Delhi High Court
Sh. Iqramullah vs Sh. Mohd. Subhan & Others on 5 September, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 05.09.2011
+ CM(M) No. 1031/2011 & CM Nos.16553-54/2011
SH. IQRAMULLAH ........... Petitioner
Through: Mr. Himal Akhtar, Advocate.
Versus
SH. MOHD. SUBHAN & OTHERS ..........Respondents
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 The order impugned before this Court is the order dated
01.08.2011 which has dismissed the review petition seeking
review of the order dated 28.08.2010.
2 Vide order dated 28.08.2010 the application seeking leave
to defend filed by the tenant in a petition under Section 14 (1)(e)
of the Delhi Rent Control Act (DRCA) had been dismissed. The
review petition was dismissed vide the impugned order. The only
ground taken in the review petition was that the property No.
29-A, Braham Puri in fact comprises of two properties; this has
not been correctly appreciated by the ARC; property No. 29-A is in
fact located in gali No. 21 as also in gali No. 22. This is an error
which is apparent on the face of the record for which a review had
been sought for which was dismissed.
3 Record shows that the present eviction petition has been
filed by the landlord on the ground of bonafide requirement under
Section 14 (1)(e) of the DRCA. Application for leave to defend had
been filed by the tenant; his contention was that the petitioners
are enjoying two more properties i.e. property No. 29-A which is
located in gali No. 21 as also in gali No. 22, Braham Puri, Delhi
East; need of the petitioners cannot be said to be bonafide; it had
also been contended that petitioners have also inherited other
properties (details of which have been given in para 6 of the
application for leave to defend). These averments made in para 6
of the application for leave to defend had been vehemently denied;
it was contended that the property No. 29-A, Braham Puri, is in
fact a single property and is located in gali No. 22 ; part of it faces
the backside of gali No. 21 and the other portion is on the front
side which is in gali No. 22; 23 persons are residing in that
property; bonafide requirement of the landlord is evident. The
other properties are also tenanted out and are the subject matter
of separate proceedings. In the grounds for review, it had been
contended in sub-para 'C' of the review petition that property No.
652, Chandni Mahal, Delhi-110006 which was under possession of
the tenant Rias has since been vacated; in the corresponding para
of the reply to this review petition it had been submitted by the
landlord that this shop which was in possession of Rias has since
been decreed on the ground of bonafide requirement in favour of
Mohd. Adil and not petitioner No. 1; Mohd. Adil was the landlord
of those premises; bonafide requirement of the petitioners
remained un-effected.
4 In the order dated 28.08.2010 while dismissing the
application for leave to defend the Court had noted that the list of
properties mentioned in para No. 6(a) (in the application for leave
to defend) are the subject matter of other legal proceedings;
moreover, they belonged to other legal representative of deceased
Bandhu; these shops are not available to the petitioners; the
contention that property No. 29-A is two properties was repelled;
the Court had noted that this was a single property; part of it was
facing towards gali No. 21 and part of it was facing gali No. 22;
moreover there were 23 persons living in that property. No
ground for leave to defend had been made out; application was
accordingly dismissed on 28.08.2010. Admittedly the remedy of
revision against such an order was not availed of by the
petitioners; they had sought review of the order which was
dismissed on 01.08.2011.
5 Parameters for review and the guidelines which have to be
adhered to while dealing with a review petition are contained in
Order 47 of the Code; contention in the review petition was
primarily that property No. 29-A comprises of two properties and
not a single property; one is located in gali No. 21 and other is
located in gali No. 22; this being an error apparent on the face of
the record, review had been sought. This review petition seeking
review of the said order had been rightly dismissed on the
premise that this contention was in fact the foundation of the case
of the petitioner in his application for leave to defend; there was
no mistake or error apparent on the face of the record.
6 Learned counsel for the petitioner has placed reliance upon
a judgment of the Apex Court reported in (2001) 1 SCC 255
Santosh Devi Soni Vs. Chand Kiran; this is in support of the
submission that wherever an additional accommodation was
made available to the landlord subsequently, the bonafide need
was thrashed and in such a case, leave to defend should not be
refused. This judgment has no application to the instant case.
Admittedly in the application for leave to defend, there was no
ground taken that the accommodation i.e. property No. 652 has
been vacated; moreover the contention of the landlord always was
that this property does not fall to his share; even in his reply to
the review petition it has been stated that the eviction decree qua
the property No. 652 has been decreed in favour of Mohd. Adil
and does not fall to the share of the present landlord/respondent.
Judgment has no application. Impugned order in no manner
suffers from any infirmity.
7 Dismissed.
INDERMEET KAUR, J.
SEPTEMBER 05, 2011
a
