Delhi High Court - Orders
Rakesh Bansal vs Delhi Gandhi Smarak Nidhi on 9 May, 2024
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 09.05.2024
+ RC.REV. 75/2023
RAKESH BANSAL ..... Petitioner
Through: Mr Satish Sahai and Ms Malaika
Farhat, Adv with petitioner in person
versus
DELHI GANDHI SMARAK NIDHI ..... Respondent
Through: Mr Vivek Chandra, Adv
CORAM: JUSTICE GIRISH KATHPALIA
O R D E R (ORAL)
CM APPL. 24976/2024 (early hearing)
1. This is an application on behalf of petitioner/tenant seeking early hearing of the stay application. Learned counsel for respondent who appears on service of notice of application submits that he has no objection if the application for early hearing is allowed. Accordingly, the present application is allowed and the hearing dated 10.07.2024 is preponed to this day. CM APPL. 11955/2023 (stay)
2. I have heard learned counsel for both sides on the issue of stay on operation of the impugned eviction order.
3. Briefly stated, the petitioner/tenant has filed the present petition under proviso to Section 25B(8) of the Delhi Rent Control Act ("the Act") to assail RC.REV. 75/2023 Page 1 of 6 pages This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:52:44 the eviction order under Section 14(1)(e) of the Act, which was passed since the petitioner/tenant opted not to file an application for leave to contest within the time stipulated by law. Keeping in mind the legal position laid down by a Division Bench of this court in the case of Director, Directorate of Education & Anr. vs Mohd. Shamim & Ors, 2019 SCC OnLine Del 11490 in such situations, the High Court while dealing with petition of the tenant has to apply dual test by examining as to whether the tenant was precluded by way of circumstances beyond his control from filing the leave to contest application within the time prescribed by law and as to whether on merits, the tenant has been able to set up a substantial case for consideration of the application of leave to contest.
4. So far as the first of the dual test is concerned, the delay in filing leave to contest application is explained by the petitioner/tenant on the ground that after service of summons in the prescribed format, he contacted the respondent with a settlement offer and the latter assured to withdraw the eviction petition.
5. So far as the second of the dual test is concerned, contention of the petitioner/tenant largely is that the eviction petition ought to have been filed only under Section 22 of the Act and not under Section 14(1)(e) of the Act. In support of this contention, during preliminary arguments on 09.04.2024, learned counsel for petitioner/tenant placed reliance on few judicial precedents including the case of Canara Bank vs TT Ltd., RC. Rev. 312/2013 decided by a coordinate bench of this court on 30.09.2014. But on being pointed out that the said judgment holds contrary to the argument RC.REV. 75/2023 Page 2 of 6 pages This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:52:44 advanced on behalf of the petitioner/tenant, learned counsel for petitioner/tenant took adjournment to examine the matter further, so the case was adjourned to 10.07.2024, which date has now been preponed to this day.
6. Learned counsel for petitioner/tenant today contended that on the issue of interplay between Section 14(1)(e) and Section 22 of the Act, there were conflicting judgments, so the matter was referred to a larger bench in bunch of cases including the case titled K.S. Bhandari vs International Security Printers Pvt. Ltd., 2017:DHC:7975, therefore, this court ought to stay the operation of the impugned eviction order till decision of the said Reference Court or the present petition may be tagged with the same. This request is strongly opposed by learned counsel for respondent/landlord submitting that the present respondent has been litigating for possession of the subject premises for more than a decade and further, the petitioner/tenant has even vacated the subject premises and shifted his business elsewhere. This submission of learned counsel for respondent/landlord that the petitioner/tenant has vacated the subject premises is disputed by learned counsel for petitioner/tenant. As regards tagging the present petition, no such application has been made till date.
