Delhi District Court
Smt. Meera Giri vs Mrs. Asha Rani Permar on 4 November, 2020
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 54/2016
CNR No. DLWT01-000676-2011
In re:
Smt. Meera Giri
D/o Shri Virender Giri,
W/o Shri Surender
R/o Shail Sharan Kutir, Kothi of Ram Saran Yadav, (MP)
A-2/R-3, Ground Floor (Extreme Right Portion)
Mohan Garden,Uttam Nagar,
Delhi . . . . . . Appellant
Versus
Mrs. Asha Rani Permar
W/o Sh. Joginder Singh Permar
R/o RZ-7E, Gali No.5, Main Sagarpur,
New Delhi . . . . . . Respondent
Date of filing appeal : 25.04.2011
Date of hearing arguments : 29.10.2020
Date of Judgment : 04.11.2020
Appearances:
Mr. G.P. Sharma, Advocate for the appellant/objector.
Mr. R.K. Jain, Advocate for the respondent/landlady/Decree Holder.
JUDGMENT
1. This judgment shall decide an appeal preferred under Section 38 of Delhi Rent Control Act, 1958, as amended up to date (hereinafter referred to as the 'DRC Act') by the appellant/objector, RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 1 of 30 assailing an order dated 18.04.2011, passed by the Court of Sh. Rakesh Kumar-II, the then Ld. CCJ-cum-ARC, (West), THC, Delhi, in Execution Petition No. 09/2010 arising out of Eviction Petition bearing E-137/2008 titled as 'Smt. Asha Rani Parmar v. Chander Pal Sahu'.
FACTUAL BACKGROUND:
2. Briefly stated, the petitioner/landlady, who is respondent/Decree holder in the present appeal, filed a petition seeking eviction of the tenant Chander Pal Sahu S/o Sh. K.D. Sahu on the grounds under Section 14 (1) (a) of the DRC Act in respect of premises No. R-3-A-2, Chandi Farm Mohan Garden, Uttam Nagar, New Delhi, comprising of ground as well as first floor of the premises, as shown red in the Site Plan Ex.AW-1/1 on 10.10.2008. The said eviction petition was contested by the tenant Chander Pal Sahu and it ultimately culminated in the impugned Judgment dated 16.08.2010, whereby the petitioner/landlady succeeded on both grounds and a modified direction was given to the tenant u/s 15(1) of the DRC Act to pay arrears of rent w.e.f. January-2005 @ Rs. 3000/- per month within a month of the said order. Further, the petition under Section 14 (1) (b) of the DRC Act was also allowed holding that tenant was not residing in the premises in question and has sub-let or parted with possession of various portions in the same to several persons.
3. It is admitted position that the tenant Sh. Chander Pal Sahu preferred no appeal against the said Judgment dated 16.08.2010 and the execution application bearing No. 09/2010 was filed on RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 2 of 30 15.11.2010 as the tenant/JD purportedly refused to handover the vacant and peaceful possession of the tenancy premises to the petitioner/landlady or the Decree Holder. On 19.11.2010, the warrants for possession were ordered to be issued in favour of the Decree Holder and against Judgment Debtor with respect to the tenancy premises. The Decree Holder was directed to appear before the Ld. ACJ for appointment of Bailiff on 01.12.2010 and the matter was listed for report on 14.01.2011. The SHO concerned was also directed to provide necessary police aid. The Trial Court record reveals that the warrants were not executed and on14.01.2011 warrants for possession were ordered to be issued afresh with directions to the Bailiff to break open the lock and/or the door with directions to submit the report for 15.04.2011 and in compliance thereof the warrant for possession was executed on 28.03.2011.
4. The appellant/objector Smt. Meera Giri filed her objections under Order XXI Rule 97 & 99 read with Section 151 CPC against the issuance of warrants for possession in respect of the tenancy premises on 13.04.2011 and she was joined by two more applicants/objectors, namely Mohd. Iklakh and Mohd. Rashid, who filed objections under Order XXI Rule 97 & 99 read with Section 151 CPC against the execution of the warrants for possession on 05.04.2011 along-with an application under Order XXXIX Rule 1&2 CPC for seeking an ex parte interim / ad interim injunction for restoration/restitution. Suffice to state that it was the case of the applicant/order Smt. Meera Giri that the Bailiff in collusion and connivance with the Decree Holder and her RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 3 of 30 Counsel had illegally dispossessed her on 28.03.2011. The appellant/objector objected to the false and collusive report of the Bailiff dated 13.12.2010 and false and fabricated affidavit along-with application filed by the Decree Holder on 16.12.2010.
