Delhi District Court
Kishore Kumar vs M/S Dcm Ltd on 6 May, 2010
IN THE COURT OF SH. G.P. MITTAL:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No.60/08
Unique ID No. 0240IC1374892008
Kishore Kumar
s/o. Late Shri Ram Chand,
DCM Shop No.4, Ganesh Line
Municipal No. 9413, Ward No.16
Gaushala Marg, Kishan Ganj,
Delhi 110 006.
.............. Appellant
Versus
M/s DCM Ltd.
Vikrant Tower,
4, Rajindra Place,
New Delhi.
.............. Respondent
Date of Institution of the appeal : 27.11-2008
Date on which the arguments were heard: 27-04-2010
Date on which the appeal is decided: 05-05-2010
JUDGMENT
This appeal has been preferred by the appellant (tenant) against the order dated 4/10/2008 passed by the learned Addl. Rent Controller whereby the application under Order VII rule 11 of the Code of Civil Procedure moved by the appellant was dismissed.
2- An eviction petition under Section 14(1)(g) and 14(1)(l) of Delhi Rent Control Act, 1958 (for short "the Act") was filed by the respondent (landlord) against the appellant on the ground that suit premises are required bonafide by the landlord for the purposes of building/re-building and making substantial additions/alterations thereto, in order to carry out the repair/building work in pursuance of the Scheme/Development Scheme as approved by the Full Bench of Hon'ble High Court of Delhi and Hon'ble Supreme Court of India.
(RCT Appeal No.60/08) (Page 1 of 5) It is the case of the respondent that said work of rebuilding and additions /alterations /improvements can not be carried out by the respondent without the suit premises being vacated by the appellant and possession handed over to the respondent.
3- The appellant contested the case and disputed the averments made in the petition. Various defences were raised disputing the availability of funds for building/re-building, approval of building plan and competence of the MCD to grant approval for demolition of the super structure. An application under Order VII rule 11 of the Code of Civil Procedure was moved before the learned Additional Rent Controller. It has been submitted in the application before the learned Addl.Rent Controller that in the amended petition, the petitioner has alleged that the company known as DCM Estate and Infrastructure Ltd. (DEIL) has been promoted by the respondent to acquire rights to seek factories and Group Housing Schemes. AW 3 Shri Ajay Khanna in his examination in chief has stated that there is no company as DEIL after certificate of incorporation has been issued in favour of M/s Pureearth Infrastructure Ltd. Certificate of Incorporation dated 25/5/2005 has been filed alongwith an affidavit of PW 3 Shri Ajay Khanna. It has been stated in the application that since the company DEIL is not in existence, petition fails to disclose any cause of action in favour of respondent and hence the petition is liable to be rejected as there is no cause of action.
4- It has further been stated in the application that the respondent seeks eviction under Section 14(1)(g) and 14(1)(l) of the Act. As per Section 14(8) of the Act, no order for the recovery or possession of any premises can be made on the ground specified in clause (g) of the proviso to sub-section (1), unless the Controller is satisfied that the proposed reconstruction will not radically alter the purpose for which the premises were let or that such radical alteration is in the public interest and that the plans & estimates of such reconstruction have been properly prepared and that (RCT Appeal No.60/08) (Page 2 of 5) necessary funds for the purpose are available with the landlord. The appellant further relied upon Section 20 of the Act, which lays down that while passing any order on the ground specified in clause
(f) or clause (g) of the proviso to sub-section (1) of Section 14, the Controller is under obligation to ascertain from the tenant whether he elects to be placed in occupation of the premises or part thereof from which he is to be evicted and if the tenant so elects, the Controller shall record the fact of the election in the order and specify the date on which he shall deliver possession so as to enable the landlord to commence the work or repairs or building or re-building, as the case may be.
5- It has been stated on behalf of the appellant that according to the case of respondent, no commercial shops are being built in the alleged proposed scheme of redevelopment and therefore the conditions as laid down under Section 20 of the Act have not been satisfied. The petition is liable to be rejected on this ground as well.
