Delhi District Court
Smt. Babita Kumari vs Sh. Harish Kumar on 4 May, 2018
In the court of Sh. A.S. Jayachandra, Ld. District & Sessions
Judge/Rent Control Tribunal, Shahdara, Karkardooma Courts, Delhi
RCT No. : 09/18
Smt. Babita Kumari
W/o Sh. Shashi Ranjan Singh
R/o 31-F, Second Floor,
Pocket-A3, LIG D.D.A. Flats,
Kondli Gharoli, Mayur Vihar,
Phase-III, Delhi-110096. ....Appellant
Versus
1. Sh. Harish Kumar
S/o Sh. Dalip Kumar
R/o C-6/134-A, Lawrence Road,
Delhi-110035.
2. Sh. Hardeep Dhami
S/o Unkown
C/o Sh. Dalip Kumar
C-6/134-A, Lawrence Road,
Delhi-110035. .....Respondents
Date of Institution : 12.04.2018
Arg. concluded on : 26.04.2018
Date of decision : 04.05.2018
ORDER
1. This is an appeal u/s 38 of the Delhi Rent Control Act. The appellant herein is neither the landlord nor the tenant. She was an objector. The appellant challenges the impugned order dated 9.4.2018 in Ex. No.871/16 on the files of the Ld. SCJ-cum-Rent Controller, Shahdara, Delhi.
2. The brief facts are that an execution petition no.40/2004 (Re- numbered as 871/16) was filed by one Harish Kumar against one Hardeep Dhami after obtaining an order of eviction against the tenant. The decree holder sought execution of the orders dated 14.7.2004 and 4.9.2004.
3. In the said execution petition the appellant herein had filed an RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 1/8 application u/o 21 rule 29 of CPC r/w sec. 25 of the DRC Act. The said application is dated 09.04.2018.
4. While considering the said application, the impugned order is passed after hearing the decree holder and the objector in person. The objections were declined; no stay granted on the ground that the objector had invoked the knowledge of the proceedings since 28.02.2018 and that he/she has not filed any stay order passed by any court in the suits allegedly filed by the objector. Therefore, the Ld. Rent Controller opined that there is no ground for stay and accordingly the application under Order 21 rule 29 of CPC was dismissed.
5. Aggrieved by the said order, the present appeal is filed. The appellant submits that the name of the objector is wrongly noted in the impugned order. Objector's name is Babita Kumari W/o Sh. Shashi Ranjan Singh. The court below had noted the name of the objector as Shashi Ranjan Singh, which is incorrect. The impugned order is opposed to the principles of natural justice since no lawyer represented the objector as the lawyers were on strike when the matter was heard. The objector is an agreement holder wherein a suit is pending filed by her against one Ram Babu & ors. including the decree holder (herein) is also one of the parties in the said suit. The pendency of the suit seeking specific performance of the agreement is still pending and therefore the executing court ought to have stayed the proceedings of the execution. It is also urged that the court below was misguided, misrepresented and a fraud was played on the court.
6. This court by an order dated 12.4.2018 had stayed the operation of the impugned order and the trial court records were summoned for 24.5.2018. In the meantime, an application was moved by the decree holder for vacating the stay. It also pointed out that a caveat was filed which was not noted. Thus, after notice of this application, the caveat was discharged and the arguments on both the sides with regard to the IA for vacating stay and the maintainability of the appeal were heard. The matter RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 2/8 was thus advanced and heard the Ld. Counsel on either side.
7. The Ld. Counsel for the appellant submits that the appeal is maintainable in view of section 25 of the Rent Control Act. He relied on Sh. Chhote vs. Mohd. Yasin 1977 (2) AIRJ p. 537 to urge that our Hon'ble High Court noted that an appeal would lie in the execution proceedings, which were entertained by the appellate court. He also relied on Indira Transport vs. Rattan Lal 67 (1997) DLT 544 DB to urge that a person not bound by the decree cannot be ousted from the possession in execution of decree or by receiver appointed by the court. The objections are to be inquired into before issuing delivery warrant for possession.
8. On the other hand, the Ld. Counsel for the respondent had submitted that the appeal is not maintainable since the question of law is not framed in the appeal. The appeal is not maintainable since the objector is not a party to the proceedings and the objector is set up by the JD. The objections are time barred. Even if the objector is an agreement holder against the JD, he cannot impede the proceedings under the Rent Control Act. The order passed under Order 21 rule 29 of CPC is not amenable to appeal u/o 43 rule 1 of CPC. Therefore, he submits that the appeal is not at all maintainable and the stay granted be vacated by dismissing the appeal.
