Delhi High Court
Sh. Vijay Singh vs Sh. S K Chaudhary & Anr. on 27 July, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC Rev. No. 154/2013
% 27th July, 2014
SH. VIJAY SINGH ......Petitioner
Through: Mr.Abhishek Gupta, Advocate.
VERSUS
SH. S K CHAUDHARY & ANR. ...... Respondents
Through: Mr.S.C.Singhal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This is a petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 impugning the order of the Additional Rent Controller dated 19.1.2013 by which the Additional Rent Controller has granted leave to defend to the respondent no.2 in the eviction petition and who is the respondent no.2 in this petition also.
2. The impugned order holds that the petitioner has made out a case of bona fide necessity, but leave to defend was granted on the ground that the petitioner/landlord has sued two respondents as joint-tenants, but the RC.Rev. 154/2013 Page 1 of 4 respondent no.1 has denied the tenancy and it is only the respondent no.2 who is claiming the tenancy and which creates a bona fide disputed question of fact which requires trial.
3. At the outset, at the request made on behalf of the petitioner, this petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 is converted into a petition under Article 227 of the Constitution of India, inasmuch as it has been held by the Supreme Court in the case of Municipal Corporation of Delhi Vs. R.P.Khaitan & Anr. 79 (1999) DLT 555 (SC) that the courts should not look at the heading of a petition, and only the substance is to be seen and once the necessary substance exists to the petition, courts can always convert the petition into a petition under the correct provision of law. Therefore, applying the ratio in the case of Municipal Corporation of Delhi (supra), this petition is converted into a petition under Article 227 of the Constitution of India.
4. Learned counsel for the respondents argues two aspects before this Court. First was with regard to the maintainability of this petition under Section 25-B(8) of the Delhi Rent Control Act, and the second aspect was with respect to the fact that the petitioner cannot be allowed to take benefit RC.Rev. 154/2013 Page 2 of 4 of deletion of the respondent no.1 in the trial after passing of the impugned order granting leave to defend.
5. So far as the aspect of the petition not being maintainable under Section 25-B(8) is concerned, this objection will no longer survive in view of converting this petition under Article 227 of the Constitution of India.
6. The second aspect raised is that subsequent to the decision of the leave to defend application by the impugned order, even if the petitioner has thereafter deleted the respondent no.1, the same cannot lead to setting aside of the impugned order granting leave to defend. In my opinion, the argument urged on behalf of the respondents/tenants is misconceived not because the petitioner has subsequently deleted the respondent no.1, but, the Additional Rent Controller as also this Court exercising powers under Article 227 of the Constitution of India, can take note of the aspect that once the necessary defence is raised stating that respondent no.1 is not the tenant and respondent no.2 is actually the only tenant, courts can simply proceed with this admitted position and there is no bar in law to proceed with the admitted position by treating only respondent no.2, as the only tenant. Once that is done and the eviction petition is treated as a petition only against the RC.Rev. 154/2013 Page 3 of 4 respondent no.2, and only on which ground the leave to defend was granted on account of the confusion between the tenancy being not jointly of the respondent nos.1 and 2 but of the respondent no.2, I do not think that this creates a triable issue which requires a trial, more so, now on the petitioner accepting the joint/common stand of the respondent nos. 1 & 2 that only the respondent no.2 is the tenant and not the respondent no.1.
7. In view of the above, this petition is allowed and the impugned order of the Additional Rent Controller dated 19.1.2013 is set aside. The petitioner will be entitled to the eviction of the respondents from the premises comprising of one hall admeasuring 36x37 feet situated in the property no.WZ-332, Nangal Raya, Delhi, and which is shown in red colour in the site plain filed along with eviction petition. The respondent will be entitled to the statutory period of 6 months to vacate the suit premises. Parties are left to bear their own costs.
VALMIKI J. MEHTA, J.
JULY 27, 2014 KA RC.Rev. 154/2013 Page 4 of 4