Delhi District Court
Sh. Ram Kishan Grover vs Sh. Phool Chand Gupta on 19 November, 2011
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IN THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
DELHI
CASE No. M - 12/11
1. Sh. Ram Kishan Grover
S/o. Sh. Manohar Lal Grover
Grover Provision Store,
JIII/ 208, J. J. Colony,
Wazirpur, Delhi - 110 052 (PETITIONER)
Versus
1. Sh. Phool Chand Gupta
S/o. Sh. Luxmi Narain
J - III/ 208, J. J. Colony,
Wazirpur, Delhi - 110 052 (RESPONDENT)
Date of institution of the Application : 10.05.2011
Date on which order was reserved : 19.11.2011
Date of decision : 19.11.2011
ORDER
1. By way of this Order I shall decide one application for M 12/11 2/7 review filed u/s. 25 (B) (9) of DRC Act r/w. 47 CPC seeking review of the order dated 09.12.2010.
Arguments on application for review filed u/s. 25 (B) (9) of DRC Act r/w. 47 CPC seeking review of the order dated 09.12.2010 heard at length. During arguments, the grounds taken by the applicant/ JD are that certain subsequent facts have come to the knowledge of the applicant/ JD, subsequent to the order dated 09.12.2010, which are relevant to decide the case on merits, however, were not the part of the leave to defend application as well as part of arguments advanced by the JD/ applicant. The counsel for applicant has also prayed for condonation of delay for filing the review application. The application is strongly opposed by the respondent/ DH alleging that there is huge amount of delay on the part of the applicant, which has not been explained and applicant has not shown due diligence and sufficient grounds seeking condonation of delay. It is further alleged by the respondent that applicant has preferred an Appeal before the RCT, which has been dismissed, therefore, in the light of preferring an Appeal, the review application filed subsequently is not maintainable. It is further alleged on behalf of the respondent / DH that the facts which are alleged in the application seeking review were well within the knowledge of the applicant and are not the new developments. In nut shell, the application is strongly opposed by the respondent / DH.
2. Arguments heard at length. Record perused throughly. It is stated by the counsel for applicant, during arguments that one Appeal was preferred before the RCT which was dismissed due to technical reason and the Ld. M 12/11 3/7 Judge had observed that the Tribunal had no power to hear the Appeal, therefore, I am of the opinion that so far as the dismissal of the Appeal is concerned, it is due to technical reason, however, an Appeal was preferred by the applicant is not disputed. Counsel for applicant has prayed for taking the benefit of Section 12 & 14 of Limitation Act. In support of his contentions he has filed one judgement i.e., "Bhagwan Swaroop V/s. Municipal Board, Ujhani & Ors., AIR 1970 Allhabad 652" This judgement is perused throughly. The observation given by the Ld. Judge, RCT while disposing the Appeal dated 22.03.2011, are that he has dismissed the Appeal on technical ground that this is not the appropriate forum to challenge the impugned order. Therefore, the observation given in "Bhagwan Swaroop's case, (Supra)" are equally applicable in the present circumstances, therefore, I am of the opinion that applicant / JD is entitled for the benefit of Section 12 & 14 of Limitation Act. Therefore, the each and every day is calculated accordingly. The eviction order has been passed on 09.12.2010. Appeal has been made on 22.02.2011 and it was dismissed on 22.03.2011, therefore, the period between 22.02.2011 and 22.03.2011 is to be excluded. It is further alleged by the applicant that he had applied for the certified copies, date of which is not mentioned, and the certified copies were obtained on 04.04.2011 i.e., within a week from filing the application for certified copies. Therefore, approximately seven days are also excluded. The present application for review, however, has been filed on 07.05.2011. The limitation period prescribed for review as per DRC Act is thirty days. It is however, reflected that after excluding the above mentioned period, 114 days have, however, been passed since the passing of the eviction order till the present application was preferred. No reasonable explanation for these 114 M 12/11 4/7 days have been furnished on behalf of the applicant as to what prevented him from filing the present review petition. It is further stated by the applicant that he had filed one RTI before the concerned department from which this information, on the basis of which the present petition is filed, was revealed. It is pertinent to mention here that the time spent on moving an application under RTI Act and obtaining any information in pursuance thereof, cannot be said to be excluded u/s. 12 & 14 of Limitation Act. Therefore, no due diligence and sufficient cause has been furnished by the applicant for causing delay in filing the review application.
