Delhi District Court
Smt Lalita Rani vs Sh. R.K. Gandhi (Deceased) on 25 January, 2020
IN THE COURT OF SH. RAM PRAKASH PANDEY,
DISTRICT & SESSIONS JUDGE (NORTHWEST)
& RENT CONTROL TRIBUNAL :
ROHINI COURTS, DELHI
RCT NO. 03/19
Smt Lalita Rani
D/o Late Sh. Hem Raj Malhotra
W/o Sh. Raj Kumar
R/o U1/8, First Floor,
Budh Vihar, PhaseI,
Delhi110055 .............Appellant
Versus
Sh. R.K. Gandhi (deceased)
through LRs
i) Smt Kiran Gandhi
W/o Late Sh. R.K. Gandhi
ii) Sh. Rupal Gandhi
S/o Late Sh. R.K. Gandhi
iii) Sh. Mohit Gandhi
S/o Late Sh. R.K. Gandhi
All R/o House no. 1361 (3rd Floor)
Multani Mohalla, Rani Bagh,
Delhi110034 ..........Respondents
JUDGMENT
Date of institution : 21.02.2019 Date of arguments : 14.01.2020 Date of judgment : 25.01.2020
Appearance: Sh. A.K. Bhasin, Ld. Counsel for the appellant.
Sh.C.S. Bhandari, Ld.Counsel for LRs of Respondent. RCT No. 03/19 Page 1 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs JUDGMENT :
1. This appeal u/s 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as "the DRC Act") is directed against the order dated 18.01.2019 (hereinafter referred to as the impugned order) passed by Sh. Satvir Singh Lamba, the ld. ACJ cum CJARC (North), Rohini Courts, Delhi in Execution Petition No. 53518/16 filed by appellant Smt Lalita Rani against the LRs of respondent (deceased) Sh. R. K. Gandhi, namely, Smt Kiran Gandhi and others.
2. The facts, in brief, leading to the filing of the present appeal are that the eviction petition bearing no. 1262/2006 had been filed by the appellant against the respondent Sh. R.K. Gandhi under Section 14(1)(a)(b)(d) & (h) of the DRC Act with respect to property bearing no. 3388, Mahendra Park, Rani Bagh, Shakur Basti, Delhi110034 (in short "suit property"). The appellant put in appearance and contested the eviction petition. However, during the trial, the respondent Sh. R.K. Gandhi expired and accordingly, his legal heirs were brought on record. After conclusion of trial, the trial court, vide judgment dated 30.08.2012, had passed the RCT No. 03/19 Page 2 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs eviction order against the respondents whereby the trial court passed the order u/s 15(1) of the DRC Act directing the respondents to pay arrears of rent w.e.f. 01.08.2003 @ Rs.1750/ per month and Rs. 300/ per month towards electricity and water charges within a period of one month from passing of the judgment.
3. The respondents filed an appeal bearing no. 23/12/13 against the judgment dated 30.08.2012 before the Rent Control Tribunal. During the pendency of the said appeal, respondents moved an application under Order 41 Rule 5 read with Section 151 CPC seeking stay of operation of judgment dated 30.08.2012 passed by the trial court. Ld. District Judge/Rent Control Tribunal vide order dated 06.11.2012 declined to stay the operation of the judgment dated 30.08.2012.
4. Thereafter, on 19.02.2013 appellant moved an execution petition to execute judgment dated 30.08.2012 thereby seeking issuance of warrant of possession of the suit property alongwith warrants of attachment of salary of LRs No. (ii) together with movable goods/articles. The warrant of possession was executed RCT No. 03/19 Page 3 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs through the court bailiff and possession was received by the appellant and suit property is now under lock and key of the appellant. In the meanwhile, Ld. District Judge/Rent Control Tribunal dismissed the appeal filed by the respondents vide judgment dated 09.04.2015.
5. Thereafter, on 26.07.2013, Sh. Murari Lal Malhotra has filed the objections under Order 21 Rules 99, 100 & 101 read with Section 151 CPC and the said objections are still pending for adjudication. By way of said objections, Sh. Murari Lal Malhotra claimed ownership of the entire property including the suit property on the basis of Will dated 28.11.1997 allegedly left behind by the mother in his favour, who also filed a probate petition qua the said will before the court of Sh. Sidharth Mathur, Ld. ADJ, North West, Rohini Courts, Delhi and the said probate petition was dismissed vide order dated 16.10.2018.
