Anil Kumar & Anr vs Ram Kumar Gupta
2019 Latest Caselaw 6089 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Judgment delivered on: 28.11.2019

+      C.R.P. 253/2019 & CM APPL.48628/2019

ANIL KUMAR & ANR                                          ..... Petitioners

                                   versus
RAM KUMAR GUPTA                                           ..... Respondent
Advocates who appeared in this case:
For the Petitioner:       Mr.Arjun Dewan, Adv.

For the Respondent:         Mr.Sachin Mitter, Advocate.

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                              JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1. Petitioner impugns order dated 30.10.2019 whereby the Rent Controller has permitted the respondent to amend the eviction petition on an oral prayer and restrict his eviction petition to Section 14(1) (e) of the Delhi Rent Control Act, (hereinafter referred to as the DRC Act) and thereafter recorded that the summons under the 3rd Schedule are issued for service of the petitioner and that learned counsel for the petitioner accepts the summons.

2. Learned counsel for the petitioner submits that the eviction petition was filed by the Respondent under Section 14(1) (a), (e) & (f) of the DRC Act as an ordinary petition and not as a petition under the

summary procedure as prescribed under Section 25-B of the Rent Act. He submits that by the impugned order dated 30.10.2019 on an oral statement made by learned counsel for the respondent that his petition be treated as petition under Section 14(1) (e) of the DRC Act eviction petition was allowed to be amended without any written application.

3. Learned counsel further submits that even if the petition were to be treated as petition under Section 14(1) (e), the same is still not a petition under Section 25-B of the DRC Act as there is no such amendment sought or allowed by the Court.

4. Learned counsel further submits that though the impugned order records that the summons under 3rd Schedule have been issued and received by the petitioner, no such summons were ever prepared, issued or received.

5. He further submits that in terms of Order 6 Rule 17(2) of CPC (as amended for Delhi) every application for amendment has to be in writing and shall state the specific amendments, which are sought to be made. He submits that as no such application was made, the amendment could not have been allowed.

6. Learned counsel for the respondent submits that present revision petition is not maintainable and the petitioner should be relegated to filing an appeal. He relies on the judgment of a Coordinate Bench of this Court in Inder Mohan Sachdeva vs. Usha International Ltd, 189 (2012) DLT 5.

7. Learned counsel for the Respondent submits that respondent has not changed the nature and character of the eviction petition but had merely deleted the claims under Section 14(1)(a) and (f) of the Delhi Rent Control Act and had restricted his petition to a claim under Section 14(1)(e) and had prayed to the Rent Controller that as the petition was under Section 14(1)(e), summary procedure prescribed under Section 25B of the Act be applied and an oral prayer was made by the respondent to apply summary procedure under Section 25B of the Act.

8. Respondent had filed the subject eviction petition under Section 14(1) (a), (e) and (f) of the DRC Act.

9. Summons for settlement of issues under Order V Rules 1, 5 were served on the petitioner and the petition was at the stage of consideration of orders to be passed under Section 15(1) of the DRC Act, at which stage, on oral submissions of the counsel for the respondent amendment was allowed.

10. With regard to the contention of learned counsel for the respondent that a revision petition would not be maintainable and petitioner is required to file an appeal, reference may be had to the judgment of the Division Bench of this Court in Sita Ram Talwar & Ors vs. Jai Dev Sharma, (1972) ILR 2 Delhi 769 wherein the Division Bench has specifically held that an appeal would not lie under Section 38 of the DRC Act from an order passed under Order 6 Rule 17 of the CPC.

11. Justice B. C. Mishra in his concurring judgment has held that it is

not possible to lay down as a matter of law that an order passed under Order VI Rule 17 of the CPC will under no circumstances be appealable under Section 38 of the DRC Act and has cited certain examples in cases where an appeal would lie and the examples cited are (1) where a time bound claim is by amendment permitted to be brought within limitation, (2) where an admission contained in pleadings is sought to be withdrawn by allowing an amendment, (3) where a new party is added or (4) where an entirely new cause of action is substituted in place of the one pleaded. Subject case does not fall in any of the four categories as specified in the concurring judgment of Justice B.C. Mishra.

12. The judgment in the case of Inder Mohan Sachdeva (Supra) relied on by the learned counsel for the respondent does not support the case of the respondent in as much as the said judgment was passed in a case falling under Order 9 Rule 8 where the Court was of the view that an order declining to set aside an order dismissing an eviction petition in default affected the rights and liabilities of the parties.

13. In view of the above, it cannot be said that a revision petition would not be not maintainable.

14. The Rent Controller did not take on record any amended petition consequent to the order dated 30.10.2019. He merely recorded in the order sheet that summary procedure was adopted on the oral request of the counsel for the respondent. The Rent Controller further recorded that summons under the 3rd Schedule of the DRC Act were issued for service upon the petitioner and summons were accepted by learned counsel for

the petitioner.

15. It is an admitted position that no formal summons as prescribed under the 3rd Schedule were prepared or physically served on the petitioner or his counsel. Rent Controller Court has merely recorded the same in the order and granted petitioner 15 days' time to file the leave to defend application.

16. Section 25B (2) mandates that the Controller shall issue summons in relation to every application referred to in sub Section (1) inter-alia under Section 14(1)(e), in the form specified in the 3 rd Schedule.

17. It may be noted that Section 25B does not prescribe any limitation for filing an application seeking leave to defend application. Section 25B (4) requires that summons are to be served either in the ordinary way or by registered post in the form prescribed in the 3 rd Schedule and a tenant on whom summons have been served in the form specified in the 3rd Schedule shall not contest the prayer for eviction unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. The limitation period of 15 days for applying for leave to defend has been prescribed in the format of the summons prescribed in the 3rd Schedule.

18. Since admittedly the Rent Controller has not issued any summons in the form specified in the 3rd Schedule, merely recording in the order sheet that summons under 3rd Schedule are issued for service and the summons are accepted by the counsel and granting the tenant 15 days

time to file the application for leave to defend do not satisfy the requirement of Section 25B (2) of the Act.

19. The impugned order to the said extent is not sustainable.

20. Learned Counsel for the petitioner during arguments gave up the objection raised with regard to allowing of the amendment on an oral prayer.

21. Accordingly, the impugned order dated 30.10.2019 in so far as it allows the respondent to amend the eviction petition to restrict his ground of eviction to that under Section 14(1) (e) DRC Act and treat the same under Section 25B of the DRC Act is not interfered with. The question as to whether such an amendment could have been allowed on an oral prayer is left open.

22. In view of the above, the impugned order dated 30.10.2019 is modified and the revision petition is disposed of in the following terms:

(i) the eviction petition shall be listed before the Rent Controller on 16.12.2019. Parties/their authorised representatives shall be personally present before the Rent Controller on the said date;

(ii) on the said date, the respondent/landlord shall file, before the Rent Controller, the amended eviction petition incorporating the amendments as allowed by impugned order dated 30.10.2019;

(ii) on the said date, Rent Controller shall issue summons in the prescribed form as specified in the 3rd Schedule to the petitioner,

requiring the petitioner to file his application seeking leave to defend in terms of the said summons within the statutory period as prescribed therein and physically have the summons served upon the petitioner/authorised representative;

(iii) the Rent Controller shall thereafter proceed further, with the eviction petition, in accordance with law.

23. The petition is accordingly allowed in the above terms

24. Order dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J NOVEMBER 28, 2019 rk