5. In her application, the appellant/objector claimed that she had taken the premises on rent form its landlord Smt. Shail Devi through her attorney Sh. Prehlad Singh Sherawat. It was alleged that the DH filed a collusive suit and the JD Chander Pal Sahu (JD) was served with a notice under Section 14 (1) (a) of the DRC Act to create false evidence. Suffice to state that in proof of her continued possession and occupation of the premises in question, the appellant/objector placed on the record various documents with regard to various purchase made by her buying electronic items, rent receipts issued by Shail Devi w.e.f. 15.04.2008 to 14.07.2008, copy of the complaint made to the police dated 04.12.2008 and she also alleged that a collusive suit No. 461/2008 had been filed by the Decree Holder against the Judgment Debtor for recovery of possession, mesne profits, damages and mandatory and permanent injunction titled as 'Asha Rani v. Meera Giri and Chander Pal Sahu.
6. Therefore, challenging her dispossession from the tenancy premises in an unlawful manner, in her application under Order XXXIX Rule 1& 2 of the C.P.C she not only sought urgent ad-interim relief against the Decree holder as to restrain her from dismantling the premises question including the portion under her occupation but also RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 4 of 30 claimed restitution i.e. directions to restore the possession of the tenancy premise in her favour, award of damages for mental agony and initiation of proceedings under Section 340 Cr.P.C. against the DH and JD besides their Counsel and Bailiff M.S. Yadav. Reply was filed by non-applicant/DH whereby she denied the allegations of the objector Meera Giri and claimed that objector had no locus standi to get the decree set aside; and that she was a sub-tenant being in possession of the premises in question under the JD. Therefore, it was claimed that decree for eviction has been lawfully executed.
IMPUGNED ORDER
7. Ld. CCJ-Cum-ARC vide impugned common order dated 18.04.2011 decided two applications: first being under Section XXXIX Rules 1 and 2 CPC read with Section 151 CPC moved on behalf of the objector Meera Giri and the other application under Order XXI Rule 26 moved on behalf of Mohd. Iklaq and Mohd. Rashid. In order to appreciate the whole controversy in question, it would be expedient to reproduce the aforesaid order herein in toto, which reads as under:-
"By this order I shall dispose off an application moved U/o 39 rule 1 & 2 r/w Section 151 CPC on behalf of the objector Mrs. Meera & application U/o 21 rule 26 filed by Mohd. Iklakh & Mohd. Rashid.
It is stated in the application that she was in lawful & peaceful use & in enjoyment of the premises alongwith her family members in the capacity of tenant under the landlord ship of Smt. Shail Devi and she was dispossessed from the said tenanted premises and the DH has now started dismantling the whole building including the tenanted premises.
It is stated that DH has no right, power or authority to dismantle the whole premises including the tenanted premises and the action of the DH is illegal, unwarranted, malafide and against all cannons of the law and in case DH is not restrained RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 5 of 30 from illegal dismantling of the whole building including the tenanted premises of the objector Meera or interfering in the peaceful possession, occupation, user & enjoyment of the said tenanted premises of the objector 7 her family in any manner, the objector shall suffer irreparable loss & inbjury, which cannot be compensated in terms of money.
It is prayed to restrain the DH, their servants, officers, agents, attorneys, associates etc. from dismantling the whole building including the trenanted premises of objector Smt. Meera and also from interfering of obstructing or causing any kind of nuisance, hindrance or parted with possession to any third party in any manner and to restore the possession of dispossessed premises. Objections & applications were also moved U/o 21 rule 26 by Mohd. Rashid & Mohd. Iklakh.
Reply to this application was filed by the objector and it is stated that she was never the tenant in the property and she has not been illegally dispossessed. All other averments are denied and DH prayed for the dismissal of this application of objector Smt. Meera, Mohd. Iklakh & Mohd. Rashid.
I have heard Ld. Counsels for the parties and gone through the case file carefully.
So far as order U/o 21 rule 26 is concerned that is applicable only during the pendency of execution of the order. In the present case the warrants of possession were issued and the same were executed on 28/03/2011. In the report filed by the Bailiff dated 13/12/2010 the statement of Smt. Asha Rani was recorded and the possession of the premises could not be taken as it was lhing locked. Thereafter application was moved and fresh warrants of possession were issued and report of Bailiff dated 28/03/2011 shows that the possession of the property was delivered and the statement of Meera Kumar was recorded which reads as under. "Sir, I Meera R/o 3/A2, Chandani Masjid, Mohan Garden, the lock of the premises was broken. Thereafter I came at the site and in my presence when I did not open the lock, the gate was broken. Now I am present at site. Whatever articles are lying in the premises belongs to me and I have taken possession of those articles. No notice was given to me regarding this case and I will take necessary legal action by filing appeal. I have heard the statement and signed."
