Delhi High Court
Smt. Kailash Devi & Anr. vs Shri Brij Pal Manocha & Ors. on 31 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC. REV. 313/2013
% 31st July, 2014
SMT. KAILASH DEVI & ANR. ......Petitioners
Through: Mr. Pradeep Dewan, Sr. Adv. with
Ms. Anupama Dhingra and Mr.
Shashank Khurana, Advs.
VERSUS
SHRI BRIJ PAL MANOCHA & ORS. ...... Respondents
Through: Mr. S.N.Gupta and Mr. Naveen
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Section 25(B)(8) of the Delhi Rent Control
Act, 1958 is filed against the impugned order of the Additional Rent
Controller dated 27.5.2013 which has decreed the eviction petition for
bonafide necessity on account of the petitioner/tenant failing to file leave to
defend application within the statutory period of 15 days inasmuch as delay
cannot be condoned in view of the ratio of the judgment of the Supreme
Court in the case of Prithipal Singh Vs. Satpal Singh (dead) through LRs
(2010) 2 SCC 15 .
RCR 313/2013 Page 1 of 4
2. Though counsel for the petitioner has sought to again argue that
this Court has power to condone the delay in exercise of inherent powers or
such powers which every High Court has to do justice, however, I refuse to
allow the petitioner to raise such argument because if I permit so, it will be
violating the direct ratio of the Supreme Court in the case of Prithipal
Singh(supra) which says that neither the Additional Rent Controller nor the
High Court has power to condone the delay of even one day inasmuch as
neither the provision of Section 5 of the Limitation Act, 1963 nor the
provisions of Code of Civil Procedure, 1908 (CPC) apply to the special
procedure for eviction of the tenants on the ground of bonafide necessity.
3. There is however one ground which is rightly raised by the
petitioner with respect to challenge to the impugned order, and which is that
the impugned order grants eviction not only with respect to the tenanted
premises with respect to which eviction was sought but also for an additional
area. In order to appreciate this contention the operative portion of the
impugned order is reproduced below:-
"In view of the same, eviction order is passed in favour of the
petitioner and against the respondents in respect of suit premises no.
198/5, Garhi Jharia Maria also known as Ramesh Market, Garhi,
Lajpat Nagar, New Delhi, which is one tea shed measuring 10'x 9' as
shown in red in the site plan and the open space in front of the Tea
RCR 313/2013 Page 2 of 4
Shed as shown green in the site plan Ex.P-1 (exhibited today while
passing this order)." (underlining added)
4. Therefore, eviction decree is passed both with respect to the
portion marked in red and green, however, it is noted that even as per the
relief claimed in the eviction petition, the tenancy with respect to which
eviction is sought is said to be shown in red. The relevant clause in the
eviction petition reads as under:-
"a) pass an order for eviction in favour of the petitioner and against
the respondents directing them to vacate the tin shed shown as
red in the site plan i.e. Portion of property No. 198/5, Garhi
Jharia Maria, Lajpat Nagar, New Delhi". (underlining added)
5. Leaned senior counsel for the petitioner has rightly drawn the
attention of this Court to para 8 of the eviction petition which shows that the
area in green is not the part of the tenancy premises, and this para 8 reads as
under:
8. Details of accommodation available One tea shed measuring
together with particulars as regards 10' x 9' apprx. as
ground area garden and out house, if any shown red in the site
(Plan to be attached). plan attached and the
open space in front of
the tea shed shown as
green being illegally
used by the respondent
No.1
RCR 313/2013 Page 3 of 4
6. Since in law, Additional Rent Controller will have jurisdiction
to decree an eviction petition only with respect to a tenanted premises ie
where there is a relationship of landlord and tenant, and that too only as per
the prayer made in the eviction petition, the impugned order of the
Additional Rent Controller dated 27.5.2013 is modified by directing that the
eviction decree will only be passed with respect to the prayer clause (a)
which is reproduced above, ie the tin shed shown in red in the site plan
forming part of the property bearing no. 198/5, Garhi Jharia Maria also
known as Ramesh Market, Garhi, Lajpat Nagar, New Delhi.
7. In view of the above, the petition is dismissed, however, the
impugned order is modified to grant eviction only with respect to the
tenancy portion which is shown in red colour in the site plan filed in the
eviction petition.
8. If respondent wants to take any action with respect to any area
in green which does not fall in the tenancy, but is stated to be in illegal use
of the petitioner, respondent/landlord can take such action against the
petitioner as regards the green portion, in accordance with law. Parties are
left to bear their own costs.
JULY 31, 2014/ib VALMIKI J. MEHTA, J.
