Full Text
Date of Decision: 28th September, 2021
ASHOK KUMAR ..... Petitioner
Through: Mr. Gaganmeet Singh Sachdeva along with Mr. Inderdeep Singh
Ahluwalia, Mr. Harjeet Singh Sachdeva and Ms. Himali Chaudhary, Advocates.
Through: Mr. Ajay Kumar Gupta, Ms. Surbhi Gupta and Mr. Anant Gupta
Advocates.
RAJENDER GAUBA ..... Petitioner
Through: Mr. Gaganmeet Singh Sachdeva along with Mr. Inderdeep Singh
Ahluwalia, Mr. Harjeet Singh Sachdeva and Ms. Himali Chaudhary, Advocates.
Through: Mr. Ajay Kumar Gupta, Ms. Surbhi Gupta and Mr. Anant Gupta
Advocates.
2021:DHC:3086
JUDGMENT
1. Both the present petitions under Article 227 of the Constitution of India impugn the orders dated 5th December, 2019 passed by the Additional Rent Controller (ARC) Tis Hazari Courts, in eviction petitions no. E- 64/2019 and E-65/2019 whereby the documents sought to be filed by the petitioners/tenant along with his rejoinder to the leave to defend application have been returned back to petitioners/tenant.
2. The brief facts leading to filing of the present petitions are: (i) the respondent/landlord filed an eviction petition against the petitioners/tenant under Section 14(1)(e) read with Section 25(B) of the Delhi Rent Control Act, 1958; (ii) summons were issued and were received by the petitioners/tenant; (iii) the petitioners/tenant filed a leave to defend application within the statutory period of 15 days; (iv) the respondent/landlord filed reply to the leave to defend application filed by the petitioners/tenant; and, (v) the petitioners/tenant had filed a rejoinder along with supporting documents.
3. Upon objection taken by the respondent/landlord to the filing of documents along with the rejoinder, the ARC vide the impugned orders, has partially taken on record the rejoinder filed by the petitioners/tenant and the documents filed in support of the rejoinder were returned back to the petitioners/tenant.
4. Notice was issued in the present petition vide order dated 27th January, 2020 pursuant to which reply has been filed by the respondent/landlord.
5. The counsel for the petitioners/tenant has drawn attention of the Court to paragraph VII of the leave to defend application (page 88) of the electronic file, in respect of property no. 7-A/47, WEA, Karol Bagh, New Delhi-110005 which is set out below:- “VII) It is also pertinent to mention here that the past conduct of the petitioner evidently points out that the petitioner on false and frivolous grounds get the property vacated to quench his thirst. The petitioner after purchasing property no.7-A/47, WEA, Karol Bagh, New Delhi-110005, demolished the said property after evicting the tenants and constructed a hotel and the petitioner namely Sh. Sohan Lal Gupta started running the said hotel under the name and style of "Le-Sancy Hotel". However, the petitioner in order to give color to his illegal designs have sold the property further to the prospective buyers.” The counsel for the petitioners/tenant has drawn attention of the Court to reply filed by the respondent/landlord to the aforesaid paragraph VII of the leave to defend application wherein the averments made therein have been denied and it is stated that the petitioner/tenant should have placed the necessary documents on record to show that the said property belongs to the respondent/landlord. Relevant portion of the reply to the leave to defend application w.r.t. the above paragraph is set out below:
“VII. Para (VII) of the application as stated is absolutely wrong and vehemently denied. It is specifically denied that the petitioner on alleged false and frivolous grounds get vacated the property being No. 7A/47, W.E.A., Karol Bagh, New Delhi or demolished the said property after evicting the alleged tenants or constructed a hotel as alleged. It is specifically denied that Shri Sohan Lal Gupta is the petitioner in the present petition as alleged. It is submitted that the petitioner is having no concern with the property being NO. 7A/47, W.E.A. Karol Bagh, New Delhi. The respondent must place the necessary documents on the record to show that the said property belongs to the petitioner. No question arose for demolition of the said property at any stage of time. It is submitted that the petitioner company does not have any concern with the said property in any manner whatsoever.”
6. Accordingly, the petitioners/tenant had sought to file, along with the rejoinder, four sale deeds in respect of the aforesaid property.
