Delhi District Court
Sh. Suresh Kumar Gupta @ S.K. Goel vs Sh. Bhagwan Singh on 31 October, 2012
IN THE COURT OF SH. SUMIT DASS, ADMINISTRATIVE
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(NORTH-EAST), COURT NO. 60, KKD COURTS, DELHI.
M No.20/11 in E. No.40/10
Unique Case ID No.: 02402C0143572011
In the matter of :
Sh. Suresh Kumar Gupta @ S.K. Goel
S/o Late Sh. Bhagwati Prasad,
R/o 2/32-A, Prem Gali, Babarpur, Shahdara,
Delhi - 110 032. ....Petitioner
Versus
Sh. Bhagwan Singh
S/o Sh. Pokh Pal,
Shop in Prop. No.1/6843, Pratap Gali,
East Rohtash Nagar, Shahdara,
Delhi - 110 032.
And also at : Village & Post : Bisawar,
Tehsil Sadabad, Distt. Hathras,
U.P. ....Respondent
ORDER :
Vide this order I shall dispose off an application under section 151 CPC Civil Procedure Code, 1908 (henceforth as 'CPC') r/w section 25 B (9) of the Delhi Rent Control Act , 1958 (henceforth as DRC Act) preferred by the tenant / respondent.
2. Brief resume of the facts is desirable, same is as under:
Petitioner is a senior citizen. He had filed an eviction petition under section 14 (1) (e) of the DRC Act. The respondent / tenant had filed the leave to defend application. Vide order dt. 25/11/2010 leave to defend application was dismissed and eviction order was passed.
3. Aggrieved against the said eviction order the tenant / respondent preferred a revision petition before the Hon'ble High M No.20/11 in E No.40/10 Page 1 to 11 court. The said revision petition was disposed off in terms of order dt. 19/04/2011. The liberty to move the trial court by way of review application or any other application was specifically granted.
4. Consequently, the application which is titled as under was filed :
"Application by and on behalf of respondent Bhagwan Singh under section 151 CPC r/w section 25B (9) of the Delhi Rent Control Act, 1958 for recalling the orders dt. 25/11/2010 having been obtained by practising fraud upon the court by the petitioner herein and to dismiss the eviction petition filed by the petitioner under section 14 (1) (e) of the Delhi Rent Control Act, 1958 and for passing any such other / further order as may be deemed fit, proper and equitable in the facts and circumstances of the case and which may be expedient in the interest of justice and to uphold the dignity of law and courts as well".
5. Reply to this application has been filed on behalf of the petitioner. For the purposes of the present order the parties shall be denoted as petitioner and respondent respectively.
6. Twin grounds of attack / challenge to the eviction order have been taken / urged vehemently by the respondent. Firstly, the eviction order was obtained by practising a fraud upon the court i.e. by an active and deliberate concealment of material facts and by making false statement and secondly, certain new facts were discovered after the passing of the eviction order whereupon it was imminently desirable that this court should exercise its review jurisdiction and set-aside the said eviction order.
7. In order to appreciate the controversy it is apt if the petitioner's case as set-forth in the eviction petition be noted first.
M No.20/11 in E No.40/10 Page 2 to 11 The case of the petitioner was that he is the absolute owner of the tenanted premises and he had one son namely Lalit Kumar Goel, who is an Engineering Graduate and having a Post Graduate Diploma in Business Management. He is presently unemployed / jobless and wants to open / run a consultancy business, but unable to do so for want of suitable commercial accommodation / premises. He is fully dependent upon his father / petitioner for the purpose of arrangement of suitable commercial premises for his above said work / business. The petitioner does not possess any other suitable commercial accommodation for running the consultancy business which is to be run by his son Lalit Kumar Goel.
8. Needless to state that the petition was accompanied by an affidavit duly sworn by the petitioner whereupon he had specifically affirmed that the facts contained in the eviction petition were true and correct.
