Delhi District Court
Vide This Order I Shall Dispose Of An ... vs Up Board Of High School And on 15 March, 2008
IN THE COURT OF SH ANIL KUMAR SISODIA; ARC/DELHI
Case No:- Ex-49/05
Smt. Satyawati
Vs
Bhagwat Goel
1. Vide this order I shall dispose of an application u/s 19 (2) of
DRC Act read with section 151 CPC filed by the JD/tenant, Sh. Bhagwat
Goel.
2. The JD/respondent has stated in the application that he had
filed the application u/s 47 CPC which is pending adjudication along with the application u/s 19 of DRC Act and the contents of the same be read as part and parcel of this application. He has further stated the record shows that deceased landlady has been pursuing a false frivolous and vexatious litigation and which is clear from the judgment dismissing the eviction petition by the then Ld. ARC and later the whole exercise is a result of perjuries and forgeries and falsehood played by the DH through their counsels. Vide order dated 06-08-04, the Hon'ble High Court of Delhi reversed the order of the Ld. /ARC dated 03-01-2002, and ordered eviction in favour of the respondent/daughter of the landlady, Dr. Indu Arora. The Hon'ble High Court in its order had observed that the services of daughter Dr. Indu Arora were required by the landlady to look 1 after her in her old age and the said landlady died on 11-08-2004 i.e. 5 days after the said judgment passed by Hon'ble High Court. It has also been stated that at the moment of death of landlady, the bonafide requirement extinguished and Dr. Indu Arora in her CM (M) 284/05 continued with her nefarious designs for fraudulent evictions but stated that Dr. Indu Arora has no need to shift to Delhi from Jaipur where she is a surgeon/professor in opthalmic department of SMS Medical College, after the demise of her mother. On 27-10-2005, the respondent with the police aid, her counsels of Narula & Associates, others and over 25 goons with the help of bailiff conducted dacoity at the premises of the JD as a result of which the respondents perused the police to illegally seal the kitchen. Vide orders dated 15-02-2006 and 17-07-2006 of the Hon'ble High Court the applicant/JD handed over the keys of the premises. The sealed kitchen and rest of the portion of flat including roof and common conveniences still remain with the applicant/JD. JD also filed a complaint case against Dr. Indu Arora & others on 27-10-05. It has further been stated that although the keys of the said portions were handed over on 18-07-05, Dr. Indu Arora has only put her lock but never occupied the said premises though over three months have passed and she continues to live in Jaipur working in SMS Hospital and at the same 2 time running her personal clinic and surgery in Jaipur. It has further been stated that neither the landlady nor the said daughter Dr. Indu Arora occupied the premises within two months as stipulated in Section 19 of DRC Act, so it is fit case for this court to order Dr. Indu Arora to hand over the possession back to the applicant/JD. It has also been stated that it is a settled law that the fraud nullifies everything including all the orders so obtained and a prayer has been made for restoration of tenanted premises in favour of the JD/tenant. The application has been supported by the affidavit of the JD.
3. DHs have filed reply to the application raising preliminary objections that the JD is estopped from and has no right to invoke the jurisdiction of this court u/s 19 (2) of DRC Act and the fact that respondent had voluntarily handed over the keys of the premises and with his consent in pursuance of orders dated 15-02-06 and 17-07-06 passed by Hon'ble High Court and his undertaking dated 22-03-06 filed in the Hon'ble High Court in CM (M) No. 345/06. The application under reply is abuse of process of law. The application is not maintainable as the premises in question is in occupation of the legal heirs of the deceased landlady, Smt. Satyawati who were impleaded in the matter after her death. The application is malafide as JD has lost his case up to 3 the Hon'ble Supreme Court and is filing futile and frivolous litigation against the Decree Holders in order to harass them and grab the property in question. On merits, the contents of the application have been denied. It has been stated that the application u/s 47 CPC and u/s 19 of DRC Act have been dismissed by the court vide order dated 23-09- 2005 during the continuance of the execution proceedings. It has further been stated that after the withdrawal of the execution proceedings the applications do not survive and the applicant is trying to revive the whole dispute and drag the legal heirs of the deceased petitioner in frivolous litigation. The other contents of the application have also been denied. It has been denied that the bonafide requirement extinguished on the death of the landlady. The respondent has also filed certified copy of order dated 15-12-06 and 17-07-06 and undertaking dated 22-03-06 along with the reply as Annexure A. The pendency of the complaint case has been denied for the want of knowledge and it has been stated that the premises in question is very much in occupation of the legal heirs including daughter Dr. Indu Arora and the said premises are neither let out nor are lying un-occupied as claimed by the JD. It has also been stated that the applicant is no more a tenant in the premises in question after satisfaction of the decree of eviction. A prayer has been 4 made for dismissal of the application along with the exemplary costs.
