Prit Pal Singh vs Ramesh Kumar Dora
2015 Latest Caselaw 3290 Del

      *       IN THE HIGH COURT OF DELHI AT NEW DELHI

      %                                         Order delivered on: 23rd April, 2015

      +                                RC. Rev. No.444/2012

              PRIT PAL SINGH                                          ..... Petitioner
                            Through               Mr.Shyam Moorjani, Adv. with
                                                  Mr.Sidharth Joshi, Adv.

                                       versus

              RAMESH KUMAR DORA                                    ..... Respondent
                         Through                  Mr.Dinesh Agnani, Sr.Adv. with
                                                  Mr.Rajiv Kr. Sharma & Mr.Prateek
                                                  Jain, Advs.

              CORAM:
              HON'BLE MR.JUSTICE MANMOHAN SINGH

      MANMOHAN SINGH, J.

C.M. No.7696/2014 (under Section 5 of the Limitation Act) This is an application filed by the respondent/review petitioner under Section 5 of the Limitation Act, for condonation of delay of 43 days in filing the review petition.

For the reasons stated in the application, the prayer is allowed and the delay in filing the review petition is condoned.

The application is disposed of.

R.P. No.199/2014 (for review of order dated 6th January, 2014)

1. This Court while coming to the conclusion had observed in the order dated 6th January, 2014 that the petitioner has been able to raise prima-facie triable issues and the application for leave to defend

was allowed to defend the eviction petition filed by the respondent. Four weeks time was granted to the petitioner to file the written statement and the parties were directed to appear before the Additional Rent Controller on 17th February, 2014. It was also observed in the said order that the proceedings before the trial Court be expedited.

2. Feeling aggrieved by the said order, the respondent/review petitioner challenged the same in the Supreme Court by way of filing the Special Leave Petition bearing No.4377/2014 which was disposed of by order dated 28th February, 2014. The same reads as under:-

"The learned counsel for the petitioner seeks permission to withdraw this Special Leave Petition, so as to file review application before the High Court as certain incorrect facts have been recorded in the judgment, especially with regard to property bearing No.F-14/19, Krishna Nagar, Delhi-110051.

Permission is granted.

The Special Leave Petition stands disposed of as withdrawn."

3. After passing the said order, the respondent filed the present review petition under Order XLVII and Section 114 read with Section 151 CPC for review of the order dated 6th January, 2014. The main contention of Mr.Dinesh Agnani, learned Senior counsel appearing on behalf of the respondent/review-petitioner is that in the order dated 6th January, 2014, certain incorrect facts were recorded in para 11 of the said order. He submits that in the reply to the application for leave to

defend, the respondent has fairly mentioned that the property No.F-14/19, Krishna Nagar, Delhi-110051 is owned by him. However, he had not been running any business from the said property. The said aspect has been dealt with by the trial Court in para 4 of the eviction order dated 3rd March, 2012. Therefore, the recording of facts by this Court in para 11 of the order dated 6th January, 2014 are incorrectly mentioned.

4. His second submission is that there is no electricity in the demised shop. The petitioner is not carrying on any business therefrom. He has retained the same in order to just harass the respondent and to extract money from him. His third submission is that the petitioner has also failed to comply with the earlier order dated 14th February, 2013 passed by the Coordinate Bench of this Court whereby the petitioner was directed to pay to the respondent a sum of Rs.1,000/- per month as user and occupation charges during the pendency of the petition. It was mentioned in the said order that in case of even a single default on the part of the petitioner, he would become liable to be evicted forthwith. Learned Senior counsel submits that the said order was not complied with by the petitioner, therefore, he is liable to be evicted.

5. Mr.Shyam Moorjani, learned counsel for the petitioner has informed that as far as the compliance of order dated 14th February, 2013 is concerned, the same has been fully complied with, which fact has even been recorded by this Court in the order dated 10th April, 2015. He submits that admittedly, the petitioner has paid the occupation charges up to 31st October, 2013. The judgment was

reserved in the revision petition on 1st November, 2013 which was pronounced on 6th January, 2014. He submits that the petitioner has paid the occupation charges as fixed by this Court till the month of January, 2014. The said amount was not paid earlier, as the judgment was reserved during this period and the petitioner was just awaiting for the judgment. However, the learned counsel for the petitioner submits, that the respondent cannot dispute that ultimately, after passing the said order, the amount was paid to the respondent till the date of pronouncing the judgment. Since the judgment has been passed in favour of the petitioner, he was supposed to pay the original rent agreed by the parties. The same was paid till February, 2014. For the subsequent period, the amount was sent by the Money Order.