9. Leave to defend was filed by the respondent.
10. Reply to the same was filed by the petitioner along with supporting affidavit. The need for the premises for the premises for the purpose of business of said Lalit Kumar Goel, who was stated to be fully dependent upon the petitioner for the purposes of arrangement of commercial accommodation was reiterated. It was stated that Lalit Kumar Goel was not working in a multinational company or even working anywhere, rather it was averred that he wanted to start the consultancy work, being unemployed.
11. Arguments of the petitioner and the need of the petitioner was accepted to be a bonafide one by my Ld. Predecessor and the eviction order was accordingly passed. It was observed "that "there is absolutely nothing to support the allegations of M No.20/11 in E No.40/10 Page 3 to 11 Lalit Kumar Goel working in a multinational company and has a separate property in Delhi. No details of the property in the name of Lalit Kumar Goel have been furnished by the respondent. Even if it is assumed if Lalit Kumar Goel is gainfully employed elsewhere he has right to switch the work and run his own consultancy work".
12. Now, the respondent by way of the present application had stated that he had engaged a detective agency namely M/s. BLS Detectives Ltd. and it was confirmed by them that Sh. Lalit Kumar Goel was residing separately and independently at 156, Akash Darshan Apartment, Mayur Vihar, Phase I, Delhi and was running his own business in the name of of M/s. DHL Advisory Services Pvt. Ltd. along with one Mr. H.K. Jain, from 5th Floor, (Office No.503), Chaukhani Square and said company was also having its registered office at 156, Akash Darshan Apartment, Mayur Vihar, Phase I, Delhi. It was stated that the alleged bonafide requirement was a manipulated and contrived one and by virtue of the said alleged requirement / by depicting the said bonafide requirement the petitioner fraudulently had got the eviction order dt. 25/11/2010.
13. Ld. Counsel for the respondent had relied upon the Judgments namely S.P. Chengalvraya Naidu Vs. Jagannath AIR 1994 SUPREME COURT 853, Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd. AIR 1996 SUPREME COURT 2592, United India Insurance Co. Ltd. Vs. Rajendra Singh (2000) 3 Supreme Court Cases 581 and A.V. Papayyasastry Vs. Govt. of A.P (2007) 4 Supreme Court Cases 221.
Ld. Counsel for petitioner relied upon the judgments namely Meera Bhanja Vs. Nirmala Kumari Chaudhary AIR 1995 SUPREME COURT 455, Shanmugam Servai Vs. P. M No.20/11 in E No.40/10 Page 4 to 11 Periyakaruppan Servai AIR 1996 MADRAS 411 and Jankiram Company Vs. Chunilal Shriram AIR (32) 1945 Bombay 40. The documents which were annexed along with the application also needs to be noted. First is the certificate of incorporation of M/s. DHL Advisory Services Pvt. Ltd. Second is the copy of the electoral roll of resident of Akash Darshan Apartment, Mayur Vihar, Phase I, Delhi wherein Sh. Lalit Kumar Goel's name was reflected at House No.156. Form 23 AC was also attached which shows that the said company had its registered office at 156, Akash Darshan Apartment, Mayur Vihar, Phase I, Delhi. Sh. Lalit Kumar Goel was one of the Director with DIN No.88601.
14. The reply of the petitioner to the aforesaid contention also makes an interesting reading. Preliminary objection was taken that the application was filed beyond stipulated period of time of 30 days i.e. under section 124 of the Limitation Act 1963. On merits, it was stated that earlier the son of the petitioner namely Lalit Kumar Goel, outside the territorial limit of Delhi in Noida had commenced consultancy business in the name of DHL Advisory Services Pvt. Ltd. However, the consultancy work could not succeed. The property of the company was also at Noida and not in Delhi. The respondent cannot dictate the petitioner to run his consultancy from Noida and the petitioner desires that his son should live with him and hence the requirement of the tenanted premises was a genuine and bonafide one. The property owned by said DHL Advisory Services Pvt. Ltd. cannot be construed to be that of the son of the petitioner in as much as the company is an independent legal entity and the property where the office was situated had been purchased in the name of the company by taking a loan.
