Verma Leather Factory And Tannery ... vs Gulshan Rai
2011 Latest Caselaw 5074 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       RC. REV. 286/2010
+                             Date of Decision: 14th October, 2011

#      VERMA LEATHER FACTORY AND
       TANNERY PVT LTD                             ... Petitioner
!                  Through: Mr. Pradeep Diwan, Sr. Advocate
                              with Mr. Dalip Mehra &
                              Ms. Anupam Dhingra, Advocates
                          versus
$      GULSHAN RAI                            ....... Respondent
                        Through: Mr. Amardeep Singh, Adv.

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

1.     Whether Reporters of local papers may be allowed
       to see the judgment? (No)
2.     To be referred to the Reporter or not? (No)
3.     Whether the judgment should be reported in the digest? (No)


                                 ORDER

P.K BHASIN, J:

This petition under Section 25-B (8) of the Delhi Rent Control Act,

1958 (hereinafter called 'the Act') has been filed by the petitioner against

the order passed by the Additional Rent Controller whereby the

application for leave to contest the eviction petition filed against it and two

others by the respondent under Section 14(1) (e) of the Act in respect of

the premises in question was dismissed and consequential eviction order

came to be passed against it.

2. The respondent claimed to have let out the premises in question to

one Mr. B.N.Verma and after his death the tenancy allegedly devolved

upon his two sons who were impleaded in the eviction petition as

respondents no.1 and 2. The petitioner-Company was also impleaded as

respondent no. 3 though it was claimed by the respondent that his tenants

were respondents no. 1 and 2 only and in some other legal proceedings

between the petitioner Company and the respondent it had been held that

this Company was not the tenant in respect of the premises in question. It

was however pleaded that the petitioner Company was occupying the

premises in question for its business and Mr. B.N.Verma, respondent no.2

in the eviction petition, was claiming to be its Director. The circumstances

under which the present petitioner came to be impleaded as a respondent

in the eviction petition were narrated in detail in para no.18(a) of the

eviction petition and the relevant averments are re-produced below:-

"18(a) (1). That the premises shown in red and yellow colours in plan were in the tenancy of Shri. B.N Verma, in his personal capacity. He had set up business in the said premises, in the name of "Varma Leather Factory And Tannery Private Limited" some time after the commencement of his tenancy......... Some time thereafter Shri. Gulshan Rai petitioner became owner of the property by purchase from its previous owner............ Shri B.N. Verma had died and his tenancy rights in respect of premises shown red in the plan were inherited by his widow and two sons namely Shri S.N. Verma and Shri R.N. Verma. At present business is being carried on in the name of Verma leather Factory and Tannery Private Limited in which Shri R.N. Verma, younger son of Shri B.N. Verma is claiming to be director.

M/s Verma Leather Factory and Tannery Private Limited, was and is not a tenant of the premises. This fact is established by order dated 02.08.2005 passed by Shri Daya Parkash Senior Civil Judge, Tis Hazari, Delhi in petition No. 153/2005. On the strength of the said order, Shri M.K. Nagpal, competent authority (Slums) in case No. CA(S) (i) 8506/95 had passed order dated 02.02.2008 at the instance of Verma Leather Factory and Tannery Private Limited, against Shri Gulshan Rai that the relationship of landlord and tenant between the petitioner and the aforesaid company was not established...............................

After the death of Shri B.N. Verma his widow died and Shri S.N. Verma and Shri R.N. Verma, being sons, became tenants of red portion by inheritance.

In the light of aforesaid facts Shri Gulshan Rai, petitioner is the owner/landlord of premises shown in red colour on the plan and Shri S.N. Verma and Shri R.N. Verma, both sons of Shri B.N. Verma, are his tenants in respect of said portion."