3. The merits for the application for review are also considered as I am of the opinion that technicalities of law should not come in the way of justice and the Court should not adopt any hyper technical approach while deciding any application. Applicant has alleged that certain subsequent facts have come to his knowledge with regard to which he has filed the relevant documents alleging that DRC Act is not applicable, if these documents are considered on merits. It is stated by the counsel for applicant that the respondent / DH is not the owner of the suit property in question and it belongs to the Government as it is a Jhuggi Jhopri Cluster. The counsel for respondent has stated that the applicant himself has admitted the respondent as his tenant and has been depositing the rent as per Section 27 of DRC Act. This fact is not disputed by the applicant. It is therefore, reflected from the submissions of the parties that there is no dispute with regard to the landlord tenant relationship and applicant himself has acknowledged the respondent / DH as his landlord. It is pertinent to refer here one relevant provision Section 14 (1) (k) DRC Act which also cover such situation and lays down the law M 12/11 5/7 that eviction in such cases when the landlord, who is not the owner but the Government is the owner, has violated the terms and condition of the lease deed, can, however, seek the eviction of the tenant under DRC Act, if other requirements lays down under DRC Act are complied with. The counsel for applicant has relied upon one judgement "2005 SC 592". The counsel for DH has also relied upon certain judgements which are as under: i.) "2011 (123) DRJ 445"
ii.) "2009 (111) DRJ 673"
4. The judgement filed and relied upon by the parties are perused throughly. Nowhere these judgements lays down any bar on filing of a petition for eviction under DRC Act.
5. The judgements, relied upon by the parties, says that if any subsequent event have taken place, then, review is maintainable. It is pertinent to mention here that the facts alleged by the applicant are not the subsequent events, which have taken place after the impugned order dated 09.12.2010 but are certain facts which were not brought by the applicant at the time of passing of the order dated 09.12.2010. Nothing has been stated by the applicant as to why no steps were taken by him at the appropriate time and why he was not diligent enough at the relevant time by moving the application under RTI Act, at the time or before filing of Leave to Defend application or passing of impugned order. Therefore, the facts alleged by the applicant cannot be considered as subsequent events. From the careful perusal of the facts brought by the applicant by way of this review application, I am of the opinion that even if it is considered prima facily that M 12/11 6/7 respondent / DH is not the owner of the suit property in question, however, the applicant/ JD has admitted him as his landlord and he cannot take the defence that the landlord is not entitled to move any such petition for eviction as he himself is disqualified, as per the law. Therefore, the submissions made by the applicant that DRC Act is not applicable, are not tenable in the eyes of law. With regard to the limitation point, as mentioned above, I am also of the opinion that applicant has not establish the sufficient reason and has not shown the due diligence, therefore, the delay in filing the application cannot be condone. The application seeking review of the order dated 09.12.2010 is therefore, dismissed. Application is disposed off accordingly.
Announced in Open Court (Prashant Kumar)
Dated 19.11.2011 CCJ cum ARC /NorthWest
Rohini Courts/Delhi
M 12/11
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19.11.2011Present : Counsel for applicant.
Counsel for respondent.
Arguments on application for review filed u/s. 25 (B) (9) of DRC Act r/w. 47 CPC seeking review of the order dated 09.12.2010 heard at length. Vide separate order sheet application is dismissed.
File be consigned to Record Room.
(Prashant Kumar ) CCJ cum ARC/NorthWest Rohini Courts, Delhi 19.11.2011 M 12/11