Delhi District Court
Sh. Raj Kumar Gandhi vs Smt. Asha Rani on 17 July, 2018
IN THE COURT OF SH. RAJNISH BHATNAGAR,
DISTT. & SESSIONS JUDGE (NORTHWEST),
DISTRICT COURTS ROHINI, DELHI.
RCT No. 26/2016
Sh. Raj Kumar Gandhi
s/o late Sh. Krishan Lal
r/o A1, 155A, Lawrence Road
Keshav Puram
Delhi110035 ........... Appellant
Vs.
1. Smt. Asha Rani
w/o late Sh. Ashok Sachdeva
r/o 2292, Main Tota Ram Bazar
Tri Nagar, Delhi110035
2. Smt. Nidhi Gulati
w/o Sh. Vikas Guati
d/o late Sh. Ashok Sachdeva
r/o House No. A18, 2nd Floor
Subhadra Colony, Delhi.
3. Smt. Swati Khanna
w/o Sh. Sandeep Khanna
d/o late Sh. Ashok Sachdeva
r/o House No. A45, Kamla Nagar
Delhi.
4. Sh. Nitin Sachdeva
ARCT No. 26/2016 Page 1 of 18
s/o late Sh. Ashok Sachdeva
r/o 2292, Tota Ram Bazar
Ganesh Pura, Tri Nagar
Delhi110035 ...... Respondents
Date of institution : 27.05.2016 Date of clarifications : 07.04.2018 Date of Judgment : 17.07.2018 J U D G M E N T
1. This Judgment shall govern the disposal of an appeal filed by the appellants (respondent no. 2 before the learned trial court) u/s 38 of the Delhi Rent Control Act r/w Sec. 341 Cr.PC against the Order dated 03.05.2016 passed by the Court of Sh. Bhupinder Singh, learned ACJcumARC (North West), Rohini Courts, Delhi, in a petition bearing E. No. 5490/16 (new) titled as "Asha Rani & Ors. vs. Sewak Lal Gandhi & Anr.", whereby three applications viz. under Order VI Rule 17 r/w Sec. 151 CPC, under Order VIII Rule 1A sub Rule 3 r/w Sec. 151 CPC and u/s 340(1) r/w Sec. 195 Cr.PC moved by the appellant herein were dismissed.
2. In brief, the facts of the case are that the appellant is the tenant in respect of one shop situated on the ground floor of the property bearing no. 2292 (old Plot No. 104), Tota Ram Bazar, Tri Nagar, Delhi110035, at a monthly rent of Rs. 385/ excluding electricity and water charges; that earlier father of the ARCT No. 26/2016 Page 2 of 18 appellant namely Krishan Lal was the tenant in the said shop and there was no written agreement between the parties; that Krishan Lal died on 13.05.2012 and after his death, the tenancy in question devolved upon the appellant and other children of Krishan Lal; that thereafter on 17.09.2015, respondents herein filed an eviction petition u/s 14(1)(e) r/w Sec. 25B of the DRC Act against the appellant/respondent no. 2 and other children of late Krishan Lal for bonafide requirement of respondent no. 4 herein namely Nitin Sachdeva; that on receiving the notice of the said petition, the appellant filed an application for leave to defend the said eviction petition before the learned trial court along with an affidavit as required under the law; It is further averred that a copy of registered lease deed dated 14.03.2012 entered into by respondent no. 4 (claiming himself to be the owner of the entire property) with a new tenant namely Sh. Anil Kumar at a monthly rent of Rs. 30,000/ from 10.03.2012 and Rs. 34,500/ per month from 10.02.2013 to 09.01.2014 was also filed by the appellant along with leave to defend application; that some recent photographs of the property in question were also attached with the leave to defend application by the appellant to show that respondent no. 4, for whose bonafide requirement, the eviction petition u/s 14(1)(e) of the DRC Act was filed, has been earning around Rs.
ARCT No. 26/2016 Page 3 of 184,00,000/ annually from his tenancy only; that respondent no. 4, for whose benefit the shop is allegedly required bonafide, has recently sold another property in the vicinity and he has wrongly claimed that he is unemployed and further he is not the coowner in the property in question as claimed in the eviction petition.
