Delhi High Court - Orders
Mohd Arshad And Ors vs Syed Mohd Yahaya Nizami on 14 July, 2022
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~68 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM (M) 661/2022 & CM APPL. 30804/2022, CM APPL.
30805/2022
MOHD ARSHAD AND ORS ..... Petitioners
Through: Mr. Rajesh Mahajan and Mr.
Ranjeeb Kamal Bora, Advs.
versus
SYED MOHD YAHAYA NIZAMI ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 14.07.2022 CM APPL. 30805/2022 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
CM(M) 661/2022 and CM APPL. 30804/2022 (Stay)
3. The impugned order dated 1st July 2022, passed by the learned Rent Control Tribunal ("the learned RCT") in RCT 01/2022 (Dr. Mohd. Arshad & Ors v. Syed Mohd. Yahaya Nizami) dismisses the appeal, preferred by the petitioners, against rejection of the objections filed by the petitioners to the execution petition instituted by the respondent against the petitioners, by the learned Additional Rent Controller ("the learned ARC") vide order dated 10th March 2022.
Signature Not Verified Digitally Signed CM(M) 661/2022 Page 1 of 4 By:SUNIL SINGH NEGI Signing Date:19.07.2022 16:31:094. Before the learned RCT, the only contention that was urged by the respondent was that the appeal was not maintainable in view of Section 25B (8) of the Delhi Rent Control Act, 1958 ("the DRC Act", hereinafter). Section 25B (8) of the DRC Act reads thus:
"25B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. -
***** (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."
5. Various judgments were cited by both sides. The learned RCT, in para 6 of the impugned order, candidly acknowledges that there is no judgment on the point and that, therefore, he would have to examine the position of issue of maintainability by deriving the legal position from the judgments cited at the bar. In this process, the learned RCT has preferred to rely on the judgments of the Supreme Court in Vinod Kumar Chowdhry v. Smt. Narain Devi Taneja 1 and Bata India Limited v. Sarla Sharma2.
6. In para 8 of the impugned order, the learned RCT observes, 1 (1980) 2 SCC 120 Signature Not Verified Digitally Signed CM(M) 661/2022 Page 2 of 4 By:SUNIL SINGH NEGI Signing Date:19.07.2022 16:31:09 somewhat strangely, that "in the absence of express bar to an appeal, appellant cannot invoke non-applicable provisions to institute or prefer an appeal". This statement appears, ex facie, to be contradictory in terms.
7. Para 10 of the impugned order, thereafter, reads thus:
"10. On the conspectus of law as discussed above, this court is of the opinion that the appellant, who has been ordered to be evicted u/sec.14 (1) (e) of the DRC Act cannot sustain an appeal u/sec.38 of the DRC Act. The bar u/sec.25 B (8) of the DRC Act comes into play 'against an order for recovery of possession'. The present order, vide which the objections to execution petition have been dismissed, is also in the nature of an order for recovery of possession. In other words, it is another order in the step towards recovery of possession by the landlord against the tenant. Therefore, the letter & spirit of the provisions of Sec.25 B (8) of the DRC Act can be read to bar any appeal against such an order being filed u/sec.-38 of the DRC Act."
(Emphasis supplied)
8. Admittedly, on the face of it, the order under challenge before the learned RCT was not passed under Section 25B of the DRC Act. The learned RCT has sought to extrapolate Section 25B(8) into the present case by treating the order of the learned ARC as "in the nature of an order for recovery of possession".
9. The correctness of this view, in my opinion, is highly debatable.
10. There does not appear to be any express bar, in the DRC Act or 2 2021 SCC OnLine Del 2538 Signature Not Verified Digitally Signed CM(M) 661/2022 Page 3 of 4 By:SUNIL SINGH NEGI Signing Date:19.07.2022 16:31:09 elsewhere, against the maintainability of the appeal preferred by the petitioners before the learned RCT against the order dated 10th March 2022, passed by the learned ARC. Rather, Section 38(1) of the DRC Act provides for an appeal, to the learned RCT, against every order passed by the learned ARC, which involves a question of law. Learned Counsel for the petitioners has correctly pointed out that, by an application of Section 42 of the DRC Act, the provisions of Order XLI of the CPC would apply, mutatis mutandis, to execution proceedings, under the DRC Act. As such, prima facie, it does not appear that Section 25B (8) of the DRC Act, could be legitimately pressed into service to dispute the maintainability of the appeal preferred by the petitioner against the order of the learned ARC.
9. In that view of the matter, issue notice, returnable on 22nd November 2022. Notice be served on the respondent by all modes including dasti as well as through learned Counsel, who appears on behalf of the respondent before the learned RCT.
10. Reply be filed by the respondent within four weeks from today with advance copy to learned Counsel for the petitioners, who may file rejoinder thereto, if any, before the next date of hearing.
11. Till the next date of hearing, status quo shall be maintained regarding possession and title over the property in dispute.
C.HARI SHANKAR, J JULY 14, 2022/r.bararia Signature Not Verified Digitally Signed CM(M) 661/2022 Page 4 of 4 By:SUNIL SINGH NEGI Signing Date:19.07.2022 16:31:09