6. As per judgment dated 30.08.2012, the respondents are in arrears of rent w.e.f. 01.08.2003 @ Rs.1750/ per month and Rs.300/ per month towards electricity and water charges till 27.05.2013 when possession was obtained by the appellant RCT No. 03/19 Page 4 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs through court bailiff, which allegedly comes to Rs.3,23,900/ and to recover the said amount, the appellant moved an application u/s 151 CPC dated 15.01.2016 before the trial court in the execution petition seeking warrant of attachment of goods/articles and salary of respondent LR No. (ii) Sh. Rupal Gandhi and the respondents contested the said application. After hearing both the parties, the trial court dismissed the said application u/s 151 CPC dated 15.01.2016 vide impugned order dated 18.01.2019.
7. Aggrieved by the said impugned order dated 18.01.2019 passed by the ld. Trial court, the appellant filed the present appeal on the following grounds inter alia:
i) that the impugned order is totally erroneous, not sustainable in law and on facts on record;
ii) that the trial court erred in law while dismissing the application u/s 151 CPC by observing that executing court cannot go beyond the decree where trial court failed to appreciate that the relief sought in the application u/s 151 CPC is in fact execution of an order passed by trial court in eviction petition and as such, the said relief cannot be treated as beyond the order/judgment passed by trial court.
RCT No. 03/19 Page 5 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs
iii) that the trial court failed to appreciate that the order of ld. ARC has got status or shape of decree as defined under the CPC and thus, it was executable under Order 21 Rule 11 CPC and the trial court is legally competent to issue warrant of possession and attachments in terms of order/judgment passed in the eviction petition.
iv) that the trial court erred in observing that to execute the order passed by the ARC directing respondent to pay the arrears of rent and on failure of the respondent to comply with the said order, the remedy available to the appellant is to file separate civil suit for recovery of rent as ordered vide judgment dated 30.08.2012;
v) that the observation of trial court is totally misconceived, misguided and misdirected that if the tenant does not comply with the order u/s 15(1) of the DRC Act then the benefit u/s 14(2) of the DRC is to be denied to him and as such, in view of striking off the defence, the question of recovery of arrears of rent in execution petition cannot be enforced;
vi) that the trial court ought to have issued warrants of attachment of goods/articles and attachments of salary of the LR No. (ii) of the respondents as prayed for in the application; RCT No. 03/19 Page 6 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs
vii) that the impugned order is wrong and against law;
viii) that the trial court has not passed the impugned order with exactitude and precision;
ix) that the impugned order is flimsy and based upon untenable grounds;
x) that the ARC erred in holding that as soon as the benefit u/s 14(2) of the DRC Act is not granted to the tenant for non - compliance of the order passed u/s 15(1) of DRC Act, the warrants of attachments of movable properties to recover the arrears of rent in terms of order cannot be issued by the court.;
xi) that the trial court misinterpreted the judgment reported in AIR 1967 Supreme Court 761;
xii) that the trial court ought to have held that there is no requirement for filing separate suit for recovery of money on account of arrears of rent, electricity and water charges;
In view of the above submissions, the appellant has prayed that the impugned order dated 18.01.2019 of ld. trial court be set aside and relief so prayed in the application u/s 151 CPC be allowed.
RCT No. 03/19 Page 7 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs
8. The appeal has been contested on behalf of the respondents by filing a written reply. It is claimed that appeal is not maintainable as there is no irregularity or perversity in the impugned order passed by the trial court. It is submitted that the appeal is not maintainable in law as it does not involve any question of law and that the Rent Controller has no power to enforce the recovery of rent and such powers are only vested in civil courts. The contents of the appeal are denied in toto by the respondents. It is denied that respondents have been in arrears of rent. It is claimed that they have paid the rent to their landlord Sh. M.L. Malhotra to whom they have also delivered the possession. It is submitted that the application u/s 151 CPC was rightly dismissed by the trial court vide impugned order dated 18.01.2019 and that the grounds of appeal are not tenable in law as no recovery can be enforced by the Rent Controller. It is claimed that in the event of tenant failing to comply with the order u/s 15(1), 15(2) & 15(4) of the DRC Act, the Controller can only enforce the eviction order but cannot enforce the recovery. It is submitted that the appeal is without any substance and has prayed that the appeal be dismissed.
RCT No. 03/19 Page 8 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs
9. I have heard the ld. counsel for the appellant and the ld. Counsel for the LRs of deceased respondent at bar and have extensively gone through the entire material on record including the trial court record.
10. In the present appeal, the crux of the dispute between the parties is that whether order of arrears of rent passed by the Additional Rent Controller vide judgment dated 30.08.2012 is executable or not. I now proceed to decide the aforesaid controversy on merits.
