Delhi High Court
Rakesh Gupta & Anr. vs Ashok Dilwali on 12 March, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ R.C.R.NO. 62 OF 2010
Date of Decision: 12th March, 2012
# RAKESH GUPTA & ANR. ..... Petitioners
Through: Mr. Ramji Srinivasan,Sr. Advocate
with Mr. P.K. Jha, Mr. P.K Saini &
Ms. Alka Srivastava, Advocates
Versus
$ ASHOK DILWALI .....Respondent
Through: Mr. Anoop Choudhary, Sr. Advocate
with Mr. Rishi Malhotra, Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J:
This petition under Section 25-B(8) of the Delhi Rent Control Act,
1958(hereinafter called 'the Rent Act') has been filed by the
petitioners-landlords against the order dated 15.01.2010 passed by the
learned Additional Rent Controller whereby the application filed by
the respondent-tenant seeking leave to defend the eviction petition
filed against him and his brother Mr. Kailash Dilwali by the
petitioners-landlords under Section 14(1)(e) of the Rent Act for their
eviction from property no.A-2 Connaught Place, New Delhi
(hereinafter referred to as 'the tenanted premises') was allowed and he
was permitted to contest the eviction petition.
2. The eviction petition was filed against the respondent and his
brother as the legal heirs of their father late Shri B.K.Dilwali who had
been initially let out the tenanted premises by the grandfather of the
petitioners. The relevant averments made in para no.18 (a) of the
eviction petition on the basis which eviction of the respondent and his
brother was sought are reproduced below:-
"That the petitioners are the owners and the landlords of the
premises, and require the premises for their own use. The premises
were let out to Late Shri B.K Dilwali, father of the respondents at a
monthly rent of about Rs. 389.10, about 65 years ago.
That, as stated above in para 8, the premises comprise an area of
1800 sq. ft on ground floor + 500 sq. ft. On mezannine floor + 400
sq. ft. of open space as courtyard and are located in a central and
prestigious commercial area and are most suited for resto-bar.
The petitioners submit that Ishan Nath, son of Shri Rakesh Gupta,
petitioner no.1 has just finished his education and requires the
premises to run business of bar-cum-restaurant, which is well suited
to the premises. He is dependent on the petitioner for accommodation
to run the business. The demised premises is located in the heart of the
metropolis, in a sought after area and is ideal for this business.
Offices and showrooms of multinationals, airlines and foreign banks
are located in the vicinity and metro station just abutts the premises.
Ishan Nath requires the said premises since he has no other suitable
place for this venture. The petitioner can finance the business."
3. The eviction petition was filed under Section 14(1)(e) of the
Rent Act which had to be dealt with in accordance with the special
procedure prescribed under Section 25-B of the Rent Act and the two
respondents-tenants were required to seek permission of the
Additional Rent Controller to contest the eviction petition as per the
requirement of Section 25-B(4) of the Rent Act within fifteen days
from the date of receipt of the summons.
4. The respondent herein had filed an application seeking leave to
defend the eviction petition and the Additional Rent Controller
granted him the leave sought for vide impugned order.
5. Feeling aggrieved by the grant of leave to contest to the
respondent-tenant the petitioners filed the present revision petition.
6. Learned senior counsel for the respondent had raised an
objection that this revision petition itself is not maintainable in view of
the proviso to Section 25-B(8) under which a revision petition would
lie only at the instance of a tenant if an order for eviction is passed by
the Rent Controller in an eviction petition which has been dealt with in
accordance with the procedure prescribed under Section 25-B of the
Rent Act. On merits, learned senior counsel fully supported the
decision of the learned Additional Rent Controller and submitted that
the trial Court has rightly come to the conclusion that the respondent-
tenant had raised triable issues and so he should be given a chance to
establish the same during trial.
7. Learned counsel for the petitioners-landlords had argued that
this petition is very much maintainable in view of the decision of a
Division Bench of this Court in the case of "R.S.Bakshi vs
H.K.Malhari & anr.", 2002(62) DRJ 272 wherein it had been held
by the Division Bench, after noticing the two Judge Bench decision of
the Apex Court in ""Major D.N. Sood vs. Shanti Devi"; 1997 (10)
SCC 428, which has been strongly relied upon by the learned senior
counsel for the respondent in support of the submission that a revision
petition at the instance of a landlord is not maintainable, that a
revision petition at the instance of a landlord who is aggrieved by the
grant of leave to defend the eviction petition to a tenant, is also
maintainable. That view was taken by the Division Bench relying upon
an earlier three Judge Bench decision of the Supreme Court in "Vinod
Kumar Chaudhary vs. Smt. Narain Devi";AIR 1980 Supreme Court
2012, wherein it had been held that a revision petition even at the
instance of a landlord is also maintainable under Section 25-B(8) of
the Rent Act. This decision of the Division Bench has been followed
by a Single Judge Bench of this Court in the case of "Sanjay Mehra v.
