Prem Rani & Ors vs Keshav Smarak Samiti
2017 Latest Caselaw 5807 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CM(M) 1495/2011 & CM No.9921/2013 (for stay)
     PREM RANI & ORS                              ..... Petitioners
                    Through: Mr. S.K. Bhaduri & Mr. Prem
                               Prakash, Advs.
                            Versus
     KESHAV SMARAK SAMITI                         ..... Respondent
                    Through: Mr. Alok Kumar & Mr. Amit Kumar
                               Singh, Advs.
     CORAM:
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                    ORDER

% 24.10.2017

CM No.9919/2013 (of the petitioners under Section 5 of the Limitation Act, 1963)

1. The petitioners preferred the aforesaid CM (M) No.1495/2011 impugning the order [dated 11th November, 2011 in RCT No.95/2009 (Old No.593/2004), Unique ID No.02401C5971032004 of the Court of the Additional Rent Control Tribunal (ARCT), West District, Tis Hazari Courts, Delhi] dismissing the appeal preferred by the petitioners under Section 38 of the Delhi Rent Control Act, 1958 against the order dated 8 th November, 2004 in E. No.89/2000 of the Court of the Additional Rent Controller, Delhi allowing the petition for eviction filed by the respondent against the petitioners under Section 14(1)(a)&(j) of the said Act and in terms of Section 14(10) of the Act directing the petitioners / tenants to within six weeks therefrom put back the premises in the same condition as it was at the time of letting. It appears that during the pendency of the appeal before the ARCT, there was a stay of the direction to the petitioners/tenants to so restore the premises. Accordingly, the ARCT, while dismissing the appeal,

granted six weeks time to restore the premises in original condition failing which eviction was to follow.

2. CM(M) No.1495/2011 was entertained and notice thereof ordered to be issued and vide ex parte order dated 23rd December, 2011, the impugned order of the ARCT was stayed.

3. On 28th August, 2012, the CM(M) No.1495/2011 was disposed of vide the following order:

Having heard the counsel for the petitioners as also the respondent at length, and seeing that there was no case made out by the petitioners on merits, the petitioners present with her counsel undertake to remove/demolish the entire unauthorized construction consisting of one room in front of the demised premises as also a hall on the first floor of the tenanted premises. The undertakings of the petitioners are accepted. The petitioners to do the needful within six months from today i.e. by the end of February, 2013.

Thus, while maintaining the impugned order, it is directed that in the event of petitioners failing, neglecting or defaulting in their undertakings, eviction order shall become executable forthwith thereof. The petitioners also undertake to continue to pay original rent. In view of the above, the order dated 30.03.2012 of this court whereby the petitioners were directed to pay the user charges @ Rs. 3000/- per month to the landlord (respondent) is recalled and the petitioners shall continue to pay the original rent as it was before to the respondent subject to the adjustments of amount, if any, already paid or deposited by the petitioners at the rate of original rent. It is clarified that the adjustment, if any made by the petitioners, would be at their own calculations and responsibilities.

Petition stands disposed of accordingly."

4. This application has been filed by the petitioners /tenants for condonation of delay of 2 months and 13 days in compliance of the aforesaid order and for stay of the execution filed by the respondent/landlord of the eviction order, pleading i) that the petitioner no.1/tenant is aged about 56 years and is the mother of the other petitioners/tenant and is suffering from various ailments including fatty liver and is under treatment for the same; ii) that during February, 2013, the situation of the petitioner no.1/tenant became very serious and she was taken to the hospital for her treatment and treated on 11th March, 2013 and 18th March, 2013; iii) that the petitioner no.1/tenant is not even in a position to walk properly; iv) that the petitioner no.1/tenant is also having some heart ailments for last several years; v) that in the end of February, 2013, the condition of the petitioner no.1/tenant became critical; vi) that the other petitioners/tenants were busy in taking the petitioner no.1/tenant to hospitals; vii) that adjoining to the unauthorized construction which was to be demolished, there exist other properties and the petitioners/tenants had also consulted some mason for demolition of the impugned structure and the mason had opined that the demolition of the impugned structure may cause substantial damage to adjacent properties; viii) that the petitioners/tenants arranged to demolish the impugned structure but the occupants of the adjacent properties raised hue and cry; ix) that the petitioners/tenants could carry out the work of demolition only on 13th May, 2013, after pacifying the occupants of the adjoining properties; and, x) that the delay on the part of the petitioners/tenants is neither intentional nor deliberate.

5. The aforesaid application came up first before this Court on 5 th July, 2013 when the counsel for the respondent/landlord appeared on advance

notice and stated that he will not proceed with the execution in the meanwhile. This application has thereafter been adjourned from time to time.

6. Vide order dated 27th January, 2015, a Court Commissioner was appointed to visit the property to report whether the petitioners/tenants had complied with the undertaking given on 28th August, 2012 and as recorded in the order of that date reproduced hereinabove.

7. The counsels state that the commission aforesaid was executed and the Court Commissioner has filed a report.

8. The counsel for the respondent/landlord states that the report of the Court Commissioner shows that the petitioners/tenants have still not completely demolished the unauthorized construction which they were to demolish.

