Delhi District Court
Savitri Devi vs Harish Kumar on 30 April, 2015
IN THE COURT OF SHRI NARESH KUMAR LAKA
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
DISTRICT SHAHDARA,
KARKARDOOMA COURTS, DELHI
E. No. 430/08
Unique I.D. No. 02402C0
In the matter of:
Savitri Devi
.......Petitioner
Vs.
Harish Kumar
........Respondent
Dated: 30.04.2015
ORDER
Vide this order, I shall decide an application filed under Order 9 Rule 8 read with Order 6 Rule 15(4) CPC by the respondent. Reply to the said application was not filed but the counsel for the petitioner straightway argued on the said application. I have also heard respondent personally on the said application. Before deciding the said application, it is pertinent to mention the brief background of the present case.
2. A petition bearing E. no.-17/1986 was filed by petitioner Smt. Savitri Devi against respondent Sh. Harish Kumar for eviction under Section14(1)(a) of the DRC Act. The said petition was allowed E. No. 430/08 Page no. 1 of 10 Savitri Devi vs. Harish Kumar vide judgment dated 13.01.1988 and the respondent was granted benefit of Section 14(2) of the DRC Act.
3. Thereafter the second petition for eviction under Section 14(2) of the DRC Act was filed on 23.12.2004 which is pending trial before this court. In the second petition, it is alleged that the respondent did not pay arrears of rent w.e.f. 01.03.2004 till date and accordingly a demand/legal notice dated 13.07.2004 was sent to the respondent. The respondent filed his written statement stating therein that he had already deposited the rent for the month of March, 2004 to May, 2004 by DR petition no. 106/04 on 21.04.2004 after refusal of the money orders. He further deposited the rent for the period of June, 2004 to August, 2004 vide DR no. 106/04 and likewise for the period of September to November, 2004 and December, 2004 to January, 2005 vide DR- 247/04. Tthe respondent claimed that the rate of rent of the premises in question is Rs. 200/- pm and Rs. 130/- is the electricity charges and accordingly he deposited the above said rent in the same rate of rent and electricity charges. However, it is the case of the petitioner that the rent of the premises is Rs. 330/- per month after its increase w.e.f. October, 1999 and the said rent does not include the electricity charges.
4. Accordingly this matter was put to trial and the petitioner examined herself as AW1/petitioner and Sh. A.C. Goyal as AW2 on 09.12.2005 but despite giving opportunities, the respondent did not cross-examine said witnesses. As the defense of the respondent was E. No. 430/08 Page no. 2 of 10 Savitri Devi vs. Harish Kumar already struck off, no opportunity was given to him to lead evidence and the case was listed for final arguments. Subsequently the respondent cross examined said AW2 Shri A.C. Goyal but the petitioner did not appear on account of ill health.
5. In the present application, the respondent prays for dismissal of this case on the ground that the petitioner did not appear before this court for her cross-examination and the petitioner did not file any affidavit along with the eviction petition.
6. On a careful perusal of the previous order sheets, it is clear that a similar application was filed under Section 151 CPC by the respondent earlier and the same was dismissed vide detailed order dated 03.01.2014. In the said order, it has also been observed that the case of the petitioner cannot be dismissed midway when the matter is already put to trial and when there are disputed facts on the point of rate of rent and arrears of rent. But the respondent again filed present application by changing the provisions of law and adding one more ground.
7. It is a settled law that a fact can be proved by the parties himself/herself or through witnesses. In this case, the petitioner already examined her husband Sh. A.C.Goyal who is also her attorney. As such it is cannot be said there there is no evidence on record. If the petitioner did not appear in witness box for her cross-examination, her examination in chief will not be read in evidence (subject to certain E. No. 430/08 Page no. 3 of 10 Savitri Devi vs. Harish Kumar eventualities) but on account of such reason, the petition cannot be dismissed straightway.
8. The provision of Order 9 Rule 8 CPC (as cited in the present application) applies for dismissal of a suit in default when a party or its authorized agent does not appear. In the present case, either the attorney of the petitioner or her counsel are pursuing this case seriously and as such the present suit cannot be dismissed on account of non appearance of the petitioner alone. The Order 3 Rule 1 CPC also specifically confers a right upon a party to authorize anyone which includes pleader, attorney, vakil or any authorized person to represent a case on his/her behalf. Accordingly I am of the considered opinion that there is no ground for dismissal of this case under Order 9 Rule 8 CPC.
