Full Text
HIGH COURT OF DELHI
Date of Decision: 20.11.2024
35053/2023 M/S VICTOR BROTHERS ALIAS VICTOR BROS
& ANR .....Petitioners
Through: Mr. Bahar U. Barqui, Adv.
Through: Mr Sahib Gurdeep Singh, Adv.
JUDGMENT
1. The orders dated 13.09.2023, 22.02.2024, 11.03.2024, 15.04.2024, 21.08.2024, 29.10.2024, and 04.11.2024 reflect that it is the admitted case of both the parties that the possession of Mezzanine Floor bearing Municipal No. E-5, 32, Inner Circle, Connaught Place, New Delhi-110001 [hereinafter referred to as “subject premises”] has been handed over to the Respondent/landlord through execution proceedings.
2. Learned Counsel for the Petitioners/tenants affirms that the possession of the subject premises has been taken over.
3. By way of an Order dated 21.12.2022 passed by Sr. Civil Judge-cum Rent Controller Patiala House Court, New Delhi [hereinafter referred to as “Impugned Order”], the learned Trial Court allowed the Eviction Petition on the ground that no Application for Leave to Defend/Contest was filed by the Petitioners/tenants within the stipulated time of fifteen days.
4. Learned Counsel for the Petitioners/tenants submits that there was no effective service on the Petitioners/tenants. He submits that the service was effected on one Mr. Zahoor Ahmed by the process server and not on a partner of the Petitioner firm. 4.[1] Reliance in this regard is sought to be placed on the provisions of subsections (3)(a) and (3)(b) of Section 25B of the Delhi Rent Control Act, 1958 [hereinafter referred to “DRC Act”] to submit that the service was not in terms of the aforesaid provisions.
5. Learned Counsel for the Respondent/landlord submits that the tenancy was in the name of M/s Victor Brothers, a partnership concern, and the said Mr. Zahoor Ahmed, upon whom the service was effected, is also a partner in the Petitioner firm. He further submits that the service on one partner would be deemed to be service on the partnership firm.
5.1. Learned Counsel for the Respondent seeks to rely upon Annexure P- 10 of the case file, filed on behalf of the Petitioner which is a Deed of dissolution of partnership dated 27.11.2019 to submit that this deed of dissolution does not state that the Mr. Zahoor Ahmad is no longer a partner. 5.[2] Reliance is placed on the single page recital of this deed of dissolution which sets out the names of the partners and includes the name of Mr. Zahoor Ahmad as party No.6, stating that after the demise of one of their partners that parties 1 to 4 shall run and operate the bank account.
6. It is not disputed that this Petition was filed by a partnership firm. It is also not disputed that the said Mr. Zahoor Ahmad was a partner of the Petitioner firm. Prima face, the deed of dissolution which is not disputed by the Petitioner does not show that Mr. Zahoor Ahmad had ceased to be a partner on 27.11.2019. To the contrary, it states that one partner has died and the parties are continuing the business and party nos.[1] to 4 will operate bank accounts. Thus, this submission of the learned Counsel for the Petitioners/tenants is without merit. The relevant extract of the said document is reproduced below: “WHEREAS the above-mentioned parties along with one Khursheed Ahmad Lanker were running partnership Business under the name and style of M/s Victor Brothers with its principal place of business situated at Adalat Masjid Hawal, Srinagar and a branch office at E-5, Mezzanine Floor, Connaught Place, New Delhi and in this regard the parties had executed a partnership deed which was duly notarized. However, the said Khursheed Ahmad Lanker died on 14.08.2019 and since then the parties herein are carrying the said business premises with all departments and the party NO. 1 - 4 shall run/operate the bank accounts of the above said firm.” [Emphasis Supplied]
7. The Impugned Order deals with the aspect of service in detail and gives its finding that the summons sent were in compliance with Schedule III of the DRC Act. It further sets out that the process server went to the subject premises on three occasions and on the third visit, the said Mr. Zahoor Ahmed accepted the same after conferring with Petitioner No. 2. The relevant extract is as follows:
pm and the premises were found open and he called out for respondent i.e. when one person who introduced himself as the cousin brother of respondent no.2, informed that respondent no.2 was away to his native village and shall return after one week to 10 days and the aforesaid person also informed the process server that his name was Zahoor Ahmed and said that he cannot accept the process since he has no instructions from respondent no.2. Subsequently, on 19.10.2022 process server again visited the aforesaid tenanted premises and again met the aforesaid person namely Sh. Zahoor Ahmed who informed that he was the cousin brother of the respondent no.2 and again informed the process server that respondent no.2 was away to his native village and has not returned and he has already spoken to respondent no.2 and upon his responsibility to inform respondent no.2 accepted the process of the Court and even affixed his signatures on the process of the Court.
