Full Text
Order delivered on: July 24, 2014 R.P.No.576/2013 in RC. REV. No.180/2013
DEEPAK GUPTA ..... Petitioner
Through Mr.J.P. Sengh, Sr. Adv. with Mr. Anil Pruthi, Adv. with
Mr. Anuj K.Rajvanshi, Adv.
Through Mr. Kirti Uppal, Sr. Adv with Mr. Anuj Jain & Mr. Anshumaan Sahni, Advs.
JUDGMENT
1. Brief facts for the purpose of deciding the present review application are:- (a) The respondent had filed a petition seeking eviction of the petitioner from tenanted premises i.e. one godown (behind shop bearing No.2700) comprised in property bearing No. 10- E, Munde Walan Street, Sadar Thana Road, Delhi - 110006 (hereinafter referred to as the ‘suit property’) which was let out to the father of petitioner namely Shri O.P.Gupta in the year 1952 by the erstwhile owner of the property Sh. Prithvi Chand Goel. The property came to the share of the respondent by way of Will of the erstwhile owner. 2014:DHC:3498 (b) The respondent instituted the proceedings against the petitioner under the provisions of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) whereby the respondent pleaded that the tenanted premises is required on the ground of the bonafide necessity. The said eviction proceedings were registered as Eviction Petition No.58/2008 before the learned Rent Controller. Thereafter, the respondent withdrew the said proceedings before the learned Rent Controller by filing an application seeking withdrawal. By way of order dated 2nd February, 2012, the learned Rent Controller allowed the respondent to withdraw the proceedings.
(c) Later on, the respondent again filed the petition under the provisions of the Act before the learned Rent Controller seeking the eviction of the petitioner on the ground of the bonafide necessity. The said eviction was registered as eviction petition No.48/2012. The summons were issued in the said proceedings.
(d) The petitioner pursuant to summons filed the application as per the provisions of Section 25-B (iv) of the Act seeking leave to defend along with his affidavit. The respondent filed the reply to the said application filed by the petitioner seeking leave to defend and also disputed the grounds as raised by the petitioner questioning her need. (e) During the pendency of the aforesaid petition, the respondent had sold the first floor of the property Nos. 2621, 2623, 2696- 2700, Plot No. 10-E (East), situated at Mundewalan Road, Sadar Thana Road, Delhi-110006 vide registered sale deed dated 28th August, 2009 and gifted one godown of the property Nos.2621, 2623, 2696-2700 by way of Gift Deed dated 28th August, 2009 to her nephew Sh. Deepak Goyal. (f) The matter thereafter was eventually heard by the learned Rent Controller and on 5th January, 2013, the learned Rent Controller proceeded to pass an order dismissing the application filed by the petitioner and declining the leave to defend.
2. Aggrieved by the order dated 5th January, 2013, the petitioner filed Revision Petition raising several grounds which as per the petitioner makes the order contrary to law and warrants interference of this Court under the provisions of Section 25B of the Act.
3. By judgment dated 24th July, 2013 of this Court the impugned order dated 5th January, 2013 was set aside and leave to defend was granted. The revision petition was disposed of. Para 32 and 33 of the judgment are reproduced below:- “32. The question is whether the respondent requires the suit property and her requirement comes within the corners of Section 14(1) (e) or not. The said issue in my opinion could be properly determined only if leave to defend is granted to contest the matter. This matter does not need a summary procedure in view of reasons mentioned above whereby I feel and I am of the considered opinion that the petitioner has raised triable issue regarding bonafide requirement of the respondent which could be decided only after trial.
33. It is not a thumb rule in every case that the application for leave to defend must be refused by the desires of the landlord otherwise, the tenants would lose statutory protection. That would definitely defeat the intention of the legislation. I am of the view that in the application for leave to defend must be judged and decided on case to case basis and not in a mechanical manner. Each case has to be determined as per its own merit and in case the court has doubt in its mind about the genuineness of need of the landlord or the matter requires fact finding then it would be better to postpone the final decision on eviction by granting leave to defend so that truth may come out at the time of trial.”
4. On 29th August, 2013, the respondent/ landlord has filed an application under Section 114 read with Order XLVII read with Section 151 CPC and Rule 10 of Volume 5 of Delhi High Court Rules alongwith an application for condonation of delay of one day. The delay in the application is condoned as no objection is raised by the petitioner.
5. It is stated in the review application that in para 4(a) and (b) in the impugned order dated 24th July, 2013, factual errors have occurred while recording the submissions of the learned counsel for the petitioner. Similarly para 17, 18, 19, 20, 24, 28 and 29 contain errors which are apparent on the face of the record. Therefore, the present application of review be allowed and the impugned judgment dated 24th July, 2013 be reviewed and the main R.C. Revision No.180/2013 be dismissed with heavy cost.