The objector Mohd. Rashid stated in his objections that he alongwith his family members was residing in the suit premises for the last more than five years and by misguiding this Court, petitioner got eviction order and got the possession of the suit premises.
RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 6 of 30The objector Mohd. Iklakh stated in his objections that he alongwith his family members was residing there and after taking the eviction order from this Court possession has been taken by Smt. Asha Rani.
No document has been placed on file by any of the objectors regarding their tenancy. There was no resistance by any person at the time of execution of warrants of possession as provided U/o 21 rule 97. The applicant has placed on file photocopy of order dated 24/03/2010, which is neither certified nor true copy nor it bears the title of the suit or name of the parties. Ld. Civil Court stayed the dispossession of the plaintiff without due process of law till disposal of the suit but in the present case, the eviction order was passed and thereafter the warrants of possession were executed which clearly shows that the possession was taken by due process of law.
The objector Ms. Meera and others have mentioned that they took possession through some third person and not from Smt. Asha Rani. Therefore, this point can be decided only after recording evidence. Therefore, I do not want to discuss the relevancy and authenticity of the rent receipt and other documents placed on file by the objectors.
At this stage, the application filed by Ms. Meera u/o 39 rule 1 & 2 CPC, application filed by Mohd. Iklakh & Mohd. Rashid U/o 21 rule 26 CPC are not maintainable as the possession has been taken by Decree Holder by due process of law. Hence these applications are disposed off.
The objector moved an application for restoration of possession after concluding the arguments alongwith the judgment of Hon'ble Supreme Court titled as "Sameer Sohan Sanyal Vs. Tracks Trade Private Limited" AIR 1996 (SC) 2102 wherein it has held that "it would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is whether he should be allowed to remain in possession till his application U/o 21 Rules 98 & 99 is adjudicated upon and an order made. Though the Ld. Counsel for the first respondent and also for the third respondent, who is one of the transferees from the sixth respondent sought to be contended that the appellant has no right to remain in possession after the lessee. M/s India Falls Limited has admitted by a resolution that the appellant has no right to remain in possession; we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 7 of 30 matter to be adjudicated in his application filed U/o 21, Rule 21, Rule 98 & 99, CPC. At this stage, it is pre-mature to go into and record any finding in that behalf. The Ld. Counsel for the first respondent also repeatedly sought to bring to our notice that on account of the orders of the Court officer passed by the High Court the maintenance cost has been mounting up due to the delaying disposal of the proceedings in various courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhere to, we find that high handed action taken by the respondent no. 1, 3 & 6 in having the appellant dispossessed without due process of law, cannot be over looked or condoned. The court cannot blink at their unlawfu conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the court gives acceptance to such high handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law-abiding citizens and rule of law to remain a mortuary."
In the present case, the possession was taken with due process of law and with the consent & under the signatures of Ms. Meera and she removed her articles from the premises in question on 28.03.2011. Thus there was no question of dispossession of the applicant without due process of law. The facts of the cited authority are entirely different from the case in hand. So far as restoration of possession is concerned that will be considered at the time of disposal of the application after recording the evidence of both the parties.
Announced in the open Court Sd/-
Dated 18/04/2011 (Rakesh Kumar-II)
CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts,
Delhi."
8. Further, the ld. CCJ-cum-ARC framed the following issues for deciding the objections vide order dated 18.04.2011:
"1. Whether the objectors are tenant in the premises in question, if so, under whom and of which portion? OPO
2. Whether any of the objectors are entitled to recover possession of the premises in question, if so, of which portion? OPO
3. Relief."RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 8 of 30
9. The aforesaid order is assailed in the present appeal inter alia on the grounds that the appellant/objector has been in continuous possession of the tenancy premises through GPA of Smt. Shail Devi since 15.07.2007; and that the decree in eviction petition No. 137/2008 dated 10.10.2008 was a collusive decree between the appellant and JD; and further pointing out that she had filed suit No. 678/2007 as plaintiff against C.P. Sahu, a property dealer with regard to her threatened or forcible dispossession from the tenancy premises; and further pointing out that even the DH Asha Rani had also filed a suit for possession, mesne profits against her vide suit No. 461/2008 claiming herself to be in possession of the premises in terms of her site plan in suit No. 678/2007. The impugned order dated 18.04.2018 is further assailed on the grounds that she has every right to continue to occupy the premises as she has been unlawfully dispossessed and the possession of the tenancy premises can be restored back to her. Reference is invited to Samir Sobhan Sanyal v. Tracks Trade Private Ltd. - AIR 1996 (SC) 2102.