7. The aforesaid report was perused by the Court on 23.11.2022, and the aforesaid service was accepted to be duly served upon respondents on 19.10.2022, the Presiding officer was on leave, the matter was listed for 20.12.2022. In the present facts and circumstances and after taken due consideration of the report of the process server and also in view of the judgment relied upon by Ld. Counsel for the petitioner, I am of the considered view that the aforesaid process issued as per third schedule of the DRC Act to the respondent is a proper service and does not suffer any infirmity. Further the process issued to the respondent were also served to him through speed post, since, the affidavit of service/speed post were also placed on record. Further, Ld. Counsel for the petitioner had placed on record affidavit of service, aforesaid postal receipts and tracking report which was duly considered by the undersigned on 23.11.2022.” 7.[1] The learned Trial Court, after careful examination of the service report, has found the service be in order. This Court has also examined the same and found that the service was effected upon a partner of the firm and since the Petitioner is a partnership firm, the service upon a partner of the firm, shall be deemed service upon the firm. In addition, the summons have been served in accordance with Schedule III of the DRC Act.
8. A Division Bench of this Court in the case of Directorate of Education & Ors. vs. Mohd. Shamim & Ors[1] has held that in order for an application for extension of time to file Leave to Defend to be allowed, a dual test, needs to be fulfilled. The tenant is required to show that he was prevented by reasons beyond his control from applying for Leave to Defend within the prescribed time. In addition, the tenant is to make out a substantial case of consideration in the Application for Leave to Defend. The Division Bench further held that the power to condone the delay is not available with the Rent Controller but the High Court has such power subject to both the conditions as set out above, being satisfied. The relevant extract of the order passed by the Division Bench in the Directorate of Education case is set out below: “25. We, therefore, hold that merely because the Controller has passed an order of eviction in a proceeding governed under Section 25B, on failure of the tenant to, within the prescribed time, apply for leave to defend and merely because the Controller vide Prithpal Singh supra has been held to be not empowered to recall the said order, would not prevent this Court from, in exercise of powers under proviso to Section 25B(8), considering once a case for the landlord to be not entitled to an order of eviction to be deemed admission following non-filing of leave to defend within the prescribed time, the said order cannot be said to have been made according to law and would qualify as being contrary to law and liable to be set aside.
26. Having held so, we answer the question no.(A) framed in the referral order in the affirmative and with the condition that this Court would be empowered to set aside the order of eviction only if the tenant passes the dual test of prevented by reasons beyond control from applying for leave to defend within the prescribed time (as distinct from every default) and if makes out a substantial case for consideration of the application for leave to defend. We, however, in deference to Prithipal Singh supra choose/opt to not answer the question (B) framed in the referral order. 27. We answer the reference accordingly.”
9. As mentioned above, the only contention raised by the 2019 SCC OnLine Del 11490 Petitioners/tenants is that there was no-effective service upon the Petitioners/tenants. The Petitioners/tenants has averred that the service on the said Mr. Zahoor Ahmad was not proper service in terms of Schedule III of Section 25B(2) of the DRC Act. As discussed above, the Petitioners/tenants being a partnership firm, the service was affected upon one of the partners.
10. In view of the discussions above, the Petitioners/tenants have failed to show that they were prevented by reasons beyond their control from applying for Leave to Defend within the prescribed time. Since, the twin test of the Directorate of Education case has not been satisfied, the Court is unable to condone the delay in filing the Application for leave to defend/contest.
11. There is another aspect of this case which is of relevance. It is the admitted case of both the parties that the possession of the subject premises was restored to the Respondent/landlord. The issue of whether a Revision Petition is maintainable when the tenanted subject premises has been legally restored to the Respondent/landlord, either during or before the filing of the Revision Petition, has been addressed by the Supreme Court as well as by Coordinate Benches of this Court.
12. The Supreme Court in NC Daga v. Inder Mohan Singh Rana[2], dealt with a similar situation while dismissing a challenge by a tenant to a judgment passed by this Court upholding an order declining leave to defend passed by the learned Trial Court. The facts in the case were that, possession of the tenanted premises had been taken pursuant to an order passed by the Executing Court. The Supreme Court dealt with the similar arguments raised on behalf of the Respondent/landlord that the Petition has become infructuous pursuant to the possession having been taken.
13. After briefly examining the contention of the parties, the Supreme Court in N.C Daga case held that in view of the admitted position of possession being taken in execution proceedings, it was not necessary to go into the further details since such a decision would be a purely an academic question. The Supreme Court held as follows: “6. In view of the admitted position that pursuant to the order passed by the Rent Controller, possession has been taken on execution of the order permitting eviction, and absence of specific stand regarding implied consent it is, however, not necessary to go into the finer details and to examine the rival stand in the background of legal position as it would amount to rendering decision on a purely academic question. The appeal is, therefore, dismissed, without any order as to costs.”