9. The counsel for the petitioners/tenants controverts.

10. It is also the contention of the counsel for the respondent/landlord i) that upon the petitioners/tenants not complying with the undertaking given before this Court on 28th August, 2012, the respondent/landlord applied for execution of the order of eviction; ii) that the petitioners/tenants filed objections to the said execution challenging the title of the respondent/landlord to the property and contending that the undertaking given before this Court on 28th August, 2012 was not voluntary and that the petitioners/tenants did not understand what transpired on 28th August, 2012;

iii) that the said objections were dismissed; iv) that the petitioners/tenants thereafter filed writ petition in this Court contending that the property in which the petitioners are tenants is of the government and the government should take over the same and the execution of the said order of eviction

should be stayed and again stating that the petitioners/tenants did not understand the proceedings before this Court on 28th August, 2012; and, v) that the said writ petition was dismissed on 9th April, 2013 with costs of Rs.40,000/- on the petitioners/tenants and observing that the writ petition was an attempt to wriggle out of the undertaking given to this Court and recorded in the order dated 28th August, 2012.

11. The counsel for the respondent/landlord thus states that the petitioners/tenants, for this reason, are not entitled to the relief sought of condonation of delay in compliance of the order aforesaid.

12. The counsel for the petitioners/tenants has argued i) that besides the petitioner no.1/tenant herein, who was a petitioner in the writ petition aforesaid, some others had also joined in filing the writ petition and were under the mistaken advice of Mr. Ashok Kumar Mohpatara, Advocate who filed the writ petition; ii) that the petitioners/tenants have demolished the entire unauthorized construction which was to be demolished; iii) that the order of the Executing Court dated 17th May, 2013 also records that the unauthorized structure had been demolished but beyond the time granted by this Court; and, iv) reliance is placed on Periyakkal Vs. Dakshyani (1983) 2 SCC 127 laying down that the Court has power to extend the time fixed by the consent decree.

13. De hors the question whether the petitioners/tenants have demolished the entire unauthorized construction or not, one thing which is clear is that the petitioners/tenants are in breach of the undertaking given to this Court on 28th August, 2012. Unless the Courts take a serious view of the undertakings accepted by them and acting on which the Courts dispose of matters, the litigants will interfere with the administration of justice by not

showing regard to such undertakings under the impression that when the Courts themselves do not take the undertakings accepted by them as intended to be abided by, the litigants are not expected to abide by the same.

14. The undisputed position is that the petitioners/tenants, after giving the undertaking to this Court, in the proceeding for execution of the order of eviction and in the writ petition filed by them, contended that their undertakings on which the Court acted on 28 th August, 2012 were against their wishes and given without understanding the purport thereof; today, the petitioners/tenants state that such pleas were taken under the mistaken advise of the advocate Mr. Ashok Kumar Mohpatara. Such conduct of the petitioners/tenants demonstrates that the petitioners/tenants have no regard even of proceedings before the Court, what to talk of undertakings given to the Court and seem to be under the impression that 'law is a ass'- a idiot as Mr. Bumble said in Oliver Twist.

15. As observed by the Supreme Court as far back as in Busching Schmitz Private Ltd Vs. P.T. Menghani (1977) 2 SCC 835, today's socio- economic project cannot be frustrated by legalistics. The Courts cannot allow their process and orders to become ludicrous. To do so would vindicate Mr. Bumble.

16. The Rent Act, though makes a tenant liable for eviction if causes substantial damage to the premises, still gives a chance to the tenant to avoid order of eviction, if within such time as may be specified, carries out repairs to the damage caused. Applying the said law, the petitioners/tenants, notwithstanding having been found guilty of substantially damaging the tenancy premises, were granted time. The petitioners/tenants also availed of their right of appeal to this Court. After being unsuccessful before this

Court, the petitioners/tenants sought and were granted long time of six months to repair the damage, subject to furnishing undertaking to this Court and which the petitioners/tenants furnished. However, the petitioners/tenants after furnishing undertaking to this Court, did all in their power to renege therefrom. Only on being unsuccessful therein also did the petitioners/tenants repair the damage and are now giving the reason of illness of petitioner no.1/tenant for not doing so within the time specified. The said explanation is obviously false, demonstrating that the petitioners/tenants have no regard for truth and make statements before Court without meaning to abide therewith and to suit their purpose from time to time. If this is not treating the law and its processes as an ass - an idiot, I wonder what else will be.

17. The aforesaid conduct of the petitioners/tenants also demonstrates that the petitioners/tenants never intended to abide by their undertakings and did everything in their power to renege out of the same. It is only after failing in the same that this application for extension of time for complying with the undertaking has been filed.

18. The said conduct of the petitioners/tenants does not entitle the petitioners/tenants to any indulgence from this Court.

19. On enquiry, it is stated that no action has been taken against Mr. Ashok Kumar Mohpatara, Advocate. It is sad that brother advocates do not blink an eye before making such allegations against each other and which serves no other purpose than to, in the public eye, denigrate the lawyers.

20. The aforesaid also shows that the plea taken of the illness of the petitioner no.1//tenant is false. Merely because medical records are filed does not mean that the illness prevented doing of any act. On enquiry, it is

informed that the other petitioners carry on business. I have enquired whether owing to the illness of the petitioner no.1/tenant, the other petitioners stopped carrying on their business.

21. No answer is forthcoming.

22. The application is dismissed with costs of Rs.50,000/- payable by the petitioners/tenants to the counsel for the respondent/landlord.

23. If the costs are not paid, the same will be recoverable from the petitioners/tenants.

RAJIV SAHAI ENDLAW, J OCTOBER 24, 2017 'gsr' ..