10. It is pertinent to mention that during the course of pendency of the present appeal, vide order dated 27.04.2011, the then Ld DJ-II-cum-IC, West, THC, Delhi restrained the respondent / landlady/DH from dismantling the premises No. A-2/3, Extreme Right Hand Portion, ground floor, Shail Sharan Kutir, Kothi of Ram Saran Yadav, MP, Mohan Garden, Uttam Nagar, New Delhi, and further restraining her from parting with possession thereof till decision in the present appeal.
RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 9 of 30DECISION
11. I have given my thoughtful consideration to the submissions made by the ld. Counsel for the parties at the Bar. I have perused the trial Court record including the record of the eviction petition No. 137/2008 as also the original record of the execution proceedings bearing No. 09/2010.
12. At the outset, I am unable to persuade myself to sustain the impugned order dated 18.04.2011 passed by the Ld. CCJ-cum- ARC, West, THC, Delhi. I have no hesitation in holding that the facts and circumstances brought on the record present an unsavory picture that demonstrates that there is more to the story than to meet the eyes. There is a strong doubt in the mind of this Court that most probably a fraud has been perpetuated upon the Court by the landlady/Decree Holder in collusion with the Judgment debtor Chander Pal Sahu in obtaining the eviction order vide Judgment dated 16.08.2010. I shall detail the following reasons for arriving at such a decision:
REASONS:
13. Admittedly, the eviction petition bearing E.No. 137/2008 was instituted on 10.10.2008 with a simple narrative that the respondent/JD was a tenant in respect of ground floor and first floor of the premises measuring more than 500 Sq. Yards as shown in the site plan Ex.AW-1/1; and that he had sub-let, assigned or parted with the possession of the different portions of the premises to different persons and the name of such sub-lettees viz., Mohd. Ikhlaq Hussain, Mohd.
RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 10 of 30Khalil and Mst Rani Begum were specifically mentioned. However, neither the aforesaid purported sub-tenants nor the present appellant/objector Meera Giri were made parties to the said eviction petition. There was no averment by the petitioner-landlady as to when was the premises let out to the respondent, and neither any lease agreement/rent deed nor any document with regard to her title to the premises was placed, relied or proved on the record. Further, there was no averment as to when or which portions of the premises on the ground floor and/or on the first floor were let out to which of the sub- tenant or parted or assigned to them. A bare perusal of the written statement would go to show that the respondent-tenant/JD very conveniently admitted the case of the petitioner-landlady stating that sub-letting had been created with the permission of the landlady but no written permission was obviously relied or proved on the record. Suffice to state that the pleadings were followed by almost predictable evidence by the parties that is hardly fathomable given the magnitude of the case.
14. May I hasten to point out that this Court is not oblivious of the proposition of law that a sub-tenant or assignee or a person in whose favour tenancy portion is parted with, not need be made a party to the eviction proceedings under DRC Act. As I would dwell on the issue of section 25 of the DRC Act, it is but settled position that a person who claims through the tenant is not a necessary party to the eviction proceedings except where one is claiming independent title. At the same time, there is a paramount duty to disclose true facts or make RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 11 of 30 full disclosure of the material facts by the parties to the litigation, in particular with regard to identity and extent of the tenancy premises, possession or occupation of the parties from a certain or probable time and with regard to disposition of the property by the sub-tenants or assignee or the occupant under section 14(1)(b) of the DRC Act including previous litigation with respect to the property and/or the affected parties.
15. I am afraid that there was no bonafide, complete and truthful disclosure by the parties about material facts in the eviction proceedings in E-.137/2008. In the decision relied upon by the appellant in the case of Samir Sobhan Sanyal v. Tracks Trade Private Ltd. (supra), the tenant was admittedly in occupation of the tenancy and the building was sold by the landlady to a builder's company, which filed a suit for specific performance and recovery of possession. The landlord incidentally made full disclosure in her written statement that she had not been able to hand over the vacant and peaceful possession of the premises to the buyer for a tenant being in occupation of the premises and the aspect of tenancy was in the knowledge of the buyer. Despite such narrative in the pleadings and evidence, the tenant was dispossessed in the execution of decree, which was held to be not as per the "due process of law". Applying the law of restitution, the possession of the premises was ordered to be restored to the tenant. The Hon'ble Judges of the Apex Court in passing such order held as under:
"The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 12 of 30 status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law should be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary."
16. Reverting back to the present case, at the cost of repetition neither the Decree Holder nor the Judgment Debtor made full disclosure about the factual situation on the ground and about the history of litigation between the parties to be highlighted later in this order. To my mind, they had a duty to disclose, particularly when there was a chequered history of litigation and lot of animosity as between the Decree Holder and the Judgment Debtor on one side and the occupants on the other side including the present appellant/objector Meera Giri, as would be detailed hereinafter.
