Delhi District Court
Sh. Anoop Nigam vs Sh. R.K. Gupta on 17 September, 2009
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II CUM
ADDL. RENT CONTROL TRIBUNAL (NORTH), TIS HAZARI
COURTS, DELHI
ARCT No. 22/2008
Date of institution: 07.112008
Judgment reserved on: 07.09.2009
Judgment pronounced on: 17.09.2009
Sh. Anoop Nigam
s/o Late Munshi Atal Behari
r/o 162, Gali Batashan, Barshabullan
Delhi. ......... Appellant
Versus
1.Sh. R.K. Gupta
s/o Late Sh. Ram Lal Gupta
r/o 95, Maitri Appartments
Mayur Vihar, Phase I
Delhi-110 091
2. Sh. Jagdish Nath
3. Sh. Ram Kumar
4. Sh. Ishwar Dayal
All sons of Late Sh. Ram Lal Gupta
All r/o 3540, Gali Hakim Baga
Hauz Qazi, Delhi-110 006 ....... Respondents
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JUDGMENT
This is an appeal under Section 38 of Delhi Rent Control Act, 1958 against order dated 29.09.2008 passed by learned Rent Controller, Delhi.
Anoop Nigam vs. R.K. Gupta & Ors.
-: 2 :-2. The brief facts giving rise to the present appeal are that the respondents herein filed a petition u/s 14 (1) (a) (b) (c) (h) & (j) of the Delhi Rent Control Act against the appellant Sh. Anoop Nigam and others. The appellant was proceeded exparte vide order dated 06.09.05. The appellant moved an application u/o 9 rule 7 CPC dated 28.07.08 for setting aside the exparte order on the grounds that neither the summons were tendered nor served on the appellant nor he ever refused to accept the summons. The family of the appellant consists of himself, his wife and minor daughter. The appellant came to know regarding the pendency of petition on 26.07.08 through Sh. Pramod Jain, one of the neighbourers of the appellant.
3. The application was contested by the respondents by filing reply dated 29.08.08. The said application was dismissed by the learned trial Court vide impugned order dated 29.09.08.
4. Feeling aggrieved by the said order, the appellant has preferred the present appeal. I have heard Ms. Beenashaw N. Soni, Advocate for the appellant and Shri Praveen Mendiratta, Advocate for respondents. I have also carefully gone through material on record.
5. Ld. Counsel for the appellant urged that the appellant was neither served with the summons of the petition nor he refused to accept the summons, nor the summons were ever tendered to the appellant or any of his family members. The family of appellant consists of himself, his wife and a minor daughter. She also submitted Anoop Nigam vs. R.K. Gupta & Ors.
-: 3 :-that there is no person by the name of Mayank Nigam in the family of appellant.
6. Ld. Counsel for respondents vehemently argued that the appeal is not maintainable. In support of his submissions he has relied upon judgment in case titled as Sudarshan Khanna vs. Smt. Krishna Kanta Bhasin reported as 2002(1) RCJ 411.
7. This argument was refuted by learned counsel for appellant by submitting that the appellant was proceeded exparte and in case the exparte order is not set aside the appellant is not permitted to contest the petition, same would materially affect the rights of the appellant. In support of her submissions she has relied upon judgment titled as Central Bank of India vs. Gokal Chand reported as 1967 DLT 1 and R.K. Sharma vs. Praveen Gupta reported as 71 (1998) DLT 55.
8. Ld. Counsel for respondents also contended that the petition was filed in June, 2005 and the appellant was aware about the pendency of said petition and he did not appear intentionally. He also submitted that premises in question were initially let out to Sh. Munshi Atal Bihari Nigam and after his death appellant alongwith other LRs of the deceased Munshi Atal Bihari Nigam succeeded as joint tenants. According to him, the notice of petition was served on the other LRs of the deceased tenant and service of one of the joint tenants is sufficient. In support of his submissions he has relied upon judgment in case titled as Indu Bhushan vs. Munna Lal (2007) 14 SCC 42 A, Inderpal Anoop Nigam vs. R.K. Gupta & Ors.
-: 4 :-Khanna vs. Commander Bhupinder Singh Rekhi 2008 (Delhi) 328; Kanji Manji vs. Trustees of the Port of Bombay AIR 1963 SC 468.
9. I have given my thoughtful consideration to the submissions made by learned counsels for both the parties. I have also gone through the Judgments relied upon by learned counsel for the parties. In Sudarshan Khanna's case (supra) relied upon by Ld. Counsel for respondents, an order of eviction u/s 14 (1) (h) of DRC Act was passed. The tenant filed an appeal, in appeal an application u/o 41 rule 27 CPC was filed which was rejected by Ld. Rent Control Tribunal on the grounds that defence of landlord was unbelievable and that the documents should have been acquired and produced earlier. The tenant filed a petition under the Article 227 of the Constitution of India before Hon'ble High Court. In the said petition it was held that consequent on the amendments to the Delhi Rent Act carried out in 1988 an appeal now lies under section 38 only on questions of law. Therefore, now the Tribunal is precluded from entering upon the factual arena. The legislature intended to restrict the ambit of the appeal and thus render the Controller as master of the facts. In the course of same amending exercise carried out in 1988, Section 39 was omitted and thenceforward no appeal is maintainable to this Court. Invoking the extraordinary jurisdiction of the High Court runs counter to and frustrates the wisdom of the legislature and infact renders the amendments nugatory. The employment of this constitutional provision had become rampant. It would be well to bear in mind that under Article 227, the High Court is not expected to correct all hardships or Anoop Nigam vs. R.K. Gupta & Ors.
