Delhi District Court
Mohd. Haroon Japanwala vs Salazar Louis Anthony Page No. 1/16 on 12 August, 2013
IN THE COURT OF SH. TARUN YOGESH:
ADDITIONAL RENT CONTROLLER
PATIALA HOUSE COURTS: NEW DELHI
E20/09/08
1. Mohd. Haroon Japanwala ... Petitioners
S/o Late Haji Mohd. Shafi
C2/19, Safdarjung Development Area
New Delhi 110016
2. Abida Suleman Japanwala
Widow of Late S.M. Suleman Japanwala
Through her attorney
Afshan Japanwala Iqbal
3. Afshan Japanwala Iqbal
D/o Late S.M.Suleman Japanwala
Both Residents of
Room no. 6, Marina Hotel,
Connaught Circus, New Delhi
4. Mr. Anis Omer
S/o Late Razia Begum and Late Mohd. Umar
Through its attorney Mr. Riaz Umar
5. Mr. Riaz Umar
S/o Late Razia Begum and Late Mohd. Umar
Both resident of 1271, Haveli Hissamuddin Hyder
Ballimaran, Delhi 110 006
E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 1/16
6. Ms. Almas Begum
D/o Late Razia Begum and Late Mohd. Umar
70, Phears Lane, Kolkata - 700073
Through her attorney Mr. Riaz Umar
7. Mrs. Farzana Saeed
D/o Late Razia Begum and Late Mohd. Umar
88, Hargovind Enclave, Delhi - 110092
Through her attorney Mr. Riaz Umar
Vs.
1. Salazar Louis Anthony Marques ... Respondent
(Sole Proprietor Marques & Co.)
(deceased through LRs)
2. Mrs. Oliva Candida Lourdes Marques
W/o Late Salazar Louis Anthony Marques
3. Ms. Christine Ann Marques
D/o Late Salazar Louis Anthony Marques
4. Mr. Franz Benius Marques
S/o Late Salazar Louis Anthony Marques
All at:
G14, Marina Arcade
Connaught Circus, New Delhi
E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 2/16
JUDGMENT
1. Vide this order I propose to decide the application dated 18.08.2008 of respondent late Mr. Salazar Louis Anthony Marques filed under section 25 B subsections (4) and (5) of the Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) seeking leave to contest the eviction petition filed by petitioner Mohd. Haroon Japanwala under section 14 (1) (e) read with 25 B of DRC Act for his eviction from G14, Marina Arcade, Connaught Circus, New Delhi on the ground of bonafide requirement.
2. Subsequent to the filing of his application on record, respondent late Mr. Salazar Louis Anthony Marques has expired and his legal representatives have been substituted in his place under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred as 'CPC') by the court vide order dated 02.09.2011. Thereafter two applications under section 151 CPC dated 14.01.2010 and 01.05.2013 have been filed by LR/ applicant Mrs. Olive Marques, widow of respondent late Mr. Salazar Louis Anthony Marques for taking on record the duly attested copy of affidavit dated 18.08.2008 of respondent/ her late husband filed under section 25 B (4) of DRC Act. Submissions upon these two applications have been addressed by learned counsels and hence these two applications shall also be decided by this common order. Facts of the case necessary for deciding the aforesaid applications seeking leave to E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 3/16 contest the eviction petition and for taking on record the duly attested copy of the affidavit of respondent late Mr. Salazar Louis Anthony Marques filed under section 25 B (4) of DRC Act are discussed as under:
3. Petitioner Mohd. Haroon Japanwala has filed the present eviction petition under section 14 (1) (e) read with 25B of DRC Act seeking eviction of respondent late Mr. Salazar Louis Anthony Marques/ his LRs mentioned in the amended memo of parties from the tenanted premises G14, Marina Arcade, Connaught Circus, New Delhi. He claims himself to be the owner/ landlord of the suit premises and further states that Shop no. G14, Marina Arcade, Connaught Circus, New Delhi, shown as red in the site plan attached to the petition had been let out to respondent at monthly rent of Rs.732/ per month excluding electricity and water charges.
