13 CPC was undergoing. This connected EP No.195/08 also stands disposed off in terms of the aforesaid order, but, its main file shall remain tagged with the present execution file till further orders.
(Sidharth Mathur) A.R.C.- 02 (Central)/ 29.11.2013"
6. The trial Court record reveals that in Execution No. 34/2010 arising out of the initial eviction order, an application under Section 151 CPC was moved on behalf of the appellant-tenant/JD for review of aforesaid order dated 29.11.2013, which came to be dismissed vide order dated 1.03.2014 by the Court of Sh. Vinay Singhal, the then learned ARC, Central which reads as under:
"10.03.2014 Present: Ld. Counsel for the non-applicant.
Ld. Counsel for the applicant Sh. T.K. Ganjoo. Matter is today fixed for orders on the application u/o 151 CPC moved on behalf of the applicant/JD for review of order 29.11.2013 whereby his application u/o 9 rule 13 CPC was dismissed in pursuance of the non applicant/DH application u/s 151 RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 12 of 29 CPC.
Before proceeding further, it is pertinent to mention that this court while exercising power under DRCA has got no power to review its own order as per settled law.
Now coming to the present application it is submitted that the said application contained wrong facts w.r.t. non deposit of occupation charges for the month of April 2013, which in fact were already deposited.
The court has gone through the impugned order passed by the Ld. predecessor and a bare perusal of the same makes it clear that except for this fact, the remaining observation w.r.t. non deposit of charges for the remaining months as well as the late deposit of charges of various months as discussed in the impugned order are not controverted.
Accordingly, as the lacuna pointed out by the applicant does not go to the route of the impugned order itself, which can warrant the recalling of the same, coupled with the fact regarding the lack of jurisdiction of this court to review the same as discussed in the opening para, the application stand dismissed.
Let warrant of possession be issued. Put up before Ld. ACJ for 11.04.2014 and for report on 06.06.2014.
Sd/-
ARC/Central/10.03.2014"
GROUNDS OF APPEAL
7. The aforesaid impugned orders dated 29.11.2013 and 10.03.2014 have been assailed in the present appeal afflicted with verbose pleadings, the gist of which is: that application under Order IX Rule 13 CPC was pending adjudication for more than 3 years 4 months wherein evidence had already been led by the parties and the ld. ARC instead of hearing final arguments on merits of the respective contentions and without bothering to appreciate the evidence on record, proceeded to pass the impugned order in a technical manner thereby dismissed the application under Order IX Rule 13 CPC; and that the respondents-landlords/DHs with malafide intention and ulterior motives were avoiding to address arguments; and that evidence on RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 13 of 29 record would clearly demonstrate that they were never served with the summons in the eviction petition No. 195/18 as required by the law and the impugned eviction order dated 23.12.2009 was in gross violation of the principles of natural justice and bad in law; and that the appellant- tenant/JD in order to show his bonafide for recalling the order dated 29.11.2013, also tendered arrears of the occupation charges to the tune of Rs. 75,000/- by way demand draft No. 790667 dated 31.12.2013 but the same could not be deposited due to want of permission not accorded by the ld. ARC; and that the Ld. ARC failed to take note that the appellant-tenant/JD had been depositing occupation charges on regular basis; and that the ld. ARC could not have reviewed the order dated 03.06.2011 on 03.01.2013; and that the ld. ARC was vested with the statutory powers and having jurisdiction under Section 25B (9) of the DRC Act to review and recall its orders in accordance with the provisions of Section 47 of the CPC; and that the ld. ARC failed to appreciate that the order dated 03.06.2011 was not in terms of the rigorous requirement of Section 15 of the DRC Act and in view of the fact that Decree Holders had been withdrawing the occupation charges deposited in the Court without any demur or protest, delay if any, in making deposit due to corporate and administrative set up of the appellant-tenant/JD should have been condoned.
LEGAL SUBMISSIONS BY THE LEARNED COUNSEL FOR PARTIES.
8. Mr. T.K. Ganjoo, learned Counsel for the appellant- tenant/JD in his marathon arguments urged that the present appeal RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 14 of 29 under Section 38 of DRC Act is not against an eviction order passed under Section 14 (1) (e) of the DRC Act but against an order, whereby their application under Order IX Rule 13 Cr.P.C. was dismissed purportedly for non-compliance with the orders dated 03.06.2011 as modified vide order dated 03.01.2013. It was vehemently urged that the order dated 03.06.2011 was never challenged by the respondents- landlords/DHs; and that both the parties led evidence on the merits of the case i.e. application under Order IX Rule 13 Cr.P.C. and it was but appropriate that the matter should have been decided on merits rather then finding fault with the appellant-tenant/JD in a mechanical manner owing to inadvertent delays in deposit of arrears of rent for two months and thereby summarily dismissing the application under Order IX Rule 13 CPC.
