M/S Amar Photo Studio Thr. Raj ... vs Late Sh. Niranjan Das Arora Thr. ...
2014 Latest Caselaw 5776 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RC. REV. No. 229/2014
%                                                    13th November , 2014

M/S AMAR PHOTO STUDIO THR. RAJ KUMAR         ......Petitioner
                 Through: Mr. Rajat Wadhwa, Adv. and Mr.
                           Amritansh Batheja, Adv.


                           VERSUS

LATE SH. NIRANJAN DAS ARORA THR. ITS LEGAL
REPRESENTATIVE SMT. MANJU ARORA            ...... Respondent

Through: Ms. Pooja Chhabra, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. On 14.7.2014, this Court passed the following order:-

"C.M.No.11056/2014

1. Exemption allowed, subject to all just exceptions.

2. Application stands disposed of.

RC.REV.No.229/2014 & C.M.No.11057/2014 (stay)

1. Subject to the payment of costs of Rs.35,000/- to the respondent herein/landlord before the Court below in the form of bank draft within a period of two weeks from today, on account of delay

being caused in the disposal of the leave to defend application, which is stated to be on account of the default of the present petitioner/his advocate, this Court is inclined to direct consideration of the leave to defend application on merits before the Additional Rent Controller.

2. In case, the respondent herein/landlord accepts the bank draft as an act of condoning of delay in the disposal of the leave to defend application, then no notice needs to be issued, but if the bank draft of costs of Rs.35,000/- is not accepted by the respondent herein/landlord, thereafter notice be issued by ordinary process as well as by registered AD post, returnable on 13th November, 2014.

3. Copy of this order be given dasti to the petitioner, and who will give the copy of the same to the respondent at the time of tendering of the bank draft."

2. This order was passed because the impugned order dated

22.11.2013 which was challenged in this case, had decreed the bonafide

necessity eviction petition filed under Section 14(1)(e) of the Delhi Rent

Control Act, 1958 (in short 'the DRC Act') by non consideration of the

leave to defend application filed by the petitioner/tenant by the Additional

Rent Controller because of non-pursuing of the same by the petitioner/tenant

and also not supplying the copy of the said leave to defend application to the

petitioner before the court below i.e the landlord in spite of repeated orders.

3. The order which was impugned in this petition is the order

dated 22.11.2013, and which order reads as under:-

" Perusal of ordersheet dated 14.08.13, 03.09.13, 08.10.2013 and 20.11.13 reveals that the respondent has not been appearing in the present case for after the leave to defend application filed on 01.08.13 vide order dated 14.08.13. Respondent was directed to supply the copy of leave to defend application to petitioner within 7 days but the said order was not complied with despite several dates i.e. 03.09.13, 08.10.13, 20.11.13. Even Court notice issued to respondent could not be served.

On 08.10.13, in view of the conduct of the respondent the costs of Rs.1500/- was also imposed upon him and subsequently in view of the order sheet dated 20.11.2013 the defence taken by the respondent in leave to defend application are not to be taken into consideration. In absence of any defence being considered on behalf of respondent, the leave to defend application deserves to be dismissed Under Section 25-B of the DRC Act. Thus, leave to defend application is dismissed and eviction petition Under Section 14(1)(e) r/w Section 25-B DRC Act is allowed.

Accordingly, eviction order is passed in favour of petitioner and against the respondent in respect of tenanted premises i.e. Shop No. 3, Ground Floor in property no.26/1, Ashok Nagar, Near Tilak Nagar, New Delhi as shown in red in the site plan filed by the petitioner.

However in light of Section 14(7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.

The parties are left to bear their own costs.

File be consigned to Record Room after due compliance." (underlining added)

4. Though learned counsel for the petitioner today states that the

petitioner had stated in the present petition that possession was already taken

in execution by the respondent/landlord even before filing of the present

petition, and for which purpose reference is made to para 2 (t). I must state

that not only what is stated in para 2(t) is in a very vague manner, but this

Court observes that definitely this aspect that possession was already taken

from the petitioner in execution of the order dated 22.11.2013 was not

specifically brought to the notice of this Court and nor is the same recorded

by this Court when the order dated 14.7.2014 was passed issuing notice in

this petition. I would go to the extent of saying that if in fact the

respondent/landlord had already taken possession of the suit/tenanted

premises in execution of the order dated 22.11.2013 on 31.5.2014, then this

court on 14.7.2014 may not even have issued notice in this petition.

5. I would at this stage note that the order dated 14.7.2014 makes

it clear that in case the respondent did not accept the costs of Rs.35,000/-

then notices were to be got issued by the petitioner to the respondent for

today, but, process fee which was filed had been returned under objections

and the respondent was not served for today, however the

respondent/landlord is appearing through counsel only because of the

information which they have received of this case in the execution

proceedings.

6. Learned counsel for the petitioner/tenant sought to argue before

this Court by placing reliance upon a judgment of a learned Single Judge of

this Court in the case of Lakhani Rubber Works Vs. Ritzy Polymers 167

(2010) DLT 521 which holds that in a leave to defend application filed in an

Order XXXVII of the Code of Civil Procedure, 1908 (CPC) suit, even if the

defendant/applicant does not appear still the leave to defend application has

to be considered by the court, and accordingly it is argued that in the

bonafide necessity eviction petition once the leave to defend application of

the petitioner/tenant was on record, the court below could not have passed an

eviction order without considering the merits as stated in the leave to defend

application.

