Delhi District Court
Narain Kumar & Sons (Huf) vs M/S Satya Prakash & Sons (Firm) on 15 February, 2016
IN THE COURT OF SH. A.K. CHAWLA : RENT CONTROL
TRIBUNAL (CENTRAL): DELHI
RCT - 18/2016
Unique Case ID No.02401C0076222016
NARAIN KUMAR & SONS (HUF)
through its Karta Shri Narain Kumar
R/o B-274, Vivek Vihar,
New Delhi -110 095. ..... Appellant
Versus
1. M/S SATYA PRAKASH & SONS (FIRM)
2. MR. PARVESH GUPTA
3. MR. RAVI GUPTA
working for gain at
1/1115 (shop on ground floor),
Bara Bazar, Kashmiri Gate,
New Delhi -110 006. ..... Respondents
AND
RCT - 19/2016
Unique Case ID No.02401C0076242016
NARAIN KUMAR & SONS (HUF)
through its Karta Shri Narain Kumar
R/o B-274, Vivek Vihar,
New Delhi -110 095. ..... Appellant
Versus
YODH RAJ
S/o Late Ajudhia Prasad
working for gain at,
1/1114 (shop on ground floor),
Bara Bazar, Kashmiri Gate,
New Delhi -110 006. ..... Respondent
RCT- 18/16 & 19/16 Page 1/12
Date of Institution : 03.02.2016
Date of pronouncement : 15.02.2016
JUDGMENT
Vide this common judgment, I proceed to dispose off the two appeals being RCT - 18/2016 & 19/2016 titled Narain Kumar & Sons (HUF) Vs. Satya Prakash & Sons (Firm) and Narain Kumar & Sons (HUF) Vs. Yodh Raj respectively, against two similar orders dated 21.1.2016 passed by the ld. ARC during the execution proceedings, as the similar questions of facts and law are agitated.
2. Precisely, the facts relevant for the disposal of the appeals are that in the proceedings initiated by the appellant against the respondents under Sections 14(1)(e) read with Section 25B of the Delhi Rent Control Act in short 'the DRC Act', eviction orders came to be passed against the respondents on 5.3.2015. Same were assailed by the respondents by way of RC Revisions before the Hon'ble High Court. Vide judgment dated 15.1.2016, both the Revisions came to be dismissed by the Hon'ble High Court. For execution of the eviction orders, the appellant filed the respective execution petitions before the ld. ARC. Vide the impugned order, the ld. ARC did not proceed with RCT- 18/16 & 19/16 Page 2/12 the execution, as it came to be stated on behalf of the respondents that the respondents had already approached the Hon'ble High Court for permission to file SLP before the Hon'ble Supreme Court of India, which was to be listed very soon and adjourned the matter for 22.2.2016. Aggrieved thereof, the appellant has preferred the appeals in hand. Here, it is also relevant to note that prior to the filing of the appeals in hand, the appellant has filed two respective appeals on 25.1.2016, but, came to be withdrawn on 8.2.2016.
3. I have heard the ld. Counsel for the parties and perused the record carefully.
4. Impugned order is assailed on the grounds that the appellant was an old aged Senior Citizen and the mandatory period of six months having been already enjoyed by the respondents, in the absence of any stay of the proceedings by the Hon'ble High Court and in the absence of any impediment in the execution proceedings, the impugned order had the effect of infringing the appellant's lawful rights of expeditious execution of the eviction order and was therefore, appeallable under Sub-Section (1) of Section 38 of 'the RCT- 18/16 & 19/16 Page 3/12 DRC Act'. As for the instant appeals having been filed during the pendency of the appeals filed earlier, ld. Counsel for the appellant strenuously contended that the earlier appeals being defective in their presentation/filing, the instant appeals were maintainable. In support thereof, reliance was placed upon (2008) 5 SCC 58 Vimlesh Kumari Kulshrestha Vs. Sambhajirao & Anr.