6- The application under Order VII rule 11 of the Code of Civil Procedure was resisted by the respondent. The respondent (landlord) denied that merely by change of the name of the company from DIEL to Pureearth Infrastructure Ltd., the petition is liable to be rejected. No reply with regard to contentions as laid down in Section 14(8) and Section 20 of the Act was given, as no such averment had been made in the application. In fact, these averments were made in the appeal for the first time.
7- I have heard Mr. S.P.Aggarwal, learned counsel for the appellant and Mr. S.K.Gupta, learned counsel for the respondent.
8- First ground on which rejection of the petition has been sought, is that the company DEIL was promoted by the respondent DCM Ltd. for the purposes of development of the project. As per Statement of PW 3 Ajay Khanna, the company DEIL is no longer in (RCT Appeal No.60/08) (Page 3 of 5) existence and hence the very basis of petition goes and petition is liable to be rejected.
9- I have perused the affidavit Ex.P-3 of Shri Ajay Khanna as also his cross examination. There is no dispute that the name of the company which was developing the project in question has been changed from DEIL to Pureearth Infrastructure Ltd. The certificate of incorporation regarding the change of name of the company has also been placed on record. A landlord can build or rebuild or develop the building either by himself or through a third person. In this case, the respondent/landlord as per averments, preferred to develop the project through a company DEIL, whose name as per PW 3 has been changed to M/s Pureearth Infrastructure Ltd. Simply because the name of the company which is to make development has been changed, can not be any ground for rejection of the plaint under Order VII rule 11 of the Code of Civil Procedure, as I have already stated above that it is the sweet will of the landlord either to build or re-build the building by himself or through a third person. Thus, mere change of name of the company which is to develop the project, would not make the petition bad or liable to be rejected for any of the grounds under Order VII rule 11 of the Code of Civil Procedure.
10- Another grievance of the appellant is that the respondent has filed this petition on the grounds under Section 14(1)(g) and 14(1)(l). These two grounds contradictory to each other. It has been submitted that the respondent does not have any permission under the Slum Area (Improvement & Clearance) Act, to file the petition. The condition as laid down under Section 20 of the Act can not be complied with on the basis of averments made in the petition, as it is not the case of the respondent that any shop is being built by him. Thus, the provision of Section 20 of the Act can not be complied with and petition is liable to be rejected.
(RCT Appeal No.60/08) (Page 4 of 5) 11- It is very well settled law that for maintainability of the suit,
averments made in the suit/petition have to be considered. The defence raised is to be seen during trial. The respondent has very much stated the essential facts to maintain the eviction petition. 12- It is true that Section 20 of the Act enables the tenant to elect if he would like to be placed in occupation of the premises or part thereof, where from he is to be evicted. Yet the provisions of Section 20 of the Act have to be read in conjunction with the provisions of Section 14(8) of the Act. Section 14 (8) of the Act lays down that the proposed re-construction to be carried out by the landlord has not to radically alter the purpose for which the premises were let out. At the same time it enables passing of an eviction order even if the proposed re-construction has radically changed the purpose for which premises were let out, if such alteration is in public interest. Sub-section (3) of Section 20 of the Act also provides for payment of compensation to the tenant, where the landlord has failed to place the tenant in occupation of the premises or part thereof, within the time as prescribed by the Controller. 13- It may be mentioned that this petition was filed in the year 1996. Pleadings of the parties are complete and evidence of the respondent is already in progress. Similar prayer for rejection of the eviction petition was made by the appellant vide his application under Section 151 CPC and the said application has been rejected by the learned Additional Rent Controller vide order dated 31/1/2008. The said order was, however, not challenged by the appellant.
14- In view of the above discussion, I do not find any merit in the present appeal. Same is hereby dismissed, however, with no orders as to costs.
Let a copy of this order be sent to the court concerned and the file be consigned to record room.
Announced in open court ( G.P.Mittal)
on 05-05-2010 Rent Control Tribunal
Delhi.
(RCT Appeal No.60/08) (Page 5 of 5)