Delhi District Court
Prof. Ram Prakash vs Sheikh Nasim Ahmed on 3 July, 2013
IN THE COURT OF SH.MUNISH MARKAN
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
EVICTION PETITION NO.51/09
Prof. Ram Prakash V/s Sheikh Nasim Ahmed
03.07.2013
Order:
1. Vide this order, I shall dispose of the contempt application moved by
the respondent/tenant against the petitioner/landlord.
2. Background Relevent facts in brief are that the present eviction petition was filed by the petitioner u/s 14 (1) (g) read with section 14 (1) (8) of DRC Act against the respondent. Vide judgment dated 22.10.2011 passed by the Ld. Predecessor of this court, it was held that the petitioner had proved the grounds u/s 14 (1) (g) of the DRC Act. Consequently, vide order dated 18.01.2012, in terms of section 20 of DRC Act, the respondent exercised the election to reoccupy the premises as earmarked by the petitioner in the site plan Ex.PW1/1 i.e. in the rear side of the suit property. Respondent also gave an undertaking that he would vacate the suit premises by 05.02.2012 and will handover the possession of the same to the petitioner to enable the petitioner to start the construction work of the premises.
3. At the same time, the petitioner also undertook that he would complete the construction work within three months from the date the premises are vacated by the respondent and after reconstruction, he will handover the E-51/09 Page 1/6 similar space as presently occupied by the respondent as shown in the site plan Ex.PW1/1 after reconstruction. The statements of both the parties to this effect were recorded on 18.01.2012 and matter was fixed for compliance of the aforementioned statements of both the parties for 09.05.2012 and simultaneously, the court also made it clear that both the parties may approach the court before the said date in case of non compliance of the statement recorded on that date.
4. In the meanwhile, the petitioner preferred an appeal against the order dated 18.01.2012 read with the judgment dated 22.10.2011 passed by the Ld. Predecessor of this court which appeal was instituted before the Ld. ARCT on 10.02.2012 and was dismissed by the Ld. ARCT vide judgment dated 25.07.2012.
5. Thereafter, the respondent/ tenant moved the present application u/s 2 and 12 of Contempt of Court Act read with section 151 CPC for initiation of Contempt proceedings against the petitioner for wilful, intentional dis obeying/ breach of order dated 18.01.2012. This application was moved on 26.09.2012 whereby the respondent/ tenant prayed for contempt proceedings against the petitioner/landlord for willfully disobeying and violating the breach undertaking as well of order dated 18.01.2012 and also the statement made in the court. At the same time, the respondent/tenant also prayed for directing the petitioner to handover the vacant, physical possession of the premises to the respondent as per his undertaking and order of the court dated 18.01.2012. Respondent further prayed for sending the petitioner for civil E-51/09 Page 2/6 imprisonment and for attachment of property of the petitioner.
6. Petitioner/ landlord filed the reply to the application and opposed the same. Petitioner had taken the preliminary objection that contempt application as such is not maintainable. Petitioner also took the stand that contempt proceedings cannot be invoked for enforcement of relief, if any, granted under DRC Act. Further, respondent argued that where the statute gives right and provides forum for adjudication of rights, the remedy has to be sought under the provision of that Act in the specified manner. Petitioner relied on Kanwar Singh Saini v/s High Court of Delhi (2012) 4 SCC 307. Perused the same. Petitioner further argued that remedy if at all was available to the respondent u/s 20(3) of DRC Act which mandates moving of application by the tenant for repossession within the stipulated period of six months as per section 4 of Delhi Rent Control Rules 1959 and no such application has been moved by the respondent and therefore the respondent has lost his rights u/s 20(3) of DRC Act. The petitioner also prayed that the suit premises was given to the respondent in January 1981 @ Rs.205/ per month for 11 months only and respondent stayed therein for more than 30 years and the market rent of suit shop is around Rs.40000/ pm and that giving the suit shop back to the respondent on old terms and conditions is unjust, unfair and inequitable to the petitioner. Petitioner insisted that the respondent should pay him either the market rent or at least the equivalent of the rent fixed in the year 1981 at today's price.
