BHASKAR REFRACTORIES AND STONEWARE PIPES PVT. LTD. (Petitioners) Vs. ISHWAR INDUSTRIES LTD (Respondent)
(RC.REV. 257/2022)
(Before HON’BLE JUSTICE MANMEET PRITAM SINGH ARORA. Delivered by Justice Arora)
Facts: The present revision petition has been filed assailing the eviction order passed by the Rent Controller, South East District, Saket Courts, New Delhi in RC ARC No. 50 of 2019, as well as the order dated 28.07.2022 passed by the Trial Court, dismissing the review application filed against the said eviction order.
Issue: Whether the eviction order passed against the petitioner is erroneous?
Arguments on behalf of counsel for petitioners: Mr. Neeraj Sharma
It is submitted that Respondent has been denied consideration of the merits of the application seeking leave to defend by the Trial Court on account of the delay in filing the said application. Reliance was placed on the judgment of Tharia Ram v. Chitra Devi, 1983, as per which the Petitioner herein cannot be made to suffer on account of the default committed by the counsel’s clerk. Further, applying the dual test laid down by the Division Bench of this Court in Director Directorate of Education & Anr. v. Mohd. Shamim & Ors., (2019), this Court may take note of the fact that the Petitioner herein is not at fault and therefore, this Court may exercise its power to condone the delay of thirteen (13) days in filing the application seeking leave to defend and remand the matter back to Trial Court for considering the application seeking leave to defend, wherein the Petitioner has raised triable issues. Further, the Respondent is a corporate entity and the legal issue with respect to the maintainability of an eviction petition under Section 14(1)(e) of the DRC Act by a juristic person is subject matter of a reference vide order in RC. REV. 18/2016 titled as ‘K.S. Bhandari v. M/s International Security Printers Pvt. Ltd’. Further, the eviction petition itself refers to existence of a family settlement agreement between the parties hereto and therefore, no eviction petition can be maintained. No objection as regards availability of alternate accommodation was raised during the arguments.
Arguments on behalf of counsel for respondent: Ms. Ekta Mehta
It is submitted that the explanation offered by the Petitioner for not filing the leave to defend application within the statutory period of fifteen (15) days is a mere pretext and the Trial Court has rightly applied and followed the law laid down by the Supreme Court in Prithipal Singh v. Satpal Singh, wherein it was held that the Rent Controller does not have the power to condone even a single day’s delay. Further, the dual test laid down in Director Directorate of Education case is not fulfilled in the facts of this case. Further, no triable issues have been raised by the Petitioner herein in its leave to defend application and that there is a presumption qua the bona fide need under Section 14(1)(e) of the DRC Act in favour of the landlord and the Respondent has sufficiently set out its bona fide need at paragraph 18(a) (1 to 6) of the eviction petition. Further, the pendency of the reference before the Division Bench in K.S. Bhandari, cannot be a consideration for not proceeding with these eviction proceedings. Further, the contention of the Petitioner that there is reference to a family settlement between the Petitioner and the Respondent in the eviction petition at paragraph 18(a)(5) is ex-facie incorrect. Further, the Petitioner herein is enjoying the tenanted premises without making any payment of use and occupation charges.
Held: The court, while, dismissing the present revision petition, upheld the eviction order against the petitioner, holding that the trial court order does not suffer from any infirmity. The court thereby directed the petitioner to pay costs of Rs. 1,00,000/- to the Respondent within two (2) weeks. It was observed that, “the resistance to the eviction petition viewed from the fact that the Petitioner itself is not using the tenanted premises (for last 7-8 years) and is keeping them locked, evidence an abuse of the intent of the legal procedure permitting a tenant to apply for leave to defend and finds merit in the submission of the Respondent that these proceedings are an abuse of process by the Petitioner.”
