Ms.Madhu Gupta vs M/S Gardenia Estates(P) Ltd.
2011 Latest Caselaw 5181 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 21.10.2011

+ CM(M) No.1239/2011, CM Nos.19530-31/2011 & CAVEAT
No.958/2011

MS.MADHU GUPTA                                 ...........Appellant
                          Through:   Mr.V.K.Rao, Sr.Advocate with
                                     Ms.Ekta    Kalra,  Advocate,
                                     Advocate.
                     Versus

M/S GARDENIA ESTATES(p) LTD.            ..........Respondent
                  Through: Mr.P.D.Gupta and Mr.Kamal
                             Gupta, Advocates.

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 Amit Deep Kohli of the disputed

premises for his residence. The disputed premises are the ground

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

has been tenanted out to the tenant/petitioner namely Madhu

Gupta. Application for leave to defend had been filed on

23.7.2010; present application seeking amendment of the said

application for leave to defend had been filed about ten months

later i.e. on 09.5.2011. 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 Amit Deep Kohli is a director in

other holding companies of the petitioner as well and details of

the said companies have been given para 3 of the said application;

contention being that the present petition has been filed only to

harass the petitioner as other properties are also available with

the petitioner company; further contention being that the

company Speed Lines Pvt. Ltd. has commercial flats at six places

details of which have been mentioned in the said application;

there is no bonafide need of the present accommodation; the

application further wishes to incorporate the factum that the

tenant is an old ailing lady staying alone at the aforenoted

premises and the intent of the legislation i.e. the Delhi Rent

Control Act would be destroyed if such like petitions are allowed.

This is the gist of the amendment application.

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 urged that the properties which have been detailed in the

application for amendment stating that Amit Deep Kohli is a

director of the aforenoted company which has commercial flats at

various places, are all located in Gurgaon; submission is 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 his family is small to accommodate his wife and two

children.

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.

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 Sing (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. 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 Amit Deep

Singh who is seeking this eviction order for the personal residence

for his wife and two children. These facts were 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.

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 OCTOBER 21, 2011 nandan