4. Eviction of respondent/ LRs from the tenanted premises has been sought on the ground that the premises is required for running the business of his younger son Mr. Asad Japanwala who is dependent upon him for accommodation and at present is doing his business at shop no. 25, Aurobindo Place Market, New Delhi which is very small and insufficient for the business.
5. Respondent late Mr. Salazar Louis Anthony Marques has been E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 4/16 served with notice of petition in the form specified in the Third Schedule and has filed the present application under section 25B subsections (4) and (5) of DRC Act along with his affidavit dated 18.08.2008 for seeking leave to contest the eviction petition. Petitioner has filed his reply dated 02.04.2009 alongwith counter affidavit stating that respondent's application filed alongwith affidavit is time barred and is therefore liable to be rejected. Petitioner has further stated that respondent has made false allegations in his affidavit to mislead the court and the application and affidavit does not disclose any fact which would disentitle petitioner/ landlord from obtaining an order of eviction.
6. After the death of respondent late Mr. Salazar Louis Anthony Marques, his LRs have been substituted in his place as recorded above and the other two applications have been filed by his widow/ LR Mrs. Olive Marques for taking on record the duly attested copy of respondent's affidavit and for condoning the delay in filing the duly attested copy of affidavit dated 18.08.2008.
7. In the first application dated 14.01.2010 filed under section 151 CPC, applicant Mrs. Olive Candida Lourdes Marques has stated that deceased respondent late Mr. Salazar Louis Anthony Marques has filed the application under section 25 B (4) & (5) of DRC Act alongwith requisite affidavit, though inadvertently the affidavit was not attested by the Oath Commissioner and got filed by the clerk of learned counsel E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 5/16 without such attestation. She has stated that the error/ omission is attributable to the office of the counsel as the unattested affidavit got filed in the court inadvertently and under bonafide mistake, though the same had been signed by deceased respondent and his signatures were duly attested/ identified by respondent's counsel. Stating that the non attestation of the affidavit was neither intentional nor deliberate and procedural lapse should not be allowed to triumph upon the substantial rights of the parties and parties should not suffer on account of the negligence/ error of the counsel or his clerk, applicant has prayed for allowing the application in as much as the nature of the claims, grounds/ averments would remain unchanged and hence prayed for taking the amended attested affidavit on record or allow her to file fresh affidavit or additional affidavit in support of leave to defend application of deceased respondent.
8. In the second application dated 01.05.2013 filed on 03.05.2013, applicant Mrs. Olive Marques has reiterated her contention that non attestation of application/ affidavit dated 18.08.2008 was due to omission on the part of the counsel appearing for applicant and same is a curable defect which can be allowed by the court exercising its inherent power under section 151 of Code of Civil Procedure. Respondent/ applicant has also mentioned to have filed duly attested copy of application dated 18.08.2008 filed under section 25 B (4) of the Delhi Rent Control Act stating that the attested copy is exactly the same as the application filed E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 6/16 on 18.08.2008 in substantive part of the application and affidavit and is the same application for all practical purposes. She has referred to section 7 of the Oaths Act, 1969 for stating that no proceedings shall be invalidated by omission of oath or irregularity and claims that non mentioning the name of Notary or absence of stamp and seal of the Notary in the application dated 18.08.2008 cannot be construed to be an omission or variation of a vital nature and the defect can only be construed as a curable defect and not a fatal defect and accordingly has prayed for taking on record the duly attested copy of application dated 18.08.2008 filed under Section 25 B (4) of Delhi Rent Control Act and for condoning any delay in filing the duly attested copy of the application.
9. Petitioner has filed his reply to both applications and has opposed the applications stating that the applications are not maintainable and are devoid of any merit, hence liable to be dismissed with exemplary costs. Petitioner has opposed the contents/ averments made by applicant in both her applications by referring to the judgment of the Hon'ble High Court of Delhi passed in Vidya Sagar Vs. Shakuntala Jain 1992 (22) DRJ 123 and the more recent judgment titled Rakesh Gupta and Anr. Vs. Ashok Dilwali bearing citation RCR no. 62 of 2010.
