Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
Navin Chawla, J.
Bata India Limited - Appellant
Versus
Smt Sarla Sharma (since Deceased) Through Lrs & Ors. - Respondents
C.M. (M) No. 558 of 2020; C.M. Appl No. 28639 of 2020
Decided On : 22-04-2021
Maintainability - Eviction Petition - Delhi Rent Control Act, 1958 - Section 25B - Summary
Fact of the Case:
The petitioner filed an application under Order IX Rule 13 of the Code praying for setting aside of an ex parte eviction order. The learned Rent Control Tribunal dismissed the appeal holding it to be not maintainable. The court addressed the question of law regarding the maintainability of an appeal under Section 38 of the Act against an order dismissing an application under Order IX Rule 13 of the Code in an Eviction Petition to which the procedure prescribed in Section 25B of the Act applies.
Finding of the Court:
The court held that the application seeking recall of the order passed by the Controller holding the tenant to be duly served with the summons of the Eviction Petition is one filed under Section 25B(9) of the Act. Therefore, in terms of Section 25A and 25B of the Act, any order passed thereon shall not be appealable under Section 38 of the Act. The only remedy for the petitioner would be under Sub-section (8) of Section 25B of the Act to this Court.
Issues: The main issue was whether an appeal under Section 38 of the Act is maintainable against an order dismissing an application under Order IX Rule 13 of the Code in an Eviction Petition to which the procedure prescribed in Section 25B of the Act applies.
Ratio Decidendi: The court held that in an Eviction Petition to which the procedure prescribed under Section 25B of the Act applies, an appeal under Section 38 of the Act is not maintainable against an order dismissing an application under Order IX Rule 13 of the Code/Section 25B(9) of the Act. The only remedy available to the aggrieved tenant is in the form of a petition under Subsection (8) of Section 25B of the Act before the High Court.
Final Decision: The petition was dismissed by the court.
JUDGMENT
Navin Chawla, J. - This petition has been filed by the petitioner challenging the judgment dated 15.10.2020 passed by the learned Rent Control Tribunal, West District, Tis Hazari Courts, New Delhi in the Appeal, being RCT No. 36 of 2016 titled Bata India Ltd. v. Smt. Sarla Sharma & Ors., holding that an appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') challenging an order of dismissal of an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') in an eviction petition to which Section 25B of the Act is applicable, is not maintainable.
2. The brief background of the facts, before adverting to the question of law raised with respect to the maintainability of the appeal, is as under:
a) An Eviction Petition, being E. No. 195 of 2008, titled Smt. Sarla Sharma v. M/s Bata India was filed by the respondent under Section 14(1)(e) of the Act.
b) On 23.12.2009, an order of eviction was passed ex parte in the abovementioned Eviction Petition against the petitioner and in favour of the respondent.
c) The petitioner filed an application under Order IX Rule 13 of the Code praying for setting aside of the eviction order passed ex parte.
d) After deliberating over the abovementioned application of the petitioner, the learned Additional Rent Controller, vide order dated 03.06.2011, passed the following direction:
"From the perusal of the documents filed on record it is not clear that who was in the employment of the respondent/applicant at the relevant period of service nor the said fact has been disclosed in the entire application that who was the store Manager or the competent person to receive the summons during that relevant period except the certificate issued by one Mr. AK. Dutta without having any seal wherein it has been mentioned that Mr. B. Kapoor and Mr. Brij Bhushan both salesmen were employed at the branch of the applicant in the suit premises without filing of details of date of their employment or any other document showing their transfer/posting with the respondent at the suit premises. However, since the respondent/applicant denied the service, therefore, considering the allegations raised on behalf of the respondent/applicant is being given liberty to lead evidence on the point of service but subject to deposit of the occupation charges at a rate of Rs. 25,000/- per month in view of the judgment of Hon'ble Supreme Court in S.L.P. (C) no. 6319 of 2007, titled as Mohammand Ahmed & Anr. vs. Atma Ram Chauhan & Ors., (2011) 179 DLT 532 from the month of July 2010 i.e. after expiry of statutory period as provided U/s. 14 (7) of D.R.C. Act upto the month of June 2011 within one month and subject to deposit of the further occupation charges at the said rate from the month of July 2011 on or before the 15th of each English Calender month during the pendency of the present case as the premises is situated in Chandni Chowk area and is consisting of more than about 800 sq. ft. as stated during the course of arguments. It is made clear that the amount so deposited will not be allowed to be withdrawn during the pendency of the present application and in case respondent fails to succeed said amount will be payable to the petitioner without prejudice to his rights and contention and if the applicant will succeed, he will be entitled to withdraw the said amount.
Application is disposed off accordingly. It is further made clear that if applicant fails to comply the condition imposed, the application will be deemed to have been dismissed."
(Emphasis supplied)
e) By a subsequent order dated 04.02.2012, the learned Additional Rent Controller was pleased to direct the release of the amount deposited by the petitioner to the respondent subject to a condition that in case the petitioner succeeds, the amount shall be returned by the respondent.
f) Thereafter, by an order dated 03.01.2013 passed by the learned Additional Rent Controller, the orde
An application under Section 12(1) of the Rent Control Act is maintainable in an appeal against an order passed under Section 12(3), confirming tenant obligations for rent during eviction proceedings....
An application under Section 12(1) of the Rent Control Act is maintainable in appeals against orders under Section 12(3), overruling previous decisions that restricted its applicability.
Point of Law : Object of s. 38(1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability.
Point of law : Rent Control legislation contemplates eviction of the tenant only on enumerated grounds as referred in Section 11.
High Court could not have re-appreciated the evidence and the concurrent findings rendered by the courts below ought not to have been interfered with by the High Court while exercising revisional jur....
(1) Res Judicata – Whether suit is barred by any law must be determined from statements in plaint and it is not open to decide issue on the basis of any other material including written statement in ....
The Rent Controller does not have the power to decide the issue of landlord and tenant as a preliminary issue in a summary proceeding.
The court emphasized the importance of diligently pursuing legal remedies and the need to avoid acting contumaciously in the context of eviction proceedings under the Delhi Rent Control Act, 1958.
The court established that a tenant should not lose their right to defense without clear evidence of obstinacy in rent payment, emphasizing judicious discretion in applying penalties under the Act.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