9. It was urged that the order dated 04.02.2012 was rather in contradiction to the earlier order dated 03.06.2011 in as much as the respondents-landlords/DHs were allowed to withdraw the occupation charges without giving any protection to the appellant-tenant/JD, stressing that in case the appellant-tenant/JD had succeeded in his application under Order IX Rule 13 CPC ,he was virtually left without any effective remedy for restitution or recovery of the amount paid. Mr. Ganjoo vehemently urged that the petitioners/landlords/decree holders deliberately chose to avoid addressing arguments on merits and moved an application under Section 151 CPC dated 07.05.2013 alleging that occupation charges had not been paid since August-2012 and the judicial record would demonstrate that despite cause of action having RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 15 of 29 accrued in their favour, if any, they chose to lead evidence on 05.02.2013. It was pointed out that the occupation charges had been paid till September-2013 and, therefore, the impugned orders operate very harshly against the appellant-tenant/JD.
10. Mr. Ganjoo, learned Counsel for the appellant-tenant/JD fairly conceded that although he was not denying that there had been few delays here and there in making payment or deposit of occupation charges but then the petitioners/landlords/Decree Holders never raised any objection to that effect, and had they moved any application at the opportune time, the appellant-tenant/JD would have certainly satisfied the ld Court that the delays were not intentional or contumacious since the order otherwise was not stricto senso an order under Section 15 of DRC Act. It was urged that the ld. ARC completely failed to apply mind and appreciate the cogent reasons advanced by them in their reply dated 11.10.2013 for the delays. In his submissions, the learned Counsel for the appellant-tenant/JD relied on decisions in Inder Mohan v. Usha International Ltd. - 189 (2012) DLT 5; Central Bank of India v. Gokal Chand - (1976) 1 SCR 310; Karma Wali v. Rajinder Singh- 15 (1979) DLT 1; Yog Raj Chadha v. Sumitar Lal & Anr. - 66 (1997) DLT 561; Pruthviraj Sinh Nodhubha Jadeja (D) by LRs v. Jayeshkumar Chhakaddas Shah & Ors.- Civil Appeal No. 10521/2013 dated 04.10.2019; Challamane Huchha Gowda v. M.R. Tirumala & Anr. - (2004) 1 SCC 453; and Miss Nirmala Chaudhary v. Bisheshar Lal- AIR 1979 Delhi 26.
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 16 of 2911. Per contra Mr. Praveen Suri was mercifully brief and in his submissions and he urged that the order dated 03.06.2011 was categorical that failure to comply with the condition imposed i.e. payment of occupation charges would result in dismissal of the application under Order IX Rule 13 CPC. It was urged that the said order as well as subsequent modification order dated 03.01.2013 was not challenged by either of the parties; and that he conceded to the modification on 03.01.2013 in a bonafide manner so that rent is paid for a period of three months in one go. It was strenuously urged that this has been a petition under Section 14 (1) (e) of the DRC Act which prescribes a speedy procedure for decision but all the norms have been thrown to the wind by the appellant-tenant/JD. It was urged that it does not lie in the mouth of the appellant-tenant/JD to claim that although he has not complied with the condition imposed vide order dated 03.06.2011, he will be entitled to be heard on the matter, further pointing out the report of the Civil Nazir, which was perused and referred by the Court in its order on 29.11.2013 has not been assailed in the present appeal; and it was urged that the appellant-tenant/JD never sought condonation of delay in making payment or deposit of occupation charges and the onus cannot be put upon the Court and/or upon the landlords/decree holders. Mr. Suri relied upon the decisions in the case of Vinod Kumar Chowdhry v. Narain Devi Taneja - (1980) 2 SCC 120 and R.S. Bakshi v. H.K. Malhotra- 2001 SSC Online 344 and it was urged that the appeal against the impugned order dated 29.11.2013 is not only barred by limitation but even otherwise not maintainable under Section 38 of the DRC Act.
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 17 of 29DECISION
12. I have given my most anxious consideration to the submissions made by the learned Counsel for the parties at the Bar, who advanced arguments through Video Conferencing on two consecutive dates at great length. I have gone through the trial Court record as well as record of the present appeal. I have also gone through the written submissions filed by the parties on record as well as case law cited at the Bar.