10. Arguments have been addressed at length by learned counsels for parties and written submissions have been filed on record by respondent/ E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 7/16 applicant through her counsel wherein applicant has referred to section 139 of the Code of Civil Procedure dealing with administration of Oath and section 7 of the Oath's Act 1969. Learned counsel for applicant has referred/ relied upon judgments in support of his contention that non attestation of affidavit dated 18.08.2008 of respondent late Mr. Salazar Louis Anthony Marques is a curable defect and the attested affidavit of applicant/ LR can be taken on record by the court for deciding the leave to defend application upon its merit. These cases/ citations are T. Phuzathang Vs. Sri Hangkhanlian and Ors. (2001) 8 SCC 358; Anil R. Deshmukh Vs. Onkar N. Wagh : [1999] 1 SCR 188 : [1999] 1 SCR 188 and T.M.Jacob Vs. C. Poulose & Ors. AIR 1999 SC 1359, (1999) 4 SCC 274.
11. Petitioner on the other hand has also filed brief synopsis of his arguments through his counsel and has referred to the judgments titled Vidya Sagar Vs. Shakuntala Jain 1992 (22) DRJ 123; Rakesh Gupta & Anr. Vs. Ashok Dilwali in RCR no. 62 of 2010 ; Madhu Gupta Vs. Gardenia Estates (P) Ltd. in 184 (2011) Delhi Law Times 103 and Prithipal Singh Vs. Satpal Singh (Dead) through its LRs in (2010) 2 Supreme Court Cases 15. In addition to the above judgments, learned counsel for petitioner has also referred to the order/ judgment dated 19.03.2013 passed by the Division Bench of Hon'ble High Court of Delhi in W.P.(C) 1801/2013 & CM N. 3437/2013 titled Olive Marques and E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 8/16 Anr. Vs. Union of India and Ors. whereby the writ petition filed by applicant under Article 226 of the Constitution of India challenging Chapter IIIA of Delhi Rent Control Act 1958 has been dismissed with cost of Rs. 50,000/.
12. I have heard the rival submissions addressed by Adv. Sh. Vijay Chawla, learned counsel for petitioner and Adv. Sh. Abhinav Vashist, Senior Advocate who has appeared alongwith respondent's counsel Adv. Sh. Faizal Sherwani. The crux of submissions addressed by learned counsel for applicant/ LR of respondent is that the nonattestation of affidavit of respondent is a curable defect and the affidavit dated 18.08.2008 filed by respondent late Mr. Salazar Louis Anthony Marques does not get invalidated for the reason of its nonattestation by Oath Commissioner. Learned counsels appearing for applicant/ LRs for respondent have forcefully stressed upon section 7 of the Oaths Act 1969 arguing that the section opens with a negative command and categorically states, "No omission could take any oath or make any affirmation.........shall invalidate any proceeding or render inadmissible any evidence............." for claiming that the nonattestation of the affidavit dated 18.08.2008 is a technical defect which can be cured and submit that the applications filed under section 151 CPC may be allowed and the attested affidavit of respondent filed through applicant may be considered for grant of leave to contest the eviction petition as court is meant for doing substantial justice and not for dismissing the application E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 9/16 on technical grounds.
13. Adv. Sh. Vijay Chawla, learned counsel for petitioner per contra has referred to the judgments cited by him in his brief synopsis for submitting that the unattested affidavit of respondent late Mr. Salazar Louis Anthony Marques is no affidavit under section 25 B of DRC Act. He has relied upon the ruling of the Hon'ble High Court of Delhi in Vidya Sagar's case which has been confirmed by Hon'ble Mr. Justice P.K. Bhasin in the latter judgment Rakesh Gupta and Anr. (supra) to submit that in the absence of affidavit filed within 15 days by the tenant, applicant/ LR of respondent is liable to be evicted.
