Abdul Wahid v. Rambeti

2 Thetenarrted shop was letoutto thepetitrorrer tn January, 2005 perrodof11 months for therentofRs.2,300/- for cornmercralpurposesfor runnrng ashop offootwears, though tire sa,d tenancy was extended for not vacate the tenanted shop. 3 I.. the case oftherespondent,who ts awrdow lady thatsherecu.res tire tenanted shop for her bonaf.de requirenrent as she wants to open a Ktryana shop for her handicapped son and widow daughter to earn re.r RC. Rev.No.143/2013 Page 1 of[6] 2013:DHC:8527 u livelihood. Hence the eviction petition. It is pertinent to mention that in October, 2010 the petitioner filed acase ofbreach ofpeace under Sections 107/151 Cr.PC against the daughter of the respondent as he was being harassed by her and also acase for pennanent injunction against the respondent, which is pending adjudication.

4 It the case ofthe petitioner, as he contended in his leave to defend apphcationthattheevictionpetitionisacounterblasttothesuitfiledbyhim against the respondent. He denied the execution ofthe rent agreement and claimed itto be forged and fabricated andhe contendedtohavebeenpaying agreed rent amount, however, no receipts were issued to him. The petitioner firther contested the need of the respondent and contended that the respondent is in possession ofashop adjacentto the tenanted shop and also a basement comprising of two rooms/shops and the first floor comprising of two rooms in the said property, and even otlierwise has severalresidential aswell as commercial properties in andoutside Delhi. He contended that since the son ofthe respondent is doing his own business of selling coconut and tlie daughter is employee in an STD shop, neither of them were dependent upon the respondent

5 The respondent mher reply to the leave to defend application denied tire contentions ofthe petitioner and stated that her elder sonresides wMr his family in the said shop adjacentto the tenanted shop and except for that, the respondent has only the suit property in Delhi

6. On considering the contentions made by the parties, it was observed by the trial court that even though the petitioner has contended that the respondent has severalresidential and commercial properties in and outside Delhi and lias ample assets, he had failed to place on record any proof of ownership of the respondent regarding those properties. The claim of the Page 2 of[6] RC. Rev.No.143/2013 rent agreement being forged and fabricated did not in the opinion of the learned trial court give rise to any triable issue. It was observed that even if the handicapped son and the widow daughter were already doing some business to earn their livelihood, the respondents requirement ofthe tenanted shop for letting her children start their own business could not be termed as malafide. In view of the same, the application of the petitioner for leave to defend was dismissed and an eviction order was passed against him vide order dated 28^' May, 2012.

7. Aggrieved by the impugned order the present petition is filed on the y ground mainly that the respondent's petition was false, baseless, frivolous, not maintainlable.

8. After hearing learned counsel appearing on behalf of the petitioner, I find no force in his submission. Thus, the present petition is liable to be dismissed on the following reasons; a. The respondent had placed on record copies of GPA, agreement to sell, receipt executed in his favour to show that she is the owner ofthe property. She has also placed on record the rent agreement dated 04.01.2005 executed between the parties to estabhsh that the relationship of landlord and tenant between the parties. The respondent has not disputed the ownership ofthe petitioner as well as the relationship between the parties. Thus, the objection was just flimsy one and was not tenable in law. b. The petitioner has denied the bonafide requirement of the respondent and has claimed that respondent has several residential and commercial properties in Delhi and outside Delhi and has ample assets. Apart from vague assertion, the petitioner has neither given any details of the properties owned by the respondent nor any cogent RC. Rev No.143/2013 and clear prima facie evidence was produced at the time of filing of application for leave to defend. c. The petitioner argued that the respondent is inpossession of one shop adjacent to the tenanted shop. However, no photograph or documentary evidence in this regard has been placed in this regard by him. The petitioner has alleged that the rent agreement dated 04.01.2005 is forged and fabricated and the actual rate of rent is ?500/- p.m. and he has paid the rent upto July, 2011 @ ^500/- p.m. butno rentreceipts, if any, issued by therespondents were produced. d. The petitioner has also averred that the son ofthe respondent is doing his ownbusiness of selling coconut and daughter is an employee of an STD shop but the petitioner has totally failed to produce even prima facie evidence or details.

9. The learned court below after dealing with the argument addressed and grounds stated in the application for leave to defend has come to the conclusion that the petitioner is not entitled to leave to defend.

10. The legal position as it stands today has been well-settled since the Supreme Court ruling of Shiv Shakti Co-operative Housing Society, Nagpur V. M/s. Swaraj Developers, AIR 2003 SC 2434. The Apex Court analysed the position both prior as well as post Amendment Acts of 1976 and 1999 and very well reiterated the difference between an appeal and a revision in the following paragraphs: "13...It is fairly well-settled position in law that the right of appeal is a substantive right. But there is no substantive right in making an application under Section 115. 15...Language of Sections 96 and 100 of the Code which deal with appeals compared with Section 115 of the Code. While in the former two provisions specifically provide for right to RC. Rev.No.143/2013 Page 4 of[6] of In on the functioning of the subordinate courts by exercising supervisory power." The court summed up the present legal position in the fol g paragraphs;. i i "1A Section 115 is essentially asource ofpower for the High Court toC^'-tt- subordinate courts. It does not in wav confer aright on alitigant aggrieved by any order oft TuborXlte co[4] to approach tl. High Corirt for re« scope for making aregion under Section 115 is not with a substantive right." "32 Aplain reading of Section 115 as " makes k clear that the stress is on the question whether the order tL of the party applying for revision would have given S to suit or other proceeding. Ifthe answer is 'yes' then tlie revision is maintamable. Suit on the contrary, 'f'^e ansxwr. is 'no' then the revision is not maintainable. Therefore if Ae impugned orderis ofinterim in natiffe ordoesnot finally decide the lis the revision will not be mamtainable. The legislative intentis crystal clear. Those orders, which are ^ caimot be the subject matter of revision luider Sectio"!!^ There is marked distinction in language of Section 97(3) ot the Old Amendment Act and Section 32(2) (i) of the Amendment Act While in the former, there was clear legislative intent to save applications admitted or pendmg before the amendment came into force. Such an intent is significantly absent mSection 32(2)(i). The amendment relates to procedures. No person has a vested right in acourse of procedure. He has only the right of proceeding in the manner prescribed. If by astatutory change the mode of procedure is ahered the parties are to proceed according to the altered made, without exception, unless there is a different stipulation." Page 5 of[6] RC. Rev.No.143/2012 ^ Section 6of tlie General Clauses Act has no application because there is no ^"bstantiye vested ^ seekingrevisionunder Section 115 ofthe Code.

11 Thepetitionerhasnotdeniedthefaetthattherespondenthastakenthe possession ofthe tenanted premises in the execution proceeding through bailiffin view ofthe impugned order.

12. Considering the entire gamut of the matter. Iam oftire considered viewthatthere is no meritinthepetitionandthe same is dismissed. JULY 26, 2013 ^1ANMOTAN^^INGH[5] JUDGE