*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 26.02.2021

Date of decision: 22.04.2021

+

CM(M) 558/2020 & CM APPL. 28639/2020

BATA INDIA LIMITED

..... Petitioner

Through:

Mr.Sanjeev Sindhwani, Sr.Adv.

with Mr.T.K.Ganjoo, Adv.

versus

SMT. SARLA SHARMA (SINCE DECEASED) THROUGH LRS

AND ORS

..... Respondents

Through:

Mr.Sandeep Sethi, Sr. Adv. with

Mr.Asif, Adv. for R-3, R-4 & R-5.

Mr.Praveen Suri, Adv. for R-1, R-

2, R-6, R-7 & R-8.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

1. 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.

2021:DHC:1426

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

2021:DHC:1426

from the month of July 2011 on or before the 15^th

deemed to have been dismissed.”

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 order dated 03.06.2011 was

2021:DHC:1426

further modified, directing the petitioner to deposit the user and

occupation charges once in three months before the 15^th of the next

month in which the charges for the last month become due.

g)

The application under Order IX Rule 13 of the Code, after

recording of evidence, was set down for final arguments. At this

stage, the respondent filed an application for issuance of warrants of

possession alleging therein that as the petitioner had failed to

comply with the condition of deposit in terms of the order dated

03.06.2011, the application filed by the petitioner automatically

stood dismissed in terms of the said order itself.

h)

The said application filed by the respondent was allowed by

the learned Additional Rent Controller vide order dated 29.11.2013.

It is important to mention here itself that the merit of this order is

not in question in the present petition as only the question of law of

the maintainability of an appeal against such order arises for

consideration in the present petition.

i)

The petitioner thereafter, filed an application seeking recall

of the order dated 29.11.2013. The said application was also

dismissed by the learned Additional Rent Controller vide order

dated 10.03.2014 passed in Ex. No. 34 of 2010. The merit of this

order is also not in question before this Court in the present petition.

j)

Subsequently, the petitioner filed an Appeal