13. The decision in this case hinges delicately on the proposition of law with regard to not only Section 38 of the DRC Act but also Chapter III-A of the DRC Act, which contains Section 25A and 25B in the DRC Act. Section 38 of the DRC Act Act provides as under:-
"38. Appeal to the Tribunal. -
(1) An appeal shall lie from every order of the Controller made under this Act [only on questions of law] to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette:
[Provided that no appeal shall lie from an order of the Controller made under section 21.] (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order made by the Controller:
Provided that the Tribunal may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) The Tribunal shall have all the power vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when hearing an appeal.RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 18 of 29
(4) Without prejudice to the provisions of sub-section (3), the Tribunal may, on an application made to it or otherwise, by order transfer any proceeding pending before any Controller or additional Controller to another Controller or additional Controller and the Controller or additional Controller to whom the proceeding is so transferred may, subject to any special directions in the order of transfer, dispose of the proceeding.
(5) A person shall not be qualified for appointment to the Tribunal, unless he is, or has been a district judge or has for at least ten years held a judicial office in India .
14. Further, Chapter IIIA of the DRC Act then provides as under:-
25A.-Provisions of this Chapter to have overriding effect.- The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force.
25. B Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. -
(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause
(e) of the proviso to sub-section (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section.
(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.
(3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgement due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may ,if the RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 19 of 29 circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain .
(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.
(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (c ) of the proviso to sub-section (1) of section 14, or under section 14A.
(6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable.
(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding and inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.
(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 20 of 29
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
(9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers.
15. Needless to point out that DRC Act was promulgated with the object of controlling rentals as also evictions of the tenants in urban areas of Delhi with the paramount objective not only to ensure security of the tenure to the tenants but also right of the landlord to evict his tenant albeit in a restricted manner on the grounds enunciated under Section 14 of the DRC Act. While jurisdiction of Civil Courts in such cases was ousted, Section 38 of the DRC Act provided for an appeal against "every order passed by the Controller" and incidentally Section 38 (1) of the DRC Act to the extent of providing an appeal only "on question of law" was brought into effect by the Amending Act of 57, 1988 Section 16 w.e.f. 01.12.1988. It is pertinent to mention that Chapter III-A of the DRC Act was brought on the statute book through Ordinance No. 24 in 1975 w.e.f. September 9, 1975 so as to provide summary trial of certain application for eviction, which contains Section 25A and Section 25 B apart from 25C (the latter not being applicable in the present case). A bare perusal of Section 25A of the DRC Act would RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 21 of 29 show that it has an overriding effect over any Chapter or Rule in DRC Act and Section 25B of the DRC Act is a complete Code in itself providing for speedy disposal of an application for eviction under Section 14 (1) (e) of the DRC Act. In the case of Vinod Kumar Chowdhry v. Narain Devi Taneja (supra), the aforesaid provisions came up for discussion in a matter where the eviction petition of the landlady under Section 14 (1) (e) read with Section 25B was dismissed inter alia on the ground that it was filed only in respect of part of the premises that was let out. The purview of the aforesaid provisions was discussed and it was observed as under:
"Sub- section(8) no doubt in terms speaks only of an order "for the recovery of possession of any premises" and does not mention one which refuses the relief of eviction to the landlord; but then it appears to us that 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 application for the recovery of the possession of any premises. Our reasons in this behalf are two-fold. Firstly, if an order in favour of the landlord alone was meant to be covered by sub- section (8), an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under section 38 so that there would be two procedures for the end- product of the Controller's proceedings being called in question; one when the same is in favour of the landlord, and another when it goes against him, which would obviously entail discrimination and make the sub-section suffer from a constitutional invalidity. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should if possible be so construed rather than the other way round. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above stated.
Secondly, the scheme of the Act and the object of the introduction of section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that sub-section (8) of section 25B is exhaustive of the rights of appeal and revision in RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 22 of 29 relation to the proceedings held under that Chapter. Before the enforcement of the Amending Act, all disputes between a landlord and his tenant were liable to be dealt with according to a uniform procedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under clause (e) of the proviso to sub-section (1) of section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate, section 14A and Chapter IIIA were introduced by the Amending Act so as to cut down the time- factor drastically, so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord's claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub-section (7) further simplified the procedure on contest being allowed, even though sub-section (2) of section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil court. Then there is sub-section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller. That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided.
In the way of the above interpretation of sub- section (8) of section 25B, the provisions of sub-section (10) thereof do not pose a hurdle. All that sub-section (10) states is that the procedure for the disposal of an application for eviction covered by sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter IIIA. Sub- section (8) as interpreted by us 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 we have held the provisions of sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 23 of 29 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.