3. The learned Additional Rent Controller directed issuance of

summons of the eviction petition as prescribed in Schedule III of the Act

to all the three respondents impleaded in the eviction petition requiring

them to seek leave to contest the eviction petition within a period of fifteen

days from the date of receipt of the summons. Respondent no.1 in the

eviction petition, Shri S.N.Verma was served on 19.02.2009 but he did not

file any leave application within the prescribed period of fifteen days from

the date of receipt of summons. Consequently, the averments made in the

eviction petition were deemed to have been admitted by him and an

eviction order came to be passed against him on 03.12.2009. Shri R.N

Verma, impleaded as respondent no.2 in the eviction petition as a joint

tenant was served on 20.02.2009 and he filed the leave to contest

application within the prescribed period and claimed that he was not the

tenant and respondent no.3, petitioner herein was the tenant. However, that

application was dismissed by the Additional Rent Controller and while

dismissing the same an order was also passed for the deletion of the name

of Mr. R.N.Verma from the eviction petition.

4. The petitioner herein was also served on 20.02.2009 with the summons

of the eviction petition but it did not move any application for leave to

contest. Instead, it moved an application under Order VII Rule 11 read

with Section 151 CPC challenging the maintainability of the eviction

petition against it on the ground that since the landlord was not

acknowledging it to be his tenant the eviction petition was not

maintainable. The said application was dismissed by the trial Court and an

eviction order was passed against it also since it had not filed the leave to

defend application within the prescribed time .

5. Feeling aggrieved by the eviction order passed by the Additional

Rent Controller against it the petitioner Company filed the present revision

petition.

6. After having gone through the impugned order and having perused

the record, I am of the view that the impugned order is not in accordance

with the law and has to be set aside. From the fore-going narration of the

facts of the case it becomes clear that it was the categorical case of the

respondent-landlord that only Shri S.N. Verma and Shri R.N. Verma, who

were impleaded by him in his eviction petition as respondents no. 1 and 2

respectively, were his tenants. It was also categorically pleaded by him

that the present petitioner was not his tenant. However, only in the prayer

para it was prayed that if respondent no. 1 and 2 plead that the said

Company was the tenant and the Court also comes to the conclusion that it

was the tenant, then an eviction order be passed against it. As noticed

already, respondent no. 1 in the eviction petition, who according to the

respondent's own case was a tenant, had not filed any leave to contest

application and consequently an eviction order was passed against him on

3rd December, 2009 and respondent no.2 Shri R.N Verma was ordered to

be dropped from the proceedings. With the passing of the eviction order

against Shri R.N. Verma nothing more survived in the eviction petition

and the proceedings against the present petitioner should have been

terminated at that stage itself leaving it to the respondent herein to execute

the eviction order against Shri S.N. Verma. The learned Additional Rent

Controller had himself observed that the respondent no.1 was deemed to

have admitted the averments in the eviction petition, which included the

averment that he was a tenant and not the Company(petitioner herein).

Thus, no dispute remained to be resolved by the Controller regarding the

status of the petitioner Company qua the premises in question. Thereafter,

there was no occasion for the Additional Rent Controller to have passed a

second eviction order in the same eviction petition and that too against a

party who was not being accepted by the landlord to be his tenant.

Reference at this stage can also be made to a judgment of this Court in the

case of "Sri Pal Jain vs. Brij Kishore & Others", 22 (1982) DLT 137

wherein it had been held by this Court that when in an eviction petition

under Section 14(1)(e) of the Act somebody who is not claimed by the

landlord to be a tenant is also impleaded then that person need not even

apply for leave to defend and, in fact, even the procedure under Section

25-B does not apply to such a petition. However, since in the present case

already an eviction order stands passed against Mr. S.N.Verma and the

same has attained finality also and I have also come to the conclusion that

with the passing of the eviction order against the person who according to

the respondent was his tenant further proceedings in the matter should

have been terminated there and then I need not go into the question

whether the decision of the Controller to follow the procedure under

Section 25-B of the Act from the very beginning was proper or not.

7. This revision petition accordingly succeeds. The impugned eviction

order passed against the petitioner-Company by the Additional Rent

Controller is set aside. However, it is clarified that in case the respondent

would seek the eviction of the petitioner Company also in execution of the

eviction order passed against Mr. S.N.Verma it would then be open to it to

resist the execution of the eviction order against it in accordance with law

and the concerned Court shall deal with its case independently on merits

since neither the Additional Rent Controller nor this Court has examined

the merits of the petitioner's stand that it was the tenant in the premises in

question and not Mr. S.N. Verma and his brother Mr. R.N Verma.

P.K. BHASIN,J

October 14, 2011/sh