It is further averred that thereafter the learned Counsel for the appellant moved an application dated 29.02.2016 u/s 340(1) r/w Sec. 195 of the Cr.PC before the learned trial court to show that the respondents have stated wrong facts on oath in the eviction petition and that they are also not the coowners of the property in question; that thereafter the appellant made further efforts for getting the proof of artificial requirement of respondent no. 4 and he came to know about another rent agreement dated 17.07.2013 jointly entered into by respondents no. 1 & 4 with some other tenant namely Sushil Kumar at a monthly rent of Rs. 15,000/ in respect of another shop situated on the ground floor of the property in question; that the appellant also laid his hands on the copies of income tax returns of respondent no. 4 for the assessment years 201112 and 201415 which show that respondent no. 4 has been earning lacs of rupees and has been falsely claiming himself to be unemployed.
ARCT No. 26/2016 Page 4 of 18It is further averred that the appellant has also been able to obtain the copy of statement of bank account bearing no. 015501511049 maintained by respondent no. 4 with ICICI Bank Ltd., Punjabi Bagh, New Delhi, for the period of 01.08.2015 to 18.11.2015, which shows that respondent no. 4 has been regularly paying electricity bills of several connections to Tata Power Delhi Distributors Ltd. and this bank statement also shows that respondent no. 4 has been regularly receiving amounts from one Shobha Rani and that he has also received an amount of Rs. 21,000/ from one Rajesh Sudan.
It is further averred that the appellant also received copies of electricity bills against as many as nine commercial electricity meters installed in the property in question; that respondent no. 4 had purchased a property bearing no. 2271/172 (old No. 1939/146), Ganesh Pura, Tri Nagar, Delhi, area measuring 51 sq. yards, in the year 2011, which was later on sold by him to one Vikas Kumar Gupta and Rekha Khandelwal vide registered sale deed dated 18.10.2011; that the previous Counsel for the appellant did not file an application u/s 340 r/w Sec. 195 Cr.PC and did not place the aforementioned documents on record and thereafter the appellant engaged a new Counsel who moved above mentioned three applications viz. u/s 340(1) r/w Sec. 195 Cr.PC, under Order VIII Rule 1A(3) CPC ARCT No. 26/2016 Page 5 of 18 thereby seeking permission to furnish the said documents on record and under Order VI Rule 17 r/w Sec. 151 CPC for granting permission to amend leave to defend application in terms of the above said documents. However, vide order dated 03.05.2016, the learned trial court dismissed all the three applications of the appellant.
3. Being aggrieved from the order dated 03.05.2016, the appellant has preferred the present appeal on various grounds contending inter alia that the learned trial court has wrongly dismissed the application u/s 340(1) r/w Sec. 195 Cr.PC and has wrongly relied upon the decision of "Iqbal Singh Narang & Ors. vs. Veeran Narang (2012) 2 SCC 60"; that the learned trial court has failed to appreciate that respondents herein stated wrong facts on oath and have also concealed material facts that they are not coowners of the property in question; that the learned trial court has further failed to appreciate the fact that the appellant came in possession of the documents subsequently and then he applied for certified copies of the same which took time in preparation and delivery and he was not in possession of those documents at the time of filing of leave to defend application; that the learned trial court has failed to appreciate that respondent no. 4 is not the coowner or landlord of the property in question and that ARCT No. 26/2016 Page 6 of 18 there is no landlord/tenant relationship between him and the appellant.
The appellant has accordingly prayed that the impugned Order dated 03.05.2016 be set aside.
4. The learned Counsel for the respondents did not chose to file any reply to the present appeal and straightaway argued on the same.
5. I have heard learned Counsel for the parties and have gone through the entire record carefully including the impugned order dated 24.03.2017.