14. In her additional written submissions filed on record through her counsel, applicant/ LR of respondent Mrs. Olive Marques has referred to the judgments passed by the Hon'ble Supreme Court of India in the context of section 83 subsection (1) of Representation of People's Act 1950 to make a parallel comparison with the requirement of filing of affidavit under section 25 B (4) of Delhi Rent Control Act for making out her case that lack of attestation is a curable defect and not a fatal defect and that reliance placed upon Vidya Sagar Vs. Shakuntla Devi is misplaced. Nonetheless having heard rival submissions and perused the record, I am of the considered opinion that the judgment delivered by Hon'ble Mr. Justice S. Jain in Vidya Sagar's case has been passed in identical situation. In para no. 2 of the judgment, Hon'ble Mr. Justice E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 10/16 has recorded that application seeking leave to defend the case was filed on 16.01.1990 within the stipulated period of 15 days, however, the affidavit filed by respondent/ tenant in support of his application dated 16.01.1990 was without any attestation. The Additional Rent Controller in the above said judgment did not agree to the contention that non attestation of affidavit was only technical defect and holding that an unattested affidavit was no affidavit in the eyes of law, he had passed an eviction order against petitioner Vidya Sagar which was challenged by filing the revision petition. Hon'ble Mr. Justice S. Jain in para no. 4 of the reported judgment has referred to the submissions made by learned counsel regard provision under section 7 of the Oaths Act 1969 and distinguished the distinguished the case where verification of affidavit was defective from the case where unattested affidavit is filed. In para no. 8 of the reported judgment, Hon'ble Mr. Justice S. Jain has observed that in case verification of affidavit is defective, opportunity can be given to rectify the defect, but filing of unattested affidavit cannot be said to be a technical defect or an irregularity in view of the provision of section 25 B (4) of the DRC Act. Hon'ble Mr. Justice has further observed that unattested affidavit cannot be treated as an affidavit required to be filed under section 25 B (4) DRC Act by holding that not only the affidavit should be attested but it should also be sworn before an Attesting Authority. Hence having recorded his finding about the mandatory requirement of application seeking leave to defend to be filed alongwith an affidavit and finding no jurisdictional error in the order of E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 11/16 the Rent Controller, Hon'ble Justice dismissed the revision petition.
15. The ruling of Vidya Sagar's case has been referred and relied upon by Hon'ble Mr. Justice P.K. Bhasin in case titled Rakesh Gupta and Anr. Vs. Ashok Dilwali. In para no. 14 of the judgment Hon'ble Justice has observed that Additional Rent Controller had wrongly considered the affidavit of respondent/ tenant and committed a serious illegality in accepting the same as it was not a case of curable defect at all. The next judgment titled Preetipal Singh Vs. Sat Pal Singh and Madhu Gupta Vs. Gardenia Estates (Pvt.) Ltd. (supra) have been referred and relied upon by petitioner in support of his contention that after insertion of 25 B of DRC Act, any application seeking grant of eviction shall be dealt with strictly in accordance with the procedure as contained in Section 25 B of the Act and no extension of time for filing application under section 25 B (4) of DRC Act supported by affidavit mentioning the grounds seeking leave to contest the petition, can be granted beyond 15 days.
16. On the basis of the arguments/ submissions addressed by learned counsels in court and having considered the brief synopsis/ written submissions filed by them in support of their rival contentions, I am of the considered opinion that in view of the law laid down by the Hon'ble Delhi High Court in cases titled Vidya Sagar Vs. Shakuntala Devi and Rakesh Gupta and Anr. Vs. Ashok Dilwali, the fact of filing of an E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 12/16 unattested affidavit dated 18.08.2008 alongwith application under section 25 B (4) of DRC Act by respondent late Mr. Salazar Louis Anthony Marques cannot be treated as a technical defect or irregularity and is not a curable defect as an unattested affidavit is no affidavit as per the requirement of section 25 B (4) of DRC Act, as not only the affidavit should have been attested but the same should have been sworn before an Attesting Authority.