Ld. Counsel for the respondents on his part however, strenuously opposed the appeals on both the counts. In his submissions, the instant appeals were not maintainable in view of the fact that two appeals filed earlier were pending and there was no provision for second appeals being filed for the same purpose. More so, in his submission, the instant appeals during the pendency of the earlier appeals for the same purpose had come to be filed without seeking leave of the Court and therefore, the instant appeals were not maintainable. In the other limb of his submissions, he strenuously contended that the impugned order did not involve any question of law and that, it did not affect any right of the appellant inasmuch as, it only amounted to a deferment of the orders of execution of the eviction orders and was thus, a procedural aspect. Also, in his submissions, fixing of dates of hearing during the proceedings was an RCT- 18/16 & 19/16 Page 4/12 interlocutory order and thereagainst, the appeal was not maintainable. In support of his such submissions, he placed reliance upon AIR 1991 SC 1233 Pankaj Bhargava Vs. Mohinder Nath; 1981 (2) RCR 585 Manohar Lal Vs. Narain Dass; 1979 (2) RCR 142 Bhagwati Devi Vs. Haji SM Sayeed; 1972 RLR (N) 129 Sita Ram Talwar Vs. Jai Dev Sharma; 81 (1999) DLT 472 Jai Kishan Khanna Vs. Mela Ram; 1963 (65) PLR 1056 Pokar Mal Vs. Prem Nath; and, AIR 1981 SC 1786 Shah Babulal Khimji Vs. Jayaben.
5. At the onset, the question as regards the maintainability of the instant appeals, which came to be filed during the pendency of the appeals preferred earlier, requires consideration. In that context, it is observed that the Memorandums of Appeals preferred earlier, were not accompanied with either the certified copies of the impugned orders nor the copies filed therewith were attested by the Advocate. Even the application filed alongwith the said appeals seeking exemption from filing the certified copy did not seek exemption from filing any certified copy, as permissible under law. The Memorandums of Appeals were thus defective and the maintainability of such appeals was so, vociferously questioned by the ld. Counsel for RCT- 18/16 & 19/16 Page 5/12 the respondents. Sub-rule (3) of Order XLI provides for rejection of such Memorandum of Appeal. Alternatively, it provides for being returned to the appellant for the purposes of being amended within a time to be fixed by the Court or be amended then and there. What is thus provided for under the subject Rule, is a strictly procedural aspect. Rejection and return under this Rule does not debar or preclude fresh filing, as provided for under Sub-rule (4) of Rule 1 of order 23 CPC, unless permission to that effect comes to be granted by the Court. It is thus clear that provisions of Order XLI and Order 23 are not akin to each other. Be that as it may, even in Vimlesh Kumari's case (supra) relied upon by the ld. Counsel for the appellant, the Hon'ble Supreme Court held that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the order passed by the Court and that, it is trite that even a permission of implied grant can be drawn. That was a case, where the Suit on the same cause of action had come to be filed before filing the application for the withdrawal of the Suit. The first Suit was withdrawn, as an objection had been taken by the respondent in regard to payment of proper court fee. Ratio of the judgment (supra) in my considered view, also squarely repels the contention of the ld. RCT- 18/16 & 19/16 Page 6/12 Counsel for the respondent, inasmuch as, it was the respondent's own objection that the memorandums of the appeal of the earlier instituted appeals were defective, which could be either rejected or returned, of course, for fresh filing under Rule (1) of Rule 47 CPC. A bare reading of Order 47 Rule (1) shows that it is strictly a rule of procedure. In Sardar Amarjit Kalra Vs. Pramod Gupta (2003) 3 SCC 272 adverting to the rules of procedure, it was held as under :
"26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. ................."
In view of the given position of law and the facts and circumstances, the contention raised by the ld. Counsel for the respondent is devoid of any merit and is rejected.