-: 5 :-wrong decisions made by Courts exercising their jurisdiction properly. The petition was dismissed by the Hon'ble High Court. In the said case there was no issue regarding maintainability of appeal u/s 38 of Delhi Rent Control Act.
10. In Central Bank of India's case (supra) it was held that the object of Section 38 (1) of the Act is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the said case it was held that Section 38 (1) of Delhi Rent Control Act contemplates appeal only from order which affects right or liability of party and that no appeal lies thereunder from interlocutory orders which are merely procedural and do not affect rights or liabilities of the parties.
11. The Apex court in another case titled as Shah Babulal Khimji vs. Jayaben D. Kania & Anr reported as AIR 1981 SC 1786, has held that the test to determine as to when an order passed by Ld. Judge can be said to be appealable as a judgment would be whether the order can be said to decide the right/liability of the parties. It was observed that whenever a trial Judge decides a controversy which affects valuable rights of one of the parties, it must treated to be a judgment within the meaning of Letters Patent. Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decides the matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. At page 1816, it was observed that "Similarly, Anoop Nigam vs. R.K. Gupta & Ors.
-: 6 :-suppose the trial Judge passes an order setting aside an exparte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed exparte falls within Order 43 Rule 1(d) and is appealable, the serious question that arises is whether or not the order first mentioned is a Judgment within the meaning of Letters Patent. The fact, however, remains that the order setting the exparte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the learned trial Judge setting aside the exparte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory Judgment and is, therefore, appealable to a larger bench".
12. In R.K. Sharma's case (supra), an eviction petition was filed, an exparte order was passed. The exparte order was set aside by the Trial Court and petition under Article 227 of the Constitution of India was filed before the Hon'ble High Court of Delhi. In para 7 of the judgment it was held that an order which affects the legal rights and liabilities of the parties against each other would be appealable u/s 38 (1) of the Act. The observations made by Hon'ble Supreme Court of India in the aforesaid case of Shah Babulal Khimji vs. Jayaben D. Kania & Anr (supra) were considered and it was held that an order setting aside exparte decree against the defendant which is not Anoop Nigam vs. R.K. Gupta & Ors.
-: 7 :-appealable under any of the clauses of Order 43 Rule 1, though an order rejecting an application to set aside the decree passed exparte falls within Order 43 Rule 1 (d) and is appealable. The order setting aside exparte decree passed exparte is an order which affects/decides the rights and liabilities of the parties and, therefore, the impugned order passed by the learned ARC setting aside the exparte decree vitally affects the valuable rights of the petitioner and amounts to judgment and, therefore, appealable under section 38(1) of DRC Act. The said Judgment was passed in 1997 i.e. after amendment of DRC Act in the year 1988.
13. In the instant case, the appellant was proceeded exparte vide order dated 06.09.05. In case, the exparte order is not set aside, the same would affect the valuable rights of the appellant. In my view, the appeal is maintainable as per law laid down in R.K. Sharma's case (supra).
14. Now coming to merits, Ld. Counsel for respondents urged that initially Sh. Munshi Atal Bihari Nigam was tenant in the premises in question and after his death, his LRs became joint tenants and service of notice on one of the joint tenants is sufficient. The preposition of law that on the death of a tenant, the tenancy devolves upon his LRs as joint tenants and service of notice to one of the joint tenant is sufficient to terminate the tenancy, is not disputed.
Anoop Nigam vs. R.K. Gupta & Ors.
-: 8 :-15. In this case the appellant was proceeded exparte vide order dated 06.09.05. Ld. Trial Court has dismissed the application u/o 9 rule 7 CPC on the grounds that report of the registered cover reflects that despite receiving the information, no effort was made by the appellant to collect the registered cover. Some of the respondents/relatives of the appellant were appearing and participating in the proceedings. In this regard it may be mentioned that there is no registered cover regarding the summons of case to the appellant sent by Ld. Trial Court on record. It appears that Ld. Trial Court swayed with the registered covers, which were sent by the respondents on 16.01.05 before filing the eviction petition and the report of said registered cover is dated 24.01.05. The said registered envelopes were sent by Shri Ved Prakash Gupta Advocate and not by the Court. The same goes to indicate that the said registered covers are not in respect of the summons of the petition as the petition was filed on 01.07.05.
16. As regards the plea taken by the respondents that other relatives of the appellant are appearing and no separate notice was required to be served on the appellant, it may be mentioned that law provides that each and every respondent is to be served separately. There is no law that in case one of the respondents or relative is served, the other respondent would be deemed to have been served or other respondent is not required to be served.
17. It is true that there is a summon duly signed by one Sh. Mayank Nigam on 19.07.08 but neither the person who received the Anoop Nigam vs. R.K. Gupta & Ors.
-: 9 :-notice nor in the report of Process Server it is mentioned that what was the relationship of said Mayank Nigam with the appellant. The appellant has mentioned in the application u/o 9 rule 7 CPC that his family consists of himself, his wife and a minor daughter. The application is accompanied with an affidavit of the appellant Anoop Nigam. It is not the case of respondents that Mayank Nigam is family member of the appellant. The interest of justice requires that the appellant should be given an opportunity to contest the petition.
18. In view of the aforesaid discussion, the appeal is allowed and impugned order dated 29.09.08 is set aside and exparte order passed against the appellant dated 06.09.05 is also set aside. Since, the petition is pending since 2005, the appellant is directed to file written statement within two weeks. Trial Court record along with copy of this Judgment be sent back. File of appeal be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 17th day of September 2009 District Judge-II cum Addl. Rent
Control Tribunal (North) Delhi
Anoop Nigam vs. R.K. Gupta & Ors.