11. Admittedly, the eviction order alongwith order for payment of arrears of rent was passed under the DRC Act by the Additional Rent Controller vide judgment dated 30.08.2012 whereby as per provisions of Section 15(1) of the DRC Act, respondents were directed to pay arrears of rent within a period of one month from the date of judgment and the matter was fixed for inquiry for the benefit u/s 14(2) of the DRC Act. Since the respondents failed to deposit the arrears of rent, they were denied the benefit u/s 14(2) of the DRC Act and accordingly, eviction order in respect of the RCT No. 03/19 Page 9 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs suit property was passed vide order 01.02.2013. The DRC Act provides that if the tenant does not comply the order of the Controller u/s 15(1) of the DRC Act, the benefit u/s 14(2) of the DRC Act shall be denied to him and the Controller will be bound u/s 14 of the DRC Act to pass an eviction order in respect of the premises in question.
12. In the instant case, the appellant/landlord could enforce only the eviction order by filing execution petition and that too only in the event of noncompliance of direction given by the trial court u/s 15(1) of the DRC Act vide judgment passed on 30.08.2012 preceding the passing of eviction order while denying the benefit u/s 14(2) of the DRC Act to the respondent/tenant on 01.02.2013.
13. It is also worthwhile to mention here that in the DRC Act, there is no provision qua execution petition for recovery of arrears of rent. The subject execution petition filed before the trial court is not of a decree arising out of judgment or order of a civil court. The Rent Controller is not a civil court and is having limited jurisdiction to decide matters between tenant and landlord RCT No. 03/19 Page 10 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs which fall within the purview of the DRC Act. This position of law was clarified in the judgment titled as Nitin Seth vs Rohit Kumar, (Delhi) 2008(2) RCR 577. It is admitted position that the appellant has not filed any civil suit for the recovery of alleged arrears of rent. It is settled proposition of law that in a dispute between the tenantlandlord, if the tenant is in arrears of rent, the landlord has to file two distinct proceedings - one is to file eviction proceedings before the Rent Controller and other is to file a civil suit for recovery of arrears of rent before the civil court. The proceedings under the DRC Act are of summary nature and are to be disposed of expediently. In this regard, I have been guided by the judgment titled as Prithvi Raj Sachdev vs Deep Chand Ram Dass & Sons, 12 (1976) DLT 141, where it has been observed that the proceedings in the Civil Court for recovery of rent and those before Additional Rent Controller for the eviction of the tenant are two distinct proceedings in which different reliefs are sought. It has been further observed that the proceedings under the Act are of a summary nature and are required to be expeditiously disposed of while a regular civil action is RCT No. 03/19 Page 11 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs likely to and usually takes considerable time.
14. It is also a settled law that a suit for recovery of arrears of rent is maintainable before the civil court as the Rent Controller has no such power in the DRC Act to adjudicate upon such matters. In this regard, I have been further guided by the judgment of Om Prakash Mongia vs Lekh Raj Aggarwal, 1966 DLT Vol.II 219 wherein Hon'ble Punjab High Court has held that : "The jurisdiction under Section 14 conferred on the Controller is to decide whether or not there has been non payment of rent in violation of the provisions of Section 14, but that is not a jurisdiction empowering the Controller to decide a claim about rent simpliciter. In Rai Brij Raj Krishna's case, their lordships of the Supreme Court only decided that the controller had jurisdiction to decide whether the condition precedent to eviction, namely, nonpayment of rent, had been satisfied or not. The Supreme Court was not concerned with the question now arising before me. Of course, on the language of Section 14 of the said Act, it would be competent for the controller to decide the controversy, namely whether or not there has been nonpayment of rent. But that does not mean that the controller should be expressly or impliedly held to be the exclusive authority having jurisdiction to pronounce upon a claim for rent only. I think that controversy legitimately falls within the jurisdiction of civil courts. Irrespective of the question whether orders under Section 15 are executable or not, I would say that those are orders incidentally to the proceedings for ejectment and are intended for the benefit of tenants that if they pay the rent in accordance therewith, they may void RCT No. 03/19 Page 12 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs ejectment. I am also not prepared to hold that the jurisdiction of the civil courts is barred impliedly. The question of implied bar really does not arise because there is no provision in the At entitling a landlord, not wanting to eject a tenant, to lay a claim before the Controller for rent".
15. In view of the judgment of Om Prakash Mongia case (supra), it is crystal clear that the Rent Controller is not empowered to enforce the claim of arrears of rent.
16. Ld. Counsel for the appellant has contended that separate civil suit for recovery of rent is not required to be filed in addition to the eviction petition under the DRC Act and for that purpose, he has relied upon AIR 1967 Supreme Court 761. The said judgment does not help the appellant in any manner whatsoever as the said case involved the question of mesne profit in a civil suit. In this regard, the provisions of Order 20 Rule 12 of the Code of Civil Procedure are relevant to understand the ibid controversy which provides as under: "Decree for possession and mesne profits-- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or RCT No. 03/19 Page 13 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to mesne profits;]
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until--
(i) the delivery of possession to the decreeholder,
(ii) the relinquishment of possession by the judgment debtor with notice to the decreeholder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry".
