Bharti Laiq ( Nee Bhargava) vs Gardenia Estates (P) Ltd
2011 Latest Caselaw 5282 Del

$~33

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 01.11.2011


+            CM(M) 1246/2011 & CM Nos. 19608-09/2011


       BHARTI LAIQ ( NEE BHARGAVA)       ..... Petitioner
                      Through: Ms. Lata Krishnamurti, Mr.
                               Gurinder Pal Singh, Mr.
                               Pranav Diesh and Mr. Karan
                               Kalia, Advocates.

                     versus


       GARDENIA ESTATES (P) LTD                       ..... Respondent
                    Through: Nemo.

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. Order impugned is the order dated 24.9.2011 vide which the

application filed by the tenant seeking amendment of his

application for leave to defend under Order 6 rule 17 of the Code

of Civil Procedure (hereinafter referred to as „the Code‟) had been

dismissed.

2. Record shows that the present eviction petition has been

filed by the landlord M/s Gardenia Estates (P) Ltd. on the ground

that there is bonafide requirement of the one of the directors of

the landlord company namely Pavan Kohli of the disputed

premises for his residence. The disputed premises are the first

floor of premises bearing no. 138-A, Golf Links, New Delhi which

has been tenanted out to the tenant/petitioner namely Bharti Laiq.

Application for leave to defend had been filed on 22.7.2010;

present application seeking amendment of the said application for

leave to defend had been filed about more than six months later

i.e. on 05.02.2011. In the application under Order 6 Rule 17 of

the Code the submission made by the tenant is that the director of

the landlord company namely Pavan Kohli is a director in other

holding companies of the petitioner as well and details of the said

companies have been given in the said application; contention

being that the present petition has been filed only to harass the

petitioner as Pavan Kohli is the grandson of Narinder Singh Kohli

who has other properties which are available with the petitioner

company; further contention being that the company has

residential accommodation at various places in Delhi and the

director Pavan Kohli be directed to give a full disclosure of all

these facts on affidavit; further the company M/s Pink City

Apartments (P) Ltd. is the owner of the property No.227, Jor Bagh

where Pavan Kohli is presently residing and he has a right to

remain in this property in his own right; the company Speed Lines

(P) Ltd. also has several commercial flats; there is no bonafide

need of the present accommodation.

3. Reply has been filed by the landlord to the application under

Order VI Rule 17 of the Code. On behalf of the landlord it has

been vehemently urged that the landlord company is a distinct

legal entity and this property is required bonafide for the

residence of its director namely Pavan Kohli; further even as per

the petitioner these facts were known to the petitioner vide

information obtained from a website and inspections conducted by

their company secretary which are dated 28.7.2010, 13.8.2010

and 01.9.2010; there is no explanation for filing the amendment

application in February 2011. It is argued that the landlord is a

construction company and is carrying on its commercial activity of

construction; the aforenoted properties are commercial flats and

admittedly not a part of Delhi; the premises in dispute is bonafide

required by the director of the company for his own need; the

present accommodation where the petitioner is putting up is too

small to accommodate himself and his family.

4. The impugned order had dismissed the application primarily

on the ground that an application seeking amendment is not

permissible in an eviction petition under Section 14(1)(e) of the

DRCA as the procedure enlisted for dealing with such an

application is contained in Section 25(B) of the said Act and in

view of the pronouncement of the Apex Court reported in (2010) 2

SCC 15 Prithipal Singh Vs. Satpal Singh, such an application

could not be entertained.

5. This order is the subject matter of the present petition.

6. On behalf of the petitioner it has vehemently been urged

that the judgment of Prithipal Singh (supra) is peculiar to the facts

of the said case; contention being that in that case application for

leave to defend was not filed within the stipulated period

whereupon the court had noted that the time could not be

extended for the said purpose and in that scenario it has been

noted that Rule 23 of Delhi Rent Control Rules, 1959 is

inapplicable. Facts of the instant case are different. Counsel for

the petitioner has placed reliance upon a judgment of a Bench of

this Court reported in 2009 10 (AD)Delhi 284 Ved Prakash & Anr.

Vs. Om Prakash Jain wherein an amendment application seeking

permission to amend an application for leave to defend had been

considered; contention being that such an application is clearly

maintainable; even on merits the case of the petitioner is prima

facie strong; the last contention of the petitioner being that he has

no objection if a time bound frame is chalked out by this court for

disposal of his application for leave to defend. Reliance has also

been placed upon a judgment of a Bench of this Court delivered

on 21.08.2007 Shri Tulsi Ram Vs. Shri Ram Kishan Dass & Others

to support the same submission.

7. In the counter arguments; these submission have been

vehemently disputed. It is submitted that the Apex Court has in

Prithipal Singh (supra) held that such an application is not

maintainable; even on merits the facts now sought to be

incorporated were all pre-existing which were well within the

knowledge of the petitioner at the time of filing of his application

for leave to defend; this is only a delaying tactic.