7. The fact remains that no order has been placed before this court to show that the Division Bench dealing with the said bunch of cases has directed that all cases dealing with the argument of interplay between the said two provisions are to be stayed, awaiting the order of the Reference Court. Further, while dealing with the Reference in question, this court after detailed discussion in the cases of M/s Suvinys Developers Pvt. Ltd. vs M/s RC.REV. 75/2023 Page 3 of 6 pages This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:52:44 Verma Beauty Parlor & Hair Dressers, RC Rev 545/2019 decided on 06.11.2020; and Om Prakash vs Delhi Pinjrapole Society (Regd), CM(M) 864/2022 decided on 26.08.2022, held that merely because the Reference is pending, it does not mean that the proceedings in all other cases have to be stayed. Therefore, I find no substance in the submission of learned counsel for petitioner/tenant that the proceedings in the present case be stayed till decision of the Reference Court.
8. The objection to the effect that the eviction petition ought to have been filed only under Section 22 of the Act and not under Section 14(1)(e) of the Act was never raised before the learned Rent Controller in the sense that the application for leave to contest was filed much belatedly. And the reason explaining the said delay to the effect that the petitioner/tenant approached the respondent/landlord with compromise offer cannot be treated as a reason beyond control of the petitioner/tenant which could preclude him from filing application for leave to contest within the time prescribed by law. The situation would have been different if the petitioner/tenant could pass first of the dual test, since in that case this court would have looked into the application for leave to contest.
9. In exactly similar circumstances, a coordinate bench of this court in the case of Canara Bank (supra) relied upon by learned counsel for petitioner/tenant himself, it was held thus:
"4. I would like to state that where there is a position which shows ex facie that a petition is not maintainable because of lack of jurisdiction of the Additional Rent Controller or the provision invoked is on the face of it not maintainable, then in such a case RC.REV. 75/2023 Page 4 of 6 pages This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:52:44 the Additional Rent Controller can go into the aspect of lack of jurisdiction for deciding the decreeing of the bonafide necessity eviction petition by applying Section 25-B(4) of the DRC Act for deemed admission, but, where two views are possible, and factual issues are involved, and it cannot be said that ex facie the petition is not maintainable under Section 14(1)(e) of the DRC Act, then in such a case, in my opinion, the issue raised is not strictly a legal issue of lack of jurisdiction for an eviction petition not to be filed and decreed under Section 14(1)(e) of the DRC Act read with special procedure provided under Section 25(B) of the DRC Act. These observations are relevant in the present case because there are two views possible of the factual situation as to whether or not the respondent-company can or cannot invoke Section 14(1)(e) of the DRC Act and that it should have only invoked Section 22 of the DRC Act is not that ex facie clear. If therefore two views are possible that Section 14(1)(e) of the DRC Act could or could not be invoked, in such circumstances to argue this aspect that Section 14(1)(e) of the DRC Act definitely could not be invoked and only Section 22 of the DRC Act could be invoked, a leave to defend was required to be filed within the statutory period by petitioner/tenant, and since the leave to defend application was not filed within the statutory period, the Additional Rent Controller was justified in decreeing the petition under Section 25-B(4) of the DRC Act inasmuch as once leave to defend application is not filed within the statutory period of 15 days the contents of the eviction petition are deemed to be admitted and the eviction petition is liable to be decreed".
10. Further, in the present case, the broad factual matrix set up in the eviction petition is that the subject premises is a shop in which the present petitioner was inducted as a tenant for commercial purposes and since the school being run by the present respondent needs more rooms to accommodate the increase in student strength, the subject premises are bona fide required. Admittedly, it is nobody's case that the petitioner/tenant was ever in service or employment of the respondent/landlord, which service or employment has ceased. It is also nobody's case that the petitioner/tenant has acted in contravention of terms under which he was authorized to RC.REV. 75/2023 Page 5 of 6 pages This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:52:44 occupy the subject premises or that he is in unauthorized occupation thereof.
11. The petitioner/tenant having failed to clear the first of the dual test, in the absence of specific objection related to the provision under which the eviction petition ought to have been filed, such objection cannot be taken at this stage even according to the judicial precedent cited on behalf of the petitioner/tenant as mentioned above.
12. I, therefore, find prima facie no infirmity in the impugned eviction order which would warrant stay on operation thereof. Therefore, the present stay application is dismissed.
RC.REV. 75/202313. List for final arguments on 20.09.2024.
GIRISH KATHPALIA
JUDGE
MAY 9, 2024/as
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RC.REV. 75/2023 Page 6 of 6 pages
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:52:45