6. The respondents had filed an eviction petition u/s 14(1)(e) r/w Sec. 25B of the DRC ACT against the appellant etc. for bonafide need of respondent no. 4. The notice of the said petition was issued to the appellant who accordingly filed leave to defend application before the learned trial court on 12.10.2015. Thereafter respondents herein filed reply to the said leave to defend application filed by the appellant. During the course of the proceedings, the appellant moved three applications, as discussed herein above, which were dismissed by the learned trial court vide impugned order dated 03.05.2016 by observing that in the applications under Order VIII Rule 1 A(3) CPC and under Order VI Rule 17 r/w Sec. 151 CPC, there are no averments that the facts which are sought to be brought ARCT No. 26/2016 Page 7 of 18 in the notice of the Court, are such that they have come to knowledge of the applicant/appellant in pursuance to some subsequent event that has happened after filing of the petition u/s 14(1)(e) of the DRC Act. It has also been observed by the learned trial court that there is no such averments in either of the applications that the applicant/appellant was in process of getting of documents which he has sought to rely upon. Therefore, the learned trial court relied upon the Judgment of Hon'ble Supreme Court passed in "Prithipal Singh - Appellant vs. Satpal Singh (dead) through its Lrs - Respondent cited as 2010(Sup) AIR (SC) 249" and dismissed the applications under Order VIII Rule 1A(3) CPC and under Order VI Rule 17 r/w Sec. 151 CPC by holding that the provisions of Code of Civil Procedure are not applicable to the summary procedure as prescribed u/s 25B(4) of the Act. As far as, the application u/s 340 r/w Sec. 195 Cr.PC is concerned, the learned trial court further relied upon the Judgment of the Hon'ble Supreme Court in "Iqbal Singh Narang & Ors. vs. Veeran Narang, (2012) 2 SCC 60" and disposed off the said application as not maintainable.
7. It is urged by the learned Counsel for the appellant that the appellant had come to know about certain facts and had laid his hands on certain documents after filing of leave to ARCT No. 26/2016 Page 8 of 18 defend application and for that purpose he had moved amendment application and application for taking of the documents on record, which applications have been dismissed by the learned trial court. The learned Counsel for the appellant has further urged that there is no bar in amending leave to defend application. The learned Counsel for the appellant has further submitted that the application u/s 340 r/w Sec. 195 Cr.PC is maintainable in the Court of the learned Addl. Rent Controller.
8. On the other hand, it is urged by the learned Counsel for the respondents that the present appeal is not maintainable u/s 38 of the Delhi Rent Control Act and the impugned order dated 03.05.2016 is not an appeallable order. It is further urged that the appellant should have taken all such pleas in his leave to defend application and he cannot incorporate any plea after filing of the said application. He further urged that the learned trial court has rightly dismissed the applications as the appellant tried to bring on record the facts which pertain to the period prior to filing of the leave to defend application and thus, they are not subsequent events. He further urged that there is not even a single averment as to how the appellant came to know about the documents which he now wants to place on record and on the basis of which he is seeking ARCT No. 26/2016 Page 9 of 18 amendment in his leave to defend application. He further urged that the learned trial court has rightly dismissed the application u/s 340(1) r/w Sec. 195 Cr.PC by holding that the Rent Controller discharges quasijudicial functions and is not a Court as understood in the conventional sense. He further urged that Sec. 36(2) of the DRC Act declares that the Controller shall exercise the powers of the Act, only with respect to some specific matters which do not include provisions of Sec. 195 and 340 of Cr.PC and, therefore, it cannot be considered to be a Court.
9. The short question which arises for consideration before this Tribunal is whether the appeal lies from the order dated 03.05.2016 passed by the learned ACJ cum ARC (N/W) in dismissing the applications of the appellant/tenant.
10. To appreciate the rival contentions of the parties, it is necessary to advert to sub Section (1) of Section 38 of the "DRC Act" which reads as under :
"(1) An appeal shall lie from every order of the Controller made under this Act only on question of law to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette."
