Sh. Sudesh Kumar Gupta vs M/S. Nirula Handicraft Bazar Pvt ...
2014 Latest Caselaw 3942 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 1233/2012
%                                                     27th August , 2014

SH. SUDESH KUMAR GUPTA                                     ..... Petitioner
                  Through:               Mr. Puneet Goel, Advocate.


                          Versus



M/S. NIRULA HANDICRAFT BAZAR PVT LTD         ..... Respondent

Through: Mr. Amit Sethi, Mr. Mukesh Rajan and Mr. Ishan Khanna, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. No doubt, tenants keep on filing frivolous petitions and frivolous

applications one after the another to delay the disposal of a bonafide

necessity petition under Section 14(1)(e) of the Delhi Rent Control Act,

1958 (hereinafter referred to as 'the Act'), but the present petition is one

which probably is an indication that every trick and in the book is to be used

by hook or crook tenants must ensure that a bonafide necessity petition does

not proceed ahead.

2. The bonafide necessity eviction petition is filed by the

respondent/landlord which is a company and the bonafide necessity eviction

petition has been filed because as per the company, it was carrying on

business at property nos. 10,12 and 14 in Doctor's Lane, Gole Market, New

Delhi having approximately an area of 25000 sq. ft. which was sealed during

the sealing drive in Delhi and also that the same was not enough to

accommodate the business of the respondent/landlord with its 58 employees,

and artisans/workmen etc. It was pleaded in the eviction petition that need

for accommodation was accentuated because two flat nos. 3 and 6 on the

first floor of the property in 1, Doctor's Lane, Gole Market, New Delhi were

available to the respondent/landlord but were got sealed by the NDMC. It

was specifically pleaded in the eviction petition that the respondent/landlord

was only partially able to accommodate his business, workmen, artisans etc

in flat no.3 and 6 (first floor) after the property at nos. 10,12 and 14,

Doctor's Lane, Gole Market, New Delhi were sealed by the Monitoring

Committee. Therefore, the respondent/landlord pleaded a bonafide need of

the tenanted premises being shop no. 6 in property no.1, Doctor's Lane,

Gole Market, New Delhi on the ground floor.

3. The eviction petition was filed in the year 2009 ie about 5 years back.

From the year of 2009 however for some reason or the other the

petitioner/tenant has managed to stall of hearing of the leave to defend

application filed by it.

4. The impugned order is an order dated 18.8.2012 dismissing an

application under Order VI Rule 17 of the Code of Civil Procedure, 1908

(CPC) filed by the petitioner/tenant whereby petitioner/tenant wants inter

alia to bring on record the subsequent events that flat nos.3 and 6 (first floor)

situated in 1, Doctor's Lane, Gole Market, New Delhi have been de-sealed

by the NDMC and hence would be available to the respondent/tenant. This

application has been dismissed by the Additional Rent Controller by

referring to the fact that earlier also similar application was moved under

Section 151 CPC which was dismissed. I may note that order dated

19.4.2011 dismissing the earlier application under Section 151 CPC by the

Additional Rent Controller was challenged by the petitioner/tenant before

this Court in CM(M) No. 835/2011 but this CM(M) was dismissed on

19.10.2011.

5. It is not for this Court to examine the merits of the order dated

19.10.2011 passed by a learned single judge of this Court by which the

petition of the present petitioner being CM(M) No. 835/2011 was dismissed

and which had challenged the order dated 19.4.2011 dismissing the

application under Section 151 CPC of the petitioner/tenant for taking the

same subsequent events now again pleaded to be taken on record qua flat

nos. 3 and 6. Therefore, once finality has been achieved to this issue that the

aspect of desealing of flat nos. 3 and 6 cannot be looked into for deciding the

leave to defend application, I sitting as a Single Judge of this Court cannot

hold that I am not bound by that order dated 19.10.2011 passed in CM(M)

No.835/2011. To complete the narration in this regard it is necessary to state

that the present petitioner had challenged the order dated 19.10.2011 passed

in CM(M) No. 835/2011 by means of an SLP in the Supreme Court, but that

SLP bearing no. 35118/2011 was dismissed by the Supreme Court on

5.1.2012. Therefore, the endeavour of the petitioner to again rake up all the

similar issues of the availability of the flat nos. 3 and 6 is a sheer abuse of

the process of law.