7. Next, the counsel for the petitioners/tenant has drawn attention of the Court to para VIII of the leave to defend application (page 88) of the electronic file in respect of property no. 6-A/8, WEA, Karol Bagh, New Delhi-l10005 which is set out below: - “VIII) It is also pertinent to mention here that the petitioner had also purchased property no. 6-A/8, WEA, Karol Bagh, New Delhi-l10005, demolished the said property after getting the tenants evicted and thereafter re-built the same. Similarly, the petitioner along with his wife and business partners had also purchased property no. 42-A, Hanuman Road, Karol Bagh, New Delhi-110005 adopting the same modus-operandi and thereafter re-built the same and sold the same to the prospective buyers.” In respect of para VIII, in the reply to leave to defend application, the averments made above have been denied. Relevant portion of the reply to the leave to defend application w.r.t. the above paragraph is set out below:
“VIII. Para (VIII) of the application as stated is absolutely wrong and vehemently denied. It is specifically denied that the petitioner had purchased the property being No. 6A/8, W.E.A. Karol Bagh, New Delhi or demolished the said property or get vacated any tenant or re-built the same as alleged. It is submitted that the petitioner does not have any concern with the said property in any manner…..”
8. Accordingly, the petitioners/tenant had sought to file, along with the rejoinder, a sale deed dated 4th August, 2003 in respect of the aforesaid property.
9. Then, the counsel for the petitioners/tenant draws attention of the Court to para XIV of the leave to defend application (page 92) of the electronic file in respect of property no. 28/35, Old Rajinder Nagar, New Delhi which is set out below:- “XIV) That the petitioner with malafide intentions has deliberately concealed from this Hon’ble Court about the commercial property bearing no. 28/35, Old Rajinder Nagar, New Delhi, which consists of the basement, ground, first, second, third and fourth floor and the said property is facing the main road with commercial hubs adjoining the said property. It is also to submit here that the entire constructed portion of the said property right from the ground floor to the top floor are at the disposal of the petitioner and Sh.Sohan Lal Gupta and Kusum Gupta. It is also pertinent to mention here that the said owners of the property are illegally and unlawfully running a Paying Guest House in collusion with the licensing department, police and other government authorities, which is apparent from the fact that as per the norms/rules and regulations the Department of Tourism, following the rules and bye-laws of the licensing department of Delhi, PG can only have six rooms which is the sine qua non with the mandatory requirement that the owner alongwith his family has to reside in the same property, and the owner has to maintain the family kitchen in the said property. It is also to submit here that the petitioner has malafidely concealed the said property and the petitioner’s alleged Director Sh. Sohan Lal Gupta and Kusum Gupta are illegally running the said PG in the said property, as is evident from the documents i.e, Master Data of the petitioner’s company Annexure-P[3] filed by the petitioner in the present case.” In respect of para XIV, in the reply to leave to defend application, the averments made above have been denied. Relevant portion of the reply to the leave to defend application w.r.t. the above paragraph is set out below:
“XIV. Para (XIV) of the application as stated is absolutely wrong and vehemently denied. It is specifically denied that the petitioner with alleged malafide intention has deliberately concealed from the Hon’ble Court about the property bearing No. 28/35, Old Rajinder Nagar, New Delhi as alleged. It is further specifically denied that the said property is commercial in nature as alleged. It is submitted that the petitioner does not have any concern with the said property in any manner whatsoever. No documentary proof has been placed on the record by the respondent to show that the alleged property belongs to the petitioner in any manner whatsoever…..”
10. Accordingly, the petitioners/tenant had sought to file, along with his rejoinder, electricity bills in respect of the aforesaid property, in the names of the Director of the respondent company, Sohan Lal Gupta and his sons Sidharth Gupta and Sajal Gupta.
11. Further, the counsel for the petitioners/tenant draws attention of the Court to para XV of the leave to defend application (page 93) of the electronic file in respect of property no. 7/23, East Patel Nagar, New Delhi which is set out below:- “XV) That the petitioner has also concealed about the property/bearing no. 7/23, East Patel Nagar, New Delhi, which is owned by the petitioner company alongwith Smt. Kusum Lata Gupta and Sh. Sohan Lal Gupta. The said property is built upon an area of about 500 Sq. Yds consisting of ground floor, upper floors, and it is also pertinent to mention here that the said property is under the mixed land use and the entire ground, first and second floor of the said property is commercial in nature and is assessed as commercial premises in the house tax records of North Delhi Municipal Corporation.” In respect of para XV, in the reply to the leave to defend application, the averments made above have been denied. In reply to the leave to defend application, the address of the respondent company is shown as 7/23, East Patel Nagar, New Delhi-110008. Relevant portion of the reply to the leave to defend application w.r.t. the above paragraph is set out below: “ XV. Para (XV) of the application as stated is absolutely wrong and vehemently denied. It is specifically denied that the petitioner has concealed about alleged property being No. 7/23, East Patel Nagar, New Delhi as alleged. It this regard, it is submitted that the petitioner does not own this property in any manner whatsoever and the respondent has failed to place any document on the record thereby showing that the said property is owned by the petitioner as alleged. The directors of the petitioner company namely Shri Sohan Lal Gupta and Smt. Kusum Gupta are residing at the third floor of the said property and are having no concern with rest of the said property. It is specifically denied that the said property is constructed in an area of about 500 sq. yards as alleged. The respondent must place necessary documents of proof on record to this effect. It is further specifically denied that the said property consists of ground floor and upper floors or is under mixed land use as alleged. As submitted herein above, the petitioner company does not own the said property in any manner whatsoever……”
12. The petitioners/tenant had sought to file, along with his rejoinder, the Sale Deed in respect of property bearing no. 6-A/8 W.E.A., Karol Bagh where the said address, namely 7/23, East Patel Nagar, New Delhi-110008 is shown as one as the addresses of the respondent company and details from MCA website in respect of the respondent company to show that one of the addresses of the respondent company is 7/23, East Patel Nagar, New Delhi-110008.
