Delhi District Court
Smt. Suman Taneja vs Sh.Shaym Sunder Aggarwal on 17 November, 2009
1
IN THE COURT OF SUNITA GUPTA: DISTRICT JUDGE-VII-CUM-ADDITIONAL
RENT CONTROL TRIBUNAL-NORTH-EAST : KARKARDOOMA COURTS :
DELHI :
RCT No.45/09
Smt. Suman Taneja
W/o late Shri Ramesh Taneja
R/o 673, Bhai Pamanand Colony, Delhi.
......Appellant
Vs.
Sh.Shaym Sunder Aggarwal,
S/o Shr. R.S.Aggarwal,
R/o L-178-C, Dilshad Garden, Delhi.
.....Respondent.
O R D E R :-
1. Feeling aggrieved by order dated 11.05.09, whereby the petition filed by the appellant-petitioner under Section 14D of Delhi Rent Control Act was dismissed by Shri Parveen Singh, ld. Addl. Rent Controller, present appeal has been filed under section 38 of Delhi Rent Control Act.
2. Briefly stated, facts giving rise to the filing of present appeal are that the appellant filed an eviction petition under section 14D read with 25 B of Delhi Rent Control Act against respondent interalia on the allegations that she is wife of late Shri Ramesh Taneja, who is the original allottee of property bearing No.L-178-C, Dilshad Garden, Delhi. Shri Ramesh Taneja died on 10.7.03 leaving behind his wife, two sons and one daughter as legal heirs. The sons and daughter have relinquished their right in favour of the appellant. Appellant being legal heir and wife of late Shri Ramesh Taneja has become owner as well as landlady of the suit property. She is a widow as her husband had died on 10.7.03. Apart from a younger daughter and a son, appellant- petitioner has also one married son, who has a daughter of two years old. The accommodation in which the petitioner is residing alongwith her daughter and 2 sons is the property of her sons bearing No.673, Ground Floor, Bhai Parmanand Colony, Delhi. The accommodation consists of three bed rooms and one drawing dinning room. She has a married son who requires one room for his personal need. Daughter of the petitioner is of young age and she also needs one room for her personal requirement. The other son of the petitioner is a student and he requires a separate room for his studies and personal use. Petitioner herself needs a separate room for her needs. Parents, sisters-in- law, brother-in-law of the petitioner often visit her as such she also requires accommodation for them. The present accommodation with the petitioner consists of only four rooms which is quite inadequate, insufficient and unsuitable to her. She wants to shift herself in the suit premises. Her requirement is bonafide as such the eviction petition was filed.
3. Trial court record reveals that summons as per schedule IIIA of DRC Act 1958 were served upon the respondent, who filed an application for leave to contest the eviction petition. Vide order dated 13.10.05 leave to contest the eviction petition was granted. Thereafter, respondent filed written statement wherein he denied that the petitioner is landlady/owner of the tenanted premises. It was alleged that after the death of Shri Ramesh Taneja, his wife, two sons and one daughter have also inherited the ownership right of the tenanted premises and they have become joint owners/landlords and therefore, petition filed by the petitioner alone is not maintainable. It was also denied that the premises in question are required by the petitioner and it was submitted that the intention of the petitioner is not genuine. It was alleged that petitioner has suppressed the material facts from the court. Petitioner is already having more than sufficient accommodation available to her in premises No.673, Bhai Parmanand Colony, Delhi which is a multi-storeyed building comprising of ground floor, first floor, second floor and third floor and 3 the said premises consists of more than ten rooms, besides kitchen, bath room, store room and baramdas etc. Further more, the petitioner is interested in selling the property as such it was submitted that petition is liable to be dismissed.
4. After both the parties led their evidence, vide impugned order ld. trial court came to the conclusion that the premises in question is entirely insufficient for the residence of the petitioner and it was improbable that she requires the same for the purpose of her residence or that her requirement is bonafide and as such petition was dismissed. Feeling aggrieved by this order, present appeal has been filed.