17. Thus, the aforesaid provision of Order 20 Rule 12(1) CPC clearly shows that under such circumstances, the landlord is required to file a civil suit for recovery of arrears of rent before the Civil Court as it is a kind of inquiry for deciding the controversy of arrears of rent. Whereas the Rent Controller had to decide whether the condition precedent to eviction i.e. non payment of rent had been satisfied or not.
18. Ld. counsel for the appellant has raised the contention that in view of the provisions of Section 36 of the DRC Act and Rule 23 of the Delhi Rent Control Rules, 1959, the trial court is vested with all the powers of a civil court and CPC is to be followed when there RCT No. 03/19 Page 14 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs is no procedure prescribed under the DRC Act and therefore, there is no need to file separate civil suit for the recovery of arrears of rent.
19. For appreciating the aforesaid contention, the provisions of Section 36 of the DRC Act and Rule 23 of the Delhi Rent Control Rules, 1959 are reproduced hereunder: "36. Powers of Controller. -
(1) the Controller may
(a) Transfer any proceeding pending before him for disposal to any additional Controller, or
(b) Withdraw any proceeding pending before any additional Controller any dispose it of him or transfer the proceeding for disposal to any other additional Controller. (2) The Controller shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely:
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents;
(c) Issuing commissions for the examination of witnesses;
(d) Any other matter which may be prescribed, And any proceeding before the Controller shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860), and the Controller shall be deemed to be a civil court within the meaning of section 480 and section 482 of the Code of Criminal Procedure, 1898 (5 of 1898).
(3) For the purposes of holding any inquiry or discharging any duty under this Act, the Controller may,
(a) After giving not less than twentyfour hours' notice in RCT No. 03/19 Page 15 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs writing, enter and inspect or authorize any officer subordinate to him to enter and inspect any premises at any time between sunrise and sunset; or
(b) By written order, require any person to produce for his inspection all such accounts, book or other documents relevant to the inquiry at such time and at such place as may be specified in the order.
(4) The Controller may, if he thinks fit, appoint one or more person having special knowledge of the matter under consideration as an assessor or assessors to advise him in the proceeding before him".
"23. Code of Civil Procedure to be generally followed. In deciding any question relating to procedure not specifically provided by the Act and these rules the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908".
20. The perusal of the Section 36 reveals that the Controller is empowered to transfer or permit the withdrawal of any proceedings before any Additional Rent Controller. It also reveals that Controller is vested with powers as a Civil Court for s ummoning and enforcing the attendance of any person, requiring the discovery and production of documents and issuing commissions for the examination of witnesses. It also provides that proceedings before the Rent Controller shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 IPC and the Controller shall be deemed to be a civil court within RCT No. 03/19 Page 16 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs the meaning of Sections 480 & 482 CrPC. This makes it clear that CPC does not apply to the proceedings before the Rent Controller for all purposes except as prescribed above.
21. The perusal of Rule 23 reveals that it is meant for taking assistance from the CPC if any procedure is not specifically provided under the DRC Act. In the DRC Act, it is no where provided with respect to the execution petition for recovery of arrears of rent. The subject execution petition filed before the trial court is not a decree arising out of judgment or order of a civil court. I reiterate that the Rent Controller is not a civil court and is having limited jurisdiction to decide matters between tenant and landlord which fall within the purview of the DRC Act. I have already held above in view of the judgment Om Prakash Mongia case (supra) that the Rent Controller is not vested with powers to enforce the claim of arrears of rent. Accordingly, the contention of ld. counsel for the appellant holds no water and hence rejected.
22. In view of the discussion hereinabove, I do not find any justification to interfere with the impugned order dated 18.01.2019 RCT No. 03/19 Page 17 of 18 Lalita Rani vs R.K. Gandhi (deceased) through LRs of the Ld. Trial Court. Accordingly, the appeal fails and is dismissed.
23. Trial Court Record be sent back alongwith copy of judgment.
24. Appeal file be consigned to record room.
RAM Digitally signed by
RAM PRAKASH
PRAKASH PANDEY
Date: 2020.01.27
Announced in the open Court PANDEY 20:37:36 +0530
today i.e.on 25.01.2020 (R.P. Pandey)
District & Sessions Judge (NorthWest)
cumRent Control Tribunal
Rohini Courts, Delhi
RCT No. 03/19 Page 18 of 18
Lalita Rani vs R.K. Gandhi (deceased) through LRs