Delhi High Court
M/S Amar Photo Studio Thr. Raj Kumar vs Late Sh. Niranjan Das Arora Thr. Its ... on 13 November, 2014
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC. REV. No. 229/2014
% 13th November , 2014
M/S AMAR PHOTO STUDIO THR. RAJ KUMAR ......Petitioner
Through: Mr. Rajat Wadhwa, Adv. and Mr.
Amritansh Batheja, Adv.
VERSUS
LATE SH. NIRANJAN DAS ARORA THR. ITS LEGAL
REPRESENTATIVE SMT. MANJU ARORA ...... Respondent
Through: Ms. Pooja Chhabra, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. On 14.7.2014, this Court passed the following order:-
"C.M.No.11056/2014
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
RC.REV.No.229/2014 & C.M.No.11057/2014 (stay)
1. Subject to the payment of costs of Rs.35,000/- to the respondent herein/landlord before the Court below in the form of bank draft within a period of two weeks from today, on account of delay RCR 229/2014 Page 1 of 10 being caused in the disposal of the leave to defend application, which is stated to be on account of the default of the present petitioner/his advocate, this Court is inclined to direct consideration of the leave to defend application on merits before the Additional Rent Controller.
2. In case, the respondent herein/landlord accepts the bank draft as an act of condoning of delay in the disposal of the leave to defend application, then no notice needs to be issued, but if the bank draft of costs of Rs.35,000/- is not accepted by the respondent herein/landlord, thereafter notice be issued by ordinary process as well as by registered AD post, returnable on 13th November, 2014.
3. Copy of this order be given dasti to the petitioner, and who will give the copy of the same to the respondent at the time of tendering of the bank draft."
2. This order was passed because the impugned order dated 22.11.2013 which was challenged in this case, had decreed the bonafide necessity eviction petition filed under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (in short 'the DRC Act') by non consideration of the leave to defend application filed by the petitioner/tenant by the Additional Rent Controller because of non-pursuing of the same by the petitioner/tenant and also not supplying the copy of the said leave to defend application to the petitioner before the court below i.e the landlord in spite of repeated orders. RCR 229/2014 Page 2 of 10
3. The order which was impugned in this petition is the order dated 22.11.2013, and which order reads as under:-
" Perusal of ordersheet dated 14.08.13, 03.09.13, 08.10.2013 and 20.11.13 reveals that the respondent has not been appearing in the present case for after the leave to defend application filed on 01.08.13 vide order dated 14.08.13. Respondent was directed to supply the copy of leave to defend application to petitioner within 7 days but the said order was not complied with despite several dates i.e. 03.09.13, 08.10.13, 20.11.13. Even Court notice issued to respondent could not be served.
On 08.10.13, in view of the conduct of the respondent the costs of Rs.1500/- was also imposed upon him and subsequently in view of the order sheet dated 20.11.2013 the defence taken by the respondent in leave to defend application are not to be taken into consideration. In absence of any defence being considered on behalf of respondent, the leave to defend application deserves to be dismissed Under Section 25-B of the DRC Act. Thus, leave to defend application is dismissed and eviction petition Under Section 14(1)(e) r/w Section 25-B DRC Act is allowed.
Accordingly, eviction order is passed in favour of petitioner and against the respondent in respect of tenanted premises i.e. Shop No. 3, Ground Floor in property no.26/1, Ashok Nagar, Near Tilak Nagar, New Delhi as shown in red in the site plan filed by the petitioner.
However in light of Section 14(7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
The parties are left to bear their own costs.
File be consigned to Record Room after due compliance." (underlining added) RCR 229/2014 Page 3 of 10
4. Though learned counsel for the petitioner today states that the petitioner had stated in the present petition that possession was already taken in execution by the respondent/landlord even before filing of the present petition, and for which purpose reference is made to para 2 (t). I must state that not only what is stated in para 2(t) is in a very vague manner, but this Court observes that definitely this aspect that possession was already taken from the petitioner in execution of the order dated 22.11.2013 was not specifically brought to the notice of this Court and nor is the same recorded by this Court when the order dated 14.7.2014 was passed issuing notice in this petition. I would go to the extent of saying that if in fact the respondent/landlord had already taken possession of the suit/tenanted premises in execution of the order dated 22.11.2013 on 31.5.2014, then this court on 14.7.2014 may not even have issued notice in this petition.
5. I would at this stage note that the order dated 14.7.2014 makes it clear that in case the respondent did not accept the costs of Rs.35,000/- then notices were to be got issued by the petitioner to the respondent for today, but, process fee which was filed had been returned under objections and the respondent was not served for today, however the respondent/landlord is appearing through counsel only because of the RCR 229/2014 Page 4 of 10 information which they have received of this case in the execution proceedings.
6. Learned counsel for the petitioner/tenant sought to argue before this Court by placing reliance upon a judgment of a learned Single Judge of this Court in the case of Lakhani Rubber Works Vs. Ritzy Polymers 167 (2010) DLT 521 which holds that in a leave to defend application filed in an Order XXXVII of the Code of Civil Procedure, 1908 (CPC) suit, even if the defendant/applicant does not appear still the leave to defend application has to be considered by the court, and accordingly it is argued that in the bonafide necessity eviction petition once the leave to defend application of the petitioner/tenant was on record, the court below could not have passed an eviction order without considering the merits as stated in the leave to defend application.
