Delhi High Court

Kiran Dutta & Ors vs M/S Moti Mahal Delux-Ii on 27 March, 2014

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision: 27.3.2014
+     CM(M) 235/2014
      KIRAN DUTTA & ORS                           ..... Petitioners
                   Through:            Mr. Amitabh Chaturvedi, Adv.

                          versus

      M/S MOTI MAHAL DELUX-II                 ..... Respondent

Through: Mr. Sandeep Sethi, Sr. Adv. with Ms. Yadav, Adv.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI (Open Court)

1. This petition impugns an order of 31.1.2014, which reads as

under:-

"Time sought of file rejoinder. It is submitted that one the last date reply was filed by the petitioner and not the rejoinder as mentioned in the last order sheet.

Perusal of the file reflects that the petition has been filed under Section 14(1) (a) and 14(1) (e) of DRC Act. Even the notice demanding arrears of rent was also sent to the respondent. Therefore, in my considered opinion, the summary procedure as contemplated under Section 25(B) of DRC Act cannot be applied in the present case and therefore there is no requirement of file leave to defend application.

Respondent is directed to file written statement within 30 days from today. Put up for further proceedings on 15.3.2014."

2. The grievance of the petitioners is that the eviction petition

filed under section 14(1) (a) should be treated as a petition under

section 14(1) (e) and the summary procedure prescribed under

Section 25B of the Delhi Rent Control Act, 1958 (the 'Act') be

applied for disposal of the petition made under the ground of bona

fide need. Counsel for the petitioners states that the summons

were issued in the said eviction petition on 8.8.2013 and for

12.9.2013.

3. A leave to defend application was filed within time: on

4.9.2013. An objection was taken that such a composite petition

under the aforesaid two provisions was not maintainable. In reply

to the said application, the landlord contended:-

"9. In reply to para 9 of the affidavits, it is submitted that a composite petition under Section 14(1) (a) and 14(1) (e) of the DRC Act filed by the petitioners does lie and even though, it is assumed though not admitted that the same are based on different causes of action, the same is of no consequence. It is submitted that indeed a separate procedure is prescribed under Section 25B of the DRC Act for a petition under Section 14(1) (a) and a petition under Section 14(1) (e) of the DRC Act. However, it is pertinent to note that Section 25B of the DRC Act deals only with the procedure to be adopted for cases falling under various sub-clauses of Section 14(1), which contains the substantive law by virtue of which a tenant can be evicted. It is well settled that procedure is nothing but a hand maiden of justice and is always subservient to the substantive provisions and cannot override the same. Therefore, it is incorrect and hence denied that the instant eviction petition is

bad for mis-joinder of causes of action or is liable to be dismissed on this ground. Without prejudice to the above, it is submitted that if this Hon'ble Court is of the opinion that a composite petition does not lie, then the instant petition be treated as a petition under Section 14(1)(e) and liberty may be granted to the partners to file a separate petition under Section 14(1)(a) of the DRC Act."

4. The learned counsel for the petitioner states that this was

sufficient reason for the trial court to treat the petition exclusively

as one under Section 14(1)(e) and the prescribed summary

procedure should have been adopted for disposal of the petition.

He states that even on the date the impugned order was passed, an

oral request was made to the Court that the petition be treated as

only under Section 14(1)(e), therefore the Court ought to have

adopted the summary procedure instead of relegating the petition

to be tried as a regular suit.

5. Counsel further states that intimation was issued on 1st

March to the respondents as well as their counsel this CM(Main)

petition had been preferred and a complete set of the petition had

also been served upon them the same date. Notice issued by this

Court on 4.3.2014. Learned counsel submits that the WS would be

redundant since it had been duly intimated to the tenant that the

petition would be pursued only under Section 14(1)(e) on the

ground of bonafide requirement. He submits that the impugned

order, therefore, suffers from material irregularity in so far as the

Court did not exercise the jurisdiction which was vested in it under

section 14 (1) (e) read with section 25B.

6. Mr. Sandeep Sethi, learned senior counsel for the respondent

submits that this petition was not maintainable since the procedure

known to law is that if the petitioners are aggrieved by an order

which does not record or return a finding on submissions made

before a Court, especially in a case such as the present one, where

the petitioner claims to have dropped the proceedings under section

14(1)(a) and pursued it only for bona fide need, then the

appropriate remedial proceeding would have been one seeking

modification of the said order. He refers to the affidavit of counsel

for the petitioners, as well as to the petition which reads inter alia,

as under:-

"3. I state that it is correctly stated in para 4(xi) of the attached revision petition that on 31.1.2014, I had pointed at Ld. Rent Controller that the petitioners had already pleaded that :

"Without prejudice to the above, it is submitted that if this Hon'ble Court is of the opinion that a composite petition does not lie, then the instant petition be treated as a petition under Section 14(1) (e) and liberty may be granted to the petitioners to file a separate petition under

Section 14(1) (e) of the DRC Act."

and, therefore, the instant Eviction Petition be treated as a petition under Section 14(1) (e) of DRC Act and the application for leave to defend be heard on merits. However, ignoring the said submissions, Ld. Rent Controller passed impugned order--

"Perusal of the file reflects that the petition has been filed under Section 14(1) (e) and 14(1) (e) of DRC Act. Even the notice demanding arrears of rent was also sent to the respondent. Therefore, in my considered opinion, the summary procedure as contemplated under Section 25(B) of DRC Act cannot be applied in the present case and therefore there is no requirement to file leave to defend application.

