Sh. Vijay Singh vs Sh. S K Chaudhary & Anr.
2014 Latest Caselaw 3342 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RC Rev. No. 154/2013

%                                                    27th July, 2014

SH. VIJAY SINGH                                             ......Petitioner
                          Through:       Mr.Abhishek Gupta, Advocate.

                          VERSUS

SH. S K CHAUDHARY & ANR.                                  ...... Respondents
                  Through:               Mr.S.C.Singhal, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.     This is a petition under Section 25-B(8) of the Delhi Rent Control

Act, 1958 impugning the order of the Additional Rent Controller dated

19.1.2013 by which the Additional Rent Controller has granted leave to

defend to the respondent no.2 in the eviction petition and who is the

respondent no.2 in this petition also.


2.     The impugned order holds that the petitioner has made out a case of

bona fide necessity, but leave to defend was granted on the ground that the

petitioner/landlord has sued two respondents as joint-tenants, but the


RC.Rev. 154/2013                                                     Page 1 of 4
 respondent no.1 has denied the tenancy and it is only the respondent no.2

who is claiming the tenancy and which creates a bona fide disputed question

of fact which requires trial.


3.     At the outset, at the request made on behalf of the petitioner, this

petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 is

converted into a petition under Article 227 of the Constitution of India,

inasmuch as it has been held by the Supreme Court in the case of Municipal

Corporation of Delhi Vs. R.P.Khaitan & Anr. 79 (1999) DLT 555 (SC) that

the courts should not look at the heading of a petition, and only the

substance is to be seen and once the necessary substance exists to the

petition, courts can always convert the petition into a petition under the

correct provision of law.       Therefore, applying the ratio in the case of

Municipal Corporation of Delhi (supra), this petition is converted into a

petition under Article 227 of the Constitution of India.


4.     Learned counsel for the respondents argues two aspects before this

Court. First was with regard to the maintainability of this petition under

Section 25-B(8) of the Delhi Rent Control Act, and the second aspect was

with respect to the fact that the petitioner cannot be allowed to take benefit


RC.Rev. 154/2013                                                   Page 2 of 4
 of deletion of the respondent no.1 in the trial after passing of the impugned

order granting leave to defend.


5.     So far as the aspect of the petition not being maintainable under

Section 25-B(8) is concerned, this objection will no longer survive in view

of converting this petition under Article 227 of the Constitution of India.


6.     The second aspect raised is that subsequent to the decision of the

leave to defend application by the impugned order, even if the petitioner has

thereafter deleted the respondent no.1, the same cannot lead to setting aside

of the impugned order granting leave to defend.           In my opinion, the

argument urged on behalf of the respondents/tenants is misconceived not

because the petitioner has subsequently deleted the respondent no.1, but, the

Additional Rent Controller as also this Court exercising powers under

Article 227 of the Constitution of India, can take note of the aspect that once

the necessary defence is raised stating that respondent no.1 is not the tenant

and respondent no.2 is actually the only tenant, courts can simply proceed

with this admitted position and there is no bar in law to proceed with the

admitted position by treating only respondent no.2, as the only tenant. Once

that is done and the eviction petition is treated as a petition only against the


RC.Rev. 154/2013                                                     Page 3 of 4
 respondent no.2, and only on which ground the leave to defend was granted

on account of the confusion between the tenancy being not jointly of the

respondent nos.1 and 2 but of the respondent no.2, I do not think that this

creates a triable issue which requires a trial, more so, now on the petitioner

accepting the joint/common stand of the respondent nos. 1 & 2 that only the

respondent no.2 is the tenant and not the respondent no.1.


7.     In view of the above, this petition is allowed and the impugned order

of the Additional Rent Controller dated 19.1.2013 is set aside.            The

petitioner will be entitled to the eviction of the respondents from the

premises comprising of one hall admeasuring 36x37 feet situated in the

property no.WZ-332, Nangal Raya, Delhi, and which is shown in red colour

in the site plain filed along with eviction petition. The respondent will be

entitled to the statutory period of 6 months to vacate the suit premises.

Parties are left to bear their own costs.



                                                  VALMIKI J. MEHTA, J.

JULY 27, 2014 KA