Full Text
HIGH COURT OF DELHI
RC.REV. 1/2023 & CM APPLs. 88/2023 & 89/2023
PRITAM SINGH THROUGH LR ..... Petitioner
Through: Mr. Kashish Bajaj, Advocate.
Through: Mr. Dhruv Chawla, Advocate.
Date of Decision: 31.01.2023
JUDGMENT
1. The present revision petition has been filed by the legal heir of the Petitioner, original Tenant assailing the order dated 04.07.2022 passed by CCJ-cum-ARC (Central), Tis Hazari Courts, Delhi (‘the Trial Court’), whereby the eviction order with respect to the shop at ground floor, in property bearing No. 1768-1770, Street No. 53, Hardhian Singh Road, Naiwala, Karol Bagh, New Delhi- 110005 (‘the tenanted premises’), was passed in favour of the Respondents.
2. The Respondents (‘Landlords’) filed an eviction petition against the original Tenant under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 (‘the DRC Act’) for recovery of the possession of the tenanted premises on the ground of bona fide requirement for the wife of Respondent No.1 to commence the business of mobile sale/recharge from the tenanted premises.
3. It was stated in the eviction petition that when the tenanted premises was purchased by the Landlords herein, father of the original Tenant, Late Shri. Bhupinder Singh, was carrying on the business in the name and style of Nanak Motors, from the tenanted premises. After the demise of Late Shri. Bhupinder Singh, the tenanted premises was in the possession of the original Tenant, who was carrying on the business in the name and style of Nanak Bullet House.
4. The eviction order was passed by the Trial Court, wherein it was noted that the original Tenant had failed to file the application seeking leave to defend as mandated under the DRC Act. The relevant portion of the eviction order reads as under: “Summons served upon the respondent through Whatsapp on 21.02.2022. However, the respondent has failed to file application for leave to defend to contest the present petition within the statutory time period. It was held by the Hon’ble Supreme Court in Prithipal Singh Vs. Satpal Singh (Dead) through his LR’s, (2010) 2 SCC 15, that:- “Next comes the very important provision in Section 25-B of the Rent Act i.e. sub-section (4) of the same. It clearly provides that a tenant on whom the summons is duly served in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller, as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. From a careful perusal of sub-section (4) of Section 25-B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he files an affidavit before the Controller stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller. This section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceedings shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition. At this stage, we may also note that in sub-section (4) of Section 25-B of the Rent Act read with the Third Schedule, it has been made clear by the legislature that if the summons of the proceeding is received by the tenant, he has to appear and ask for leave to contest the eviction proceedings within 15 days from the date of service of notice upon the tenant and if he fails to do so, automatically, an order of eviction in favour of the landlord on the ground of bona fide requirement shall be made.” Thus, in terms of provisions of Section 25 B (4) of the Act, the statement made by the landlord in the petition for eviction shall be deemed to be admitted by the tenant and petitioner shall be entitled for an order of eviction. In such circumstances, further inquiry to conclude as to whether grounds of eviction are made out, is not required by law.” (Emphasis supplied)
5. The eviction order was passed on 04.07.2022 and subsequently, the original Tenant expired on 28.10.2022. The present petition has been filed by the son of the original Tenant who states that he is in possession of the tenanted premises.
6. Learned counsel for the Petitioner states there was no due service of the summons on the original Tenant. He states that that vide order dated 08.02.2022, the Trial Court directed issuance of fresh summons upon the original Tenant as per Section 25B(2) of the DRC Act, through WhatsApp/email and the hearing was fixed on 26.04.2022.
6.1. He states that vide order dated 26.04.2022, the Trial Court erred in recording that the original Tenant was served via WhatsApp on 21.02.2022 and the case was adjourned by the Trial Court to 04.07.2022. He states that the Trial Court erred in relying upon the report of the process server.
6.2. He states that in the above facts, on 04.07.2022, the Trial Court after recording that the original Tenant has failed to file his leave to defend, erred in passing the eviction order dated 04.07.2022 as there is no record of due service on the original Tenant.