13. The counsel for the petitioners/tenant submits that when the aforesaid documents were sought to be filed with the rejoinder before the ARC, the same were returned back by the ARC as noted in the impugned order. Copy of the said rejoinder along with the documents sought to be filed were handed over in Court on 27th January, 2020 when the matter came up for hearing before this Court for the first time.
14. The counsel for the petitioners/tenant relies upon the judgment in Arvind Kumar Jain Vs. Jagdish Lal Khanijo, 2018 SCC OnLine Del 12522 to contend that documents in respect of which pleading is there in the application for leave to defend, may be permitted to be placed on record with the rejoinder. He submits that no additional facts have been sought to be introduced through the aforesaid documents and only those documents were sought to be filed with the rejoinder in respect of which there are pleadings made in the leave to defend application. He further submits that the aforesaid documents are necessary and relevant for the adjudication of the leave to defend application.
15. Mr. Ajay Kumar Gupta, counsel appearing on behalf of the respondent/landlord has vehemently opposed the present petition. He submits that (i) if additional documents are allowed to be filed in rejoinder, the respondent/landlord will not get an opportunity to rebut the same; (ii) in the petition filed before this Court, details of the documents sought to be filed with the rejoinder have not been given therefore, it is not known what were the documents sought to be filed by the petitioners/tenant along with the rejoinder; (iii) no index has been affixed to either the rejoinder sought to be filed before the ARC in the leave to defend application nor has any index been attached to the documents now sought to be placed on record before this Court; (iv) the petitioners/tenant has not stated if the aforesaid documents were in the possession of the petitioners/tenant at the time of filing application for leave to defend or they were subsequently obtained by him; and, (v) some of the properties, in respect of which the Sale Deeds are now sought to be placed on record, have already been sold.
16. The counsel for the respondent/landlord places reliance on the judgments of this Court in Gulati Trading Company Vs. Man Mohan Verma, 2014 SCC Online Del 4121; Rakesh Talwar Vs. Sudesh Gulati, (2017) 238 DLT 508 and Mohan Lal Vs. Tirath Ram Chopra & Anr., 1982 RLR 468. He submits that the said judgments have not been considered in Arvind Kumar Jain (supra) and therefore to that extent the judgment in Arvind Kumar Jain (supra) is per incuriam.
17. I have heard the rival contentions. The counsel for the respondent/landlord is correct in his submission that the petitioners/tenant should have filed the rejoinder before the ARC along with a proper index documenting the documents sought to be filed with the rejoinder. Even in the present proceedings, when the rejoinder was handed over, it was not accompanied by any index to show the documents that were being sought to be filed along with the rejoinder.
18. When the matter was taken up for hearing today, the matter was passed over in order for the counsel for the petitioners/tenant to prepare an index in respect of the documents sought to be filed along with the rejoinder so as to decide which of the documents sought to be filed with the rejoinder maybe allowed to be taken on record. Upon passover, counsel for the petitioners/tenant has handed over an index of documents and the same is taken on record. Copy of the index has also been supplied to the counsel for the respondent.
19. Having gone through the pleadings in the leave to defend application as well as the documents sought to be placed on record along with the rejoinder, this Court is of the view that the documents as discussed above with respect to the said properties are relevant and necessary for adjudication of the leave to defend application. There are necessary pleadings in respect of the aforesaid properties in the leave to defend application and the same have been denied by the respondent/landlord in his reply to leave to defend application. There is no dispute that ARC has allowed the petitioners/tenant to file the rejoinder. No prejudice would be caused to the respondent/landlord if the aforesaid documents are allowed to be filed with the rejoinder.