9. As far as the second contention of the respondent that the petitioner did not file affidavit along with the petition is concerned, I am of the opinion that the present petition has been duly verified by appending a verification clause on the bottom of last page of the petition. Moreover, there is no provision under law that on account of defects in the pleadings, the suit/petition can be dismissed straightway. As per the provisions of the CPC, a plaint can be rejected under Order 7 Rule11 CPC when it does not disclose any cause, or did not have sufficient court fee, etc. but there is no provision for rejection or dismissal of the suit for non compliance of Order 6 Rule 15 CPC.
10. It is also pertinent to note that the present petition is under E. No. 430/08 Page no. 4 of 10 Savitri Devi vs. Harish Kumar Section 14(1)(a) read with Section 14(2) of the DRC Act and specific proforma has been prescribed in the DRC Act in Form A attached in the Appendix of Delhi Rent Control Rules, 1959 and there is no such condition has been provided that the such application has to be accompanied by an affidaivit. Reliance can be placed in this regard on the case of Sohan Lal v. Uttam Singh, AIR 2005 NOC 143 : 2004 AIHC 4363 (4367) (P&H) wherein it was held that "A proper verification of pleadings as per provisions of Order 6 Rule 15 CPC is equivalent to filing of an affidavit and where an eviction petition is duly verified it would not be dismissed for want of affidavit."
11. The respondent also orally argued that the petition should be dismissed since no issues were framed in the present case. The Section 37 of the DRC Act specifically provides that the proceedings of the eviction petitions will be held as per the practice and procedure of a Court of Small Cause. Thus, I am of the opinion that the provisions of CPC do not strictly apply to the proceedings under the DRC Act (except under certain circumstances) and the present petition cannot be dismissed on account of non-filing of an affidavit or non-framing of issues.
12. The requirements of seeking eviction have already been inserted in the appropriate clauses of Section 14 and other Sections of the DRC Act e.g. in the instant case of eviction under Section 14(1)(a) of the DRC Act, the conditions required to be fulfilled are relationship between the parties as landlord and tenant, arrears of rent and service E. No. 430/08 Page no. 5 of 10 Savitri Devi vs. Harish Kumar of demand notice and accordingly no issues are required to be framed when all the issues and requirement of law are part of entire process.
13. In the light of above facts, I am of the opinion that the present application is not maintainable and that too at the middle of trial when the case is already at the stage of respondent's evidence. If the respondent had any contention with this regard to the above arguments or other submissions, he could have raised such contentions at the time of final arguments but it is clear he wants to halt the trial on one ground or the other. Accordingly the present application is dismissed.
14. From the previous order sheets, it is clear that the respondent is a habitual litigious person who is in the habit of filing one application after another. The conduct of the respondent can be reflected from the manner he had filed as many as 24 applications, the details of which are as under:
(1) Application under Order 6 Rule 17 CPC for the amendment of plaint filed on 10.03.2005.
(2) Application for review filed on 22.09.2005.
(3) Application for setting aside the order dated 07.09.2005 passed by this court u/s 151 CPC filed on 01.12.2005.
(4) Application for seeking permission to withdraw review application filed on 09.12.2005.
(5) Application for setting aside the order dated 09.12.2005 and to cross-examine the plaintiff u/s 151 CPC filed on 22.12.2005.
E. No. 430/08 Page no. 6 of 10 Savitri Devi vs. Harish Kumar (6) Application under Order 7 Rule 11 C.P.C. filed on 27.03.2008.
(7) Application under Section 151 C.P.C. filed on 28.01.2010.
(8) Application for adjournment of proceedings filed on 13.05.2010.
(9) Application under Order 7 Rule 11 read with Section 151 CPC filed on 28.09.2011.
(10) Application for cost waiver imposed upon the applicant/respondent filed on 24.10.2011 (11) Application for making necessary correction in the name of the depositor/applicant mentioned in the receipt of rent filed on 13.02.2012.
(12) Application for making necessary correction in the name of the depositor/applicant mentioned in the receipt of rent filed on 11.04.2012.
(13) Application for waiving the cost of Rs. 1,300/- imposed on the applicant/respondent filed on 11.04.2012.
(14) Application under Section 151 CPC for framing of issues and admission/denial filed on 25.08.2012.
