Delhi High Court
Urmila & Anr. vs Ram Avatar & Anr. on 5 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 52/2014 & CM Nos. 958-959/2014 & 3491/14 & 17484/14
% 5th November, 2014
URMILA & ANR. ......Petitioners
Through: Mr. A.K.Srivastava, Adv.
VERSUS
RAM AVATAR & ANR. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The present petition under Article 227 of the Constitution of India
impugns the judgment of the Rent Control Tribunal dated 3.12.2013 by
which the Rent Control Tribunal has dismissed the two appeals filed under
Section 38 of the Delhi Rent Control Act, 1958 (in short 'the DRC Act').
The first appeal was filed against the judgment of the Additional Rent
Controller dated 31.10.2011 by which the objections filed by the present
petitioners to the execution application filed by the respondents were
dismissed. The second appeal which was dismissed was filed by the present
petitioner no.1 against the ex parte eviction order dated 7.4.1999 by which
CMM 52/2014 Page 1 of 6
the eviction petition on the ground of non-payment of rent under Section
14(1)(a) of the DRC Act was decreed.
2. The facts of the case are that the present respondents filed an
eviction petition against the present petitioner no.1 on the ground of non-
payment of rent under Section 14(1)(a) of the DRC Act. In these eviction
proceedings petitioner no.1 appeared but was proceeded ex parte as the
petitioner no.1 after appearing had taken time to file the written statement
but no one thereafter appeared on behalf of the petitioner no.1. Appearance
was put on behalf of the petitioner no.1 on 20.10.1997 and petitioner no.1
was proceeded ex parte in the main eviction petition on 2.2.1998.
Respondent no.1 thereafter recorded his evidence and an order under Section
15(1) of the DRC Act was passed on 4.3.1998. Once again on 6.4.1998, the
petitioner no.1 moved an application to set aside the ex parte judgment and
which resulted in the ex parte proceedings being set aside and the case was
then adjourned for the petitioner no.1 to file her written statement, but once
again the written statement was not filed and therefore petitioner no.1 was
again proceeded ex parte on 24.2.1999. Finally, the order under Section 15(1)
of the DRC Act was passed on 5.3.1999 and since the order under Section
15(1) of the DRC Act was not complied with, therefore, the eviction decree
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was passed against the petitioner no.1 on 7.4.1999. Respondent no.1
thereafter filed execution proceedings and petitioners filed objections in the
execution proceedings which were dismissed by the Additional Rent
Controller/trial court, as stated above by the judgment dated 31.10.2011.
This judgment dated 31.10.2011 was challenged in the first appeal before the
Rent Control Tribunal which has passed the impugned judgment dismissing
not only the appeal of the petitioners against the dismissal of the objections
on 31.10.2011, but the Rent Control Tribunal dismissed even the
second/other appeal filed by the petitioner no.1 against the judgment and
decree dated 7.4.1999 decreeing the eviction petition under Section 14(1)(a)
of the DRC Act and directing eviction on account of non-compliance by the
petitioner no.1 of the order passed under Section 15(1) of the DRC Act.
3. Two aspects have to be seen by this Court as to whether
objections which were filed by the petitioners in the execution proceedings
have been validly dismissed by the order dated 31.10.2011 and secondly
whether the Additional Rent Controller has rightly passed the impugned
judgment and decree dated 7.4.1999 directing eviction of the petitioner no.1.
4. So far as the filing of objections by the petitioners are
concerned, and which are on the ground that the petitioner no.1 is the co-
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owner of the property, besides the courts below noting (first appellate court
in para 6 of the impugned judgment) that no document or material was
placed whatsoever before the court to support the plea of ownership,
however, in law, even this ground on merits could not have been urged by
means of filing objections in the execution proceedings because all
objections of merits have to be taken by contesting the main proceedings
and not by means of filing objections in the execution proceedings. Any
case on merits had to be urged by appearing and contesting of the same in
the main proceedings which were filed under Section 14(1)(a) of the DRC
Act, but, the petitioner no.1 did not contest those proceedings and was
proceeded ex parte as he stopped appearing. Petitioner no.1 was proceeded
ex parte not once but in fact twice and thereafter as per the evidence led by
the respondent no.1 an eviction decree was passed under Section 14(1)(a) of
the DRC Act vide judgment dated 7.4.1999. In fact, the objections which
were filed by the petitioners were therefore liable to be dismissed in limine
because petitioner no.1/objector was a party to the main proceedings and
having failed to appear and the judgment and decree was passed against her
on 7.4.1999 after the respondents had led evidence, was not entitled in law
to file objections which were actually in the nature of a defence to the main
proceedings under Section 14(1)(a) of the DRC Act.
CMM 52/2014 Page 4 of 6
5. So far as the challenge to the judgment and decree dated
7.4.1999 on merits is concerned, considering that the petitioner no.1 was
proceeded ex parte not once but twice, and also that respondent no.1 led
evidence and proved his case, no fault can be found in the impugned
judgment dated 7.4.1999 read with the earlier judgment/order under Section
15(1) of the DRC Act dated 5.3.1999. Therefore, the appeal filed by the
petitioners against the judgment and decree dated 7.4.1999 was also
misconceived and therefore rightly dismissed by the first appellate court.
6. To complete the narration two aspects are required to be noted
and which are that firstly the petitioners had filed an application under Order
IX Rule 13 CPC for setting aside the eviction decree dated 7.4.1999 and that
application was dismissed by Additional Rent Controller vide his order
dated 5.7.2000. Secondly, even if there are civil proceedings pending
between the parties, however, it is settled law that the Rent Controller acting
under the DRC Act deciding the eviction cases filed under different sub-
sections of Section 14(1) of the DRC Act, is entitled to arrive at a decision
as to existence of relationship of landlord and tenant, and which decision
binds the parties subject to any final decision by a civil court in view of
Section 50 of the DRC Act. Once a judgment was therefore passed on
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merits under Section 14(1)(a) of the DRC Act and which is to be taken with
the non-compliance by the petitioners of the order for payment of rent under
Section 15(1) of the DRC Act, the eviction order dated 7.4.1999 is perfectly
valid and the petitioners cannot quibble on this aspect.
7. I may at this stage note that there existed a Section 39 in the
DRC Act, and which section provided for filing of a second appeal on a
substantial question of law, but, this Section was repealed way back by the
Act 57 of 1988, and therefore, jurisdiction of this Court under Article 227 of
the Constitution of India cannot be invoked as if a second appeal is being
filed under Section 39 of the DRC Act. Once there is no provision of second
appeal, powers under Article 227 of the Constitution of India are not meant
to be substituted for a second appeal, and considering the facts of this case
no case whatsoever is made out for exercise of powers under Article 227 of
the Constitution of India.
8. Dismissed.
NOVEMBER 05, 2014 VALMIKI J. MEHTA, J.
ib