16. In another case Ravi Dutt Sharma v. Ratan Lal - 1984 (1) RJ 325, the Hon'ble Judges of the Supreme Court held that the application under Section 14 (1) (e) of the Act falls within the protective umbrella of the new procedure in Chapter-IIIA. In the case of R.K. Parekh v. Uma Verma - 1978 (2) RCR 275 by the Hon'ble Judge of the High Court of Delhi, supremacy of the procedure in Chapter III-A of the DRC Act was also acknowledged over and above Section 38 of the DRC Act when it came to a petition or application for eviction under Section 14 (1) (e) of the DRC Act, inter alia holding that first and second appeals are expressly barred when it comes to final orders for recovery of possession passed under Section 14 (1) (e) of the DRC Act. The said ratio was again reiterated in Prem Nath Kapoor v. Ram Shiksh Mehta, 1980 RLR 451 DHC emphasizing that procedure 25B of the DRC Act is compulsory and not optional and the words used are "every application....shall be dealt with....", which shows that procedure is mandatory and not elective.
17. In the light of the aforesaid academic discussion, reverting back to the instant case, first thing first, the present appeal filed on 15.04.2014 against an order dated 29.11.2013 is per se barred by limitation. Assuming for the sake of convenience that appellant- tenant/JD had been pursuing his remedy for review of the said order in a bonafide manner, although no such provisions existed either under Chapter IIIA of the DRC Act or otherwise, and for the present the RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 24 of 29 appeal is held to be not barred by limitation as review order was passed on 10.03.2014, the appellant-tenant/JD is on a slippery slope when it comes to the maintainability of the petition under Section 38 of the DRC Act. Without going into the merits of the impugned order dated 29.11.2013, it is suffice to state that the said order had a direct effect of reviving the eviction order dated 23.12.2009. In other words, the impugned order dated 29.11.2013 dismissing the application under Order IX Rule 13 CPC is not an independent order dehor the eviction order dated 23.12.2009 but intertwined to the core. Viewed from another angle, the order dated 29.11.2013 merges with the initial order of eviction and revived or infused life in the dormant eviction order dated 23.12.2009.
18. During the course of arguments, Sh. T.K. Ganjoo, Ld. Counsel for the appellant-tenant/JD sought to distinguish the case of Prithipal Pal Singh v. Satpal Singh- Civil Appeal No. 8501/2009 [Arising out of SLP (C) No. 19921/2006] decided on 18.12.2009 , on the ground that it was in conflict with the earlier Judgment of the concurrent Bench of the Hon'ble Supreme Court that decided the case of Central Bank of India v. Gokal Chand (supra). A fortiori the case of Central Bank of India v. Gokal Chand (supra), has no application since the said decision was passed on 12.09.1966 even before Chapter III-A of the DRC Act was inserted into the statute book. The ratio of the said case was only to the effect that right to appeal accrues to a party from an order that effects his right or liability but no appeal lies against an order which is "interlocutory in nature". In the case of Prithipal Pal Singh v. Satpal Singh (supra) a submission was made that even with RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 25 of 29 regard to the petition under Section 14 (1) (e) read with Chapter III-A DRC Act, Rule 23 of the Delhi Rent Control Rules, 1959 shall be applicable, which plea was shot down. In order to understand the whole proposition of law, it would be expedient to refer Rule 23 that runs as under:-
"Code of Civil Procedure to be generally followed - In deciding any question, relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908."
19. Further, the Hon'ble Supreme Court in the case of Prithipal Pal Singh v. Satpal Singh (supra) observed as under:-
Keeping in view the aforesaid observations of this Court in this case and considering the special provisions made in Section 25B of the Act, we conclude that Section 25B of the Act is a complete code by which the entire procedure to be adopted for eviction of a tenant on the ground of bona fide requirement filed by the landlord in respect of a premises, shall be followed. As noted herein earlier, Section 25B(1) clearly says that any application filed by a landlord for recovery of possession of any premises, inter alia, on the ground of Section 14(1)(e) of the Rent Act, shall be dealt with in accordance with the procedure specified in Section 25B of the Rent Act. Therefore, sub-section (1) of Section 25B makes it clear that if any application for eviction of a tenant is filed by the landlord, the special procedure indicated in Section 25B has to be followed and Section 25B(1) clearly stipulates that the application for eviction shall be strictly dealt with in accordance with the procedure specified in this Section.
22.Apart from that, as we have noted herein earlier, Section 25B itself is a special code and therefore, Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with Section 25B of the Act. Therefore, after insertion of Section 25B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with Section 25B and question of relying on Rule RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 26 of 29 23 of the Code, which also does not give full right to apply the provisions of the Code, could be applied.