5. Notice of the appeal was given to the respondent who has appeared and trial court record was summoned.
6. I have heard ld. Counsel for the parties and have carefully perused the record. At the outset, ld. Counsel for the appellant was asked to satisfy regarding maintainability of the appeal. It was submitted by him that no order for recovery of possession has been passed in favour of the appellant as such present appeal under section 38 of the Delhi Rent Control Act is maintainable. He also addressed arguments on the merits of the case.
7. Before going to the merits of the case, firstly it is essential to consider whether the present appeal is maintainable or not.
8. No case law has been cited by either of the parties. However, Vinod Kumar Chowdhry Vs Smt. Narain Devi Taneja AIR 1980 Supreme Court 2012 is a direct authority on the point. Substantially similar question of law was involved in that case before Hon'ble Supreme Court. In that case, the landlady had sought eviction of the tenant from the premises in dispute on the ground covered by clause (e) of the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958, namely, that she required them bona fide for 4 occupation as a residence for herself. Her application being triable in accordance with the procedure laid down in Section 25B of the Act, the tenant sought the controller's leave to contest it on grounds which were stated in his affidavit. The leave was granted and thereafter the tenant filed a written statement contesting his eviction which was ultimately disallowed and Addl. Rent Controller had passed the order refusing to direct eviction of the tenant. A revision was preferred before the Hon'ble High Court which was dismissed. Thereafter Special Leave Petition was filed before Hon'ble Supreme Court and it was contended that the revision was incompetent in view of provisions of sub-section (a) of Section 25B of DRC Act and only an appeal as contemplated under section 38 of DRC Act should have been instituted before the Rent Control Tribunal. Hon'ble Supreme Court observed that in order to determine the acceptability of the contention, it is necessary to undertake a somewhat detailed examination of some of the provisions of the Act, especially those which were introduced by a 1976 amendment with effect from Ist of December,1975.
9. Hon'ble Supreme Court considered various provisions of the Act and the relevant portion of the judgment is reproduced as under : -
... . .. . .. .... ..
" 4. The Act as originally framed provided for the control of rents and of eviction of tenants. Various safeguards were created by it to ensure security of tenure to tenants residing in the urban area of Delhi and the right of the landlord to evict his tenant was restricted in ambit so as to be available only if the existence of certain specified grounds was proved. Those grounds are enumerated in clauses (a) to (1) of the proviso to sub-section (1) of Section 14 of the Act. The ground contained in clause (e) runs thus :
5 " (e) that the premises let for residential purposes are required bonafide by the landlord for occupation as a residence for himself or for any member of his family dependent upon him, if he is the owner thereof, or for the any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable residential accommodation."
The jurisdiction to decide dispute arising under the Act was vested in Controllers and civil courts were divested thereof. Chapter VI of the Act made provision for appointment of Controllers, their powers and functions and appeals from their orders. Out of the sections appearing in that Chapter there are three with which we are here concerned. They are Sections 37, 38 and 39. Section 37 lays down the procedure to be followed by the Controller and sub-section (2) thereof states:
" Subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence."
