Royal Nepal Airlines Corporation vs Uoi And Anr
2011 Latest Caselaw 5018 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 12th October, 2011
+        W.P.(C) 1409/2011, CM No.3023/2011 (for stay), CM
         No.3193/2011 (for direction), CM No.7515/2011 (of respondent
         no.2 for vacation of interim order) & CM No.11703/2011 (of the
         respondent no.2 for early hearing)

%        ROYAL NEPAL AIRLINES CORPORATION        ..... Petitioner
                     Through: Mr. Ramashanker, Adv.

                                   Versus

         UOI AND ANR                                         ..... Respondents
                            Through:      Mr. Ravinder Agarwal, Advocate
                                          for R-1.
                                          Mr. Sanjeev Sindhwani & Ms. E.K.
                                          Sikari, Advocates for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may        Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             Not necessary

3.       Whether the judgment should be reported            Not necessary
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the letter dated 8 th/17th May, 2002 of the

Ministry of External Affairs, Govt. of India to the respondent no.2 M/s

Shrishti Properties Pvt. Ltd. informing the respondent no.2 that the

petitioner being a State-owned concern of the Royal Nepal Government

and being an entity, can sue and be sued and the matters concerning, in

particular, rent/lease etc. are exempted from Central Government's

permission under Section 86 of CPC. The petition also impugns the

institution by the respondent no.2 on the basis of the said letter of a petition

for eviction of the petitioner from Premises No.44, Janpath, New Delhi

under the provisions of the Delhi Rent Control Act, 1958. The petitioner

contends that it enjoys the protection of Section 86 of the Civil Procedure

Code, 1908.

2. Notice of the petition was issued. Upon the counsel for the petition

citing the judgment of the Division Bench of this Court in Royal Nepal

Airlines Corporation Vs. Arun Jain 149 (2008) DLT 505 vide ex parte

order dated 4th March, 2011 the operation of the order dated 8 th/17th May,

2002 stayed. Vide subsequent ex parte order dated 5th March, 2011, the

eviction of the petitioner in pursuance to the eviction order passed in

eviction petition aforesaid, also stayed.

3. The respondent no.2 upon being served with the notice of the

petition and the ex parte order, applied for vacation of the interim order

and thereafter for early hearing. Though advance notice of the said

applications was served on the counsel for the petitioner but the counsel

for the petitioner failed to appear forcing notice of the applications to be

issued.

4. Now when the notice has been served, the counsel for the petitioner

appears and first seeks an adjournment on the ground that the senior

counsel engaged is not available today. However the non-availability of

the senior counsel cannot be a ground for adjournment particularly when

the petitioner after obtaining interim order from this Court has chosen to

play hide and seek.

5. The counsel for the petitioner next states that the revision petition

filed by the petitioner against the order of eviction is listed next before this

Court on 1st November, 2011 and this petition be taken up thereafter.

6. However the same is also no ground for adjournment inasmuch as

the two are separate proceedings. Rather, the petitioner has in these

proceedings obtained stay of his eviction. The counsel for the respondent

no.2 also states that there is no stay of the eviction order in the revision

petition.

7. The matter otherwise is no longer res integra. The Apex Court in

Ethiopian Airlines Vs. Ganesh Narain Saboo 2011 (8) SCALE 549 has in

para 58 thereof in the context of the fora under the Consumer Protection

Act held that the provisions of Section 86 of the CPC are not applicable to

the proceedings before those fora. The counsel for the respondent no.2

points out that Section 13(4) of the Consumer Protection Act, 1986

considered by the Apex Court is in pari materia to Section 36(2) of the

Delhi Rent Control Act, 1958. The Apex Court in para 70 of the said

judgment has also held the provisions of Section 86 to be not applicable to

entities such as the petitioner.

8. In the light of the said judgment of the Apex Court, the judgment of

the Division Bench of this Court in Royal Nepal Airlines Corporation

(supra) on the basis whereof notice of this petition was got issued, is no

longer good law.

9. The counsel for the petitioner at this stage seeks to withdraw the

petition and only seeks stay of eviction till 1 st November, 2011.

10. The counsel for the respondent no.2 has been heard on the aforesaid

aspect.

11. Considering that the revision petition is listed on 1 st November,

2011, while dismissing the petition as withdrawn, it is directed that the

petitioner be not evicted in pursuance to the eviction order aforesaid till 1 st

November, 2011.

12. It is however made clear that this Court has not gone into the merits

of the eviction order and that even if the revision petition is not heard for

any reason on 1st November, 2011, the protection granted by this order

shall not be deemed to extend any further.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 12, 2011 bs