17. Hon'ble Supreme Court of India in the case titled Prithi Pal Singh Vs. Sat Pal Singh (supra) and Hon'ble Delhi High Court in case titled Ram Kishan & Sons Vs. Mohd. Haroon Japanwala 2012 (188) DLT 364, have held that Rent Controller/ Additional Rent Controller have no power to condone delay of even one day in filing the leave to defend application. Hence in the facts and circumstances of the present case. applicant/ LR of respondent, Mrs. Olive Marques cannot be permitted to file any subsequent attested copy of affidavit of late Mr. Salazar Louis Anthony Marques, nor can be allowed to file her own attested affidavit. Accordingly both applications under section 151 CPC dated 14.01.2010 and 01.05.2013 filed by applicant stand dismissed being not maintainable.
18. Section 25 B (4) of DRC Act provides for special procedure for disposal of applications for eviction on bonafide requirement and Third Schedule of the Act provides form of summons whereby tenant is E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 13/16 supposed to seek permission from Controller to contest the eviction petition filed under section 14 (1) (e) of the Rent Act by filing an affidavit within 15 days from the receipt of summons leading such facts as would disentitle the landlord from obtaining an eviction order. The period of 15 days within which the affidavit of tenant is to be filed is not extendable even for a day and failure to file an affidavit has to result in the passing of an eviction order against the tenant. The legal position has been laid by the Division Bench of Hon'ble Suprme Court of India in the case titled Prithipal Singh (supra). In the present case at hand affidavit of respondent Late Mr. Salazar Louis Anthony Marques having been filed on record without being attested by Oath Commissioner is no affidavit in the eyes of law and applications filed by applicant/ LR of respondent under section 151 CPC for placing on record her own attested affidavit having been dismissed, applicant/ LR cannot escape the consequences of nonfiling of affidavit by respondent for leave to contest within the prescribed period.
19. It is further to be noted that in his application filed under section 25 B (4) & (5) of DRC Act, respondent late Mr. Salazar Louis Anthony Marques has himself stated that process server had delivered the copy of paper book on 31.07.2008 against endorsement on the summons from his staff and that he received information about summons on 01.08.2008. The application seeking leave to defend the eviction petition has been filed on record on 18.08.2008 and not within 15 days of the receipt of E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 14/16 notice of filing of eviction petition in the form specified under Third Schedule of the Act.
20. Thus the application and the affidavit having not been filed within 15 days of the receipt of summons of the eviction petition filed on the ground of bona fide requirement, in the form presribed under Third Schedule, coupled with the fact that affidavit of respondent late Mr. Salazar Louis Anthony Marques being unattested is no affidavit as required under section 25 B (4) of the DRC Act, in the absence of legally valid affidavit, statement made by the landlord in his application for eviction shall be deemed to be admitted by respondent/ tenant and petitioner/ applicant shall be entitled to an order for eviction. Hence the application filed by respondent late Mr. Salazar Louis Anthony Marques under section 25 B (4) & (5) of DRC Act does not require any detailed discussion for the reason of unattested affidavit having been filed by him which cannot be treated as an affidavit as required under section 25 B (4) of DRC Act.
21. Accordingly respondent's application filed under section 25 B (4) & (5) of DRC Act stands dismissed and an eviction order is passed against respondent/ LRs is respect of tenanted premises i.e. Shop no. G14, Marina Arcade, Connaught Circus, New Delhi, shown as red in the site plan attached with the petition. However, as provided under section 14 (7) of DRC Act, petitioner shall not be entitled to obtain possession of E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 15/16 the suit premises before expiry of period of six months from today and respondent/ LR is granted six months time to vacate the premises. File be consigned to record room.
Announced in the open court on 12.08.2013.
(Tarun Yogesh) Additional Rent Controller Patiala House Courts New Delhi : 12.08.2013 E20/09/08 Mohd. Haroon Japanwala Vs. Salazar Louis Anthony Page no. 16/16