9. On the other hand, the Ld. Counsel Sh. K.S. Sharma submits that the appeal is maintainable in view of the wider language of Sec. 25 of the DRC Act. The same is reiterated in the written arguments urging that even if wrong provision is invoked, the same is not fatal. The correct provision is Sec. 25 of the DRC Act. He has quoted certain excerpts from a ruling only to emphasise that Sec. 25 of the DRC Act provides for appeal. He had also relied on Mst. Azizan Bi vs. Ganga Dhar & Others AIR 1979 Delhi 46 to urge that "when a person claiming an independent title to such premises makes an application that the order of eviction should not be executed against him, such application has to be considered." It is held in para 8 that an order passed u/s 25 of DRC Act is not mere procedural order RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 3/8 but the one affecting the rights and liabilities and therefore appeal lies u/s 38 (1) of the DRC Act.
10. The appellant also relied on Vidyawanti vs. Thakan Dass 1974 RCR p. 47 DB to urge that a person who has an independent title to the premises could not be included in expression "persons who may be in occupation of the premises" as found in sec. 25 of the DRC Act."
11. The Ld. Counsel for the respondent-landlord had also filed the written arguments. He urges that the objector-appellant claims to have purchased the flat from Rumali Devi-aunt of the respondent. The said Rumali Devi similarly took up an objection and the same was declined. Her appeal in 28/13 was also dismissed. Thereafter Rumali Devi filed an original suit in CS no. 442/2013 before Ld. Civil Judge, Tis Hazari which was withdrawn on 5.11.2014. The objector resists eviction on the basis of an agreement to sell dated 10.10.2013 executed by Rumali Devi which is pending before Ld. ADJ-East. One Rajpati preferred an objection and the same were dismissed on 9.3.2018. Now the objector submits that she filed a suit in 411/2015 based on a settlement between Rajpati and Rumali Devi.
12. It is further made clear in the written arguments by the respondent that sec. 25 of DRC Act protects the status of a person having independent title. In the instant case, the objector has no independent title since the objector depends on the title of Rajpati through Rumali Devi. The orders u/o 21 rule 29 of CPC is not appealable and therefore even if the appeal is held to be maintainable, the same is liable to be dismissed since the objector has no independent title to obstruct the execution against the tenant who is directed to vacate the premises.
13. Having heard the Ld. Counsel on either side, the following points arise for determination in this appeal :
(i) Whether the appeal is maintainable against the orders passed under Order 21 rule 29 of CPC?
(ii) If the appeal is maintainable, whether the objector had agitated RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 4/8 independent title to the property in question to seek protection under Sec.
25 of the Rent Control Act ?
Answer to point no. (I)
14. It is clear from the trial court records that the application objecting the delivery of possession is filed by Babita Kumari under O. 21 rule 29 of CPC and the prayer is to stay the execution till the disposal of the two civil suits pending before the Ld. ADJ Sh. V.K. Rai and the Ld. ACJ-East District. No appeal is provided under CPC. At the same time, the trial court record also shows that the Sec. 25 of the DRC Act is also invoked by the appellant before the court below. Sec. 38 of the DRC Act provides for an appeal against every order subject to the formulation of question of law. Suffice it to say that following the rulings in Mst. Azizan Bi (Supra) and Vidyawanti (supra) of our Hon' High Court, it cannot said that no appeal would lie against the order ld. Rent Controller, since the Ld. Counsel for the appellant submits that the application filed in execution is under Sec. 25 of the DRC Act.
Answer to the Point No. (ii)
15. Section 25 of the DRC Act makes an exception of eviction. It directs the tenant and every person who may be in occupation to quit and deliver the possession in favour of the landlord in the event of an order allowing eviction. The exception is against such person in occupation having independent title to the property/premises.
16. In view of the Sec. 25 of the DRC Act, this court examines whether the objector had made out/suggested an independent title to the property? The trial court records are perused. The objector had mentioned in the application, submitted :
(a) That one Smt. Rajpati created title in favour of Rumali Devi.
(b) Civil Suit 1231/16 filed by the objector against the sons of Rumali Devi and the decree holder is pending before Ld. ADJ.
(c) The execution is collusive in nature and the judgment debtor did not RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 5/8 appear.