11. A perusal of this provision mandates that an appeal shall lie against every order of the Rent Controller but only on ARCT No. 26/2016 Page 10 of 18 the question of law to the Rent Control Tribunal. The question involved in this appeal is whether this provision of filing appeal against "every order" of the Rent Controller is wide enough to cover every interlocutory order which is merely procedural in nature and does not affect the rights or liabilities of the parties. This question has come up for consideration before the Apex Court in Central Bank of India vs. Shri Gokal chand 1967 SCR 310 and it was held that the object of Section 38 (1) of the "DRC Act" is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In a pending proceeding, the Rent Controller may pass many interlocutory orders under Sections 36 & 37 of the "DRC Act" such as regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, fixing a date of hearing and admissibility of a document or relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The relevant para of the judgment passed by the Hon'ble Supreme Court reads as under : "The object of Sec. 38 (1) is to give a right of appeal to a ARCT No. 26/2016 Page 11 of 18 party aggrieved by some order which affects his right or liability. In the context of Sec. 38 (1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller may pass many interlocutory orders under Sections 36 & 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding;
they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent ARCT No. 26/2016 Page 12 of 18 Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under Sec. 37(2) is an order passed under the Act and is subject to appeal under Sec. 38(1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal".
12. This judgment has been followed by our own Hon'ble High Court of Delhi in Raj Kumar Kapoor vs. C.K. Dass & Ors. 67 Harish Kumar vs. Smt. Savitri Devi MCA No. 03/14 & MCA No. 21/14 (1997) Delhi Law Times 701. It was held by the Hon'ble High Court of Delhi that in view of judgment of Hon'ble Supreme Court in Shri Gokal Chand's case (Supra), the remedy of a person aggrieved by an order passed by the Rent Controller including interlocutory order, is to file an appeal before the Rent Control Tribunal and such orders which affect valuable rights of a party would be judicially reviewed in appeal by the Tribunal. The legality, propriety and validity of procedural orders can be decided in an appeal against the final order and till then the person aggrieved must wait. Such interlocutory orders cannot be challenged then and thereby filing an appeal before the Tribunal, cannot also be challenged in revision before the High Court. The relevant para ARCT No. 26/2016 Page 13 of 18 no. 9 of the judgment reads as under:
"It is thus clear that remedy of a person aggrieved by an order passed by Rent Controller, including interlocutory order, is to file an appeal before the Rent Control Tribunal. Such orders which affect valuable rights of a party would be judicially reviewed in appeal by the Tribunal. The legality, propriety and validity of procedural orders can be decided in an appeal against the final order and till then the person aggrieved must wait. Such interlocutory orders as cannot be challenged then and thereby filing an appeal before the Tribunal, cannot also be challenged in Harish Kumar vs. Smt. Savitri Devi MCA No. 03/14 & MCA No. 21/14 revision before the High Court. This is so not because a finality has been attached to such orders by Section 35 of the Act but because the Rent Controller is not a Court subordinate to High Court, though it will be within the power of superintendence of the High Court under Article 227 of the Constitution."
13. Now applying the principles laid down by the Hon'ble Supreme Court in Shri Gokul Chand's case (Supra) and by our own Hon'ble High Court of Delhi in Raj Kapoor's case (Supra), the orders passed by the Tribunal on the applications moved of the appellant/tenant under Order VI Rule 17 r/w Sec. 151 CPC and under Order VIII Rule 1A sub Rule 3 r/w Sec. 151 CPC are interlocutory in nature and do not affect the right and liabilities of any party.
14. In the instant case, the appellant moved an ARCT No. 26/2016 Page 14 of 18 applications for production of certain documents and amendment in leave to defend application on the ground that the facts as mentioned in amendment application were not within the knowledge of the applicant/appellant at the time of filing the leave to defend application and they came to the knowledge of the appellant only after filing of leave to defend application. A perusal of leave to defend application shows that the appellant wants to bring certain documents on record like sale deed, lease deed, rent agreement, electricity bills, incometax returns, bank statement etc., but the appellant is totally silent as to when he came to know about knowledge of existence of these documents. The appellant is totally silent on this aspect. Moreover, as discussed herein above, the order of the learned trial court dismissing the applications under Order VI Rule 17 r/w Sec. 151 CPC and under Order VIII Rule 1A sub Rule 3 r/w Sec. 151 CPC is the interlocutory order.
15. The reliance can be placed upon "S.K. Aggarwal vs. Abdul Aziz, 1999 VAD Delhi 295, 81 (1999) DLT 278, 1999 (51) DRJ 75, 1999 RLR 569" passed by the Hon'ble Delhi High Court in which it has been held that in case of dismissal of an application for amendment, only civil revision would lie and thus the question of filing an appeal does not arise.
