Delhi District Court
Yashwant Sahu vs Shri Ashok Kumar on 15 September, 2021
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT No.15/2020
1. YASHWANT SAHU
S/o LATE SHRI PREM NATH SAHU
R/o 2059, GALI MAHAVIR
TELIWAR, DELHI - 06
2. KAPIL SAHU
S/o LATE SHRI MAHENDER SAHU
R/o HOUSE No. 9717, FIRST FLOOR
GALI NEEM WALI, NAWAB GANJ,
AZAD MARKET, DELHI G.P.O.
DELHI 110006
.....APPELLANTS
VERSUS
1. SHRI ASHOK KUMAR
LR OF ORIGINAL PETITIONER Smt VIDYAWATI
S/o LATE RAMESHWAR DAYAL
3268, BAHADURGARH ROAD,
BARA HINDU RAO, DELHI 110006
2. SHRI KAMAL GUPTA
S/o SHRI HARI RAM
R/o H. No. 2/4 D BLOCK
RANA PRATAP BAGH
DELHI 110007
.....RESPONDENTS
Date of filing: 20.01.2020
First date before this court: 20.01.2020
Date of arguments: 14.09.2021
Date of Decision: 15.09.2021
Appearance: Shri Vikrant Arora, counsel for appellants
Shri A.K.Sharma, counsel for respondents
RCT No 15/2020 Page 1 of 8 pages
Yashwant Sahu vs Ashok Kumar GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA
Date: 2021.09.15 14:46:30 +05'30'
JUDGMENT
1. By way of this appeal brought under Section 38 of the Delhi Rent Control Act, the appellants tenants have assailed order dated 16.01.2019 of the learned Rent Controller whereby right of the appellants to lead evidence on their application under Order IX Rule 13 CPC was closed in terms of mandate under Section 35B CPC. On issue of notice, the respondents landlords entered appearance through counsel, opposing the appeal. I have heard learned counsel for both sides and examined the trial court record.
2. Originally, Smt. Vidyawati, the predecessor in interest of respondents filed an eviction petition under Section 14(1)(a) of the Delhi Rent Control Act against one M/s Impala Electricals, the sole proprietorship concern of appellant no. 1 pertaining to shop No. 2032, Gali Mahavir, Bahadurgarh Road, Delhi. The said eviction petition was allowed by way of ex-parte judgment dated 02.07.2012 and appellant was directed to pay arrears of rent under Section 15(1) of the Act within one month and continue to pay the same by 15th day of each calendar month. The said ex-parte judgment was directed to be served on appellant through affixation. Since the appellant did not comply with the order dated 02.07.21012 as regards payment of rent, by way of order dated 26.09.2012, ex-parte eviction order was passed, after which during execution proceedings, warrants of possession were executed. Thereafter, the appellants filed an application under Order IX Rule 13 CPC before the learned trial court. It is in the course of those proceedings under Order IX Rule 13 CPC that the impugned order was passed by the learned Rent Controller, thereby closing the right of the RCT No 15/2020 Page 2 of 8 pages Yashwant Sahu vs Ashok Kumar GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.15 14:46:11 +05'30' appellants to lead further evidence.
3. For convenience, the impugned order dated 16.01.2019 is noted below :
"Misc - 59434/16 Vidyawati vs M/s Impala Electricals 16.01.2019 Present : Sh. Vikrant Arora, counsel for applicants Sh. A.K. Sharma, counsel for non applicant Previous costs imposed on 25.09.2018 and 05.11.2018 are not paid by the applicants. No reason is given by the applicants for non-payment of said costs. In these circumstances, as per the mandate of Sec.35B as interpreted in the judgment of Manohar Singh vs D.S. Sharma & Anr. decided on 13.11.2009, in civil appeal No. 7554-7555 of 2009, arising out of SLP(C) No. 2203-2204 of 2008, applicants are prohibited from participating further in the suit. In other words, applicants cease to have further participate in the suit and is not permitted to lead evidence further. Right of leading evidence by applicant, further stands closed.
