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High Court of Delhi
NAJMI WAZIRI, J.
Federal Motors Pvt. Ltd.
Versus
Atma Ram Properties Pvt. Ltd.
CM (M) No. 4 of 2014 & CM Nos. 115-116 of 2014
Decided On: 07-05-2014
The Court held that the Appellate Court had the jurisdiction to pass the impugned orders and that the impugned orders were not patently illegal or materially irregular. The Court also held that the Appellate Court had not erred in exercising its discretion in fixing the quantum of deposit at Rs. 1,60,000/- (Rupees one lakh sixty thousand only) per mensem.
Fact of the Case:
The tenant had filed an application under Order XLI rule 5 of the Code of Civil Procedure, 1908 (Code) in the Appeal. When issuing notice upon the same to the landlord on 31st January, 2007, the Appellate Court suo motu directed the tenant to deposit a monthly amount of Rs. 25,000/- (Rupees twenty five thousand only), instead of Rs. 15,000/- (Rupees fifteen thousand only). The Appellate Court, when passing the order of 31st January, 2007, observed that the amount of deposit ought to be increased in view of the order of the Supreme Court and the increase in value of the property. This order, admittedly, has not been challenged by the tenant. Thereafter, by an order of 11th October, 2007, the learned Appellate Court remanded the matter to the Trial Court directing it to return its findings as to a particular matter the parties were at issue on. While the particulars thereof are irrelevant for the present dispute, by its judgment and order of 14th July, 2010, returned its finding on the issue and the Appellate Court proceeded thereafter with the Appeal.
Finding of the Court:
The Court held that the Appellate Court had the jurisdiction to pass the impugned orders and that the impugned orders were not patently illegal or materially irregular. The Court also held that the Appellate Court had not erred in exercising its discretion in fixing the quantum of deposit at Rs. 1,60,000/- (Rupees one lakh sixty thousand only) per mensem.
Issues: 1. Whether the Appellate Court had the jurisdiction to pass the impugned orders? 2. Whether the impugned orders were patently illegal or materially irregular? 3. Whether the Appellate Court had erred in exercising its discretion in fixing the quantum of deposit at Rs. 1,60,000/- (Rupees one lakh sixty thousand only) per mensem?
Ratio Decidendi: 1. The Court held that the Appellate Court had the jurisdiction to pass the impugned orders. The Court relied on the judgment of the Supreme Court in Atma Ram Properties Pvt. Ltd. v Federal Motors Pvt. Ltd., (2005) 1 SCC 705, to hold that the Appellate Court has the power to impose conditions for the stay of the order of eviction and the power to consider the material submitted by the parties to come to a conclusion as to the rent to be paid. 2. The Court held that the impugned orders were not patently illegal or materially irregular. The Court held that the Appellate Court had given due consideration to all material available on record and the facts and attendant circumstances relevant to the issue to arrive at its conclusion as found in the second impugned order. The Court also held that the Appellate Court had not erred in exercising its discretion in fixing the quantum of deposit at the said figure. 3. The Court held that the Appellate Court had not erred in exercising its discretion in fixing the quantum of deposit at Rs. 1,60,000/- (Rupees one lakh sixty thousand only) per mensem. The Court held that the view taken by the Appellate Court in affixing the quantum of deposit at the said figure is a reasonably possible view; it cannot be regarded as a patent error warranting interference with.
Final Decision: The petition is dismissed as being without merit. The parties shall bear their own costs.
Najmi Waziri, J.
1. The present petition under Article 227 of the Constitution of India arises from the orders dated 29th April, 2013 (“first impugned order”) and 28th September, 2013 (“second impugned order”) (hereinafter collectively referred to as “impugned orders”) of the learned ADJ – 02 & Wakf Tribunal, New Delhi (“Appellate Court”) in ARCT No. 1 of 2011 (formerly RCA No. 279 of 2001) (“Appeal”). By the impugned orders, the learned Appellate Court directed the petitioner/tenant herein to deposit an amount of Rs. 1,60,000/- (Rupees one lakh sixty thousand only) per mensem towards user charges of half portion of showroom no. 9, together with one bathroom at ground floor, kolki and garages no. 12 and 13 of the Atma Ram Mansion (formerly Scindia House) (“leased premises”) pending decision of the Appeal. The petitioner will hereafter be referred to as the tenant and the respondent, as the landlord.
2. This Court would ordinarily, when called upon to exercise its supervisory jurisdiction under Article 227, be reluctant to interfere in such exercises of discretion – especially of an interim nature – by the Appellate Court. However, owing to the nature of the averments raised in the petition – specifically qua the issues of the maintainability of the application giving rise to the impugned orders and of the jurisdiction of the Appellate Court to have passed the impugned orders – and given its peculiar circumstances this Court has heard the matter.
3. The dispute between the parties, which has now survived two decades and has also given rise to a judgment of the Supreme Court – a locus classicus in itself,1 traces back to an eviction petition filed by the landlord against the tenant in 1992 in respect of the leased premises, which was under tenancy since about 1944. Filed under section 14 (1) (b) of the Delhi Rent Control Act, 1958 (“Act”), the petition was allowed on 19th March, 2001 and the tenant was directed to vacate the leased premises in view of its having sub-let a part thereof without permission from the landlord (“order of eviction”). 1 Atma Ram Properties Pvt. Ltd. v Federal Motors Pvt. Ltd., (2005) 1 SCC 705.
4. A statutory appeal was preferred under section 38 of the Act to challenge the order of eviction, which is admittedly pending final hearing before the Appellate Court. Pertinently, when registering the appeal and staying the order of eviction, the Appellate Court, by its order of 12th April, 2001, directed the tenant inter alia to deposit an amount of Rs. 15,000/- (Rupees fifteen thousand only) per mensem in Court. The deposit was towards continued use and occupation charges of the leased premises from the date of the order of eviction. The stay was made conditional upon the deposit of the said amount, over and above the rent at the contractual rate – which was to be paid directly to the landlord. This imposition of condition for admission of the appeal/staying of the impugned orders was challenged by the tenant in this Court by CM (M) No. 280 of 2001. This Court, by its order of 12th February, 2002, set aside the condition of deposit and directed that the tenant may remain in the premises subject to his paying the rent at the contractual rate to the landlord.
5. Aggrieved by the order setting aside the condition of deposit, the landlord filed a petition seeking leave to appeal to the Supreme Court under Article 136 of the Constitution of India, which leave was granted. The judgment dated 10th December, 2004 in the resulting Civil Appeal No. 7988 of 2004 – being the locus classicus earlier adverted to – set aside the judgment dated 12th February, 2002 of this Court and thus restored the condition of deposit of Rs. 15,000/-(Rupees fifteen thousand only) per mensem for the stay of the order of eviction to remain in force. While the reasoning of the Supreme Court will be discussed in further detail at a more appropriate juncture, it requires noticing herein that the Supreme Court held inter alia that t
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