16. The respondents have filed a petition u/s 14(1)(e) ARCT No. 26/2016 Page 15 of 18 r/w Sec. 25B of the DRC Act against the appellant and a perusal of Section 25B of the Act reveals that a special procedure has been provided for the disposal of application for eviction on the ground of bonafide requirement. The Hon'ble Supreme Court in "Prithipal Singh vs. Satpal Singh, (2010) 2 SCC 15" has held that Section 25(B) of the Act is a complete Code by which the entire procedure to be adopted for eviction of a tenant on the ground of bonafide requirement filed by the landlord in respect of the premises shall be followed. An application u/s 14(1)(e) of the DRC Act, therefore, shall be dealt with in accordance with the procedure specified in Section 25(B) of the DRC Act. In the above noted case, the Hon'ble Supreme Court in para nos. 23 & 24 has also considered the scope of Rule 23 of the Delhi Rent Control Rules, 1959, which reads as follows : "Rule 23. Code of Civil Procedure to be generally followed in deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908".
The Hon'ble Supreme Court has, thereafter, held in para 23 and 24 as follows :
"Para 23 : That apart, Rule 23 does not specifically confer any power on the Controller to follow the provisions of the Code in special classes of landlords. It is a general rule, by which the Controller in deciding any question relating to procedure not specifically ARCT No. 26/2016 Page 16 of 18 provided by the Act and these rules shall, as far as possible, be guided by the provisions contained in the Code.
Para 24 : In view of our discussions made hereinabove that Section 25B has been inserted by the Legislature of eviction of a tenant of a certain classes of landlords, in which the entire procedure has been given, it is difficult for us to hold that Rule 23 of the Rules can be applied in the present case in view of the specific provisions provided in Section 25B of the Rent Act. Accordingly, we are of the view that Rule 23 has no manner of application".
17. In view of the above law laid down by the Hon'ble Supreme Court that Rule 23 does not confer any power on the Controller to follow the provisions of CPC in a petition filed under Section 14(1)(e) of the Act, in my opinion, if whole of the scheme of Section 25(B)(1) is examined, it provides a complete procedure as to how the application for eviction on the ground of bonafide requirement filed at the instance of the landlord under Section 14 or 14A or 14B or 14C or 14D of the Act will be decided. Therefore, I find no infirmity in the impugned order dated 03.05.2016 passed by the learned trial court in dismissing the applications under Order VI Rule 17 r/w Sec. 151 CPC and under Order VIII Rule 1A sub Rule 3 r/w Sec. 151 CPC filed by the appellant.
18. The learned trial court has also dismissed the ARCT No. 26/2016 Page 17 of 18 application u/s 340(1) r/w Sec. 195 Cr.PC filed by the appellant on the ground that the Rent Controller discharges quasijudicial functions and is not a Court as understood in the conventional sense. In this regard, the reliance can also be placed upon the Judgment of the Hon'ble High Court of Delhi in "Nand Kishore vs. Vijay Kumar Gupta, 2009 (II) RLR (DEL) 296". Reliance can also be placed upon "Iqbal Singh Narang & Ors. vs. Veeran Narang (2012) 2 SCC 60" wherein it is held that though the Rent Controller discharges quasijudicial functions, he is not a Court, as understood in the conventional sense and he cannot, therefore, make a complaint under Section 340 Cr.P.C.
19. Accordingly, in view of my above discussions, I do not find any reason to interfere in the findings of learned trial court. I see no substance in this appeal and it, being devoid of merits, is accordingly dismissed. Record of the learned trial court be returned along with an attested copy of this judgment. Appeal file be consigned to Record Room, after completing the necessary formalities.
Digitally signed byAnnounced in the open Court RAJNISH RAJNISH BHATNAGAR BHATNAGAR Date: 2018.07.17 today i.e. 17.07.2018 17:12:33 +0530 (RAJNISH BHATNAGAR) Distt. & Sessions Judge (N/W) Rohini Courts, Delhi ARCT No. 26/2016 Page 18 of 18