4. I have head counsel for the DH as well as the JD in person and have perused the records carefully including the judgments relied upon by the JD. The JD/applicant has also filed written submissions in support of his arguments wherein the contents of the application have been reiterated. It has been stated that flat has not been occupied by the beneficiary since June, 2006 and the daughter Dr. Indu Arora had concealed other properties in Delhi. The JD has also relied on judgements in Ram Preeti Yadav Vs UP Board of High School and Intermediate Education and Others, (2003) 8 SC 311; S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and others, AIR 1994 SC 853; State of Andhra Pradesh and another Vs. T. Suryachandra Rao, VOLCXLI-(2005-3) PLR 551. It has also been stated that an appeal is pending against the order as declaring the suit to be null and void. JD has also relied on the judgements in Nilesh Nandkumar Shah Vs Sikandar Aziz Patel, (2002) 6 SC 678; Precision Steel & Engineering Works and Another Vs. Prem Deva Niranjan Deva Tayal, 1982 DLT (SC) 458; Phool Rani & Ors. Vs Naubat Rai Ahluwalia, AIR 1973 SC 2110; Shahastarpal Sharma Vs. HO Ram, 1973 RCJ 43; Amtul Mubeen & Others Vs Kansi Ram & Others, 34 5 (1988) DLT (SN) 17; Busching Schmitz Private Ltd. Vs P.T. Menghani and another, AIR 1977 SC 1569, in support of his arguments that he is entitled to re-possession of the suit property. Counsel for the DH has argued on the lines of his reply.
5. Before proceeding further, I deem it appropriate to give necessary background in which the present application has arisen. Smt. Satyawati (since deceased) filed a petition for the eviction of the JD u/s 14 (1) (e) r/w section 25-B of the DRC Act wherein the JD sought leave to defend, which was allowed. After trial the eviction petition was dismissed by Sh. V.K. Sharma, the then Ld. ARC, vide his order dated 03-01-2002. The Decree Holder filed a revision against the said order and succeeded in the said revision. Accordingly, an eviction order was passed by Hon'ble High Court of Delhi vide order dated 06-08-2004. The said order was challenged by filing a review before Hon'ble High Court of Delhi, which was dismissed. The JD preferred SLP before Hon'ble Supreme Court against the said order, which too was dismissed in limine. During the proceedings, the Decree Holder died. The LRs of the Decree Holder filed the execution petition which have been hotly contested by the JD/tenant. He filed number of applications in the execution petition raising all possible pleas but all his pleas have been 6 rejected by the courts including the appellate courts. The JD even filed a suit for declaration bearing suit no. 33/05 for declaring the decree and judgment of Hon'ble High Court as null and void. The said suit was also dismissed as not maintainable by the court of Ms. Vrinda Kumari, the then Ld. Civil Judge vide her order dated 28-07-2005.