15. The petitioner had also filed certain documents. One is the M No.20/11 in E No.40/10 Page 5 to 11 profit and loss statement of account of the said DHL Advisory Services Pvt. Ltd. and another one is the sub-lease deed in respect of the property no.503, Plot No.P4, Sector 18, situated in Noida which is in the name of DHL Advisory Services Pvt. Ltd. have been filed.
16. Heard Ld. Counsel Sh. U.S. Chaudhary and Sh. S.D. Dixit on behalf of the respondent / tenant and petitioner / landlord respectively.
17. As mentioned above, the categorical case of the petitioner was that his son despite having / securing engineering as well as management degree could not get any employment and being an unemployed person in todays world, in order to utilize skills / expertise wanted to start his own consultancy business. It was also asserted that no consultancy business was owned by him anywhere. This case was refuted by the respondent in the leave to defend application.
18. The order passed by my Ld. Predecessor also to an extent accepted the aforesaid contention. It was observed that the need of the son of the petitioner to start a consultancy business constitutes a bonafide need for the purposes of section 14 (1)
(e) of the DRC Act and hence the premises are required. Now, needless to state that such a consultancy was already in operation being run from the premises situated at Noida which is also owned by the company in which Lalit Kumar Goel and one H.K. Jain were share holders. Secondly, DHL Advisory Services Pvt. Ltd. was being run from 156, Akash Darshan Apartment, Mayur Vihar, Phase I, Delhi which was the registered office of the company located in Delhi and not in Noida and hence there was no requirement at all of any commercial premises in respect to said consultancy business at the first M No.20/11 in E No.40/10 Page 6 to 11 place.
19. That being the situation the petitioner deliberately and mischievously in order to get a favourable order had propounded / coined a false story that his son was unemployed despite having management and engineering degrees and therefore, it was imperative that the tenanted premises should be got vacated. The falsehood was since the very beginning of the petition rather I must say that the petition was wholly based on false pleas. It is also to be noted that the aforesaid facts were brought on record by the petitioner himself and he had also filed documents and hence it can be safely construed that such facts were well-within his knowledge even at the time of filing of the petition.
20. The procedure of Section 25 B of DRC Act is a summary procedure whereby only 15 days time is granted to the tenant to file a leave to defend application. It is also categorically held in catena of judgments that the time of 15 days cannot be extended as law of limitation does not apply as such and simultaneously it has also been categorically held that the leave to defend application cannot be amended. The tenant, therefore, has to project / put-forth his defence within 15 days from the service of summons in the prescribed proforma.
Thus, the obligation to state truth is always upon the petitioner and this obligation becomes more acute for the reason that the tenant is restricted in so far as filing of leave to defend is concerned, as it is to be filed within 15 days time only. Thus, it can safely be said that the petitioner in order to gain undue advantage deliberately made false statement / projected a false story consciously knowing and realizing that the tenant / respondent would not be in a position within 15 days to rebut the M No.20/11 in E No.40/10 Page 7 to 11 averments made in the petition and ultimately also succeeded in his nefarious designs.
21. The application filed by the respondent basically seeks a review of the order under section 25 B (9) of DRC Act / seeks an recall of the eviction order on the premises that the same was based / procured by practising fraud. In my opinion on each count the respondent is entitled to succeed. In so far as review is concerned, these facts as evident from the record were not within the knowledge of the respondent when he had prepared his leave to defend or even when the verdict was passed. This is a new and important fact which goes to the root of the matter and had these facts brought to the fora earlier definitely the out- come of the leave to defend application would have been different altogether. The contention that the review application is not maintainable being barred by time is also untenable for the reason that specifically the Hon'ble High Court had granted time to the tenant / respondent to move before this court in terms of order dt. 19/04/2011. The said order was passed in presence of the petitioner. The present application was filed within 17 days of the order passed by the Hon'ble High Court. The question of the limitation does not arise.
