Delhi High Court
Ramesh Chand Verma (Since Deceased) Thr ... vs Saroj Devi Jain (Since Deceased) Thr Lrs on 20 December, 2023
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.12.2023
+ CM(M) 29/2020
RAMESH CHAND VERMA (SINCE DECEASED) THR HIS LRS
..... Petitioner
Through: Mr Ajay Verma and Mr Vaishnav
Kirti Singh, Advocates
versus
SAROJ DEVI JAIN (SINCE DECEASED) THR LRS
..... Respondent
Through: Mr D.K. Mishra, Advocate
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
1. This petition filed under Article 227 of the Constitution of India
impugns the order dated 19.10.2019 passed by ARC-1, Central, Tis Hazari
Courts, Delhi ('Executing Court') in Execution Petition No. 24/2016, New
No. 98658/2016 titled as Smt. Saroj Devi Jain since deceased through
LRs. vs. Shri Ramesh Chand Verma since deceased through LRs.
1.1 The Executing Court vide order dated 19.10.2019 dismissed an
application filed by the legal representative of the deceased Judgment
Debtor under Order XXII Rule 4 Code of Civil Procedure, 1908 ('CPC') on
the ground of delay.
1.2 The Executing Court by the same impugned order also dismissed the
application filed by the deceased Judgment Debtor under Order IX Rule 13
CPC read with Section 5 of the Limitation Act, 1963 and Section 144 of
CPC as abated.
1.3 The Respondents i.e., the landlord filed an eviction petition
no.997/2014 for recovery of the two (2) shops bearing part of property No.
2521 & 2522, Ward No.11, Near Jain Naya Mandir, Dharampura, Dariba
Kalan, Chandni Chowk, Delhi ('tenanted premises') under Section 14(1)(e)
of the Delhi Rent Control Act, 1958 ('DRC Act').
1.4 The Executing Court after recording that the tenant has been duly
served and has failed to enter appearance and/or file an application for leave
to defend proceeded to pass the eviction order dated 12.01.2016. Thereafter,
in execution proceedings in pursuance to the issuance of warrants of
possession, the possession of the tenanted premises was recovered by the
landlord on 17.05.2017.
1.5 It is at this stage that the deceased Judgment Debtor approached the
Executing Court on 26.05.2017 by filing an application under Order IX Rule
13 CPC and Section 144 CPC.
1.6 The Judgment Debtor passed away on 30.11.2018. His legal heirs,
however filed an application under Order XXII Rule 4 CPC belatedly on
19.10.2019, which has been dismissed by the Executing Court on the ground
of delay. The Executing Court has also dismissed the application filed by the
deceased Judgment Debtor under Order IX Rule 13 CPC.
2. This petition has been filed by the legal heirs of the deceased
Judgment Debtor. It is the stand of the Petitioners that since the tenanted
premises were lying locked, even though the service of the summons were
duly affected, the deceased Judgment Debtor did not have any notice of the
said summons and therefore, was unable to participate in the proceedings for
eviction before the Rent Controller.
3. The Petitioners herein do not dispute that the service was affected at
the tenanted premises in the ordinary course as well as subsequently by
publication under Order V Rule 20 CPC.
4. The Respondent states that post execution and recovery of possession
the landlord occupied the tenanted premises and started using it. He states
that during the pendency of these proceedings both the landlord and the
tenant have passed away. It is stated that the order dated 19.10.2019 granted
permission to the legal heirs of the deceased tenant i.e., Judgment Debtor to
remove the two (2) iron almirahs from the tenanted premises, which liberty
has been exercised by the legal heirs and thus the order has been
implemented. It is contended that the present petition is not being seriously
pursued and is kept pending for oblique reasons.
5. This Court has considered the submissions of the counsel for the
Petitioners and perused the record.
6. In the facts of this case, there is no dispute that due service was
affected on the deceased Judgment Debtor firstly at the tenanted premises
through ordinary process and additionally by publication. However, the
tenant failed to file an application for leave to defend despite service. In
these circumstances, the Rent Controller rightly allowed the eviction petition
on 12.01.2016 as per the mandate of Section 25-B (4) of the DRC Act. This
Court finds that ex-facie there was no error in the eviction order passed by
the Executing Court on 12.01.2016.
7. In these facts, where the eviction order stood executed on 26.05.2017,
the delay by the legal heirs of the deceased tenant of over one (1) year in
filing the application under Order XXII Rule 4 CPC was significant. The
Judgment Debtor i.e., tenant died on 30.11.2018 and the application for
bringing on record legal heirs was filed belatedly on 19.10.2019. The
explanation offered by the legal heirs for the delay is unpersuasive and has
been rightly rejected by the Executing Court.
8. It has also come on record that the legal heirs of the Judgment Debtor
i.e., the Petitioners herein acting in furtherance of the liberty granted under
the impugned order dated 19.10.2019 have collected the iron almirahs from
the tenanted premises. Therefore, the impugned order has been implemented
between the parties.
9. In these proceedings as well, the Petitioners have not been diligent in
appearing in the matter.
10. Thus, keeping in view over all conspectus of the facts i.e., (i) the
Judgment Debtor i.e., the tenant had stopped using the tenanted premises
during his lifetime and was lying locked; (ii) the possession of the tenanted
premises stands recovered on 26.05.2017 and is being used by the legal heirs
of the deceased landlord; (iii) both the landlord and the tenant have passed
away; (iv) the issue in 2023 is now stale and no compelling reasons for
granting restitution as prayed for by the Judgment Debtor are made out.
11. This Court therefore, finds no error in the order of the Executing
Court, while declining the condonation of delay in filing the application
under the Order XXII Rule 4 CPC and dismissing the application for
restitution filed under Order IX Rule 13 CPC as abated.
12. Accordingly, the present petition is dismissed.
13. Pending application(s) stands disposed of.
MANMEET PRITAM SINGH ARORA, J
DECEMBER 20, 2023/rk/sk
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