Dorris Randhawa vs M/S. Alankar Marketing ...
2000 Latest Caselaw 305 Del

ORDER

Madan B. Lokur, J.

1. The petitioner, in this petition under Article 227 of the Constitution, has challenged the common order dated 3rd November, 1998 passed by the learned Rent Control Tribunal (hereinafter referred to as the Tribunal) in R.C.A Nos. 606/98, 607/98, 609/98 and 610/98 .

2. The petitioner is the landlady of the suit premises being P-12, Haus Khas, New Delhi. Some time in April, 1992 she filed a civil suit for possession of the suit premises. According to her, since the rent of the suit premises was Rs.3,850/- per month, the premises were out of the purview of the rent control legislation. The Respondent hotly contested the civil suit and claimed that the rent of the suit premises did not exceed Rs.3,500/- per month and, therefore, the provisions of the Delhi Rent Control Act, 1958(hereinafter referred to as the Act) were applicable.

3. During the pendency of the civil suit, the Petitioner filed two eviction petitions in November, 1996. The first eviction petition was filed under the provisions of Section 14-D of the Act and this pertained to the main building in the suit property while the second eviction petition was on the ground of bona fide need under the provisions of Clause (e) of the proviso to Section 14(1) of the Act. This eviction petition was with regard to the garage, servant's quarter and toilet.

4. Notices were issued in both the eviction petitions to be served by the normal process as well as by registered post A.D. For some reason which becomes clear a little later, the notices which were to be served by the ordinary process were actually taken by hand on behalf of the Petitioner and were allegedly served on the Respondent. The notices that were sent by registered post A.D. were also allegedly received by the Respondent but the signatures were illegible and there was no name of the recipient signatory.

5. Since the Respondent did not enter appearance in both the eviction petitions, he was proceeded ex-parte and an eviction order was passed against him in both the cases on 21st January, 1997.

6. As per the statutory requirement, the Respondent was given two months time to vacate the main building which was the subject matter of the eviction petition filed under Section 14-D of the Act. Again, as per the statutory requirement, the Respondent was given six months time to vacate the garage, servant's quarter and toilet which was the subject matter of the eviction petition filed under Clause (e) of the proviso to Section 14(1) of the Act.

7. It appears that all this while, the civil suit filed by the Petitioner was pending. In fact, on 10th February, 1997 the Petitioner's son appeared as a witness in the civil suit along with another co-owner of the property. However, the Civil Court was not told about the eviction orders obtained earlier that year nor, of course, was the Respondent informed of this development. The Petitioner also filed an application on 5th May, 1997 before the Civil Court seeking permission to file additional documents. Again, no indication was given either to the Court or to the Respondent that eviction orders had been passed against the Respondent.

8. As mentioned above, the Petitioner was entitled to take possession of the main building after the expiry of two months from the date of the eviction order but she chose not to do so. After the expiry of six months from the date of the eviction order, the Petitioner moved for warrants of possession in respect of the entire premises and on or about 16th September, 1997 she took forcible possession of the entire suit premises.

9. The Respondent was, naturally, quite taken aback by this turn of events and he approached his advocate who thereafter carried out an inspection and filed four applications before the learned Additional Rent Controller. Two applications were under Order IX, Rule 16 of the Code of Civil Procedure (for short the CPC) for setting aside the eviction orders in each of the two eviction petitions and two applications were filed under Section 144 of the CPC for restoration of possession of the suit premises in each of the two eviction petitions.

10. All these applications were heard by the learned Additional Rent Controller who passed a detailed order on 30th September, 1998 allowing all the applications. The learned Additional Rent Controller came to the conclusion that the petitioner had played a fraud upon the Court and in fact service had not been effected on the Respondent in both the eviction petitions. The learned Additional Rent Controller also came to the conclusion that the Petitioner had worked to a well thought out game plan and had fraudulently managed to obtain forcible possession of the suit premises.

11. Against the order of the learned Additional Rent Controller, the Petitioner filed four appeals before the learned Tribunal which, by the impugned order dated 3rd November, 1998, upheld the findings of the learned Additional Rent Controller and dismissed the appeals.

