* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15.07.2011
+ CM (M) No. 1373/2010 & CM Nos.19508/2010 & 10951/2011
M/S ESVEE POLYMERS MFG. CO & ANOTHER ........ Petitioner
Through: Mr. Sukhnda Dhamija &
Mr. S.K. Rout, Advocates.
Versus
JIWAN INDUSTRIES PVT. LTD. & OTHERS ..........Respondents
Through: Mr. K.K. Mehrotra, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This petition has impugned the order dated 30.08.2010 whereby an application filed by respondents No. 9 & 10 under Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'Code') for recalling the order dated 27.07.2009 had been dismissed.
2 The petitioners before this Court are respondents No. 9 & 10 before the trial Court. The landlord M/s Esvee Polymers Manufacturing Co. Ltd. had filed an eviction petition against the respondents under Section 14(1)(b) of the Delhi Rent Control Act CM (M) No. 1373/2010 Page 1 of 4 (hereinafter referred to as the 'DRCA'). Respondents No. 1 to 6 were stated to be the tenants in the suit property whereas respondents No. 7 to 10 were alleged to be sub-tenants. Eviction petition is of the year 1994. It is an admitted position that no written defence had been filed by respondents No. 9 & 10 (petitioners before this Court). Final arguments had been concluded in this case on 08.12.2005. On 25.10.2005 a part of the suit premises had been acquired by the Government. Thereafter the landlord had moved an application seeking amendment of his eviction petition with permission to place on record the amended site plan showing the status of the suit land after the acquisition. The prayer in the application under Order 6 Rule 17 of the Code filed before the Additional Rent Controller was only to the limited extent that the amended site plan in view of the aforenoted acquisition be permitted to be placed on record. On 24.01.2008 it was noted that the copy of this application has been furnished to learned counsel for the respondents of whom respondents No. 1 to 6 and respondents No. 21 & 22 in Suit No. 667/2007 were present; two copies had been kept in the court record to be collected by the respondents who were not present on that date. Matter was fixed for arguments on the aforenoted application. Amended petition was taken on record vide order dated CM (M) No. 1373/2010 Page 2 of 4 15.04.2008; on 21.07.2008 it was noted that the written statement has been filed by respondents No. 1 & 2 and counsel for respondents No. 1 to 6 and respondents No. 21 & 22 had made a statement that they had filed a written statement for respondents No. 3 to 6 and respondents No. 21 & 22 also. None of other respondents including respondents No. 9 & 10 had chosen to file their written statement; on the subsequent date on 05.12.2008 Mr. Vinay Gupta counsel for respondents No. 9 & 10 had appeared and matter had been fixed for arguments. On another subsequent date i.e. 11.12.2008 presence of counsel for respondents No. 9 & 10 was again marked.
3 Record shows that on all these subsequent dates when the matter was being listed, no request had been made on behalf of respondents No. 9 & 10 to either file their written statement or affidavit. On 27.07.2009 on the statement made by counsel for respondent No. 2, the respondent evidence stood closed. Thereafter application under Section 151 of the Code had been filed for recalling of the order dated 27.07.2009. The impugned order had dismissed this application and rightly so. 4 Record shows that the eviction petition had been filed in the year 1994; no written defence had been filed by respondents No. 9 & 10; on 08.08.2005 and 14.10.2005 counsel for respondents CM (M) No. 1373/2010 Page 3 of 4 No. 9 & 10 had made a categorical statement that they not want to lead any evidence. Matter had been adjourned for final arguments on 14.10.2005. Thereafter the application under Order 6 Rule 17 of the Code had been filed for the limited purpose to place the amended site plan on record as part of the suit premises had been acquired by the Government. No written statement was filed to this amended petition either. The impugned order in no manner calls for any interference. When admittedly there were no written pleading by respondents No. 9 & 10 building up any defence as also the clear statement of their counsel of two consecutive dates that respondents No. 9 & 10 did not wish to lead evidence; defendant evidence was correctly closed. Even otherwise where was the scope of leading evidence by respondents No. 9 & 10 in the absence of a defence; they cannot be any evidence unless there is a pleading set up which in this case there was none. There was no warrant to interfere with the earlier order dated 27.07.2009. The impugned order in no manner suffers from any infirmity.
5 Dismissed.
INDERMEET KAUR, J.
JULY 15, 2011
a
CM (M) No. 1373/2010 Page 4 of 4