Delhi District Court
Anand Singh (Ex.U.P. J.S) vs Smt. Mamata Shah on 7 July, 2015
IN THE COURT OF MS. RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS : NEW DELHI.
RCT No. 04/2015
Anand Singh (Ex.U.P. J.S)
H.No. 120, Block-E,
Pocket-III, DDA Colony,
Bindapur, New Delhi-59 ..... Applicant/Appellant.
Versus
Smt. Mamata Shah
W/o Dr Anuj Kumar Shah,
through Caretaker Dr. Ajit Kumar,
H.No. 126 & 125 Office & Clinic,
Block-E, Pocket-III,
DDA Colony, Bindapur,
New Delhi-59 .... Non-
Applicant/Respondent
Date of Institution : 06-07-2015
Date of Decision : 07-07-2015
JUDGMENT
1 By this Judgment, I shall dispose of an application/ appeal u/s 340(2) Cr PC r/w Sec. 104 CPC moved by the applicant/appellant Anand Singh with the prayer to stay the operation of order dated:
20-06-2015, whereby cost of Rs. 5,000/- was imposed upon the applicant in Rent Case No. M-01/2015 and to Anand Singh Vs Mamata Shah Page No. 1/15 hold judicial inquiry u/s 340(2) Cr PC to punish the guilty public servants who are committing offences against public justice alongwith the respondents of the case. It is further prayed that fine be imposed upon Additional Rent Controller as compensation to the applicant for imposing cost upon him vide order dated:
20-06-2015 directing him to pay the cost by 27-06-2015. It is further prayed that directions be given to the Rent Controller to withdraw the matter in question from the court of Additional Rent Controller so as to make it one case for holding jurisdiction in order to grant relief under the provisions of DRC Act 1958 in Rent Case No. U2/2015.
2 I have heard the applicant/appellant in person on the point of admission/ maintainability of the application / appeal.
3 The applicant/appellant has submitted that on 07-05-2015 he had moved an application bearing Misc. no. 01/2015 before the Rent Controller, u/s 15(3) and u/s 21(3) r/w Sec. 74(2) of Delhi Rent Act, 1995, seeking directions;
(i)to the respondent to issue rent receipts for the rent paid and to pay the damages;
Anand Singh Vs Mamata Shah Page No. 2/15(ii)to issue directions to PS Bindapur to arrest Dr Ajit Kumar the caretaker/ husband of the owner of the tenanted premises;
(iii)to issue notice to both the
caretaker and the owner of the
tenanted premises u/s. 21 and Sec. 15 Delhi Rent Act, 1995;
(iv)to carry out enquiry and trial in the aforesaid matter and to punish the caretaker and owner, referred above, with 02 months of imprisonment and fine;
(v)to issue directions to the owner of the tenanted premises to issue written notice to the applicant in case she wants to get the premises vacated.
4 The aforesaid application was assigned to the court of ACJ- cum- Additional Rent Controller and was dismissed vide order dated: 06-06-2015 on the ground that Delhi Rent Act, 1995 had not been notified by the Anand Singh Vs Mamata Shah Page No. 3/15 Government and therefore the provisions of the same are not enforceable.
5 The applicant/appellant did not challenge the aforesaid judicial order dated: 06-06-2015 of Ld. ARC, instead moved an application u/s. 151 r/w Order VI Rule 17 CPC for amendment of the pleadings dated:
07-05-2015. Vide this application, he sought amendment of the application dated: 07-05-2015 to be read u/s. 15(3), 21(3) r/w Sec. 74(2), & Sec. 26(2) & (3), Sec. 45(1), (2), (3) & (4) and Sec. 48(4) DRC Act, 1958 and also sought amendment in the title of the application. This application was dismissed by Ld. ARC vide order dated: 20-06-2015 and cost of Rs. 5,000/- was imposed upon the applicant/appellant to be deposited with DLSA within one week of the order. In the said order, it is clearly observed by Ld. ARC that no amendment can be allowed, where there is no petition or suit pending. It is further observed that the earlier application of the applicant/appellant had already dismissed vide order dated: 06-06-2015 which has not been challenged at any appropriate forum. Here, it is important to observe that subsequent to the moving of the application u/o VI Rule 17 CPC before Ld. ARC on 08-06-2015 and before it was disposed of on 20-06-2015, the applicant/appellant had approached the Rent Controller vide application dated:09-06-2015 Anand Singh Vs Mamata Shah Page No. 4/15 making similar prayer as made in his earlier application dated: 07-05-2015 which was dismissed by Ld ARC vide order dated: 06-06-2015. The applicant/appellant had moved this application seeking directions to the caretaker/ owner of the tenanted premises to issue rent receipts and to punish them for disconnecting electricity supply and locking the water supply along with the drainage system to the tenanted premises. The said application was dismissed by Ld. RC vide order dated:
11-06-2015, observing that the monthly rent of the tenanted premises was Rs. 6500/- and Sec. 3 ( c) of DRC Act 1958 bars the application of the act to any premises whose monthly rent exceeds Rs. 3500/-.
