O.P.Khaitan Karta Of O.P.Khaitan ... vs Digjam Ltd. & Ors
2012 Latest Caselaw 1795 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Judgment: 15.03.2012

+CM(M) No.1433/2004 & CM No.13544/2004 & CM No.11701/2007

O.P.KHAITAN KARTA OF O.P.KHAITAN (HUF)
                                    ..... Petitioner
                 Through: Mr.Ramesh Singh, Advocate.

              versus
DIGJAM LTD. & ORS.                                ..... Respondents
                          Through:     Mr.R.C.Bhalla , Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Petitioner is aggrieved by the order dated 24.7.2004 wherein his

application filed under Order 1 Rule 10 of the Code of Civil Procedure

(hereinafter referred to as the Code) had been dismissed.

2. This judgment has emanated out of proceedings pending under

Section 9 of the Delhi Rent Control Act (hereinafter referred to as the

DRCA); this relates to fixation of standard rent.

3. Contention of the applicant (seeking impleadment) was to the

effect that he is the actual tenant and his presence in the present

proceedings would be necessitated as fixation of standard rent without

the presence of the tenant cannot be effectively carried out.

4. Record shows that on 23.7.1971 an agreement was entered into

between the owner Birender Amarjit Singh and the original tenant

(GMCC); landlord was to give a flat to GMCC or their

assignee/successor; a deed of assignment dated 30.11.1987 was

executed between GMCC and the present applicant (O.P.Khaitan); a

further agreement dated 26.9.1989 was entered into between the

applicant and the appellant i.e. VXL India Ltd. wherein the applicant

had agreed to sublet these premises to VXL India Ltd. which agreement

was executed by the attorney holders of the applicant namely

P.K.Khanna and B.Rathke.

5. Section 9 of the DRCA permits the Controller to fix standard rent.

Such an order would be passed on an application filed in the prescribed

manner either by the landlord or tenant; what is clear from this provision

is that the relationship of landlord and tenant is a pre-requisite before an

order can be passed under this statutory provision. The existence of a

relationship of landlord and tenant is a condition precedent to the

assumption of jurisdiction by the Controller; it is also clear that this

jurisdiction cannot be conferred by consent. If the relationship of

landlord and tenant is denied Controller must decide this question.

6. The facts of this case show that this is a petition which has been

filed by the tenant VXL India Ltd. against the landlord Birender Amarjit

Singh. It is not the case of the landlord that they do not share a

landlord-tenant relationship.

7. Vehement contention of the petitioner before this court is that

VXL India Limited is only a sub-tenant and the present petitioner/O.P.

Khaitan is the tenant and as such his impleadment in the present

proceedings is both necessary and proper; parties would be relegated to

further litigation in case this relationship of landlord and tenant is

invited between Birinder Amarjit Singh and VXL India Limited;

impugned order dismissing his application thus suffers from an

infirmity.

8. As noted supra, this is a petition under Section 9 of the DRCA; it

is a summary procedure; the Controller to assume jurisdiction in this

case must prima facie hold that there is a relationship of landlord and

tenant between the parties who are before him; contention of the VXL

India Limited is that he is the tenant in the premises and he had sought

fixation of standard rent from the Controller.

9. Counsel for the respondent/non-applicant has also drawn

attention of this court to the order of the Apex Court dated 08.12.1992

wherein it had been noted that in compliance of the directions of the

Apex Court possession of the flat in question had been delivered to VXL

India Limited; vehement contention being that VXL India Limited is in

fact the tenant in the suit premises.

10. Be that as it may, for the purposes of deciding the controversy in

question which is emanating out of the proceedings under Section 9 of

the DRCA, this court is of the view that the presence of the present

petitioner is neither necessary nor proper. The test for dealing with an

application under Order 1 Rule 10 of the Code of Civil Procedure is that

if the parties seeking impleadment is not allowed or permitted to be

impleaded, the suit pending between the parties cannot effectually be

adjudicated upon. A necessary party is a party in whose absence no

decree can be passed and the suit has to be dismissed for want of the

necessary party; a proper party is whose presence enables the court to

adjudicate the dispute effectively and completely. Present petitioner

does not fall in either of the aforenoted two categories. Unless and until

there is a flagrant injustice which is caused to one party or there is an

open travesty of justice which has accrued qua a party interference by

the High Court in its powers of superintendence under Article 227 of the

Constitution of India is not called for. The right of second appeal has

since been abrogated and Section 39 of the DRCA has been deleted.

Powers of superintendence under Article 227 of the Constitution of

India is not a substitute for an appellate forum.

11. Reliance by the learned counsel for the petitioner upon the

judgment reported in 2007 (10) SCC 82 titled as Sumitbai and ors. vs.

Paras Finance Co. Regd. Partnership Firm and 113 (2004) DLT 880

titled as Renu Vij vs. Daljeet Singh Bhatia is misplaced.

12. This court is of the view that the party who is necessary or proper

must be impleaded but in the absence of the applicant falling in either of

the category, it cannot be said that his presence is either necessary or

proper.

13. Impugned order in this background suffers from no infirmity.

Petition is without any merit; dismissed.

INDERMEET KAUR, J MARCH 15, 2012 nandan/rb