There is also another aspect which is required to be noted as argued on behalf of the petitioner that the father of the counsel who had appeared for the petitioner/tenant before the trial court in the eviction petition, was stated to be suffering from some ailment, and therefore the counsel had not attended the court proceedings, and accordingly, it is argued that the leave to defend application could not be pursued. RCR 229/2014 Page 5 of 10
7. In my opinion, the present petition is a sheer abuse of the process of the law and this I am forced to conclude on account of the following aspects:-
(i) The impugned order dated 22.11.2013 records that not one but three opportunities were granted to the present petitioner/tenant to supply copy of the leave to defend application to the respondent/landlord, the petitioner in the eviction petition, but for as many as three months copy of the leave to defend application was not supplied. Though the counsel for the petitioner/tenant before this Court argued that actually the leave to defend application was sent by courier and that the courier receipt is filed, but in my opinion, besides the fact that the argument lacks credibility, if this was really true then the present petitioner/tenant should have appeared before the Additional Rent Controller and stated that no copy of the leave to defend application was required to be supplied because that application is already supplied, however, the fact of the matter is that the case was adjourned repeatedly from 14.8.2013 to 20.11.2013; with the dates of 3.9.2013 and
8.10.2013 being in between; for supplying of the copy of the leave to defend application, but the judicial record of the Additional Rent Controller shows that copy of the leave to defend application was not supplied. RCR 229/2014 Page 6 of 10
(ii) Notice in this petition was issued on 14.7.2014 for today, but petitioner has not been vigilant enough to ensure that the notice should have been got issued, inasmuch as a notice could not be issued because process fee has been found to be returned under objections and process fee was not refiled after removing the objections. Once the petitioner was seeking exercise of discretionary jurisdiction, more so in the facts of the present case, petitioner should have been more than careful to ensure that the respondent is served with the notice of this petition, and it is noted that the respondent/landlord has appeared through counsel only because of knowledge of the present proceedings derived by them in the execution proceedings.
(iii) Though it seems to be mentioned in the present petition in a vague manner that the possession has been taken away from the petitioner/tenant and also an order dated 4.6.2014 has been filed at page 104 of the petition showing that the decree has been satisfied , but, I think it is unacceptable for the litigants to argue that courts should have gone through each and every page and each and every line of the paper book and that a most important aspect which has bearing on issuing of notice should not be specifically brought out to the notice of the court. This I say so because the order dated RCR 229/2014 Page 7 of 10 14.7.2014 does not in any manner reflect that notice is being issued even though petitioner/tenant has been evicted on 31.5.2014 in execution of the decree passed on 22.11.2013 decreeing the bonafide necessity eviction petition under Section 14(1)(e) of the DRC Act.
8. Though I do not agree with the observations made by the learned Single Judge of this Court in the case of Lakhani Rubber Works (supra) which has been relied upon by the petitioner/tenant, I need not consider this argument of the petitioner in detail because the judgment in the case of Lakhani Rubber Works (supra) was in an Order XXXVII CPC suit whereas the present proceedings are under Section 14(1)(e) of the DRC Act. All that I would like to state is that if a person files a leave to defend application in a bonafide necessity eviction petition, mere filing of the same is not enough and courts cannot act as litigants themselves to consider the merits as stated in the leave to defend application because merits of a leave to defend application have to be perused by the litigants themselves. There is no law that courts are bound to decide the leave to defend application on merits though the person who files a leave to defend application is not present in Court repeatedly, fails to comply with the directions of the court by failing to give copy of the leave to defend application, does not pay the RCR 229/2014 Page 8 of 10 costs for causing repeated adjournments and thus does not pursue the leave to defend application. If no one is present for arguing of a leave to defend application, then effectively the leave to defend application will have to be treated as deemed to be not pressed and in such a case there is no requirement for considering on merits such an application which is deemed to be dismissed either in default or for non-prosecution.
9. I may note that I put it to the counsel for the petitioner/tenant who argued the present petition as to if any action has been taken by the petitioner against his Advocate, who appeared before the trial court, but the counsel for the petitioner states that he himself advised the petitioner not to file any complaint against the Advocate who has been guilty of negligence by not pursuing the leave to defend application filed by the petitioner before the trial court. Though I cannot understand the reason why such an advice is or is not given but the fact of the matter is that as against the Advocate against whom negligence is alleged, leave aside filing of a complaint with the requisite authorities, in fact even a legal notice has not been served questioning his conduct.
10. In view of the above, I do not find that the present is a fit case for exercise of revisional jurisdiction under Section 25 B(8) of the DRC Act, RCR 229/2014 Page 9 of 10 more so because the respondent has already taken possession in execution on 31.5.2014 much before even notices were issued in this petition on 14.7.2014, and in fact even before the filing of this petition which has been filed on 10.7.2014 It is also a bit peculiar that this petition was filed by the petitioner on 10.7.2014 ie after a delay of as many as 40 days from the date on which the petitioner had lost possession in execution on 31.05.2014 and was brought up for admission before this Court on 14.7.2014, and when an order was passed by this Court which has been reproduced above, thus noting lack of urgency by the petitioner.
11. In view of the above, I do not find any merit in the petition and the same is therefore dismissed. No costs.
NOVEMBER 13, 2014 VALMIKI J. MEHTA, J.
ib
RCR 229/2014 Page 10 of 10