Delhi High Court
Deepak Gupta vs Sushma Aggarwal on 24 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: July 24, 2014
+ R.P.No.576/2013 in RC. REV. No.180/2013
DEEPAK GUPTA ..... Petitioner
Through Mr.J.P. Sengh, Sr. Adv. with
Mr. Anil Pruthi, Adv. with
Mr. Anuj K.Rajvanshi, Adv.
versus
SUSHMA AGGARWAL .....Respondents
Through Mr. Kirti Uppal, Sr. Adv with
Mr. Anuj Jain & Mr. Anshumaan
Sahni, Advs.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. Brief facts for the purpose of deciding the present review
application are:-
(a) The respondent had filed a petition seeking eviction of the
petitioner from tenanted premises i.e. one godown (behind
shop bearing No.2700) comprised in property bearing No. 10-
E, Munde Walan Street, Sadar Thana Road, Delhi - 110006
(hereinafter referred to as the 'suit property') which was let out
to the father of petitioner namely Shri O.P.Gupta in the year
1952 by the erstwhile owner of the property Sh. Prithvi Chand
Goel. The property came to the share of the respondent by
way of Will of the erstwhile owner.
(b) The respondent instituted the proceedings against the
petitioner under the provisions of the Delhi Rent Control Act,
1958 (hereinafter referred to as "the Act") whereby the
respondent pleaded that the tenanted premises is required on
the ground of the bonafide necessity. The said eviction
proceedings were registered as Eviction Petition No.58/2008
before the learned Rent Controller. Thereafter, the respondent
withdrew the said proceedings before the learned Rent
Controller by filing an application seeking withdrawal. By way
of order dated 2nd February, 2012, the learned Rent Controller
allowed the respondent to withdraw the proceedings.
(c) Later on, the respondent again filed the petition under the
provisions of the Act before the learned Rent Controller
seeking the eviction of the petitioner on the ground of the
bonafide necessity. The said eviction was registered as
eviction petition No.48/2012. The summons were issued in the
said proceedings.
(d) The petitioner pursuant to summons filed the application as
per the provisions of Section 25-B (iv) of the Act seeking leave
to defend along with his affidavit. The respondent filed the
reply to the said application filed by the petitioner seeking
leave to defend and also disputed the grounds as raised by
the petitioner questioning her need.
(e) During the pendency of the aforesaid petition, the respondent
had sold the first floor of the property Nos. 2621, 2623, 2696-
2700, Plot No. 10-E (East), situated at Mundewalan Road,
Sadar Thana Road, Delhi-110006 vide registered sale deed
dated 28th August, 2009 and gifted one godown of the
property Nos.2621, 2623, 2696-2700 by way of Gift Deed
dated 28th August, 2009 to her nephew Sh. Deepak Goyal.
(f) The matter thereafter was eventually heard by the learned
Rent Controller and on 5th January, 2013, the learned Rent
Controller proceeded to pass an order dismissing the
application filed by the petitioner and declining the leave to
defend.
2. Aggrieved by the order dated 5th January, 2013, the
petitioner filed Revision Petition raising several grounds which as
per the petitioner makes the order contrary to law and warrants
interference of this Court under the provisions of Section 25B of
the Act.
3. By judgment dated 24th July, 2013 of this Court the
impugned order dated 5th January, 2013 was set aside and leave
to defend was granted. The revision petition was disposed of. Para
32 and 33 of the judgment are reproduced below:-
"32. The question is whether the respondent requires the
suit property and her requirement comes within the corners
of Section 14(1) (e) or not. The said issue in my opinion
could be properly determined only if leave to defend is
granted to contest the matter. This matter does not need a
summary procedure in view of reasons mentioned above
whereby I feel and I am of the considered opinion that the
petitioner has raised triable issue regarding bonafide
requirement of the respondent which could be decided only
after trial.
33. It is not a thumb rule in every case that the application
for leave to defend must be refused by the desires of the
landlord otherwise, the tenants would lose statutory
protection. That would definitely defeat the intention of the
legislation. I am of the view that in the application for leave
to defend must be judged and decided on case to case
basis and not in a mechanical manner. Each case has to
be determined as per its own merit and in case the court
has doubt in its mind about the genuineness of need of the
landlord or the matter requires fact finding then it would be
better to postpone the final decision on eviction by granting
leave to defend so that truth may come out at the time of
trial."
4. On 29th August, 2013, the respondent/ landlord has filed an
application under Section 114 read with Order XLVII read with
Section 151 CPC and Rule 10 of Volume 5 of Delhi High Court
Rules alongwith an application for condonation of delay of one
day. The delay in the application is condoned as no objection is
raised by the petitioner.
5. It is stated in the review application that in para 4(a) and (b)
in the impugned order dated 24th July, 2013, factual errors have
occurred while recording the submissions of the learned counsel
for the petitioner. Similarly para 17, 18, 19, 20, 24, 28 and 29
contain errors which are apparent on the face of the record.
Therefore, the present application of review be allowed and the
impugned judgment dated 24th July, 2013 be reviewed and the
main R.C. Revision No.180/2013 be dismissed with heavy cost.