6 Section 3(c) of DRC Act 1958 is relevant to be discussed, hence the same is reproduced as follows:
Section 3(c) of DRC Act, 1958:
"Act not apply to certain premises:- Nothing in this Act shall apply-
to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees"
7 As per Section 3(c) of Act, DRC Act 1958 is not applicable to the premises whose rent is more than Rs. 3500/-pm. Anand Singh Vs Mamata Shah Page No. 5/15 8 In the present case, admittedly the rent of the tenanted premises as per the pleadings of the applicant/ appellant, is Rs. 6500/- pm excluding electricity and water charges. Therefore, none of his applications are maintainable under DRC Act, 1958 since the tenanted premises in question is not governed by the provisions of DRC Act 1958, its rent being Rs.6500/- pm, whereas to attract the provisions of DRC Act 1958, the rent of the tenanted premises shall not be more than Rs. 3500/- pm. It is specifically mentioned in Sec. 3(c) of the Act that the provisions of the said Act shall not apply to any premises whether residential or not, whose monthly rent exceeds Rs. 3500/-pm. 9 The applicant/appellant submitted that the rent of Rs. 6500/- pm is excessive and as such the standard rent is required to be fixed u/s. 9 of DRC Act 1958, however, in view of Sec. 3(c) of the Act, the applicant/appellant cannot approach the Rent Controller under DRC Act 1958 even for fixation of standard rent since the rent of the tenanted premises is Rs. 6500/- pm which is more than Rs. 3500/-pm as mentioned in Sec. 3(c) of the Act. Nothing in this Act applies to this tenanted premises in view of the bar u/s. 3(c) of the Act.
10 In the light of the above facts, it is to be seen whether the present application/ appeal u/s 340(2) Cr. PC r/w Sec. 104 CPC is maintainable or not.
Anand Singh Vs Mamata Shah Page No. 6/15Sec. 340(1) and (2) Cr. PC is relevant for the disposal of the matter under consideration. The same reads as under:
Sec.340 Cr.PC "Procedure in case mentioned in section 195.-
(1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary-
(a) record a find to that
effect;
(b) make a complaint thereof
in writing
( c) send it to a Magistrate of
the first class having jurisdiction;
Anand Singh Vs Mamata Shah Page No. 7/15(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section.
195."
11 Section 340(1) deals with the procedure to be followed in cases mentioned in Sec. 195 Cr. PC. When an application is moved before the Court or otherwise the court is of the opinion that it is expedient Anand Singh Vs Mamata Shah Page No. 8/15 in the interest of justice to conduct an inquiry into any offence mentioned in Sec. 195 (1) (b), which appears to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, the Court may after conducting preliminary inquiry, record a finding to that effect and then make an appropriate complaint in writing and send the same to the Magistrate concerned.
12 However, where the concerned court as referred to in Sec.340(1) Cr PC, neither makes a complaint under Sub-Sec. (1) in respect of the offence referred therein nor rejects the application for making such complaint, the power under Sec. 340(2) may be exercised by the Court to which such former Court is subordinate within the meaning of sub-sec. 4 of Section 195 Cr PC.
13 To attract the provisions of Sec. 340(1) it is pre requisite that an offence under Sec. 195(1) (b) appears to has been committed in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court and the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any such offence. This power can be exercised by the court of its own or upon an application moved before it. The power of the Anand Singh Vs Mamata Shah Page No. 9/15 superior court to resort to the provisions of Sec. 340(2) Cr PC comes into operation only when the Court below has neither made a complaint under Sub Sec. (1) in respect of any such offence committed in relation to proceeding pending before it or in respect of a document produced or given in evidence, either of its own or on the application moved before it.
14 So far the present case is concerned, there is nothing on record that any offence under Sec. 195(1) (b) Cr. PC was committed in relation to the proceeding pending in the Court of Ld.RC or Ld. ARC or in respect of a document produced or given in evidence in the proceedings before these Courts. Nor it is the case of the applicant/appellant that he had moved any such application u/s 340(1) Cr PC either before Ld. RC or Ld. ARC. In the absence of any material available on record that any offence referred to in Sec. 195(1)(b) was committed in the proceedings before Ld. RC and Ld. ARC, it was not expected of them to initiate any such inquiry of their own and to make any complaint to the Magistrate concerned. In such circumstances, he has failed to show as to why he has approached this Court u/s 340(2) Cr. PC.