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7. On the other hand, Ld. counsel for petitioner has argued that petitioner cannot be allowed to backtrack from his solemn undertaking given on oath before the court and stated that it was on account of the statement of the petitioner that the respondent voluntarily agreed to handover the possession of the suit premises to the petitioner for reconstruction. He further argued that the present application can very well be treated as having been filed under section 20(3) of DRC Act and argued that the appeal filed by the petitioner before ld.ARCT was dismissed on 25.07.12 and the present application was filed on 26.09.12 and therefore is filed well within the statutory period of 6 months and is within time. He also relied on AIR 1989 SC 2206 to contend that the court should adopt justice oriented approach rather than going into technicalities.
8. First of all, the question of maintainability of the contempt petition in its present form is taken. The respondent has, in the prayer clause of the application, inter alia, prayed for directing the petitioner to hand over the vacant possession of the premises as per his undertaking dated 18.01.12. Even during arguments, the thrust of the applicant/respondent was only to get back the possession of the suit shop and not to send the petitioner to civil imprisonment. In my considered opinion, the form/title of an application cannot be divorced from the relief sought by way of that application and both have to be harmoniously construed and court can not act in a hypertechnical manner so as to crucify the substantive rights of the parties. The objection/emphasis of the petitioner that no application specifically u/s 20 E-51/09 Page 4/6 DRC Act has been moved by the respondent/ tenant and that contempt application is not maintainable does not hold any merit. It is the substance of an application which is determinative of its true character. The application clearly praying for direction to petitioner to hand over the possession is indicative of the nature of application. Merely because the wrong provisions of law have been mentioned in the title of the application, it will not tantamount to declining the substantive relief claimed therein by taking a hyper technical view. Reliance in this regard can also be placed on Uday Shankar Triyar v/s Ram Kalewar Prasad Singh & Anr. AIR 2006 SC 269 wherein it has been held that procedural provision should not be allowed to defeat substantive rights or to cause injustice. Therefore, the application is being treated as filed u/s 20(3) of DRC Act also.
9. Now the question arises whether the application has been filed within the statutory period of six months as per Section 4 of Delhi Rent Control Rules 1959. In this regard it is worthwhile to note that the appeal filed by the petitioner/ landlord was dismissed by Ld. ARCT on 25.07.2012 and the present application being filed on 26.09.2012 is well within the period of limitation. In this regard, reliance can also be placed on Xavier v/s Lucy V. Papaly 2002(1) RCR 160 (ker) wherein it was held that the principle of merger is applicable for computation of limitation and limitation to execute the decree will start from the Decree of the appellate Court, therefore, it is held that application has been filed within limitation.
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10. Coming to the right of the respondent/tenant to get back the possession of the similar space. In this regard, reliance can be placed on the judgment dated 25.07.12 passed by Ld. ARCT particularly para 14 thereof which articulated the statutory right of the tenant to be reinducted in view of section 20 of DRC Act. Ld. ARCT further held that that the landlord himself having given an undertaking to handover the space earmarked (by himself) to the tenant can not be allowed to wriggle out of the obligation flowing therefrom. Therefore, the entitlement of the tenant/applicant for the "
committed space" is no longer an issue before this court. Not only that, the plea of the petitioner/landlord for contractual rate of rent was also declined by ld. ARCT in para 15 of the judgment dated 25.07.12.
11. Therefore, the petitioner is directed to handover the similar space in the rear side of the premises as shown by him in the site plan Ex PW1/1 as per his undertaking given on 18.01.2012, to the respondent/Tenant. The application is accordingly disposed off. File be consigned to Record Room. Announced in the open court.
(Munish Markan) CCJ/ ARC/ACJ(South), New Delhi 03.07.2013 E-51/09 Page 6/6