20. The judgment of this Court in Arvind Kumar Jain (supra) is squarely applicable in the facts and circumstances of the present case where a similar challenge was made against the order declining the request of the petitioners/tenant to take on record the documents filed along with the rejoinder. While allowing the petition, the following observations were made by this Court: “.....9. A learned Single Judge of this Court in Mirajuddin v. Mohammad Habib, 2014 SCC OnLine Del 3803 while referring to Prithipal Singh (supra) has held “once the period of 15 days is sacrosanct, it is not permissible to a tenant after the period of 15 days to keep on filing affidavits or documents to urge grounds for seeking leave to defend, and which if permitted to be done, will be violative of the ratio of the judgment of the Supreme Court in the case of Prithipal Singh (supra) that 15 days period for filing of leave to defend application is non-flexible and a fixed period, and every aspect for seeking leave to defend has to be stated within 15 days only and not thereafter. Therefore, the so called subsequent events which are sought to be urged cannot be urged on behalf of the petitioner”. Similar view was taken by the learned Single Judge of this Court in Mohd. Burhan v. Triloki Nath Nirmal, 2014 SCC OnLine Del 4320 and Sanjeev Gupta v. Sh. Subhash Kumar Gupta, 2014 SCC OnLine Del 4369. It is noticed that question of filing documents before RC subsequent to stage of filing of leave to defend was never the issue in all these three cases.
10. Facts of the present case are however, distinguishable. The petitioner/defendant had pleaded in his application for leave to defend that the daughter-in-law of the respondent is not dependent upon the respondent as the son of the respondent Sh. Kapil Khanijo has been running number of companies including M/s. J.J. Fab Tex Pvt. Ltd. wherein he has a 50% share holding. The respondent has denied this fact, which the petitioner never expected him to deny. This led the petitioner to place on record two documents in question pertaining to the said M/s. J.J. Fab Pvt. Ltd. wherein Kapil Khanijo son of respondent and his brother Manoj Kumar Khanijo are partners with a share holding of 50% each. These documents have been obtained by the petitioner from the official website of the Registrar of Companies (‘ROC’). The learned RC has already permitted the petitioner to place on record the rejoinder to the reply of his application for leave to defend by impugned order. Prithipal Singh’s case (supra) also does not bar filing of document after filing leave to defend. The respondent/plaintiff cannot be prejudiced if in these peculiar circumstances of the case, these two documents allowed to be taken on record.”
21. The judgments relied upon by the counsel for the respondent/landlord were passed in a different factual scenario and are not applicable in the facts and circumstances of the present case. The said judgments did not deal with the factual scenario where the necessary pleadings in support of the additional documents were made in the application for leave to defend and denied in the reply to the leave to defend application. In Gulati Trading Company (supra) and Mohan Lal (supra), it was noted that petitioners/tenant sought to raise certain arguments of which there was no mention at all in the leave to defend application and therefore the Court did not allow him to raise such arguments. The judgment in Rakesh Talwar (supra) is also not applicable in the present case, as in that case it was held that in rejoinder, the party cannot raise any new grounds or state fresh facts, which is not the subject matter of issue in the present case.
22. Accordingly, only the documents (right column) mentioned in the table below with respect to the said properties (left column) are allowed to be taken on record: S.NO PROPERTY NO.
NATURE OF DOCUMENTS
1. 7A/47, WEA Karol Bagh, New Delhi-
2. 6A/8, WEA Karol Bagh, New Delhi- Sale Deed (1/2) Undivided Share)
3. 28/35, Old Rajinder Nagar Electricity Bills in the names of the Director of the respondent company, Sohan Lal Gupta and his sons Sidharth Gupta and Sajal Gupta.
4. 7/23, East Patel Nagar, Sale deed (1/2 Undivided Share in respect of property bearing no. New Delhi-110008 6A/8 W.E.A. Karol Bagh, New Delhi) and details from the MCA website in respect of the respondent company.
23. In view of the fact that the aforesaid documents are being allowed to be taken on record, the respondent/landlord is permitted to file a surrejoinder in response to the rejoinder filed by the petitioners/tenant along with documents, if any, within four weeks from today.
24. The petition stands disposed of in the above terms.
25. Taking into account that this petition has been pending in this Court for almost two years, it would be in the interest of justice if the leave to defend application is decided by the Trial Court in an expeditious manner. I am informed that the matter is coming up before the ARC on 21st December, 2021. The ARC will endeavour to decide the leave to defend application within four months from the said date. AMIT BANSAL, J SEPTEMBER 28, 2021 ak/Sakshi R.