Section 38 lays down that from every order of the Controller made under the Act an appeal shall lie to the Tribunal who shall have all the powers of a court under the Code of Civil Procedure when hearing an appeal. Section 39 provides for an appeal to the high Court against an appellate order passed by the Tribunal but makes it clear that such a second appeal shall lie only if it involves some substantial question of law. On the 9th of September, 1975, the Central Government took a decision that Government employees owning houses within the Union territory of Delhi shall be required to vacate accommodation allotted to them by the Government with a period of three months beginning with the 1st of 6 October, 1975 and that in case they failed to vacate such accommodation before the 1st of January, 1976, they would have to pay therefore licence-fee equivalent to rent at the market rate. In view of that decision it became necessary to make special provision for enabling such Government employees to evict their respective tenants and to shirt to their own houses. It was also felt that procedural delays required to be cut down in the case of dispute between the landlord and the tenant when he landlord bonafide required the demised premises for his own occupation. The Act was, therefore, amended by Ordinance No.24 of 1975 which was eventually replaced by the Delhi Rent Control (Amendment) Act (being Act No.18 of 1976 and hereinafter referred to as the Amendment Act). The Amending Act introduced in Chapter III of the Act Section 14A which provided for a right to a person in occupation of any residential premises allotted to him by the Central Government or any local authority to recover immediate possession of premiss let out by him in case he was required by the Government or the authority to vacate the residential premise allotted to him. The only other change effected by the Amending Act was to add a new chapter, viz., Chapter IIIA to the Act. The chapter is headed "S ummary Trial of certain Applications" and consists of three sections, viz. Sections 25A, 25B and 25C, the first two of which may be reproduced in extenso:
" 25A. The provisions of this Chapter of 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."
" 25B. (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, shall be dealt with in 7 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 circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant in 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 ha bee 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 an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from th 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 8 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 (e) 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 an inquiry in a proceedings to which this Chapter applies, follow the practice and procedure of a court of Small causes, including he recording of evidence. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premiss made by the Controller in accordance with the procedure specified in his section:
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 record 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 XL VII of the First Schedule to the Code of Civil Procedure, 1908.
(10) Save as otherwise provided in this Chapter, the procedure for the 9 disposal of an application for eviction on the ground specified in clause
(e) of the proviso to sub-section (10 of Section 14, or under S.14A, shall be the same as the procedure for the disposal of applications by Controllers."
5. The non obstante clause occurring in Section 25A makes it quite clear that whenever there is a conflict between the provisions of Chapter IIIA on the one hand and those of the rest of the act or of any other law for the time being in force on the other, the former shall prevail. Section 25B provides a special procedure for the determination of an application by a landlord claiming recovery of possession from his tenant of the premiss let out to the latter on either of two grounds, viz. those specified in clause (e) of the proviso to sub-section (1) of Section 14 and in Section 14A. Thus,if such an application is based on the ground that the landlord requires the demised premises bonafide for his own occupation as a residential accommodation, it has to be dealt with in accordance with the procedure specified in Section 25B and not under the provisions contained in chapters other than chapter IIIA in so far as the latter are inconsistent with the former. This follows directly from the provisions of Sec.25A read with those of sub-section (1) of Section 25B. That procedure envisages a short cut to the conclusion of the proceedings before the controller and for that purpose makes the right of the tenant to contest the application of the landlord subject to the Controller's leave obtained on grounds specified in an affidavit. If no such affidavit is filed, the question of leave does not arise nor that of a contest by the tenant. Furthermore, if the affidavit is filed but leave is refused, a contest by the defendant is again barred. In either case the proceedings immediately come to a termination by the passage of an 10 order of eviction of the tenant. In case, however, the required affidavit is filed and leave to contest is granted, the Controller has to embark on the usual inquiry but the same has again to be conducted in conformity with the practice and procedure of a Court of Small causes, including the recording of evidence. This is the mandate of sub-section (7) of Section 25B which makes a slight departure in the matter of practice and procedure from that to be followed in other applications under the Act as laid down in sub-section (2) of Section 37.
Sub-section (8) of Section 25B makes another variation in the procedure and states that when an order for the recovery of possession of any premises has been made by the Controller on an application covered by sub-section (1) no appeal or second appeal shall lie therefrom. In the case of such an order therefore, the provisions of Sections 38 and 39 are specifically made inapplicable. The sub section further provides however for the remedy of revision by the High Court of any order made by the Controller under Section 25B, a remedy which is not available to a party in a dispute not covered by Chapter IIIA.