23.That apart, Rule 23 does not specifically confer any power on the Controller to follow the provisions of the Code in special classes of landlords. It is a general rule, by which the Controller in deciding any question relating to procedure not specifically provided by the Act and these rules shall, as far as possible, be guided by the provisions contained in the Code.
24.In view of our discussions made hereinabove that Section 25B has been inserted by the Legislature for eviction of a tenant of a certain classes of landlords, in which the entire procedure has been given, it is difficult for us to hold that Rule 23 of the Rules can be applied in the present case in view of the specific provisions provided in Section 25B of the Rent Act. Accordingly, we are of the view that Rule 23 has no manner of application.
25.That being the position, if Rule 23 cannot be applied in the present case because of applicability of Section 25B, which is a special code and specific procedure for eviction of a tenant by a landlord on the ground of bona fide requirement, we cannot agree with the courts below that in view of Rule 23 of the Rules, the provisions of the Code can be applied in the present case and, therefore, we are of the view that the High Court had acted illegally and with material irregularity in the exercise of its jurisdiction in setting aside the order of eviction and in allowing the affidavit filed by the tenant for the purpose of defending the proceedings for eviction.
20. It is pertinent to mention that it was a case where the application was moved by the tenant for leave to defend in terms of Section 25B (4) of the DRC Act with an application for condonation of delay. It was held by the ld. ARC that there was no power existed with him to condone the delay but after passing of an eviction order, the ld. ARC proceeded to hold inquiry on an an application under Order IX Rule 13 CPC, which on revision was upheld by the Hon'ble High Court. The said assumption of powers under Order IX Rule 13 CPC with regard to order RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 27 of 29 passed under Chapter III-A of the DRC Act did not find favour with the Hon'ble Supreme Court and it was held that the High Court acted illegally and with material irregularities. At the cost of repetition, this Court is not commenting upon the merits of the impugned order dated 29.11.2013 and without further ado, this Court finds that the present appeal is not maintainable under Section 38 of the DRC Act.
21. Before parting with this case I would be failing in my duties if I do not deal with the case law relied upon by the ld. Counsel for the appellant-tenant/JD. The case of Inder Mohan (supra), has no application as it was a case where application of the landlord under Order IX Rule 9 CPC was dismissed by the ARC and since it effected the legal rights and liabilities of the parties, the appeal was held to be maintainable under Section 38 (1) of the Act. The case of Karma Wali (supra), does not support the case of the appellant-tenant/JD since it was a case where the appeal under Section 38 of the Act against an order passed by the ld. ARC against an application for setting aside expatriate decree of eviction by a tenant was held to be maintainable. The ratio runs counter to the decision in Vinod Kumar Chowdhry (supra) as also Prithipal Pal Singh v. Satpal Singh (supra). The decision in Yog Raj Chadha (supra), is one where power of the Rent Controller to enlarge any period fixed or granted by the Court for doing any act, even though period originally fixed or granted might have expired was reiterated in law. This Court has no quarrel withth said ratio but then since we are holding that the appeal under Section 38 of the DRC Act is not maintainable, the scope of intervention in this case RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 28 of 29 does not envisage that this Court should go into whether or not there was bonafide or unintentional delay on the part of the appellant- tenant/JD in making payment or deposit of occupation charges. The case of Challamane Huchha Gowda (supra) is with regard to powers that are exercisable in execution proceedings in terms of Section 47 and 21 of the CPC and I do not see how this has any relevance to the present case. The case of Miss Nirmala Chaudhary (supra) is with regard to power of the Tribunal to condone delay under Section 5 of the Limitation Act read with Section 38(2) proviso for being shown sufficient grounds, which again has no bearing in this case.
FINAL ORDER
22. In view of the aforesaid discussion, this Court finds that the present appeal is not maintainable under Section 38 of the Delhi Rent Control Act, 1958 and the remedy lies elsewhere. Accordingly, the present appeal is dismissed being not maintainable. Nothing contained herein shall tantamount to an expression of opinion on the merits of the case.
23. Trial Court record along-with copy of this Judgment be sent back to the Ld. Trial Court for information and records. A copy of this Judgment be sent on the email IDs of the ld. Counsel for the parties.
File of the appeal be consigned to Record Room. Digitally signed
by DHARMESH
DHARMESH SHARMA
SHARMA Date: 2020.10.16
20:10:46 +0530
Announced in the open Court (DHARMESH SHARMA)
th
on 15 October, 2020 Principal District & Sessions Judge/RCT
(West), Tis Hazari Courts: Delhi
RCT-36/2016 Bata India Ltd v. Smt. Sarla Sharma Page 29 of 29