6.3. He states that in the absence of due service, the original Tenant was prevented from filing the leave to defend and therefore the impugned eviction order be set aside.
6.4. He further states that the original Tenant was ailing and unwell in the year 2022. He states that the original Tenant was hospitalised several times in the said year. He states that due to the said illness, the original Tenant was unable to use his mobile phone and for this reason, the service of summons through WhatsApp appears to have missed his attention. He states that in these facts and circumstances the Petitioner should be granted an opportunity to file his leave to defend.
6.5. He relies on the judgment of the Division Bench in Director Directorate of Education & Anr. v. Mohd. Shamim & Ors., 2019 SCC Online Del 11490.
7. In reply, learned counsel for the Respondent states that the present petition suffers from the vice of suppression of material facts.
7.1. He states that the Petitioner has withheld from this Court that after service was affected on the original Tenant on 21.02.2022, the original Tenant duly engaged an advocate to represent him before the Trial Court. He states that Mr. Sangam Tushir, Advocate filed his memo of appearance and duly entered appearance on 26.04.2022. He states that the order dated 26.04.2022 has not been annexed to the petition and this fact of appointing an advocate is also not disclosed.
7.2. He states that, however, despite due service, no leave to defend was filed by the original Tenant within the statutory period or at any time thereafter. He states that no leave to defend has been annexed even with the present revision petition.
7.3. He states that in light of the proceedings of the Trial Court dated 26.04.2022, it is evident that the Petitioner herein has made false assertions of ‘no due service’ in the present revision petition. He states that the Petitioner has suppressed the material fact of engagement of a lawyer by the original Tenant for hearing dated 26.04.2022.
7.4. He states that the plea of the illness and hospitalisation of the original Tenant in the year 2022 has no bearing in the facts of the case. He states that in the first instance, the plea of hospitalisation is unsubstantiated from the record. Without prejudice, he states that on the material dates, i.e., 21.02.2022, 26.04.2022 and 04.07.2022, the original Tenant was not hospitalised. He states that the Petitioner as well has failed to explain his own negligence in filing the leave to defend.
7.5. He lastly states, the lack of good faith of the Petitioner is also evident from the fact that the present petition was filed close to the expiry of statutory period of six months. He states that the Petitioner cannot rely upon the judgment of Mohd. Shamim & Ors. (supra) as he has not filed his leave to defend.
8. This Court has heard the submissions of learned counsel for the parties and perused the paper book.
9. The Respondent has placed on record the memo of appearance filed by Mr. Sangam Tushir, Advocate on behalf of the original Tenant and the order dated 26.04.2022. The Petitioner has not disputed the said documents and has not offered any explanation for not disclosing the said material facts in his revision petition. The order dated 26.04.2022 passed by the Trial Court reads as under: “CIS No.
RC ARC 68/22 PREM KOHLIWAL AND ANR. Vs.
NANAK BULLET HOUSE THROUGH ITS PROP. Mr.
PRITAM SINGH CNR No. DLCT03-000677-2022 26.04.2022 The only Regular Stenographer is on Earned Leave. Assistant Ahlmad Ms. Sangeeta Shakya is on Child Care Leave. Present: Sh. Vijay Chawla, Ld. Counsel for the petitioner. Sh. Sangam Tushir, Ld. Counsel for the respondent. Memo of appearance has been filed on behalf of respondent. Same is taken on record. Summons served upon the respondent through whatsapp on 21.02.2022. No leave to defend has been filed till date. List the matter for appropriate orders on 04.07.2022.”