Ld. counsel for non-applicant submits that since onus of proving the issue settled on 17.07.2018, rested upon applicants only, so he does not want to lead any evidence.
Arguments on the application and evidence led by applicants heard.
Put up for orders on 04:00 pm today.
Sd/-
(Prashant Sharma)
SCJ-cum-RC : Central District
Delhi : 16.01.2019
It is 04:00 pm.
Present : Proxy counsel for applicants
Proxy counsel for non applicant
Vide my separate order of even date, announced in open court, application under Order 9 Rule 13 CPC filed by applicants is dismissed.
File be consigned to Record Room after necessary compliance.
Sd/-
(Prashant Sharma) SCJ-cum-RC : Central District Delhi : 16.01.2019"
RCT No 15/2020 Page 3 of 8 pages
Yashwant Sahu vs Ashok Kumar GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA
Date: 2021.09.15 14:45:52 +05'30'
4. The appellants assailed order dated 16.01.2019 by way of two appeals. The present appeal deals with closure of right to lead evidence, while as regards dismissal of application under Order IX Rule 13 CPC, RCT Appeal No. 22/19 has been filed, which is being separately heard.
5. In the present appeal, learned counsel for appellants argued that the impugned order to the extent of closing right of the appellants to lead evidence is not sustainable in the eyes of law. Learned counsel for appellants contended that on 16.01.2019 when the matter was called, he requested for a passover in order to bring the cost but the learned Rent Controller proceeded with and closed right of the appellants to lead evidence. It was also argued that the Hon'ble Supreme Court in Manohar Singh vs D. S. Sharma (cited in the impugned order) held that as a consequence of non-payment of cost, material already on record cannot be ignored, so the application under Order IX Rule 13 CPC ought to have been decided on its merits.
6. On the other hand, learned counsel for respondents emphatically stated that no passover was sought on 16.01.2019 on behalf of the present appellants and plea to that effect has been falsely raised in this appeal. Learned counsel for respondents also referred to certain photographs placed on record which reflect that the tenanted premises already stand demolished and therefore, according to respondents the appeal has become infructuous. Learned counsel for respondents argued that the appellant is flogging the dead horse to extort money from the respondents.
RCT No 15/2020 Page 4 of 8 pages Yashwant Sahu vs Ashok Kumar Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2021.09.15 14:45:32 +05'30'
7. In the case of Manohar Singh v. D. S. Sharma, {Civil Appeal 75547555 of 2009, arising out of SLP (C) 22032204 of 2008}, decided on 13.11.2009 by the bench of Hon'ble Mr. Justice R. V. Raveendran of the Supreme Court of India, it was held thus :
"5. .... Section 35B provides that if costs are levied on the plaintiff for causing delay, payment of such costs on the next hearing date, shall be a condition precedent to the further prosecution of the suit by the plaintiff. Similarly, if costs are levied on the defendant for causing delay, payment of such costs on the next date of hearing, shall be a condition precedent to the further prosecution of the defence of the suit by the defendant....
6. We may also refer to an incidental issue.
When Section 35B states that payment of such costs on the date next following the date of the order shall be a condition precedent for further prosecution, it clearly indicates that when the costs are levied, it should be paid on the next date of hearing and if it is not paid, the consequences mentioned therein shall follow. But the said provision will not come in the way of the court, in its discretion extending the time for such payment, in exercise of its general power to extend time under Section 148 of CPC. Having regard to the scheme and object of Section 35B, it is needless to say that such extension can be only in exceptional circumstances and by subjecting the defaulting party to further terms. No party can routinely be given extension of time for payment of costs, having regard to the fact that such costs under Section 35B were itself levied for causing delay." (emphasis supplied).
8. There is no dispute to the legal proposition as submitted by learned counsel for appellants to the effect that for non-payment of costs, the suit cannot be summarily dismissed. In the case of Manohar Singh (supra), the Hon'ble Supreme Court held that "non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as RCT No 15/2020 Page 5 of 8 pages Yashwant Sahu vs Ashok Kumar GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.15 14:45:13 +05'30' the case may be" and if the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit further prosecution of the suit or the defence, as the case may be by the defaulting party. That is precisely what was done by the learned Rent Controller.