8. In Prithipal Singh (supra) the court was dealing with the

prayer of the tenant who had sought extension of time for filing

his application for leave to defend. Admittedly he had not filed

the application within the stipulated period of 15 days. The

history of the legislation i.e. the DRCA and introduction of

Chapter IIIA which is a special procedure introduced by the

legislature for a summary trial of certain applications filed under

the Rent Act had been delved into. In this context the Apex Court

had noted as follows:

"Section 25-B of the Act is a complete code by which the entire procedure to be adopted for eviction of a tenant on the ground of bona fide requirement filed by the landlord in respect of a premises, shall be followed. From a close examination of Section 25-B(1) of the Rent Act, it is evident and clear that an application filed by a landlord for recovery of possession of any premises on the ground specified in clause(e) of the proviso to sub-section(1) of Section 14 or under Section 14-A or under Section 14-B or under 14-C or under Section 14-D, shall be dealt with in accordance with the procedure specified in this section. Apart from that, Section 25-B itself is a special code and therefore, the Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow a procedure strictly in compliance with Section 25-B of the Act."

9. Rule 23 of the Delhi Rent Control Rules, 1959 is also

relevant; the extract of which reads herein as under:

"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."

10. In this context the Apex Court in Prithipal Singh (supra) on

the applicability of Rule 23 had made the following observation:

"Rule 23 does not specifically confer any power on the Controller to follow the provisions of CPC in cases of special classes of landlords. Rule 23 is a general rule, by which the Controller in deciding any question relating to procedure not specifically provided by the Act and these Rules shall, as far as possible, be guided by the provisions contained in CPC. After insertion of Section 25-B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with Section 25-B and Rule 23 of the Rules, which also does not give full right to apply the provisions of CPC, cannot be applied."

11. Contention of the petitioner before this Court is that the

procedure contained in Section 25B is silent as to whether an

amendment is permissible or not and in the absence of which Rule

23 of the Delhi Rent Control Rules, 1959 can be adhered to.

Reliance has also been placed upon the judgment of Ved Prakash

(supra). The said judgment had been pronounced on 07.8.2009

which is admittedly prior in time to the judgment of Prithipal

Singh (supra) which was pronounced on 18.12.2009.

12. The judgment of Prithipal Singh is clear and categorical on

the point that the procedure contained in Section 25B of the DRCA

has to be strictly adhered to for dealing with a petition under

Section 14(1)(e) of the DRCA. This ratio of Prithipal Singh

precludes the applicability of the provisions of the Code of Civil

Procedure; further the amendments sought for even otherwise

were of facts which were already known to the petitioner. The

facts which were sought to be incorporated i.e. that the landlord

company was a part of a huge Real Estate Group of companies

having several properties in their name were all facts known to

the tenant; even otherwise they would not have a bearing on the

bonafide requirement of the Director of the company namely

Pavan Kohli who is seeking this eviction order for his own

personal residence for himself and his family. These facts being all

pre-existing i.e. existing at the time when the application for leave

to defend was filed; if such an application is permitted the whole

purpose and intent of the provisions of Section 25B(4) would be

defeated as the specifically stipulated period for filing an

application for leave to defend within 15 days would be given a go

by and by permitting the amendment there would be an automatic

extension of time for filing the application for leave to defend.

This could not and was not the intent of the statute. In Ved

Prakash (Supra) also the amendments sought for although being

of subsequent events were disallowed, as having been filed

belatedly. In the case of Tulsi Ram (Supra) a distinction between

the pre-existing and subsequent events had been drawn; in that

case during the pendency of the appeal, five more rooms had been

added by the landlord which was a fact which had been sought to

be incorporated in the application seeking amendment; the Court

had also noted that there was no contest by the landlord to this

factual averment of the tenant. As noted supra the facts which are

sought to be incorporated by way of the present application under

Order 6 Rule 17 of the Code were all pre-existing i.e. existing at

the time when the application for leave to defend was filed.

12 The Supreme Court in the judgment of Prithipal Singh has

also quoted with approval the observation made by the Apex Court

in its earlier judgment reported in (1984) 2 SCC 75 Ravi Dutt

Sharma Vs. Ratan Lal Bhargava. Relevant extract reads as

follows:

"7. ...... The dominant object of amending act is to provide a speedy, expeditious and effective remedy for a class of landlords contemplated by Section 14(1)(e) and 14-A and for avoiding unusual dilatory process provided otherwise by the Rent Act. It is common experience that suits for eviction under the Act take a long time commencing with the Rent Controller and ending up with the Supreme Court. In many cases experience has indicated that by the time the eviction decree became final several years elapsed and either the landlord died or the necessity which provided the cause of action disappeared and it there was further delay in securing eviction and the family of the landlord had by then expanded, in the absence of accommodation the members of the family were virtually thrown on the road. It was this mischief which the legislature intended to avoid by incorporating the new procedure in Chapter III-A. The legislature in its wisdom though that in cases where the landlords required their own premises for bona fide and personal necessity they should be treated as a separate class along with the landlords covered by Section 14-A and should be allowed to reap the fruits of decrees for eviction within the quickest possible time. In cannot, therefore, be said that the classification of such landlords would be an unreasonable one because such a classification has got a clear nexus with the objects of the amending Act and the purposes which it seeks to subserve. Tenants cannot complain of any discrimination because the Rent Act merely gave certain protection to them in public interest and if the protection or a part of it afforded by the Rent Act was withdrawn and the common law right of the tenant under the Transfer of Property Act was still preserved, no genuine grievance could be made."

13. Thus after the insertion of 25-B of the Act any application for

granting eviction by a special kind of landlord shall be dealt with

strictly in compliance with the procedure as contained in Section

25-B. Impugned order suffers from no infirmity. Dismissed.

INDERMEET KAUR, J

NOVEMBER 01, 2011 a