There is also another aspect which is required to be noted as

argued on behalf of the petitioner that the father of the counsel who had

appeared for the petitioner/tenant before the trial court in the eviction

petition, was stated to be suffering from some ailment, and therefore the

counsel had not attended the court proceedings, and accordingly, it is argued

that the leave to defend application could not be pursued.

7. In my opinion, the present petition is a sheer abuse of the

process of the law and this I am forced to conclude on account of the

following aspects:-

(i) The impugned order dated 22.11.2013 records that not one but three

opportunities were granted to the present petitioner/tenant to supply copy of

the leave to defend application to the respondent/landlord, the petitioner in

the eviction petition, but for as many as three months copy of the leave to

defend application was not supplied. Though the counsel for the

petitioner/tenant before this Court argued that actually the leave to defend

application was sent by courier and that the courier receipt is filed, but in my

opinion, besides the fact that the argument lacks credibility, if this was really

true then the present petitioner/tenant should have appeared before the

Additional Rent Controller and stated that no copy of the leave to defend

application was required to be supplied because that application is already

supplied, however, the fact of the matter is that the case was adjourned

repeatedly from 14.8.2013 to 20.11.2013; with the dates of 3.9.2013 and

8.10.2013 being in between; for supplying of the copy of the leave to defend

application, but the judicial record of the Additional Rent Controller shows

that copy of the leave to defend application was not supplied.

(ii) Notice in this petition was issued on 14.7.2014 for today, but

petitioner has not been vigilant enough to ensure that the notice should have

been got issued, inasmuch as a notice could not be issued because process

fee has been found to be returned under objections and process fee was not

refiled after removing the objections. Once the petitioner was seeking

exercise of discretionary jurisdiction, more so in the facts of the present

case, petitioner should have been more than careful to ensure that the

respondent is served with the notice of this petition, and it is noted that the

respondent/landlord has appeared through counsel only because of

knowledge of the present proceedings derived by them in the execution

proceedings.

(iii) Though it seems to be mentioned in the present petition in a vague

manner that the possession has been taken away from the petitioner/tenant

and also an order dated 4.6.2014 has been filed at page 104 of the petition

showing that the decree has been satisfied , but, I think it is unacceptable for

the litigants to argue that courts should have gone through each and every

page and each and every line of the paper book and that a most important

aspect which has bearing on issuing of notice should not be specifically

brought out to the notice of the court. This I say so because the order dated

14.7.2014 does not in any manner reflect that notice is being issued even

though petitioner/tenant has been evicted on 31.5.2014 in execution of the

decree passed on 22.11.2013 decreeing the bonafide necessity eviction

petition under Section 14(1)(e) of the DRC Act.

8. Though I do not agree with the observations made by the

learned Single Judge of this Court in the case of Lakhani Rubber Works

(supra) which has been relied upon by the petitioner/tenant, I need not

consider this argument of the petitioner in detail because the judgment in the

case of Lakhani Rubber Works (supra) was in an Order XXXVII CPC suit

whereas the present proceedings are under Section 14(1)(e) of the DRC Act.

All that I would like to state is that if a person files a leave to defend

application in a bonafide necessity eviction petition, mere filing of the same

is not enough and courts cannot act as litigants themselves to consider the

merits as stated in the leave to defend application because merits of a leave

to defend application have to be perused by the litigants themselves. There

is no law that courts are bound to decide the leave to defend application on

merits though the person who files a leave to defend application is not

present in Court repeatedly, fails to comply with the directions of the court

by failing to give copy of the leave to defend application, does not pay the

costs for causing repeated adjournments and thus does not pursue the leave

to defend application. If no one is present for arguing of a leave to defend

application, then effectively the leave to defend application will have to be

treated as deemed to be not pressed and in such a case there is no

requirement for considering on merits such an application which is deemed

to be dismissed either in default or for non-prosecution.

9. I may note that I put it to the counsel for the petitioner/tenant

who argued the present petition as to if any action has been taken by the

petitioner against his Advocate, who appeared before the trial court, but the

counsel for the petitioner states that he himself advised the petitioner not to

file any complaint against the Advocate who has been guilty of negligence

by not pursuing the leave to defend application filed by the petitioner before

the trial court. Though I cannot understand the reason why such an advice is

or is not given but the fact of the matter is that as against the Advocate

against whom negligence is alleged, leave aside filing of a complaint with

the requisite authorities, in fact even a legal notice has not been served

questioning his conduct.

10. In view of the above, I do not find that the present is a fit case

for exercise of revisional jurisdiction under Section 25 B(8) of the DRC Act,

more so because the respondent has already taken possession in execution on

31.5.2014 much before even notices were issued in this petition on

14.7.2014, and in fact even before the filing of this petition which has been

filed on 10.7.2014 It is also a bit peculiar that this petition was filed by the

petitioner on 10.7.2014 ie after a delay of as many as 40 days from the date

on which the petitioner had lost possession in execution on 31.05.2014 and

was brought up for admission before this Court on 14.7.2014, and when an

order was passed by this Court which has been reproduced above, thus

noting lack of urgency by the petitioner.

11. In view of the above, I do not find any merit in the petition and

the same is therefore dismissed. No costs.

NOVEMBER 13, 2014                              VALMIKI J. MEHTA, J.
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