22. It is also relevant to note that herein that Section 25 B (9) of the DRC Act is only applicable when there is no application for revision filed by either side. Thus, it was only on account of the direction passed by the Hon'ble High Court that the respondent has moved before this court.
23. Even otherwise, in my opinion in view of the facts and circumstances of this case it is apparently decipherable that the eviction order was obtained by practising fraud and by concealment of vital facts and information. Such an order cannot M No.20/11 in E No.40/10 Page 8 to 11 be allowed to stand. Much less the benefit accrued to the party which had procured the same. The purity of administration of justice needs to be maintained and dishonest litigants, who have least regard to the law of land and who can adopt any foul means / tactics in order to succeed should be dealt with sternly and firmly. The response should be commensurated with the gravity of the offence (hampering with the administration of justice to the extent of filing false affidavits).
It is further reiterated that the petition and counter affidavit were sworn on oath. Same has a legal sanctity. The contents are affirmed on oath to be true and correct to the knowledge of the deponent. In total disregard to all settled norms a false affidavit was deliberately filed.
As mentioned fraud and justice do not co-exist. It is the duty of the every court to impart justice and simultaneously while imparting justice to ensure that any person who tramples or interfere in the administration of justice or by their mischievous designs take undue benefit and also affects the dignity of the court should be adequately punished.
24. Pertinently, the petitioner has also not disputed the facts alleged in the present application pertaining to Lalit Kumar Goel being employed rather on a careful perusal of the reply reveals that the petitioner has also admitted the stand of the respondent and tried to project a new ground that the property at Noida should not be included in the present case i.e. he had no obligation to disclose the same and his desire was that his son should live with him and start a business in the tenanted premises. This admission / change of stand also to a large extent denudes the original petition / grounds set-forth in the eviction petition. The eviction petition is nothing but a bundle of M No.20/11 in E No.40/10 Page 9 to 11 lies. The judgment dt. 25/11/2010 accordingly is liable to be recalled.
25. Coming to the next aspect as to whether this court should only review its order and thereby allow the parties to litigate further by passing orders for filing of WS or pass any other order.
26. The need of the petitioner as stated in the petition was a false one. There was and there is no need for commercial premises for Lalit Kumar Goel. The petition is therefore, in view of the facts which have come on record is without any cause of action. At this stage i.e. of adjudication on leave to defend application, the petition in my opinion can also be disposed off even against the petitioner, there is no bar in as much as by way of the subsequent reply filed by the petitioner the controversy has been cleared and the true and correct facts are before the court. There is no need of Lalit Kumar Goel of the tenanted premises and he is well-settled in his own business. The company which he is a director owns commercial property; he is already running the consultancy business. The registered office of the company is at 156, Akash Darshan Apartment, Mayur Vihar, Phase I, Delhi. These facts are already on record. Thus, it is a fit case where under order 7 rule 11 CPC the entire claim of the petitioner deserves to be rejected at the threshold itself. In S.P. Chengalvaraya Naidu Vs. Jagannath AIR 1994 SUPREME COURT 853 where it has been held that "the courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely.
M No.20/11 in E No.40/10 Page 10 to 11 We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
27. In my opinion this is a fit case and the petition should be thrown out at this stage. The beneficial provisions have been misused and the special procedure has been used as a handle to illegally seek eviction against the settled principles of law. The need of the petitioner what to say of bonafide was laced with malafide intent. Accordingly, the petition is dismissed. The petitioner being a senior citizen I am not passing any order pertaining to the imposition of cost. Neither I am of the view that any action should be taken for perjury. The matter rest as it is and the eviction petition is dismissed. No order as to costs.
File be consigned to Record Room after due compliance.
Announced in the open court (SUMIT DASS)
Dt.31.10.2012 ACJ/ARC (NE),
KKD COURTS,
DELHI.
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