Sunil Malhotra"; 2010, DRJ (117) 654.
8. Learned counsel for the respondent, while responding to the
submissions made by the learned counsel for the petitioner regarding
the maintainability of this petition in view of the Division Bench
decision of this Court in R.S.Bakshi's case(supra), had submitted that
though the Division Bench has held the Supreme Court's decision in
Maj. Sood's case (supra) to be per incuriam because of the fact that
earlier three Judges Bench judgment of the Supreme Court in "Vinod
Kumar Chaudhary vs. Smt. Narain Devi":AIR 1980 Supreme Court
2012 was not brought to the notice of the two Judges Bench which had
given the judgment in Major Sood's case, but that could not be said by
the Division Bench of the High Court in respect of a judgment of the
Apex Court.
9. After having heard learned counsel for the parties I am of the
view that as far as the objection raised on behalf of the respondent -
tenant that revision petition at the instance of the landlord is not
maintainable is concerned, the same is liable to be rejected since after
taking note of the two conflicting judgments of the Hon'ble Supreme
Court on this aspect, one of which was rendered by a three Judges
Bench in "Vinod Kumar Chowdhary vs. Narain Devi Taneja", 1980
SC 2012 and the other one was rendered in the year 1997 by a two
Judges Bench in "Major D.N. Sood v. Shanti Devi"; 1997 (10) SCC
428, a Division Bench of this Court in "R.S.Bakshi vs H.K.Malhari &
anr.", 2002(62) DRJ 272 has already concluded that the judgment of
the Hon'ble Supreme Court in Maj. D.N. Sood's case was per
incuriam since the earlier three Judges Bench judgment of the Hon'ble
Supreme Court in Vinod Kumar Choudhary's case(supra) had not been
brought to the notice of the two Judges Bench which had heard Maj.
D.N.Sood's case. That decision of the Division Bench was, as noticed
already, later on has been followed by a Single Judge Bench of this
Court in the case of "Sanjay Mehra & Ors. Vs. Sunil Malhotra &
Anr.", 2010 (117) DRJ 654. Learned counsel for the respondent had
submitted that the Division Bench of this Court could not have held
the judgment of the Hon'ble Supreme Court in Major D.N.Sood's
case(supra) to be per incuriam. Alternatively, it was also suggested
that this legal controversy should be got resolved by recommending to
the Hon'ble Chief Justice constitution of a Full Bench to decide
whether the Division Bench could have held the judgment of the
Supreme Court in Maj. D.N.Sood's case(supra) to be per incuriam or
not.
10. However, I am of the view that it is not necessary for me to
make a recommendation for the constitution of a Full Bench in view of
the fact that a Division Bench of this Court has already considered this
very controversy regarding the maintainability of a revision petition at
the instance of a landlord and has also taken note of the two
conflicting judgments of the Supreme Court and has come to the
conclusion that a revision petition at the instance of an unsuccessful
landlord is also maintainable under Section 25-B(8) of the Rent Act.
So, judicial discipline requires this Single Bench to follow that
decision of the Division Bench and judicial consistency also requires
this Bench to follow the Single Judge Bench judgment of this Court in
Sanjay Mehra's case(supra) . So, I reject this preliminary objection of
the respondent-tenant.
11. Now I come to the petitioners' challenge to the impugned order
of the learned Additional Rent Controller granting leave to defend the
eviction petition to the respondent. At the outset, learned senior
counsel for the petitioner had submitted that the learned Additional
Rent Controller should not have entertained the prayer of the
respondent for leave to contest the eviction petition since he had not
filed any affidavit disclosing the facts which would have entitled him
to the leave sought for and so this revision petition deserves to be
allowed on this short ground alone. He drew my attention to the
following observations of the learned Additional Rent Controller made
in the impugned while rejecting the same plea which was raised there
also:-
"I have perused the affidavit filed along with application for leave to
contest. The affidavit find mention name of the deponent as Kailash
Dilwali but, the signature of swearing person, who has sworn this
affidavit, are of Ashok Dilwali. The name of Kailash Dilwali in the
starting of the affidavit may be mentioned due to typographical
mistakes. It is established law that disputes between the parties must
be adjudicated on merits and technicalities must not be come in the
way of merits of the case. So, to my mind, the objection taken by the
petitioner is not sustainable........................."