Reference may also be made here to sub-section (10) of Section 25B pointedly. That sub-section makes it clear that even in the case of applications falling under sub-section (1) of that section the procedure for their disposal by Controller shall be the same as in the case of other applications, except as is provided in Chapter IIIA. The combined effect of Section 25A and sub-section (1) and (10) of Section 25B is that in whatever respect Section 25B makes a departure from the procedure prescribed in other chapter of the Act, the provisions of Chapter IIIA shall prevail but that where that Chapter does not provide for variation, applications covered by sub-section (i) of Section 25B shall be treated at 11 par with all other applications for the purpose of procedure.
6. It is in the above background that the question as to whether a appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided, and that brings us directly to the meaning of sub-section (8) of Section 25B. The proviso to that sub section gives power to the High court to revise "a n order made by the Controller under this section"
which expression is no doubt capable of being construed as any order of whatsoever nature passed by the Controller while acting in accordance with the procedure laid down in Section 25B. The provision, however, has to be read as a legislative measure carved out of the sub section to which it is appended and he order mentioned therein has to be regarded as an order of the type which the sub-section speaks of, i.e., "a n order for the recovery of possession of any premiss made by the Controller in accordance with the procedure specified in this section".
Thus the order covered by sub-section (8) (and therefore, by the proviso also) would be a final order disposing of an application on a conclusion of the proceedings under sub-section (4) or sub-section (7) of Section 25B. This line of reasoning does not present any difficulty.
7. Learned counsel for the tenant however argued that for an order to be covered by sub-section (8) of Sec.25B it must be an order for the recovery of possession of any premises made by the Controller. According to him if an order does not direct recovery of possession by the landlord from the tenant, it is not an order which sub-section (8) would embrace. This contention, though not wholly implausible, run counter to the decision in Devi Singh vs. Chaman Lal 1977 Rajdhani LR 566 (supra)( which was followed in Bhagwati Prasad v. Om Prakash, 12 1979 Rajdhani LR 26 (supra) and Mahavir Singh v. Kamal Narain, 1979 Rajdhani LR 159 (supra) and does not find favour with us. 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 refused the relief of eviction to the landlord; but then it appears to us that the expression "o rder deciding an application for the recovery of the possession of any premises, has to be construed in the context, in which it appears, as an order deciding an application for the recovery of the possession of any premises. Our reasons in this behalf are twofold. 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 S.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 relation to the proceedings held under that Chapter. Before the enforcement of the Amending Act, all disputes 13 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-sec. (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 obtained 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 for simper 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 proviso, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in Sections 38 and39, 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.
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8. In the way of the above interpretation of sub-section (8) of Section 25B, the provisions of sub-section (1) thereof do not pose a hurdle. All that sub-section (10) states is that the procedure for the disposal of an application for evidence 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 he 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 IIIA, such applications fall outside the category of those which can be disposed of like other applications under sub-section (10) read with provisions contained in other chapters of the Act.
9. As a result of the above discussion, we hold that he remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High court as laid down in the proviso to sub-section (8) of Section 25B even though it was an order not directing but refusing recovery of possession of the premises in dispute."
10. Section 14D was inserted in the statute by the Delhi Rent Control (Amendment) Act 57 of 1988. Scope of Chapter IIIA dealing with " summary trial of certain applications" was expanded by including eviction petition filed on the grounds provided under section 14B, 14C and 14D. That being so, the ratio of Vinod Kumar Chowdhry (Supra) applies with full force to the case in hand. That being so, the submission of ld. Counsel for the appellant that since 15 in the instant case no order for recovery of possession was passed in favour of the appellant and therefore, appeal under section 38 DRC Act is maintainable, is devoid of merit. The remedy available to the appellant is to file a revision petition before the Hon'ble High Court as provided under section 25B (8) of DRC Act.
11. Keeping in view the fact that appeal itself is not maintainable, it will not be desirable to consider the merits of the case. As such appeal being not maintainable, is dismissed. Trial court record be sent back.
12. Appeal file be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) on this 17th November, 2009. District Judge-VII/NE-cum-ARCT, Delhi.