6. Perusal of the order passed by Hon'ble High Court in Civil Misc.
(M) 345/06 dated 15-02-2006 to show that the counsel for the JD had sought time of six months to vacate the premises in question and Hon'ble Mr. Justice R.S. Sodhi (as he was then) was pleased to allow the respondent four months' time to vacate the premises on the JD's giving an undertaking that he shall vacate the premises on before 15-06- 2006. The JD however failed to hand over the possession despite giving his undertaking dated 22-03-2006 and the Decree Holders filed the contempt application bearing CM no. 9430/06 and perusal of the order sheet dated 17-07-2006 shows that the JD agreed to deposit the keys in the court on the next day i.e. 18-07-2006 and the keys of the suit premises were ultimately delivered by the JD. On 20-10-2006, counsel for the DH submitted before this court that he has received the vacant possession of the tenanted premises during the course of execution proceedings and the execution petition was dismissed as satisfied vide 7 order dated 25-05-07.
7. So far as the averments of the JD regarding fraud, forgery and perjury are concerned, it is pertinent to mention here that the JD has exhausted all his remedies against the order of eviction dated 06-08- 2004 passed by Hon'ble High Court up to Hon'ble Supreme Court but has failed to succeed. The JD/tenant also tried his luck in the Civil Courts but has not been able to obtain any favourable order against the eviction order. The said eviction order has thus attained finality. This court being the executing court cannot go behind the judgment and decree of the superior court which has already attained finality. Hence, all the allegatins levelled by the JD regarding fraud, forgery and perjury being committed by the DH are without any merits and are accordingly rejected.
8. So far as the question of restoration of possession of the tenanted premises to the JD is concerned, the JD/tenant has alleged in his application that the petitioner died on 11-08-2004 and the bonafide requirement of the landlady extinguished. It has further been alleged that although the keys of the tenanted premises was handed over on 18-07- 2005 to the DHs, Dr. Indu Arora had only put her lock but never occupied the said premises and continues to live and work in Jaipur and 8 hence the JD/tenant is entitled to restoration of the suit premises. In reply, the DHs have argued that the suit premises is not lying locked or unoccupied but the same is being occupied by the LRs of the deceased petitioner who were impleaded in the matter after her death. Hence, it cannot be said that the DH's have not occupied the suit premises.
9. It is well settled law that the term "occupy" has a wider connotation and it does not merely mean to start residing in the premises but is an act coupled with the fact that the landlord has exerted his right by doing any act such as renovation, repair, rebuilding, changers or even demolition to make the premises habitable which may be necessitated due to circumstances such as requirement of landlord or the natural wear and tear of the building due to passage of time. Similarly, when there are more than one beneficiaries of the eviction order passed u/s 14 (1) (e) of DRC Act it is not necessary that each and every beneficiary should be residing in the suit premises. No doubt, at the time when the eviction petition was filed, the petitioner had pleaded bonafide requirement on the ground that she was not keeping well and wanted to keep her daughter along with her to look after her. Unfortunately, the petitioner expired before she could enjoy the fruits of her decree. However, this does not mean that the bonafide requirements of the 9 petitioner extinguished. The LRs of the deceased petitioner filed the execution petition and the possession was handed over to them by the JD pursuant to an undertaking given by him in Hon'ble High Court and now Decree Holders are in occupation of the suit premises except Dr. Indu Arora who is admittedly working and staying at Jaipur being employed in SMS Hospital. Merely because Dr. Indu Arora is unable to reside in the suit premises due to her employment, it cannot be said that the premises are lying unoccupied or locked. The JD has not filed any rejoinder to the reply filed by the DH's controverting the averments made by the DH's in the reply. Hence, in view of the specific averments made by the DH's in their reply, it cannot be said that the suit premises have been lying unoccupied after the possession of the same was handed over by the JD.
10. Thus, I am of the considered opinion that present application is without any merits in it and the same is accordingly dismissed. ANNOUNCED IN THE OPEN COURT On 15th March, 2008 (ANIL KUMAR SISODIA) Additional Rent Controller; Delhi 10 Ex-49/05 15-03-2008 Present: None.
Vide my separate order announced in the open court today, the application u/s 19 (2) of DRC Act read with section 151 CPC filed by the JD/tenant is dismissed. The execution petition has already been dismissed as satisfied vide order dated 06-01-2007.
File be consigned to record room.
ARC/Delhi 15-03-2008 11