Learned senior counsel submitted that this view of the learned
Additional Rent Controller is contrary to the judgment of this Court in
"Vidya Sagar vs Smt. Shakuntala Devi", 1991 All India Rent
Control Journal 660 in which it was held that an unattested affidavit
is no affidavit in the eyes of law and cannot be considered while
considering the prayer of a tenant for grant of leave to contest, while
in the present case there was no affidavit at all of the respondent filed
with the leave to contest application but still the respondent has been
granted the leave to contest. This judgment, counsel submitted, had
not even been referred to in the impugned order even though its copy
is a part of the trial Court's record.
12. Learned senior counsel for the respondent, on the other hand,
maintained that the defect in the affidavit in question, though there
was none and it is a case of only a typographical mistake as observed
by the Controller also, was a curable defect and had been rightly not
given any importance by the Additional Rent Controller. It was also
submitted that the respondent has in any case now placed on record in
this petition a fresh affidavit of the tenant and so the defect, if at all
there was any, stands cured and this Court should accept that affidavit
and in that way this Court would be doing substantial justice in the
matter instead of rejecting the case of the respondent only due to this
technical defect.
13. In order to appreciate the rival submissions on this aspect of the
matter I have perused the trial Court record and find that alongwith the
application filed by the respondent seeking leave to contest the
eviction petition he had also submitted an affidavit. In the two
paragraph affidavit the first page reads as under:-
" I Kailash Dilwali S/o Late B.K.Dilwali R/o 22, Jor Bagh, New
Delhi, do hereby solemnly affirm and declare as under:
1. I am the respondent no.1 and as such well conversant with the
facts and circumstances of the case; hence I am competent to swear
this affidavit.
2. That the accompanying application for leave to defend has
been drafted by my counsel under my instructions and the same has
been read over to me in vernacular, the contents of the same are true
and correct to my knowledge and belief."
The second page of the so-called affidavit of the respondent has
only the verification para and the same is re-produced below:-
"Sd/-
DEPONENT
VERIFICATION:
I, the abovenamed deponent, do hereby verify, at Delhi on this 04 Aug.
2008 that the contents of the above affidavit are true and correct to my
knowledge and belief and no part of it is false and untrue and nothing
material has been concealed there from.
Sd/-
DEPONENT"
The stamp of the Oath Commissioner also shows that the
deponent who had appeared before him was Kailash Dilwali and not
Ashok Dilwali, the respondent herein. The Additional Rent Controller
did not notice the Oath Commissioner's endorsement to the effect that
he was attesting the affidavit of Kailash Dilwali.
14. It is thus clear that the respondent herein had not filed any
affidavit at all seeking leave to contest the eviction petition. The
learned Additional Rent Controller thus went totally wrong in
rejecting the plea of the petitioners-landlords that this affidavit should
not be considered to be an affidavit of the respondent-tenant and
committed a serious illegality in accepting the same and giving leave
to contest to the respondent-tenant. This was not a case of a curable
defect at all. Instead, there is a fatal infirmity in the respondent's case.
A tenant is supposed to seek permission from the Controller to contest
the eviction petition filed under Section 14(1)(e) of the Rent Act by
filing an affidavit within fifteen days from the date of receipt of
summons pleading such facts as would disentitle the landlord from
obtaining an eviction order. That period of fifteen days within which
the affidavit of the tenant is to be filed is not extendable even for a day
and failure to file the affidavit has to result in the passing of an
eviction order against the tenant. This Court in Vidya Sagar's
judgment(supra) relied upon by the petitioners-landlords had not
accepted the affidavit which was not attested by the oath
commissioner while in the present case there is no affidavit at all of
the respondent-tenant filed within the prescribed period. Therefore, by
placing on record now the affidavit of the respondent, and that too
without any permission of the Court, the respondent cannot escape the
consequence of his not filing an affidavit along with his application
for leave to contest within the prescribed period. The mandate of the
Legislature that the affidavit of the tenant has to be filed within fifteen
days of the receipt of the summons of the eviction petition filed a
landlord on the ground of bona fide requirement cannot be set at
naught even by this Court by considering the affidavit which has now
been filed by the tenant in this revision petition. I am thus in full
agreement with the submission made on behalf of the petitioners-
landlords that this petition deserves to be allowed on this ground alone
without going into any other aspect and an eviction order has to be
passed against the respondent also, as had been passed against his
brother on 03-09-2008 for not seeking leave to contest the eviction
petition.
15. This revision petition is, therefore, allowed and the impugned
order passed by the learned Additional Rent Controller granting leave
to contest to the respondent herein is set aside. Consequently, an
eviction order is also passed against the respondent in respect of the
tenanted premises but he is granted six months time to vacate.
P.K. BHASIN, J
MARCH 12, 2012