9. As reflected from record, in the course of proceedings under Order IX Rule 13 CPC, the learned Rent Controller found it necessary so framed an issue and proceeded to record evidence to be led by the present appellants. By order dated 25.09.2018, holding the adjournment request of the present appellants as vague, the learned Rent Controller rejected the request and examined the present appellant no. 1 as PW1;
but since no other evidence was being adduced, learned Rent Controller imposed a cost of Rs. 3000/- to be paid to the present respondents and posted the matter for remaining evidence of the appellants on 05.11.2018. But on 05.11.2018, none appeared on behalf of appellants though counsel for respondents was present, so learned Rent Controller adjourned the matter to 16.01.2019 directing issuance of court notice to the appellants and imposing a further cost of Rs. 1,000/- on account of non-payment of previous cost. On 16.01.2019 in presence of counsel for both sides, learned Rent Controller specifically recorded that cost dated 25.09.2018 and 05.11.2018 were not being paid and no reason was advanced by the appellants for non-payment of costs, so going by the mandate of Section 35B CPC as interpreted by the Hon'ble Supreme Court in the case of Manohar Singh (supra), the applicants were prohibited from participating further in the proceedings and their right to lead further evidence was closed; since the onus of proving the issue was on the appellants, the present respondents expressed their option not RCT No 15/2020 Page 6 of 8 pages Yashwant Sahu vs Ashok Kumar GIRISH KATHPALIA Digitally signed by GIRISH KATHPALIA Date: 2021.09.15 14:44:55 +05'30' to lead any evidence, so after hearing counsel for both sides, the learned Rent Controller reserved the matter for pronouncement of orders on the same day at 04:00 pm.
10. It is nobody's case that simply because of non-payment of costs, the learned Rent Controller proceeded to summarily dismiss the application under Order IX Rule 13 CPC. Rather, as mentioned above, the application under Order IX Rule 13 CPC was decided on merits and that order also has been challenged by way of separate appeal.
11. Submission of learned counsel for appellants that on 16.01.2019 he had requested for passover so that he could bring costs is completely contrary to record. As mentioned above, according to the counsel for respondents no such passover request was made. Accepting such contention of learned counsel for appellants would be abrogating the sanctity of judicial record. In the case of State of Maharashtra vs Ramdass Sriniwas Nayak, AIR 1982 SC 1249, the Hon'ble Supreme Court held that if in a case factual matrix as to what transpired during the hearing is wrongly recorded in judicial proceedings, then the only way to get it rectified is to immediately approach the concerned court, otherwise, the matter must end there and it is not open to the party in appeal to canvass that factual aspects recorded in the proceedings are wrong. In response to a specific query, learned counsel for appellants admitted having never approached the learned Rent Controller with his claim that he had requested for a passover which had not been recorded in the impugned order. Therefore, I am unable to believe learned counsel for appellants on this count.
RCT No 15/2020 Page 7 of 8 pages
Yashwant Sahu vs Ashok Kumar GIRISH
KATHPALIA
Digitally signed by GIRISH
KATHPALIA
Date: 2021.09.15 14:44:37 +05'30'
13. Further, in this appeal also, the appellants have not come up with even a whisper of explanation as to why costs dated 25.09.2018 and 05.11.2018 were not paid by them.
14. In view of above discussion, I am unable to find any infirmity in the impugned order, so the same is upheld.
15. The appeal is devoid of merit and is frivolous, so dismissed with cost of Rs.10,000/- to be paid by the appellants to the respondents towards their cost of this litigation estimated on conservative side. Copy of this judgment be sent to the learned trial court and file be consigned to records.
Announced in open court on this
15th day of September, 2021
GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2021.09.15 14:44:13 +05'30'
(GIRISH KATHPALIA)
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQ)
RENT CONTROL TRIBUNAL, CENTRAL
TIS HAZARI COURTS, DELHI
RCT No 15/2020 Page 8 of 8 pages
Yashwant Sahu vs Ashok Kumar