THE CHEQUERED HISTORY
17. When this Court surgically scans through the documents filed on record by the parties, it transpires that before filing of the eviction petition on 10.10.2008 bearing E-.137/2008, a complaint had been lodged by the JD Chander Pal Sahu with SHO PS Uttam Nagar on 12.11.2007 claiming that one Rashid and Ikhlaq Hussain were tenants under him in respect of property in question and they were not paying rent; and the complainant JD Chander Pal Sahu further alleged that they had caused some damage to the property; and that he complained that whenever he approached them, the tenants threatened to kill him and also involve him in false case. It appears that a legal RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 13 of 30 notice was given by the JD Chander Pal Sahu, in which he claimed himself to be resident of Flat No. 321, Sector-18B, LIC, Dwarka, New Delhi-110075 (same was the address in the aforesaid complaint to the Police) and the said notice was served upon Rashid S/o H.S. Mohd dated 18.10.2007 whereby monthly rent of Rs. 2500/- excluding other charges was claimed from him w.e.f. 01.10.2005. It appears that even proceedings were initiated against one Rashid and notice was issued under Section 56 of the Electricity Act, 2003 on 23.11.2007 and even Mohd. Ikhlaq was having a PAN Card on the address in question and filing the Income Tax returns from such address.
18. Even Mst. Rani Begum lodged a complaint with police on 15.10.2007 wherein she claimed that she had been residing in the premises in question @ monthly rent of Rs.1000/- and she alleged that she was being harassed by Prahlad Singh and some other persons who had been threatening her to vacate the premises in question or else she would be visited with harm. There is a photocopy of the Wedding Card suggesting that the Mohd. Rashid Ali also got married on 29.10.2006 showing his address from the premises in question. There are also placed on record photocopies of the electricity bills in the name of Mohd. Ikhlaq from BSES Rajdhani Power Ltd pertaining to the period from 2009 to 2011.
19. It also appears that Chander Pal Sahu (JD in E-.137/2008) filed an eviction petition against Mohd. Khalil also under Section 14(1)
(a) of the DRC Act sometimes in the month of October-2008 in respect RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 14 of 30 of two rooms, Kitchen, Verrandah, common latrine bathroom on the ground floors besides two rooms, kitchen, verrandah, Latrine and Bathroom on the first floor in respect of the premises in question. Well, there was no iota of averment that the petitioner Chander Pal Sahu was in fact at tenant under Smt Asha Rani Permar. It appears that in the said case, a reply was filed by Mohd. Khalil to the effect that he was a tenant under Smt. Shail Devi through her GPA i.e. the son Sh. Vibhuti Kumar or her erstwhile GPA Sh. P.S. Sherawat.
20. Be that as it may, it is pertinent to mention here that the said objectors, namely the present appellant/objector as well as Mohd. Ikhlaq and Mohd. Rashid had been claiming that they were tenants under the landlady Smt. Shail Devi. In fact there are filed copies of the rent receipts by Mohd. Khalil as also by the appellant/objector to the effect that rent receipts were being issued by Smt. Shail Devi. It is also pertinent to mention here that the present appellant / objector Smt. Meera Giri filed a suit against Chander Pal Sahu, the JD in the present matter bearing Suit No. 678/2007 and an order was passed by Sh. Sandeep Garg, the then Ld. Civil Judge, Delhi dated 20.01.2009, which goes as under:-
"Present: Sh. Vijay Kumar Jain, Ld. Counsel for the plaintiff with plaintiff in person.
Ms. Preeti Jain, Ld. Counsel for the Defts. No. 1 & 2. List of documents along with documents filed on behalf of the plaintiff. Copy supplied. Plaintiff has placed on record the rent receipts in respect of the suit property purported to have been issued by son of Smt. Shail Devi who is stated to be the owner of the suit property and the son of the owner is also stated to be GPA holder in respect of the suit property.
On the other hand, the defts. no. 1 & 2 are denying that plaintiff is neither a tenant nor in possession of the suit RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 15 of 30 premises. However, defts. no. 1 & 2 are not claiming any right, title or interest in the suit property. Since rent receipts purported to have been issued by son/GPA holder of the owner Smt. Shail Devi, have been placed on record, the defts. no. 1 and 2 are restrained from dispossessing the plaintiff from the suit property i.e. bearing no. Shail Sharan Kutir, Kothi of Ram SARan Yadav, MP, A-2/R-3, Mohan Garden, Uttam Nagar, Delhi (more specifically shown in red colour in the site plan filed along-wit with the plaint), till further orders without following the due process of law.
The application U/O 1 Rule 10 CPC is allowed. The earlier deft. No. 3 viz. Prehlad Singh Sehrawat is deleted from the array of parties and the proposed deft. no. 3. Plaintiff is directed to file amended plaint in terms of Order 1 Rule 1- (4) CPC on record. Issue notice of the suit to deft. no. 3 i.e. Smt. Shail Devi on filing of PF/RC, returnable by 19.05.09.