6. It is also alleged in paras 3 and 4 of the review petition that
the learned Rent Controller has already given its finding while
rejecting the application of leave to defend by dealing with the
availability of two shops No.2699 and 2700 with the respondent.
It is submitted that the correct position about the two shops is
undisputed that eviction No.E-18/2012 titled as "Sushma Aggarwal
vs. Bimla Devi & Ors." for the shop No.2699 is pending. With
regard to shop No.2700, the eviction No.E-91/2012 titled as
"Sushma Aggarwal vs. Vijay Kumar Sudarshan Kumar & Ors. is
pending. (By order dated 5th January, 2013 the eviction orders
pertaining to Shop No.2700 were passed but the same is
challenged before this Court by the tenant by virtue of R.C.
Revision Petition No.297/2013). None of these two shops were
vacated by the mother of the respondent in eviction proceedings in
the year 2008. Both are at present in the possession of the
respondent.
7. Mr. Kirti Uppal, learned Senior Counsel for respondent has
referred paras 17, 18 and 20 of the impugned judgment. He says
that the factual position of the two shops is not correctly recorded
in these paras otherwise, the Court might not have granted the
leave to defend to the petitioner under the correct position.
8. Paras 17,18 and 20 of the impugned judgment referred by
Mr.Uppal, learned Senior counsel are reproduced below:-
"17. No doubt, the respondent has mentioned in the
petition that they do not have any other alternative
commercial accommodation and requires the tenanted
premises as 3 shops as a whole to start the business but
at the same time, the finding as to reasonableness and
sufficiency of two shops already available with the
respondent has neither been arrived at by the Controller
nor has been explained by the landlord as to how the two
shops No. 2699 and 2700 which were got evicted by the
respondents mother earlier which came to her share
were insufficient as an alternative accommodation
available to them.
18. On the contrary, the order passed by the learned
Controller holds that the fact that the respondent did not
disclose the shop No. 2699 and 2700 which were earlier
available to the respondent does not come in the way of
the respondent to seek the order of the eviction. I find
that the said facts would certainly cast some shadow of
doubt on bonafides of the respondent to seek eviction or
if not the bonafides then the sufficiency and reasonability
of the alternative accommodation.
20. Once, the respondent has not stated the said
material facts in the petition and the petitioner has filed a
leave to defend application along with the affidavit
questioning the bonafides of the respondent by stating
that the respondent is the owner of the shop No. 2699
and 2700 which got vacated earlier by the mother of the
respondent in the eviction proceedings in the year 2008,
the learned Rent Controller simply could not have
brushed aside the said facts as inconsequential in nature
unless the plausible explanation comes from the landlord
as to how the same are not reasonably suitable
commercial accommodation.
In the absence of the some cogent reasons as is
evident from the record and the respondent merely
disputing the same calling it as irrelevant and having no
bearing, it becomes really a question of trial to be
examined as to whether the respondent's need is
genuine or not and also whether there is reasonably
suitable accommodation already available to the
respondent or not."
9. Mr. J.P Sengh, learned Senior counsel appearing on behalf
of petitioner has argued that the present review application is not
maintainable and is liable to be rejected mainly on the reason that
the leave to defend was granted to the petitioner for the reasons
that the respondent has concealed material facts from the Court as
well as on the basis of conduct of the respondent. He submits that
the property No.2699 and 2700 at 10-E (East), situated at
Mundewalan Road, Sadar Thana Road, Delhi-110006 have been
given the same numbers to other properties at the site i.e. godown
behind the respective shops and first floor of the said properties.
10. The petitioner has provided such details as per
factual position at site which is not seriously disputed by the
respondents except the case of the respondents' is that first floor
of property Nos.2699 and 2700 are residential on the other hand
petitioner says that these are commercial. Counsel has referred
following documents in support thereof :-
Property Source Title Nature Status
First floor of the Registered will Joint Residential Evicted from
property Nos. dated 11th ownership tenant.
2621,2623,2696- October 1996 of
2700, Plot No. by mother respondent Sold by the
10-E (East), namely, alongwith respondent to
situated at Kailashwati her son her nephew,
Mundewalan Goel namely Sh. Deepak
Road, Sadar Sachin Goyal vide
Thana Road, Aggarwal registered sale
Delhi-110006 deed dated
28th August
( During the
pendency of 2009
eviction petition
no.58/2008)
Godown behind Registered will Sole owner Commercial Gifted by
shop no. 2699, dated 11th respondent to
on the ground October 1996 her nephew.
floor in property by mother Sh. Deepak
bearing no. 2621, namely, Goyal vide gift
2623,2696-2700, Kailashwati deed dated
Plot No. 10-E Goel 28th August
(East), situated at 2009.
Mundewalan
Road, Sadar
Thana Road,
Delhi-110006
During the
pendency of
eviction petition
no.58/2008)
Shop No. 2699 Registered will Sole owner Commercial The shop is
dated 14th April under the
1981 by father possession of
of the tenants and for
respondent which the
namely, Sh. Eviction
Prithvi Chand Petition
Goel bearing E.