(15) Application for stay the matter till the disposal of the appeal against order dated 30.08.2012, pending in the court of Hon'ble Sh. P. S. Teji, Ld. District Judge, KKD Courts, Delhi for 05.12.2012 filed on 20.11.2012.
(16) Application under Section 151 CPC for dismissal of the suit for non-appearance of the petitioner for the cross- examination on different dates.
(17) Application for stay the proceedings till the decision of E. No. 430/08 Page no. 7 of 10 Savitri Devi vs. Harish Kumar the transfer petition filed by the respondent before Hon'ble High Court filed on 30.09.2013.
(18) Application to transfer the matter before forthcoming National Lok Adalat held on 12.04.2014 in KKD Courts, Delhi filed on 14.03.2015.
(19) Application under Order 9 Rule 8 and under Order 6 Rule 15(4) CPC read with Section 151 CPC filed on 18.10.2015.
(20) Application for modification of order dated 18.10.2014 filed on 17.11.2014.
(21) Application under Section 151 CPC filed on 24.11.2014.
(22) Application under Section 151 CPC for waving of cost of Rs. 500/- imposed by this Court on 03.01.2015 filed on 13.02.2015.
(23) Application under Section 151 CPC for modification of order dated 13.02.2015 filed on 02.03.2015.
(24) Application before Ld. District & Sessions Judge, Shahdara for transfer of this case which was dismissed on 07.04.2015.
15. Most of the previous applications of the respondent were dismissed but it is seen that either no costs were imposed earlier or only meager costs were imposed to the extent of Rs. 3,000/- and it is clear that the respondent is taking the court proceedings as a casual swing ride.
16. At the time of filing the present application on 18.10.2014, it E. No. 430/08 Page no. 8 of 10 Savitri Devi vs. Harish Kumar was made clear to the respondent that if he files any more application which is found frivolous/baseless, heavy cost shall be imposed on him. Despite said fact, the respondent filed one more application under Section 151 CPC immediately on the next date which was also dismissed vide order dated 03.01.2015.
17. From the aforesaid conduct of the respondent, it is clear that the respondent had achieved in his objective to delay the trial of the present case by filing one application or the other. The present case was filed in the year 2008 and it has been delayed substantially for more than six years on account of conduct of the respondent. Under these circumstances, I am of the opinion that unless heavy cost is imposed upon the respondent, he will not mend his way. From the pleadings, it is clear that the respondent is working as a property dealer and he cannot be said to be an indigent person. This court is also empowered to impose cost as per Section 37(3) of the DRC Act which is reproduced as under:
Section 37 Procedure to be followed by Controller- (1) ...... (2) .......
(3) In all proceedings before him, the Controller shall consider the question of costs and award such costs to or against any party as the Controller considers reasonable.
18. On the point of imposition of cost, reliance can be placed on the case of C.B. Aggarwal v. Smt. P. Krishna Kapoor, AIR 1995 Del 154 wherein it was held:
E. No. 430/08 Page no. 9 of 10 Savitri Devi vs. Harish Kumar "The plain language of sub-section (3) of section 37 indicates that the legislature in its wisdom has worded sub- section (3) to give it a wider meaning and greater power. This certainly includes the power to award costs as well as compensatory costs. Both these costs are established in law, and in fact, one finds them codified under Section 35 and 35A of the Code of Civil Procedure. Thus an Additional Rent Controller while exercising powers under sub-section (3) of Section 37 of the Act can certainly take into consideration the falsity of the claim by a party, the harassment unnecessarily caused to the other party and award such costs at it may deem fit keeping in view the entirety of the facts and circumstances of a given case".
19. In the light of aforesaid circumstances, the respondent is burdened with cost of Rs. 50,000/-, out of which Rs. 30,000/- shall be paid to the petitioner and Rs. 20,000/- shall be deposited by him to the Prime Minister's National Relief Fund within 30 days which will be a small help for the victims of recent earthquake tragedy of Nepal and India. In case the respondent fails to pay/deposit the said cost, his defence will be struck out and the said cost can be realized as per law.
20. Put up for RE on 01.06.2015.
Announced in the open court on 30.04.2015 (Naresh Kumar Laka) Senior Civil Judge-cum-Rent Controller, Shahdara District, Delhi.
E. No. 430/08 Page no. 10 of 10 Savitri Devi vs. Harish Kumar