6. In view of the above said peculiar circumstances, I am of the considered view that the order dated 14th January, 2013 was complied with by the petitioner. The delay, if any, was due to oversight and confusion. The same is condoned, even otherwise no ground has been taken in the review petition.

7. With regard to submission of the learned Senior counsel appearing on behalf of the respondent, the learned counsel for the petitioner submits that no doubt, there is no electricity in the tenanted premises for the last many years, however, he says, that the petitioner has tried his best to get a separate connection. However, since the respondent is not issuing the "No Objection", the petitioner has left with no other option but to carry on his business without electricity in view of the special type of work he has been doing.

Counsel submits that the petitioner is an old person who is being harassed by the respondent. In view of the same, I feel that it is a disputed fact which requires trial. No ground was taken in the review petition.

8. Now, the main objection of the respondent in the present review petition is that incorrect facts are recorded in para 11 of the impugned order. It would be appropriate to reproduce para 11 of the impugned order which reads as under:-

"Thus, non-disclosure of the relevant fact in the eviction petition is a serious issue. In the absence of any such disclosure in the eviction petition, this Court is of the view that the averments made by the petitioner in his application for leave to defend have to be tested at the time of trial as to whether the respondent has got in his possession of 9 rooms in the property No.F-14/19, Krishna Nagar, Delhi or one shop is being used as office or three rooms are lying locked. There is a reason in the present case as the respondent has not specifically denied that his wife is not carrying on any business in the said property and three rooms are lying locked. If the statement of the petitioner is found correct after the trial, then it would be a case of additional accommodation."

9. The contention of the respondent is that in reply to the application for leave to defend, the respondent has specifically stated with regard to the property No.F-14/19, Krishna Nagar, Delhi-110051 that the respondent had not been running any business from the said property. The second submission of the respondent is that the petitioner has filed the site plan of the said property which does not show any shop in the suit property.

10. Learned counsel for the petitioner states that as far as the site plan is concerned, the same was not filed along with the eviction petition; it was filed subsequently before passing the eviction order.

11. With regard to the submission of the learned Senior counsel appearing on behalf of the respondent that the facts are incorrectly recorded in para 11 of the impugned order. I do not agree, as in the eviction petition, the respondent had not disclosed the said property. Learned Senior counsel states that it was not necessary. He submits that in the memo of parties of the original eviction petition, the said address, i.e. F-14/19, Krishna Nagar, Delhi was mentioned as the residence of the petitioner (respondent herein), therefore, it is irrelevant if the said accommodation has not been mentioned in the grounds of eviction petition.

12. It is an admitted position that in the application for leave to defend which is filed along with the affidavit of the petitioner, it was specifically alleged that the respondent and his wife are the owners of the property bearing No.F-14/19, Krishna Nagar, Delhi and have been doing business for the last 12 years from the said premises. They are already in possession thereof where one room is being used as office and three rooms are lying locked. The said fact only to this extent was admitted by the respondent in reply to the affidavit of the petitioner filed in support of the leave to defend that the respondent is the owner of the said property. The factum of one room which is being used as office and three rooms lying locked is denied by the respondent.

13. In view of the above said facts and circumstances, I am of the view that it is a disputed question of fact which can only be decided after trial. Had the respondent disclosed the said property in the eviction petition, the position might have been different. Since the said property has not been disclosed by the respondent in the grounds of the eviction petition, I am of the considered view that the cross-examination of the respondent is necessary in deciding the controversy between the parties. Thus, I am not in agreement with the learned Senior counsel for the respondent that the facts are incorrectly recorded in para 11 of the order dated 6th January, 2014. It has been informed by the learned counsel for the petitioner that the respondent has already filed affidavit as evidence and his client would not take any adjournment and he has also no objection if the trial Court proceedings be concluded between 6 to 9 months. I find force in the suggestion made by the counsel. The trial Court is requested to complete the evidence within six months and the arguments be addressed by both parties within 3 months thereafter. As far as the review petition is concerned, there is no merit.

14. The review petition is accordingly dismissed.

(MANMOHAN SINGH) JUDGE APRIL 23, 2015