No.18/2012 is
pending in the
Court of ARC,
Tis Hazari.
Shop No.2700 Registered will Sole Owner Commercial The shop is
dated 14th April under the
1981 by father possession of
of the tenants and for
respondent which the
namely, Sh. eviction
Prithvi Chand petition
Goel bearing no. E.
No.91/2012
was filed and
eviction order
dated 5th
January 2013
was passed by
the Court of
Rent
Controller, Tis
Hazari, Delhi.
The same
order is under
challenge in
the Revision
Petition
No.297/2013.
Godown behind Registered will Sole Owner Commercial The shop is
shop No.2700 dated 14th April under the
1981 by father possession of
of the tenants and for
respondent which the
namely, Sh. eviction
Prithvi Chand petition
Goel bearing no. E.
No.48/2012
was filed and
eviction order
dated 5th
January 2013
was passed by
the Court of
Rent
Controller, Tiz
Hazari, Delhi.
The same
order was
challenged in
the Revision
Petition
No.180/2013
which was
allowed vide
impugned
judgment
dated 24th July
2013.
The present
review of said
judgment is
filed by the
respondent.
11. I agree with the submission of Mr.J.P. Sengh, learned Senior
counsel, that the main reason for this Court while passing the
impugned judgment and granting the leave to defend to the
petitioner-tenant was that in the year 2008 Eviction Petition
No.58/2008 was filed by the respondent against the petitioner
under Section 14(1)(e) of the Act and on 28th August, 2009 the
respondent executed a sale deed of property as per registered
document No.5953 in respect of first floor of property bearing Nos.
2621, 2623, 2696-2700 situated at First Floor Plot No. 10-E,
Mundewalan Street, Sadar Thana Road, Delhi in favour of her
nephew Deepak Goyal, the properties which were got vacated by
the mother of the respondent under Section 14(d) of the Act. The
respondent also executed a gift deed of a property where nature of
property is mentioned as commercial (though the case of the
respondent is that these properties are not commercial). It is
apparent that the first floor of the above said properties i.e. 2699
and 2700 from where the tenants were evicted were sold by the
respondent to her nephew Deepak Goyal. Whether these
properties were residential or commercial, the said aspect has to
be determined in the trial. Therefore, the reference made at
various places including in para 17, 18 and 20 be read accordingly.
12. When these documents were executed in favour of Deepak
Goyal, the respondent's petition for eviction bearing No. E-58/2008
was already pending against the petitioner. The respondent at the
time of filing of said eviction petition which was filed in 2008 had in
her possession the said commercial properties, which were not
disclosed by the respondent in her eviction petition, copy of which
has already been placed by the petitioner. After the said sale deed
and gift deed in favour of her nephew of the said properties, the
respondent on 2nd February, 2012 withdrew E. No. 58/2008 and
filed the fresh petition against the petitioner being E. No.48/2012
on the same grounds. This time the respondent had made a
disclosure that the said properties are now not in possession of the
respondent. Therefore, eviction is sought. All the said properties
were sold and gifted to her nephew during the pendency of earlier
eviction petition being E. No. 58/2008.
13. It is not denied by the respondent that the transfer of the two
portions of the said properties by the respondent was made during
the pendency of the earlier eviction petition. The respondent has
filed the fresh petition for the same purpose i.e. bonafide necessity
in the year 2012 after withdrawing the earlier eviction petition
which was of the year 2008. These are the main reasons for
granting leave to the petitioner so that the actual position be
brought on record in evidence. The reasons have also been
discussed in paras 27 to 29 of the impugned judgment.
14. The review application, therefore, filed by the
respondent/review applicant is not maintainable as the respondent
has failed to demonstrate any error apparent on the face of the
record of the order passed by this Court and is trying to re-argue
its case as if it was an appeal which is beyond the scope of the
Order XLVII Rule 1 CPC and as such the review application is
liable to be dismissed. The Supreme Court in the case of K.A.
Ansari and Anr. Vs. Indian Airlines Ltd., (2009) 2 SCC 164 in
para 17 was pleased to hold that an application for review cannot
be entertained only for the purpose of rehearing of the case. The
Supreme Court further held in the case of The State of West
Bengal and Ors. vs. Kamal Sengupta and Anr., (2008) 8 SCC
612 that the application of review cannot be entertained merely
because a different view could have been taken by the Court. It
was held that while dealing with the application of review, the
Court cannot sit as a court of appeal.
15. In light of the above, and peculiar facts of the dispute in
hand, this Court is not inclined to review the impugned judgment.
The present application is devoid of any merit. The trial in the
matter is necessary. The learned Rent Controller may decide the
case as per its own merit and without the influence of the
impugned judgment. The trial in the matter is expedited. The
learned Rent Controller would make his endeavour to complete the
trial within six months and hear final arguments immediately
thereafter. This review petition is accordingly disposed of with
these directions.
(MANMOHAN SINGH)
JUDGE
JULY 24, 2014