6. It is also alleged in paras 3 and 4 of the review petition that the learned Rent Controller has already given its finding while rejecting the application of leave to defend by dealing with the availability of two shops No.2699 and 2700 with the respondent. It is submitted that the correct position about the two shops is undisputed that eviction No.E-18/2012 titled as “Sushma Aggarwal vs. Bimla Devi & Ors.” for the shop No.2699 is pending. With regard to shop No.2700, the eviction No.E-91/2012 titled as “Sushma Aggarwal vs. Vijay Kumar Sudarshan Kumar & Ors. is pending. (By order dated 5th January, 2013 the eviction orders pertaining to Shop No.2700 were passed but the same is challenged before this Court by the tenant by virtue of R.C. Revision Petition No.297/2013). None of these two shops were vacated by the mother of the respondent in eviction proceedings in the year 2008. Both are at present in the possession of the respondent.
7. Mr. Kirti Uppal, learned Senior Counsel for respondent has referred paras 17, 18 and 20 of the impugned judgment. He says that the factual position of the two shops is not correctly recorded in these paras otherwise, the Court might not have granted the leave to defend to the petitioner under the correct position.
8. Paras 17,18 and 20 of the impugned judgment referred by Mr.Uppal, learned Senior counsel are reproduced below:- “17. No doubt, the respondent has mentioned in the petition that they do not have any other alternative commercial accommodation and requires the tenanted premises as 3 shops as a whole to start the business but at the same time, the finding as to reasonableness and sufficiency of two shops already available with the respondent has neither been arrived at by the Controller nor has been explained by the landlord as to how the two shops No. 2699 and 2700 which were got evicted by the respondents mother earlier which came to her share were insufficient as an alternative accommodation available to them.
18. On the contrary, the order passed by the learned Controller holds that the fact that the respondent did not disclose the shop No. 2699 and 2700 which were earlier available to the respondent does not come in the way of the respondent to seek the order of the eviction. I find that the said facts would certainly cast some shadow of doubt on bonafides of the respondent to seek eviction or if not the bonafides then the sufficiency and reasonability of the alternative accommodation.
20. Once, the respondent has not stated the said material facts in the petition and the petitioner has filed a leave to defend application along with the affidavit questioning the bonafides of the respondent by stating that the respondent is the owner of the shop No. 2699 and 2700 which got vacated earlier by the mother of the respondent in the eviction proceedings in the year 2008, the learned Rent Controller simply could not have brushed aside the said facts as inconsequential in nature unless the plausible explanation comes from the landlord as to how the same are not reasonably suitable commercial accommodation. In the absence of the some cogent reasons as is evident from the record and the respondent merely disputing the same calling it as irrelevant and having no bearing, it becomes really a question of trial to be examined as to whether the respondent’s need is genuine or not and also whether there is reasonably suitable accommodation already available to the respondent or not.”
9. Mr. J.P Sengh, learned Senior counsel appearing on behalf of petitioner has argued that the present review application is not maintainable and is liable to be rejected mainly on the reason that the leave to defend was granted to the petitioner for the reasons that the respondent has concealed material facts from the Court as well as on the basis of conduct of the respondent. He submits that the property No.2699 and 2700 at 10-E (East), situated at Mundewalan Road, Sadar Thana Road, Delhi-110006 have been given the same numbers to other properties at the site i.e. godown behind the respective shops and first floor of the said properties.
10. The petitioner has provided such details as per factual position at site which is not seriously disputed by the respondents except the case of the respondents’ is that first floor of property Nos.2699 and 2700 are residential on the other hand petitioner says that these are commercial. Counsel has referred following documents in support thereof:- Property Source Title Nature Status First floor of the property Nos. 2621,2623,2696- 2700, Plot NO. 10-E (East), situated at Mundewalan Road, Sadar Thana Road, Delhi-110006 ( During the Registered will dated 11th October 1996 by mother namely, Kailashwati Goel Joint ownership of respondent alongwith her son namely Sachin Aggarwal Residential Evicted from tenant. Sold by the respondent to her nephew, Sh. Deepak Goyal vide registered sale deed dated 28th August pendency of eviction petition no.58/2008) Godown behind shop no. 2699, on the ground floor in property bearing no. 2621, 2623,2696-2700, Plot No. 10-E (East), situated at Mundewalan Road, Sadar Thana Road, Delhi-110006 During the pendency of eviction petition no.58/2008) dated 11th October 1996 by mother namely, Kailashwati Goel Sole owner Commercial Gifted by respondent to her nephew. Sh. Deepak Goyal vide gift deed dated 28th August 2009. Shop No. 2699 Registered will dated 14th April 1981 by father of the namely, Sh. Prithvi Chand Goel Sole owner Commercial The shop is under the possession of tenants and for which the Eviction Petition bearing E. No.18/2012 is pending in the Court of ARC, Tis Hazari. Shop No.2700 Registered will April of the Goel Sole Owner Commercial The shop is under the which the eviction petition bearing no. E. No.91/2012 was filed and eviction order dated 5th January 2013 was passed by the Court of Rent Controller, Tis Hazari, Delhi. The same order is under challenge in the Revision Petition No.297/2013. Godown behind shop No.2700 April of the Goel Sole Owner Commercial The shop is under the which the eviction petition bearing no. E. No.48/2012 was filed and eviction order dated 5th January 2013 was passed by the Court of Rent Controller, Tiz Hazari, Delhi. The same order was challenged in the Revision Petition No.180/2013 which was allowed vide impugned judgment dated 24th July
