Delhi District Court
Courts vs University Of Delhi on 7 March, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTRAL) TIS HAZARI
COURTS, DELHI.
E186/09
07.03.2011
Shravan Talwar & Ors.
Vs.
Lallyt Mahendru
ORDER
Vide this order I shall dispose of an application u/o 23 rule 1 r/w section 151 CPC filed on behalf of the petitioner to withdraw the present petition with liberty to file a fresh petition. The brief facts are that the present petition was filed u/s 22 and 14 (1) (e) of DRC Act. The petitoner wants to withdraw the present petition with liberty to file fresh petition on the ground that the trial u/s 22 of DRC Act and u/s 14 (1) (e) of DRC Act are different and as such there is a technical flow in the eviction petiton, therefore, the petitioner may kindly be allowed to withdraw the present petition with liberty to file fresh petition.
2. Reply was not filed by the respondent.
3. Argument heard. Record perused and considered.
4. Ld. Counsel for the respondent relied upon the following rulings : //2/
(i) Chuni Lal Vs. University of Delhi, 1970 RCR 742.
(ii) M/s Madan Mohan Lal Sri Ram Pvt. Ltd. V/s P.Tandon, RCR 1981 (2) 516.
5. It is well settled law that chapter III A of DRC Act is a Code in itself and the provisions of CPC are not applicable to it. The Hon'ble Supreme Court held in Prithipal Singh Vs. Satpal Singh (Dead) through its LRs I (2010) SLT 116 that "Apart from that, as we have noted herein earlier, section 25B itself is a special code and therefore, Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with section 25 B of the Act. Therefore, after insertion of section 25 B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with section 25 B and question of relying on Rule 23 of the Code, which also does not give full right to apply the provisions of the Code, could be applied".
6. The present petition was filed u/s 14 (1) (e) of DRC Act for this kind of petiton the procedure prescribed in Chapter III A of DRC Act is applicable. The procedure prescribed under Chapter III A of DRC Act is summary in nature and the respondents/tenants has to file an affidavit disclosing tribal issues, so that leave to defend may be granted to him. The //3/ permission to the petitioner to withdraw the petition with liberty to file a fresh petition on the same cause of action may cause prejudice to the rights of the respondent/tenant as it may effect his leave to defend application. Therefore, relying upon Prithpal Singh Vs. Satpal Singh (dead) through its Lrs (supra), I am of the considered view that the provisions of order 23 rule 1 (3) of CPC are not applicable to this petition. However, if it is assumed that the provisions of order 23 rule 1 CPC are applicable to the present proceedings under chapter III A of DRC Act then the petitioner has to satisfy the requirements under order 23 rule 1 sub rule 3 of CPC.
7. Order 23 rule 1 sub rule 3 of CPC provides as under : "(3) Where the court is satisfied,
(a) That a suit must fail by reason of some formal defect, or
(b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, It may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim".
8. Under clause (a), the court has to see whether there is such a formal defect that will result only in dismissal of the petition. It was held in M/s //4/ Madan Mohan Lal Sri Ram Pvt. Ltd. V/s P.Tandon (supra) that section 22 of DRC Act does not override section 14 (1) (e). The grounds for eviction u/s 14 (1) (e) are in addition to grounds u/s 22 of DRC Act. It was held in Chuni Lal Vs. University of Delhi (supra) that only the landlords who are corporate bodies or public institution can file an eviction petition u/s 22 of DRC Act in addition to u/s 14 (1) (e) of DRC Act. The same view was taken by the Hon'ble Delhi High Court in Satnam Kaur and others Vs. Ashlar Stores Pvt. Ltd. 158 (2009) DLT 62.
9. Relying upon abovesaid rulings, I am of the view that there is no bar in filing a petition under both the provision of law, therefore, I do not find such a formal defect which will result only in dismissal of the present petition.
10. Under clause (b), the petitioner has to satisfy the court that there are sufficient ground for allowing to institute a fresh petition for the same subject matter. The petitioner has not shown any such sufficient ground which will satisfies the court to allow him to file a fresh petition for the same subject matter. The ground taken by the petitioner in his application is only that he has filed the present petition under two provisions of law and it is a technical flaw, therefore, he may kindly be allowed to withdraw the //5/ present petition with liberty to file fresh petition. I do not find it a sufficient cause for giving permission to petitioner to file fresh petition on the same cause action/subject matter.
11. In view of the above discussions, I do not find any merit in the application and the same is dismissed.
(Announced in the open court
on 07.03.2011) (Pritam Singh)
ARC/Central/Delhi
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E186/09
07.03.2011
Present : None
Application u/o 23 rule 1 CPC filed by the petitioner is dismissed vide separate order dated 07.03.2011.
Put up for further proceedings for 30.05.2011.
(Pritam Singh) ARC/Central/THC 07.03.2011