(d) The decree holder is not the natural or adopted son of Bhagwan Dass and Smt. Neelam.
(e) Decree holder admitted the signatures of Ms Neelam in the agreement executed by Rajpati in favour of Neelam.
(f) The decree of declaration dated 4.9.2004 (not disclosing case no.) is collusive.
(g) CS 9400/2016 for perpetual injunction titled Babita Kumari vs. Harish Kumar is pending before the Ld. ACJ-ARC (East) along with certain declarations.
17. This application is not supported by any documents nor the certified copies of the pending litigations. There is no order staying the operation of the eviction order by any superior court.
18. It is vehemently argued in the appeal that the objector had filed a suit for specific performance based on an agreement, in Suit No. 1231/16 titled as Babita Kumari vs. Ram Babu & Ors. in which the present decree holder is defendant no.4. The said suit is pending adjudication.
19. The entire basis for objecting the eviction is that the said civil suit is pending and the objector is an agreement holder. It is well settled by a catena of judgments that a mere agreement to sell would not confer any title in favour of the such an agreement holder. It is held in Suraj Lamp & Industries vs. State of Haryana AIR 2012 SCC 656 that mere agreement to sell would not confer any title. In Babita Joshi vs. Dileep Rawat 2015 (3) CLJ 346 our Hon'ble High Court held that "a mere agreement to sell does not create any right in the property, save the right to enforce the said agreement". Therefore, the objector cannot agitate by pleading independent title to the premises. Mere filing a suit for specific performance cannot confer any title on the objector. It could have been understood if the agreement to sell which the objector claims is executed by the decree holder in favour of the objector conferring the possession. The present case RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 6/8 is on a different footing. The suit for specific performance is filed against the so-called vendor namely Rumali Devi (since deceased -by LRs) who had unsuccessfully resisted the eviction.
20. As regards the collusion alleged between the landlord and tenant, the same cannot be looked into at the stage of execution. It is well settled that the executing court cannot go behind the decree nor it can entertain any objections as regards correctness and facts as held in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman & Ors. AIR 1970 SC 1475.
21. Further more it is significant to note that the objector had merely filed an application without any documents. No certified documents were filed to believe the assertions of the objector. There is no order of protection in favour of the objector passed by any court either by the appellate court or by the civil court protecting possession u/s 53 A of the TP Act which is binding against the decree holder in the trial court.
22. The Ld. Court below had mentioned the name of the objector as Shashi Ranjan Singh who is the husband of the objector. This is only a typographical error and cannot alter the case of the appellant.
23. While adjudicating the objections of the appellant, the Ld. Court below was right in holding that the objector gained the knowledge about execution only on 27.02.2018 (para 1 of the application of the appellant). The same is wondered by the Ld. Court below since there had been series of litigation between the parties. The objector was acquiesced of the proceedings since quite a long time as there was a litigation filed seeking the eviction proceedings to be declared as null and void as is found from the para 7 of the objections. Thus, the Ld. Court below was justified in holding that this matter having reached the status of an old case and the matter which was filed in 2003 is being lingered on for a period of one and half decades, is being objected to at the final stage by a party who is having the complete knowledge of the long drawn history of litigation. These RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 7/8 observations cannot be termed as perverse and opposed to the facts.
24. Apart from the above, it suffices to add here that the objector had no independent title to impede/obstruct the delivery of possession. Even if the objector is evicted, he can seek re-possession in the event of his succeeding in the suit for specific performance in which this decree holder is also a party. Thus, the point arising for determination as regards the independent title of the objector is held in negative. Thus, the following :
ORDER The appeal stands dismissed. The order of stay dated 12.4.2018 is thus rescinded. The impugned order dated 09.04.2018 in E.P. no. 871/16 is hereby affirmed. Parties to appear before the ld. Court below on 19.05.2018. A copy of this order be sent along with the trial court records.
The digital entries be corrected accordingly recording the advancement of the case made from 24.05.2018 to different dates at the instance of the parties. Appeal file be consigned to record room. Digitally signed by A.S. A.S. JAYACHANDRA JAYACHANDRA Date:
2018.05.04 15:01:15 -0400 Typed to the dictation directly, (A.S. Jayachandra) corrected on the system and District & Sessions Judge, pronounced in the open court Rent Control Tribunal, on 04.05.2018 Shahdara/KKD Courts, Delhi.RCT No. 09/18 Babita Kumari vs. Harish Kumar & Ors. Page No. 8/8