Copy of this order be given dasti, on payment of requisite charges.
Sd/-
Sandeep Garg, CJ/Delhi/20.01.09"
21. It is pertinent to mention here that in the joint written statement filed on behalf of defendant Nos. 1 and 2, there was no averment by Chander Pal Sahu and his associate that he was a tenant under Smt. Asha Rani Parmar wife of Sh. Jogender Singh i.e. the Decree Holder in the present proceedings. There was a simple bald denial that the plaintiff was not a tenant in respect of the premises under her. But there is no iota of whisper as to how she came into possession and occupation of the premises. It appears that another suit bearing CS No. 461/2008 was filed by Smt. Asha Rani Parmar wife of Sh. Jogender Singh with one Puran Singh as co-plaintiff against the present appellant/objector as defendant No.1 and Chander Pal Sahu as defendant No.2 for possession, mesne profit, damages, mandatory and permanent injunction claiming herself to be owner / landlady of the RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 16 of 30 premises in question inter alia stating that she had purchased the property from Smt. Shail Devi wife of Sh. Ram Sharan Das vide document dated 08.02.2000, which suit appears to have been filed sometimes in December-2008.
22. In the said suit bearing CS No. 461/2008, she claimed that she had let out entire ground floor and first floor to defendant No.2 Chander Pal Sahu and alleged that defendant No.1 Meera Giri came to occupy the tenancy portion consisting of a hall, three rooms, attached toilet, bathroom in the middle of ground floor, one kitchen and one latrine in extreme right stairs through Mohd. Ikhlaq, to whom premises had been sub-let by defendant No.2 without her consent. It is in the said suit that defendant No.2 in his written statement on 23.12.2008 admitted that he was tenant under the plaintiff Asha Rani Parmar. However, the defendant No.1 Meera Giri in her written statement claimed that she was tenant since 15.10.2007 under ownership/ landlady ship of its true owner Smt. Shail Devi wife of late Sh. Ram Sharan Yadav, Ex MP Lok Sabha. It appears that even Mohd. Ikhlaq had also filed a Civil Suit NO. 527/07 against Chander Pal Sahu and there was restraint order passed against defendants Smt Asha Rani Parmar & Chander Pal Sahu vide order dated 24.07.2007 by Sh. Rajinder Kumar, Ld. Civil Judge-02, West, THC, Delhi restraining them from dispossessing the plaintiff forcibly from the premises or without due process of law. There is also on record a letter dated 04.12.2019 by Vibhuti Kumar GPA and son of Smt. Shail Devi to ACP Rajouri Garden alleging that their tenant Smt. Meera Giri was being harassed RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 17 of 30 at the behest of certain individuals, who were acting in cahoots with the SHO of the area.
DISCUSSION ON SECTION 25 DRC ACT AND ORDER XXI CPC
23. The aforesaid sequence of events "tell their own tale" and it is quite discernible that the appellant/objector had been claiming herself to be a tenant under Smt. Shail Devi and there was a restraint order in her favour against dispossession except according to due due process of law. In my considered view, the "due process of law" has not been followed in this case. Without further ado, the impugned order failed to take note of the Section 25 of the DRC Act and Order XXI Rule 99 of the CPC. In order to appreciate the whole issue from the legal perspective, we need to have a look at Section 25 of the DRC Act and the relevant rules under Order XXI, that provide as under:-
"25. Vacant possession to landlord -
Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person there from:
Provided that nothing in this section shall apply to any person who has an independent title to such premises."