15 If the applicant/appellant had any grievance qua the judicial orders passed by the court of Ld. ARC or Anand Singh Vs Mamata Shah Page No. 10/15 Ld. RC, he should have resorted to legal remedy at appropriate forum. By no stretch of imagination the action is required to be taken by this court u/s 340(2)Cr.PC or as prayed by the applicant/appellant to impose punishment upon Ld. ARC or Ld RC or to initiate any criminal proceeding against them. The applicant/appellant who claims himself to be an Ex- Judicial Officer from UP Cadre, appears to be vindictive towards the judicial officers and seeks punishment for them for the acts which they have not committed. In the facts and circumstances of the case, so far the application/ appeal u/s 340(2) Cr PC is concerned, the same is not maintainable.
16 Now the question arises whether the application/ appeal u/s 104 CPC against the impugned order of Ld. ARC dated:20-06-2015, whereby the application of the applicant/appellant u/s 151 CPC and u/o 6 rule 17 CPC was dismissed and cost of Rs. 5,000/- was imposed upon him, is maintainable or not. 17 The appellant has prayed for staying the order dated: 20-06-2015 passed by Ld. ARC for imposing the cost of Rs. 5,000/- on the appellant on the ground that the Court of Ld. RC is a court of small causes and it could not have imposed cost of Rs. 5,000/- as its jurisdiction is only to impose a cost of maximum of Rs. 250/- and further that the order of imposition of cost Anand Singh Vs Mamata Shah Page No. 11/15 passed u/s 35A(2) by Ld. ARC is appealable u/s 104 CPC. No doubt, an order passed u/s 35A is appealable u/s 104 CPC. None the less the order dated: 20-06-2015 passed by Ld. ARC imposing cost of Rs. 5,000/- on the present appellant does not qualify as an order passed u/s 35A CPC. Section 35A CPC reads as under:
Section 35A CPC:
"Compensatory costs in
respect of false
or vexatious claims or
defences:-
(1) If in any suit or other
proceedings (including an
execution proceeding but
(excluding an appeal or a
revision )) any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if, thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, (if it so thinks fit), may, Anand Singh Vs Mamata Shah Page No. 12/15 after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of cost by way of compensation.
(2) No Court shall make any such order for payment of an amount exceeding ( three thousand rupees) or exceeding the limits of its pecuniary jurisdiction, whichever amount is less.
Provided that where the pecuniary limits of the jurisdiction or any Court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of 1887) (or under a corresponding law in force in ( any part of India to which the said Act does not extend)) and not being a Court constituted ( under such Act or law) are less than two hundred and fifty rupees, the High Anand Singh Vs Mamata Shah Page No. 13/15 Court may empower such Court to award as costs under this Section any amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:
Provided, further, that the High
Court may limit the amount which
any Court or class of Courts is
empowered to award as costs
under this Section.
(3) No person against him an
order has been made under this
Section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.
(4) The amount of any
compensation awarded under this
section in respect of a false or
vexatious claim or defence shall
be taken into account in any
subsequent suit for damages or
compensation in respect of such
claim or defence."
Anand Singh Vs Mamata Shah Page No. 14/15
18 From a bare reading of the above provision, it
is clear that the impugned order of imposing cost
cannot be termed as an order u/s. 35A by any stretch of
imagination since neither it is a compensatory cost
payable to any objector on the ground that the
proceedings instituted by the appellant before Ld. ARC were false or vexatious to the knowledge of the applicant/ appellant herein nor the claim of the present applicant/appellant was disallowed by Ld. ARC on any objection raised by any opposite party to that effect. Infact, there was none before the court except present applicant/appellant and his application was dismissed with cost by Ld. ARC observing that it was totally vexatious and frivolous, thereby wasting precious time of that court. Hence, in my considered view even the appeal against the said order u/s 104 CPC is not maintainable. For same reasons the prayer for imposing any fine on Ld. ARC is also not maintainable.
19 Another prayer made by the appellant in the present appeal is seeking direction to Ld. RC to withdraw this matter from the court of Ld. ARC in order to grant relief under DRC Act as one case. As noted herein above, presently no case is pending before Ld. RC or Ld. ARC Dwarka, hence no question of passing any direction for transfer of any such case arises.
Anand Singh Vs Mamata Shah Page No. 15/1520 For all these reasons, the application/ appeal under consideration is dismissed as not maintainable. Before parting with the Judgment, I wish to observe on record that the appellant seems to be in habit of instituting a frivolous and vexatious proceeding against one and all which most of the times are even beyond purview of legal provisions. However, following the tradition of judicial restraint, no cost is being imposed upon the appellant and he is warned to be careful not to institute frivolous litigation in future.
Copy of the Judgment be sent to the court of Ld. RC and Ld. ARC for information and record.
Application/Appeal file be consigned to the Record Room.
Announced in the open court on the 7th July, 2015 Ravinder Kaur, District & Sessions Judge, Dwarka Courts, South-West, New Delhi.
Anand Singh Vs Mamata Shah Page No. 16/15