12. Learned counsel for the petitioner contended before me on 7th March , 2000 that the learned Additional Rent Controller ought to have recorded evidence before passing any order in the applications under Order IX, Rule 13 of the CPC. It was further contended that the learned Additional Rent Controller could also have decided the matter on the basis of affidavits as provided for in Order XIX of the CPC but there should be sufficient reason for directing the parties to file affidavits. According to learned counsel for the Petitioner, this submission goes to the root of the jurisdiction of the learned Additional Rent Controller. On the merits of the case, learned counsel submitted that the learned Tribunal had gone on a probability, namely, that since the Respondent was hotly contesting the civil suit, it was probable that he would contest the two eviction petitions had he known about them. Because the Respondent did not contest these eviction petitions, therefore, he was not aware of their pendency.

13. The Respondent appeared in person and also made his submissions on the same day when judgment was reserved.

14. I am not impressed with the submission made by learned counsel for the Petitioner. A reference has been made to the aspect of recording evidence in paragraph 24 of the order of the learned Additional Rent Controller, wherein the argument of the Petitioner is noted that the question whether the Respondent was served or not, requires evidence to be led. This argument was obviously considered by the learned Additional Rent Controller with reference to the entire material on record as well as the statements of the Process Server and the witness at the time when service was allegedly effected on the Respondent. This has been dealt with in paragraph 30 of the very same order. The Process Server had given a statement that he does not know the Respondent; the witness Kishan Kumar also did not identify the person who accepted the notices. In other words, nobody had identified the Respondent as the recipient of the notices. Apart from this, the learned Additional Rent Controller noted that there was no explanation why the notices were taken by hand when there was no order to this effect and how someone close to the Petitioner had managed to accompany the Process Server. The learned Additional Rent Controller also noted that the signatures of receipt were illegible or were seriously discrepent.

15. The question whether, in a case such as the present, the learned Additional Rent Controller should record oral evidence or should take evidence on affidavits or whether evidence is at all required to be taken is a matter entirely within his discretion. In a case such as this, the record speaks for itself. It was quite clear to the learned Additional Rent Controller, on a perusal of the record, that factually service had not been effected on the Respondent. It was also quite clear to the learned Additional Rent Controller that the Petitioner was playing games with the Court. On the one hand, the Petitioner was pursuing the Civil suit and did not bother to inform the Civil Court about the eviction orders. On the other hand, the Petitioner chose not to execute the eviction order under section 14-D of the Act as otherwise the Respondent would have been able to set the record straight before the Petitioner could take possession of the garage, servant's quarter and toilet. Obviously, the Petitioner did not want to take this risk.

16. A litigant playing a fraud upon another litigant is quite different from a litigant playing a fraud upon the Court. The latter situation usually does not merit recording of evidence because if a fraud has been played upon the Court, it becomes quite clear from the record of the case. This is what has happened in the present case. Considering all these facts, the learned Additional Rent Controller did not feel the necessity of recording or taking further evidence. No fault can be found in this approach of the learned Additional Rent Controller.

17. Learned counsel for the Petitioner submitted that his client did not see any point in taking possession of the suit premises in piecemeal and that is why she waited for the six months period to expire. This argument, with respect, is a little hard to digest. The Petitioner obtained ex-parte eviction orders in a matter of two months only. After having obtained the eviction orders within such a short period, it does not stand to reason why she should wait for more than six months to execute the eviction orders unless there is some ulterior motive. The argument of learned counsel is merely stated to be rejected.

18. Both the Courts below have given concurrent findings that the Respondent had not been served in the eviction petitions filed against him. No cogent reason is made out for setting aside these concurrent findings.

19. Under the circumstances, there is no option but to dismiss the writ petition. Since the Respondent has been out of possession of the suit premises since September, 1997 it is difficult to adequately compensate him. But he can be compensated for the expenditure incurred by him for the litigation which was virtually thrust upon him. Accordingly, the Petitioner is directed to pay costs of Rs.10,000/- to the Respondent in respect of the order passed in each of the four appeals. The learned Additional Rent Controller will ensure that costs are paid by the Petitioner to the Respondent. The Petitioner will also put back the Respondent in possession of the suit premises being No. P-12, Haus Khas, New Delhi within a period of three weeks from today.

20. The parties are directed to appear before the learned Additional Rent Controller on 16th March, 2000.

21. The records of the lower Courts be sent back immediately.