6. For the sake of record I may state, and as already observed above,

that, respondent company has already stated in the eviction petition that even

if flat nos. 3 and 6 are available, the same will suffice to only partially

shifting the business of the respondent/landlord company. Surely, if a

company is very large, and it needs large portions of premises, there would

be a bonafide need, and a tenant cannot for one frivolous reason or the other

keep on delaying and dragging the disposal of the leave to defend

application and hence the bonafide necessity eviction petition.

7. In the application under Order VI Rule 17 CPC besides the petitioner

wanting to incorporate reference to flat nos. 3 and 6, petitioner also sought to

include reference to one shop and one flat namely flat no.1A and shop no. 9

in the same property. As regard these facts it is required to be noted that so

far as the subsequent events which take place after the period of 15 days for

filing of the leave to defend application is concerned, possibly courts as per

the facts and circumstances of a case may entertain such an application for

bringing on record the subsequent events, however, so far as facts and events

which exist prior to expiry of 15 days statutory period of filing of leave to

defend application is concerned, anything and everything qua such facts and

events must necessarily be stated within the statutory period of 15 days of

filing of the leave to defend application inasmuch as it has been held by the

Supreme Court in the case of Prithipal Singh Vs. Satpal Singh (dead)

through LRs (2010) 2 SCC 15, that a delay in filing of the leave to defend

application cannot be condoned even for one day beyond 15 days ie after the

period of 15 days no fact can be added by amending of the leave to defend

application because that will amount to considering facts and documents

after the period of 15 days prescribed for filing of the leave to defend

application. A learned Single Judge of this Court in the case of Ms. Madhu

Gupta Vs. M/s Gardenia Estates (P) Ltd. 184 (2011) DLT 103 by applying

the ratio in the case of Prithpal Singh's case (supra) has held that no

amendment can be permitted to a leave to defend application as that will

destroy the sanctity of the statutory 15 days period which period has been

held cannot be extended vide Prithpal Singh's case (supra).

8. Therefore, since it is not the case of the petitioner that flat nos. 1A and

shop no.9 have fallen vacant after the period of 15 days of filing of the leave

to defend application viz. they are events and facts prior to happening of the

15 days period of filing of the leave to defend application such facts cannot

be permitted to be added by means of amendment in view of the decision of

a learned Single Judge of this Court in the case of Ms. Madhu Gupta

(supra).

9. A reading of the aforesaid facts shows that the petitioner/tenant is

grossly abusing the process of law. The matter with respect to flat nos. 3

and 6 achieved finality in terms of the order of a learned Single Judge of this

Court dated 19.10.2011 in CM(M) No. 835/2011 and which order was

sustained by the Supreme Court when the SLP of the petitioner was

dismissed on 5.1.2012. Petitioner however does not want to stop filing

repeated petitions/applications and which is nothing but a gross abuse of the

process of law.

10. In view of the above, this petition is dismissed with actual costs.

Respondent will file an affidavit of its authorized official accompanied by

certificate of fees which its advocates have received with respect to this

petition, within a period of four weeks, and fees paid by the respondent to its

advocates for the present petition will be costs which shall be paid by the

petitioner to the respondent. Costs shall be paid after a period of four weeks

of receiving of the affidavit of costs to be filed by the respondent. While

dismissing this petition, the Additional Rent Controller is directed to ensure

that the leave to defend application of the respondent is positively heard and

decided within a period of two months of the receipt of copy of the present

order.

AUGUST 27, 2014                                 VALMIKI J. MEHTA, J
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