2013. The present review of said judgment is filed by the respondent.
11. I agree with the submission of Mr.J.P. Sengh, learned Senior counsel, that the main reason for this Court while passing the impugned judgment and granting the leave to defend to the petitioner-tenant was that in the year 2008 Eviction Petition No.58/2008 was filed by the respondent against the petitioner under Section 14(1)(e) of the Act and on 28th August, 2009 the respondent executed a sale deed of property as per registered document No.5953 in respect of first floor of property bearing Nos. 2621, 2623, 2696-2700 situated at First Floor Plot No. 10-E, Mundewalan Street, Sadar Thana Road, Delhi in favour of her nephew Deepak Goyal, the properties which were got vacated by the mother of the respondent under Section 14(d) of the Act. The respondent also executed a gift deed of a property where nature of property is mentioned as commercial (though the case of the respondent is that these properties are not commercial). It is apparent that the first floor of the above said properties i.e. 2699 and 2700 from where the tenants were evicted were sold by the respondent to her nephew Deepak Goyal. Whether these properties were residential or commercial, the said aspect has to be determined in the trial. Therefore, the reference made at various places including in para 17, 18 and 20 be read accordingly.
12. When these documents were executed in favour of Deepak Goyal, the respondent’s petition for eviction bearing No. E-58/2008 was already pending against the petitioner. The respondent at the time of filing of said eviction petition which was filed in 2008 had in her possession the said commercial properties, which were not disclosed by the respondent in her eviction petition, copy of which has already been placed by the petitioner. After the said sale deed and gift deed in favour of her nephew of the said properties, the respondent on 2nd February, 2012 withdrew E. No. 58/2008 and filed the fresh petition against the petitioner being E. No.48/2012 on the same grounds. This time the respondent had made a disclosure that the said properties are now not in possession of the respondent. Therefore, eviction is sought. All the said properties were sold and gifted to her nephew during the pendency of earlier eviction petition being E. No. 58/2008.
13. It is not denied by the respondent that the transfer of the two portions of the said properties by the respondent was made during the pendency of the earlier eviction petition. The respondent has filed the fresh petition for the same purpose i.e. bonafide necessity in the year 2012 after withdrawing the earlier eviction petition which was of the year 2008. These are the main reasons for granting leave to the petitioner so that the actual position be brought on record in evidence. The reasons have also been discussed in paras 27 to 29 of the impugned judgment.
14. The review application, therefore, filed by the respondent/review applicant is not maintainable as the respondent has failed to demonstrate any error apparent on the face of the record of the order passed by this Court and is trying to re-argue its case as if it was an appeal which is beyond the scope of the Order XLVII Rule 1 CPC and as such the review application is liable to be dismissed. The Supreme Court in the case of K.A. Ansari and Anr. Vs. Indian Airlines Ltd., (2009) 2 SCC 164 in para 17 was pleased to hold that an application for review cannot be entertained only for the purpose of rehearing of the case. The Supreme Court further held in the case of The State of West Bengal and Ors. vs. Kamal Sengupta and Anr., (2008) 8 SCC 612 that the application of review cannot be entertained merely because a different view could have been taken by the Court. It was held that while dealing with the application of review, the Court cannot sit as a court of appeal.
15. In light of the above, and peculiar facts of the dispute in hand, this Court is not inclined to review the impugned judgment. The present application is devoid of any merit. The trial in the matter is necessary. The learned Rent Controller may decide the case as per its own merit and without the influence of the impugned judgment. The trial in the matter is expedited. The learned Rent Controller would make his endeavour to complete the trial within six months and hear final arguments immediately thereafter. This review petition is accordingly disposed of with these directions.
JUDGE JULY 24, 2014