24. In the case of Kailash Chand vs Ramvati, 1974 RCJ 573, while interpreting the scope and ambit of section 25 of the DRC Act, it was observed:
RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 18 of 30(10) On its plain reading, the Section is intended to bind not only the tenant 'who was a party to the proceedings, but all persons who may be in occupation of the premises and the tenant and all such persons are bound to give vacant possession of the premises in dispute to the landlord and the landlord is entitled to such possession after all such persons have been evicted from there without having to resort to any further proceedings. The only exception engrafted in the section is contained in the proviso, which protects from the rigour of the eviction order any person who has "an independent title to such premises." The administration of this provision would not present any difficulty with regard to the impact of an eviction order on persons who claim through the tenant either as sub-tenants, licensees or otherwise or may even otherwise be illegally inducted into the premises. Such persons would obviously have no protection of Section 25 because to extend, the protection to them would be inconsistent with the language of the pro vision and would also enable the tenant to render the order of eviction nugatory by transferring possession to other persons and would deviate from the object of Section 25, namely, to give finality to the order. Similarly, the provision would not present any difficulty where the protection is sought by a person who can establish that either he was holding the premises as a tenant under the landlord or even if tie had been inducted in the premises by the tenant, his derivative title to the premises got perfected by resort to provisions of Sections 16, 17 or 18 of the Act. The difficulty, however, arises in the administration of this provision with regard to a person may be in occupation of a part of the premises neither as a tenant under the landlord nor by virtue of induction, in whatever capacity, by the tenant and who, not being a trespasser, has been in occupation either as a licensee from the landlord or otherwise with the authorization of or permission of or with the consent of the landlord but without the relationship of landlord and tenant Could such a person be evicted pursuant to an order of eviction made against a tenant merely because such a person would be a person in occupation of the premises even though net under the tenant or at his instance ? Would such a person be deemed to have an "independent title, to the premises within the meaning of the provision even though, if the term 'title' is construed strictly, it could not be said that he hid any title to the premises because there may be no relationship of landlord and tenant or even the relationship of licensor or licensee may not be strictly established. Such a person may. however, be in permissive possession which has relation to the landlord and has its RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 19 of 30 genesis either in his consent, express or implied, or his permission In short, what would be the position of a person in occupation who is neither a tenant nor strictly a licensee under the landlord and yet in occupation by virtue of the possession of the premises by the tenant or at his instance and yet not a complete stranger to the premises or a trespasser. (11) The question that, therefore, has been posed above with regard to the ambit and scope of Section 25 of the Act is not merely academic because on the material on record in this case, it is established that the appellant had been in occupation of the premises for over 30 years that he has failed to establish a relationship of landlord and tenant between him and any of the owners, that he had obtained an electric connection either with the assistance of the landlady or otherwise but surely within her knowledge and has been availing of its since 1962 while the proceedings for the eviction of the tenant started sometimes in 1964, and that even though neither a tenant nor a licensee, the appellant has had connection with the premises and there is no finding that his occupation of the premises had any connection whatever with the tenant because at no stage in the original proceedings was it alleged by e landlady that the appellant was one of the unauthorized sub tenant otherwise a person in whose favor part of the premises in dispute had been parted with by the tenant. Neither the Controller nor the Tribunal devoted any attention to the manner in which the appellant came to be in occupation of the premises and no finding has, therefore, been recorded as to whether the appellant may be said to been occupation of the premises at the instance of or claiming under the tenant or -be, therefore, within the scope of first part of the Section The precise scope of the Section and the ambit of protection has also not been considered nor has it been determined if, having regard to the finding recorded by the Courts below, it could be said that the appellant would be entitled to the protection of Section 25 merely because his possession of the premises has not been related to the tenant and notwithstanding the fact that he has failed, according to the concurrent finding of fact recorded by the Courts below, to establish that he was a tenant claiming under the owners.
25. In the instant case, the appellant/objector has always been claiming an independent right or interest in the tenancy premises which was overlooked by the Ld. CCJ-cum-ARC. The issues raised in the RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 20 of 30 present matter can be considered with regard to the relevant provisions of the Civil Procedure Code, i.e. Order 21 Rules 58, and 98-101, which are extracted below:
"58. Adjudication of claims to, or objections to attachment of, property--(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit."
"98. Orders after adjudication--(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of Sub-rule (2) - ,(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 21 of 30 resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-
debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree-holder or purchaser--(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession--Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined--All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
26. In the case of Mohd. Farjam v. Sarfaraz Ahmed, 2010 SCC OnLine Del 1604 at page 313, it was observed that the plaintiff RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 22 of 30 elected for a remedy, i.e. application under Order 21 objecting to his dispossession. The application was made correctly before the Rent Controller, who has exclusive jurisdiction over such matters, and who, by virtue of Section 42 of the Delhi Rent Control Act, is invested with all the powers of a Civil Court (which include the powers enumerated under Order 21). All the grounds urged in support of the suit, which include the declaration as to his rightful title, were available. That application was filed before the present suit was instituted. The executing Court's ruling that it did not possess jurisdiction to decide on issues concerning title does not foreclose the plaintiff's remedies i.e. Order 21 Rule 58, Rules 98-101. It was held that the Court called upon to execute a decree is empowered to consider and rule upon all issues arising out of the right to possession in respect of the property as well as the title to it. The judgment of the Supreme Court in Usha Sinha v. Dina Ram, (2008) 7 SCC 144. In that judgment the Court had cited with approval and applied the ruling in a previous decision, i.e. Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723 to the following effect:
"...A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree..."
27. In the case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694 at page 698, it was observed:
"A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 23 of 30 possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-
rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.
(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21, Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property or if his application is found to be substanceless, it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101.
9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree- holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 24 of 30 executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist is only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 25 of 30 his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non-compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves."