14. A similar view was taken by the Supreme Court in Vinod Kumar Verma v. Manmohan Verma[3] where on an averment by the Respondent/landlord that possession of the premises has already been taken over, the Supreme Court held that nothing further survives in the Appeal and disposed the Appeals as being infructuous. The order being brief is extracted below: “Leave granted. At the time of hearing of these appeals, the learned counsel appearing on behalf of the landlord-respondent submits, on instructions, that the possession of the premises in question has already been taken over by the landlord-respondent. That being the position, these appeals have now become infructuous, which have been filed against the final Civil Appeal Nos. 5220-5221 of 2008 order dated 19.08.2008 judgment and order dt.25.02.2008 and 28.03.2008 passed by the High Court of Delhi at New Delhi in RCR No.49 of 2007 and C.M.No.119 of 2008 (Review) in RCR No.49 of 2007, by which the Revision Petition filed by the tenant/appellant was dismissed and order of eviction was affirmed. Since the possession has already been taken over by the landlord-respondent, in our view nothing survives in these appeals and accordingly, the appeals are disposed of as infructuous. Interim order, if any, stands vacated. There will be no order as to costs.”
15. Various Coordinate Benches of this Court have also similarly held that the tenant’s Petition have become infructuous in view of possession being taken. Reliance is placed on Neelam Sharma v. Ekant Rekhan[4] and Bhawani Shankar v Nand Lal and Ors.5. 15.[1] In Om Prakash Ashok Kumar & Sons v. Ajay Khurana[6] while relying on the NC Daga case and several other cases, a Coordinate Bench held as follows:
2024 SCC OnLine Del 5228 Court in Ram Avtar v. Anuradha Shukla in RC. Rev. Bearing NO. 104/2021 vide order dated 03.11.2023, the revision petition was ordered to be dismissed as the possession of the tenanted premises has already been taken by the respondent/landlord in accordance with law. xxx
12. In the present case as reflected from the order dated 10.05.2024, the possession of the tenanted premises has already been restored back to the respondent/landlord in execution of warrant of possession in accordance with law. This Court is also of the view that the present petition is not maintainable. Accordingly, the present petition, along with pending applications stands dismissed being infructuous.”
16. This Court has in Ashok Gupta & Anr. v. Deepak Rao[7] has taken the following view:
16.[1] In addition, in RC. REV. No. 104/2021 captioned as Ram Avtar v. Anuradha Shukla vide order dated 03.11.2023 this Court has held that once 2024 SCC OnLine Del 7148 possession was taken over by the Respondent/landlord in accordance with law, the Petition becomes infructuous. The relevant extract of the Ram Avtar case reads as follows: “4.[1] This Court has considered this contention of the learned Counsel for the Petitioner/tenant. The Revision Petition has been filed challenging the order of the Trial Court which has now gained fruition, and has already been implemented through execution proceedings. In these circumstances, the Revision Petition has become infructuous.
5. Furthermore, this Court in various judgments held that once possession has been taken over by the Respondent/landlord in accordance with law, this petition becomes infructuous and in view thereof, nothing survives in the petition.” [Emphasis supplied]
17. The present Petition has been filed impugning the order and judgment of the learned Trial Court which has directed vacation of the subject premises in issue. The jurisdiction of this Court is only revisionary in nature and limited in scope. The Supreme Court in Abid-Ul-Islam v. Inder Sain Dua[8] while interpreting the intendment of the legislature in removing two stages of Appeal that were earlier provided in the Delhi Rent Control Act, 1958 [hereinafter referred to as the “Act”] has held that this is a conscious omission. It was held that the High Court is not expected to substitute and supplant its view with that of the learned Trial Court, its only role is to satisfy itself on the process adopted. Thus, the scope of revisionary jurisdiction of this Court has been limited to examine if there is an error apparent on the face of the record or absence of any adjudication by the learned Trial Court, and it is only then should the High Court interfere. The Supreme Court has also cautioned from converting the power of superintendence into that of a regular first Appeal under revisionary jurisdiction. This has been elucidated at length by Supreme Court in Abid- Ul-Islam case in the following manner: "Scope of revision
22. We are, in fact, more concerned with the scope and ambit of the proviso to Section 25-B(8). The proviso creates a distinct and unequivocal embargo by not providing an appeal against the order passed by the learned Rent Controller over an application filed under sub-section (5). The intendment of the legislature is very clear, which is to remove the appellate remedy and thereafter, a further second appeal. It is a clear omission that is done by the legislature consciously through a covenant removing the right of two stages of appeals.