6. As to other contention raised by the ld. Counsel for the respondent that the impugned order did not involve any question of RCT- 18/16 & 19/16 Page 7/12 law and that, it did not affect any right of the appellant and thereby, the appeal under Sub-rule (1) of order 38 of 'the DRC Act' was not maintainable, I consider, it is a matter of subjective consideration. What could be conspectus of the questions of law as provided for under Rule (1) Section 38 of 'the DRC Act', the Hon'ble Supreme Court in Central Bank of India Vs. Gokul Chand AIR 1967 SC 799 observed as under :
"....... the object of Section 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(1), the words "every order of the Controller made under this Act" though every 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 and 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 assising 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 Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under Section RCT- 18/16 & 19/16 Page 8/12 37(2) is an order passed under the Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party. (emphasis supplied). Thus it has to be seen whether the impugned order affects some right or liability of the petitioner to make it appealable under Section 38 of the Act. ......"
From the aforegoing, it is very clear that any order passed by the Rent Controller, which affects a litigant's some right or liability, is appealable under Section 38(1) of 'the DRC Act'. In view of the above-said settled position of law, when the subject matter is adverted to, it is seen that the appellant had approached the ld. Rent Controller for enforcement of his right of eviction of the respondent from the tenancy premises, which right had been upheld even by the Hon'ble High Court. Suffice to say, the Karta of the appellant was a Senior citizen and the proceedings as provided for under the statute, were summary in nature, wherein, the eviction order sought to be executed, had come to be passed way back on 5.3.2015. Of course, the appellant was well within his right to seek earliest enforcement of such right vested in him and in the given situation, the ld. ARC refusing to not to proceed for the execution of such right, in my considered view, was not lawful. More so, for the reason that the ground given by the respondent to not to do so and on the premise RCT- 18/16 & 19/16 Page 9/12 whereof, the ld. ARC acted, was not tenable under law. Ld. ARC refrained to proceed further in the matter of execution as it came to be stated that the respondent had already approached the Hon'ble High Court for permission to file SLP before Hon'ble Supreme Court of India and the same was to be listed very soon. No permission of the Hon'ble High Court was required for preferring the SLP and therefore, the very premise on which the ld. ARC refused to proceed with the execution, was unjustified and an interference with the right of the appellant to seek the earliest execution of the eviction order. It is well settled law that in the absence of any stay of the execution either by the same Court which passed the decree or the superior Court, the decree holder has every right to seek its earliest execution and that, such right cannot be allowed to be interfered otherwise. I am therefore, of the considered view that the impugned order was an interference in the due exercise of right of the appellant to seek the earliest execution of the eviction order in its favour, which had come to be upheld even by the Hon'ble High Court. Here, it may only be noted that a month has passed even from the date of passing of the order of the Hon'ble High Court dismissing the Revisions preferred by the respondent and till date, there is no stay of the proceedings by any RCT- 18/16 & 19/16 Page 10/12 superior Court. It is also not the case that the ld. Rent Controller in exercise of its jurisdiction had stayed the execution proceedings, as provided under law. Impugned order was thus, a blatant interference in exercise of legally vested right of the appellant to proceed with the execution proceedings. Impugned order therefore, cannot be sustained. In that view of the matter, the contention raised by the ld. Counsel for the respondent placing reliance upon the judgments cited, is of no avail. Pankaj Bhargava's case (supra) was a case, where the Hon'ble Supreme Court considered the aspect of construction of disputed document raising question of law, which directly and substantially affected the rights of the parties. Facts of that case are no way even similar to the case in hand. Bhagwati Devi's case; Sita Ram Talwar's case; and, Jai Kishan Khanna's case (supra) are the cases, where the amendment of the pleadings was in question and it was observed that disallowing the amendment, did not affect the rights of the parties. Babulal Khimi's case only adverts to the provisions of appeal and the scope of interlocutory order under CPC.
7. In view of the foregoing, the appeals are accepted and the respective impugned orders are set aside. Parties are directed to RCT- 18/16 & 19/16 Page 11/12 appear before the concerned ld. ARC on 17.2.2016, when the ld. ARC shall proceed further with the execution proceedings in accordance with law, without any further loss of time.
Announced in the open Court (A.K. Chawla)
on this 15th day of February, 2016 Rent Control Tribunal (Central)
Delhi
RCT- 18/16 & 19/16 Page 12/12