Respondent is directed to file written statement within 30 days from today with advance copy being supplied to opposite party."

"(x) Accordingly, the petitioners herein filed their reply dated 20.12.2013 to the said application of the respondent for grant of leave to contest the Eviction Petition, wherein inter alia the following reply was given:

"In reply to para 9 of the affidavits, it is submitted that a composite petition under Section 14(1) (a) and Section 14(1) (e) of the DRC Act filed by the petitioners does lie and even though, it is assumed though not admitted that the same are based on different causes of action, the same is of no consequence. It is submitted that indeed a separate procedure is prescribed under Section 25B of the DRC Act for a petition under section under Section 14(1)

(a) and Section 14(1) (e) of the DRC Act. However, it is pertinent to note that Section 25B of the DRC Act deals only with the procedure to

be adopted for cases failing under various sub- clauses of Section 14(1), which contains the substantive law by virtue of which a tenant can be evicted. It is well settled that procedure is nothing but a hand maiden of justice and is always subservient to the substantive provisions and cannot override the same. Therefore, it is incorrect and hence denied that the instant eviction petition is bad for mis-joinder of causes of action or is liable to be dismissed on this ground. Without prejudice to the above, it is submitted that if this Hon'ble Court is of the opinion that a composite petition does not lie, then the instant petition be treated as a petition under Section 14(1) (e) and liberty may be granted to the petitioners to file a separate petition under Section 14(1) (a) of the DRC Act."

True copy of the reply dated 20.12.2013 filed by the petitioners is annexed herewith and marked as Annexure P-7, contents whereof may be read a part and parcel of this paragraph and the same are not repeated herein for the sake of brevity and prolixity.

(xi) That thereafter, the said Eviction Petition was listed before Ld. Rent Controller on 31.1.2014, when the counsel for the respondent orally sought time to the rejoinder to the reply filed by the petitioners. However, ld. Rent Controller declined the request of the respondent and took the view that in case of a composite application seeking eviction under Section 14(1) (a) and Section 14(1) (e), the summary procedure of Section 25B of the DRC Act was not attracted. It was pointed at Ld. Rent Controller that the petitioners had already pleaded that -

"Without prejudice to the above, it is submitted that if this Hon'ble Court is of the

opinion that a composite petition does not lie, then the instant petition be treated as a petition under Section 14(1) (e) and liberty may be granted to the petitioners to file a separate petition under Section 14(1) (a) of the DRC Act."

and, therefore, the instant Eviction Petition be treated as a petition under section 14(1) (e) of DRC Act and the application for leave to defend be heard on merits. However, ignoring the said submissions, Ld. Rent Controller passed impugned order--

"Perusal of the file reflects that the petition has been filed under section 14(1) (a) and under section 14(1) (e) of DRC Act. Even the notice demanding arrears of rent was also sent to the respondent. Therefore, in my considered opinion, the summary procedure as contemplated under section 25(B) of DRC Act cannot be applied in the present case and therefore there is no requirement to file leave to defend application.

Respondent is directed to file written statement within 30 days from today with advance copy being supplied to opposite party." Original affidavit of Ms. Kamakshi Hora, Advocate, counsel for the petitioners is annexed herewith and marked as Annexure P-8."

7. Mr. Sethi relies upon the judgment in Bank of Bihar v.

Mahabir Lal (1964) 1 SCR 842 in support of his argument, where

the Constitution Bench held as under:

"In our opinion where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to

be permitted to be challenged by a party unless of course both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous. If the High Court had proceeded on an erroneous impression that Mr. De had conceded that the money was taken along with him by Ram Bharosa Singh to Patna, there was nothing easier for the Bank than to prefer an application for review before the High Court after the judgment was pronounced or if the judgment was read out in court immediately draw the attention of the Court to the error in the statement. Nothing of the kind was done by the Bank. It is too late for the Bank now to say that the statement was wrong. It appears to have been argued on behalf of the Bank in the trial court alternatively that even on the assumption that the money was taken to Patna by Ram Bharosa Singh, the suit must be decreed. We, therefore, see nothing strange in Mr. De making a concession of the kind attributed to him by the High Court. In the circumstances, we decline to go behind what is contained in the judgment of the High Court, quoted earlier."

8. Admittedly, no such review application seeking

correction/modification of the court's order was preferred.

Furthermore, there is no document on the record to evidence that

an oral request had been made to the Court to treat the petition

only under Section 14 (1)(e) and not as composite one read with

section 14(1) (a). It would also be an untenable argument and

proposition that the Additional Rent Controller should read the

averments in minutiae, and even though the dropping of the

Section 14(1)(a) ground was conditional - as averred in the reply

to the leave to defend, and pass an order to the effect which has

now been sought in this petition. This Court is of the view that if

the petitioners wanted the proceedings to be in accordance with