23. The proviso to Section 25-B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision-making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature. xxx
25. The aforesaid decision has been recently considered and approved by this Court in Mohd. Inam v. Sanjay Kumar Singhal [Mohd. Inam v. Sanjay Kumar Singhal, (2020) 7 SCC 327: (2020) 4 SCC (Civ) 107]: (SCC pp. 340-41, paras 22-23) “22. This Court in Sarla Ahuja v. United India Insurance Co. Ltd. [Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119] had an occasion to consider the scope of proviso to Section 25-B(8) of the Delhi Rent Control Act, 1958. This Court found, that though the word “revision” was not employed in the said proviso, from the language used therein, the legislative intent was clear that the power conferred was revisional power. This Court observed thus: (SCC p. 124, para 11) ‘11. The learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the factfinding court is wholly unreasonable.’ It could thus be seen, that this Court has held, that the High Court while exercising the revisional powers under the Delhi Rent Control Act, 1958 though could not reassess and reappraise the evidence, as if it was exercising appellate jurisdiction, however, it was empowered to reappraise the evidence for the limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.
23. Again in Ram Narain Arora v. Asha Rani [Ram Narain Arora v. Asha Rani, (1999) 1 SCC 141], this Court had an occasion to consider the aforesaid powers under the Delhi Rent Control Act, 1958. This Court observed thus: (SCC p. 148, para
12) ‘12. It is no doubt true that the scope of a revision petition under Section 25-B(8) proviso of the Delhi Rent Control Act is a very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. Pure findings of fact may not be open to be interfered with, but (sic if) in a given case, the finding of fact is given on a wrong premise of law, certainly it would be open to the Revisional Court to interfere with such a matter.’ It was thus held, that though the scope of revisional powers of the High Court was very limited one, but even so in examining the legality or propriety of the proceedings before the Rent Controller, the High Court could examine the facts available in order to find out whether he had correctly or on a firm legal basis approached the matters on record to decide the case. It has also been held, that pure findings of fact may not be open to be interfered with, but in a given case, if the finding of fact is given on a wrong premise of law, it would be open to the Revisional Court to interfere with the same.”
18. The provisions of the Act provide for a remedy of restoration of possession to a Petitioner/tenant in one situation, i.e., under Section 19 of the Act. In cases allowed under Section 14(1)(e) of the Act, the recovery of possession by a tenant under Section 19(1) of the Act can be obtained if the landlord re-let the whole or part of the subject premises within three years from the date of obtaining possession from the evicted tenant. Sub-section (2) of Section 19 of the Act further provides that where such premises are not occupied within two months by landlord or within three years from the date of possession by the person for whose benefit the premises are held, or are re-let to a person without permission of the Rent Controller within three years from the date of possession, the Rent Controller may direct the landlord to put the tenant in possession or pay him such compensation as is deemed fit by the Rent Controller. Section 19 of the Act is set out below:
18.[1] The Supreme Court in Abid-Ul-Islam case has held that Section 19 of the Act gives a right of re-possession to the dispossessed tenant if landlord recovers possession under Section 14(1)(e) of the Act and thereafter, the landlord does not use the subject premises for the purpose that it was intended and set out in such Eviction Petition on which basis, an order for eviction was obtained by the landlord. The relevant extract is set out below: “19. Before a presumption is drawn, the landlord is duty-bound to place prima facie material supported by the adequate averments. It is only thereafter, the presumption gets attracted and the onus shifts on the tenant. The object of Section 14(1)(e) vis-à-vis Section 25-B has to be seen in the light of yet another provision contained under Section 19. Section 19 gives a right to the dispossessed tenant for repossession if there is a non-compliance on the part of the landlord albeit after eviction, to put the premises to use for the intended purpose. Such a right is available only to a tenant who stood dispossessed on the application filed by the landlord invoking Section 14(1)(e) being allowed. Thus, Section 19 inter alia throws more light on the legislative objective facilitating a speedy possession. The object is also reflected in the proviso to Section 25-B(8), denying a right of appeal..”
19. In any event, after the passing of the Impugned Order, the Respondent/landlord recovered possession of the subject premises in accordance with law. As such the Revision Petition has been filed challenging the order of the learned Trial Court which has now gained fruition and was executed and has already been implemented through execution proceedings. This was recorded by the Court in its orders dated 13.09.2023, 22.02.2024, 11.03.2024, 15.04.2024, 21.08.2024, 29.10.2024, and 04.11.2024. In these circumstances, the Revision Petition has become infructuous. 19.[1] In addition and as elucidated above, the examination by the Court on the contentions raised by the Petitioners/tenants have been found to be without merit by this Court.
20. As stated above, the jurisdiction of this Court exercising revisionary powers is limited and circumspect. The Petitioner/tenant did not initiate appropriate civil proceedings for recovery of possession of the tenanted premises. The Petitioner/tenant has also not contended that Section 19 of Act has been violated. Relying on the judgment of the Supreme Court in the NC Daga case and Vinod Kumar Verma case, this Court finds that this Petition has become infructuous and is accordingly dismissed. All pending applications stand closed.
JUDGE NOVEMBER 20, 2024/SA/vkr