28. In view of the proposition of law discussed above, reverting back to the instant case, the impugned order dated 18.04.2011 cannot be sustained in law since the ld. Trial Court/Executing Court failed to take into consideration that the appellant/objector was admittedly in possession of certain portion of the premises and she was manifestly claiming an independent right as a tenant under a different landlord/landlady. The ld CCJ-cum- ARC failed to take note of the aspect of collusion between the DH and the JD that could have been RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 26 of 30 inferred from the damning fact that it is recorded in the order sheet dated 01.12.2010 in the Execution File 9/2010 that the JD Chander Pal Sahu appeared before the Court along with the DH without any notice of the execution application and the ld Court recorded that he was unable to explain as to how he came to know of the pending proceedings. At the cost of repetition, the possession of the premises was admittedly taken by the Bailiff in on 28.03.2011 in the presence of the appellant/objector Meera Giri and her claim that she was having an independent title as tenant under different landlady was dealt with in a mechanical manner. The Ld. CCJ-cum-ARC failed in his duty to take into account the chequered history of litigation between the parties.
29. It is well settled in law that fraud vitiates everything. In Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7 SCC 605 reference was made to decision in Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341, wherein Lord Denning observed "No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the same judgment Lord Parker, L.J. observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. The said aspect was highlighted in State of A.P. v. T. Suryachandra Rao, (2005) 6 SCC 149 also. In Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, it was observed that "although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata". In Shrisht RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 27 of 30 Dhawan v. Shaw Bros., (1992) 1 SCC 534, it has been held that "Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
30. Further, in the case of Express Newspapers (P) Ltd.& Ors. v. Union of India & Ors., (1986) 1 SCC 133, at para 119 it was held thus:
"119. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge...."
31. Ex facie in the instant case, the original record in the eviction case No. E-137/2008 would prima facie show lack of good faith or misuse of the provisions of law in bad faith. Without further ado, the impugned order dated 18.04.2011 cannot be sustained in law as prima facie the order dated 16.08.2010 appears to have been obtained by gross concealment of material facts and appears to be unconscionable. All said and done, this case takes a curious twist when it is seen that no evidence was led by the parties before the Ld. Trial Court in terms of issues framed on 18.04.2011 and objections came to be dismissed in default for non-appearance of the objectors on 11.09.2015. But then it appears that there was a palpable misrepresentation to the Ld. ARC since the orders sheet reflect that on 23.05.2014 as also on RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 28 of 30 11.09.2015, the Court was wrongly apprised that the Decree Holder had already obtained possession of the premises. It appears that attention of the Court was not invited to the interim order dated 27.04.2011 passed by the Ld. Predecessor of this Court.
32. To my mind, this piquant position can only be salvaged by remanding back the matter to the Ld ARC with directions that the appellant/objector be given an opportunity to lead evidence on the issues framed on 18.04.2011. Though no such relief is claimed by the appellant/objector in the instant appeal, it appears that the appellant/ objector has been a victim of the arduous and costly judicial process. This Court cannot shut its eyes to the sequence of events prior to the impugned eviction petition filed on 10.10.2010 by the Decree Holder and allow an illegality to be perpetuated. There is vested inherent jurisdiction with this Court to set things right suo moto and restore the power imbalance.
33. In view of the aforesaid discussion, it is directed that the evidence of the parties be recorded within a period of six months from today by taking up the matter on day-to-day basis. Till a final decision is taken by the ld Trial Court on the matters in issue, the ad-interim order dated 27.04.2011 shall remain in operation thereby restraining the Decree Holder, her agents, assignees or associates from demolishing or dismantling the property in question and maintaining status quo. It is made clear that the observations made by this Court in this order are only prima facie based on the documents placed on the RCT-54/2016 Smt. Meera Giri v. Asha Rani Permar Page 29 of 30 record and nothing contained herein shall tantamount to an expression of final opinion on the merits of the case. In other words, the Ld. Trial/Executing Court shall take an independent view of the matter based on appreciation of evidence produced on the record by the parties and shall decide the matter as per law.
34. The parties are directed to appear before the Ld. Trial Court on 17.11.2020 for scheduling appropriate date for recording of evidence. It is impressed upon the ld. Trial/Executing Court to conclude the trial within a period of six months thereafter. It is also impressed upon the parties to adhere to the time line decided by this Court.
35. The Trial Court record along-with copy of this Judgment be sent back forthwith. The appeal file be consigned to Record Room.
DHARMESH Digitally signed by DHARMESH
SHARMA
SHARMA Date: 2020.11.05 20:10:00 +0530
Announced in the open Court (DHARMESH SHARMA)
on 4th November, 2020 Principal District & Sessions Judge/
Rent Control Tribunal (West)
Tis Hazari Courts: Delhi
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