10. Infact in the revision petition, the Petitioner raised grounds and pleas alleging non-service contrary to the record of the Trial Court. The relevant pleas read as under: “6. That on 26.04.2022 the Ld. ARC, Delhi recorded in the daily order that the petitioner herein has been served via Whatsapp mode on 21.02.2022 and adjourned the matter for 04.07.2022, the day when the petition for eviction of the Respondents herein was allowed and a decree of eviction against the present Petitioner was passed.” Xxx xxx xxxxx B.Because the Ld. ARC wrongly accepted the report of the process server while admitting the due service of the summons of the petition upon the petitioner herein as the report of the process server clearly speaks that only DOUBLE CLICK in respect of the message sent was reflecting on the mobile number on which the summons of the petition were allegedly sent and no BLUE CLICKS were appearing on the said mobile number;”
11. The aforesaid pleas raised in the revision petition are falsified by the Trial Court’s order dated 26.04.2022 and the memo of appearance filed by the lawyer. Pertinently, the Petitioner herein was aware of the order dated 26.04.2022 as is evident from the averments made at paragraph 6 of the present petition and in spite of the knowledge, the Petitioner elected to suppress the said material fact and plead to the contrary. The Supreme Court in the case of Dalip Singh v. State of Uttar Pradesh and Others, (2010) 2 SCC 114, has observed as follows: “2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenged posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”
12. Admittedly, the order dated 26.04.2022 passed by the Trial Court is not annexed with the present petition. The material fact of the engagement of a lawyer on behalf of the original Tenant is not disclosed in the petition. The said facts falsify the plea of the Petitioner that there was no due service of the original Tenant on 21.02.2022. This Court is satisfied that the original Tenant was duly served on 21.02.2022 and therefore there is no error in the order of the Trial Court in the proceedings held on 26.04.2022.
13. This Court is also of the opinion that the Petitioner is guilty of suppression of material facts and has approached the Court with unclean hands. The petition is liable to be dismissed on this ground alone.
14. This Court further finds merit in the submissions of the Respondent that the dates on which the original tenant was allegedly hospitalized are not the dates when service was affected and the matter was listed before the Trial Court, i.e., on 21.02.2022, 26.04.2022 and 04.07.2022. The written submission of the Respondent elucidates the said facts as under: “Petitioner alleges to be hospitalised for the said periods: i) 19.02.2022 to 23.02.2022 ii) 08.03.2022 to 13.03.2022 iii) 03.05.2022 to 07.05.2022 However, no medical document showing that the Petitioner was admitted to the hospital on the aforesaid dates has been filed by the Petitioner in the present petition. Even otherwise, admittedly, from the period 13.03.2022 to 03.05.2022, the original Petitioner herein was not hospitalised and even had entered appearance through counsel on 26.04.2022. Even on the said date, the Tenant did not file its Leave to Defend, despite being served on 21.02.2022. Ld. ARC had adjourned the matter on 26.04.2022 to 04.07.2022, for appropriate orders, in view of the order dated 10.01.2022 passed in the Suo Moto W.P. (Civi) No. 3 of 2020 by the Hon’ble Supreme Court, whereby the limitation period was extended till 31.05.2022, thereby giving ample time to the Petitioner herein to file the leave to defend, however the Petitioner failed to do the same.
15. The Petitioner has not disputed the aforesaid analytical submission of the Respondent and therefore the plea of hospitalisation and in ability to file leave to defend is without any merit.
16. It is also a matter of record that though Respondent entered appearance on 26.04.2022 no steps were taken to file the leave to defend before the Trial Court at any time prior to 04.07.2022, i.e., the date when the eviction order was passed.
17. The reliance placed by the Petitioner on the judgment of Mohd. Shamim & Ors. (supra) is inapplicable to the facts of the instant case as it is a matter of record that no leave to defend has been filed till date.
18. This Court has been informed that the present Petitioner is in occupation of the tenanted premises. The Petitioner has failed to explain his own omission in filing the leave to defend.
19. In the overall conspectus of the facts of this case, this Court is of the opinion that there is no error in the eviction order dated 04.07.2022 passed by the Trial Court and the present petition is devoid of merits. Further, in view of the material suppression and false averments, the Petitioner is directed to pay costs of Rs. 20,000/- to the Respondents within a period of two weeks.
20. The petition is dismissed and the applications stand disposed of.
MANMEET PRITAM SINGH ARORA, J JANUARY 31, 2023/rhc/hp