K.S. Jawatkar Vs. Ram Nath Kurra - Court Judgment

SooperKanoon Citationsooperkanoon.com/704181
SubjectTenancy
CourtDelhi High Court
Decided OnNov-27-1997
Case NumberC.R. 1014 Of 1997
Judge N.G. Nandi, J.
Reported in1998IIAD(Delhi)978; 72(1998)DLT365; 1998(44)DRJ227
ActsDelhi Rent Control Act, 1958 - Sections 25B(8)
AppellantK.S. Jawatkar
RespondentRam Nath Kurra
Advocates: K.S. Jawatkar and; Sanjay Goswami, Advs
Excerpt:
delhi rent control act, 1958 - section 25b(s)--revision--scope of--under section 14(1)(e)--eviction order--denial of opportunity to adduce evidence--order set-aside--directions to decide on merits in view of earlier recall order--remanded to arc--revision allowed.; the present petition is allowed. the order dated 19.7.1997 under section 14(1)(e) of the act, directing the eviction of the petitioner (original respondent-tenant) from the premises hearing no. 2/14, kalkaji extension, new delhi is set aside. the petition under section 14(1)(e) of the act is remanded to the arc for deciding the application dated 29.11.1996 on its own merits i.e. considering the merits of the grounds assigned for review/recalling of the order dated 14.8.1996 and thereafter to decide the petition under section 14(1)(e) of the act on the basis of the evidence on record and in accordance with law. - n.g. nandi, j. (1) in view of the appearance of mr.sanjay goswami for the caveator/respondent, no further order is necessitated in this caveat and the same stands disposed of. c.r.1044/97 & c.m.3674/97 (2) notice to show cause to the respondent as to why the petition be not admitted. (3) mr. sanjay goswami, learned counsel wp1 leaves the service and accepts the notice. (4) in this petition under section 25(b)8 of the delhi rent control act (hereinabove referred to as 'the act'), the petitioner (original respondent-tenant) has been assailing the order dated 19.07.1997 whereby the learned additional rent controller granted eviction against the present petitioner/original respondent-tenant and decreed the petition under section 14(1)(e) of the act. (5) one of the grounds in the present petition is that despite the order dated 3.9.96 by the high court in cm(m)206/96 and cm 1466/96, the arc did not consider the merits of the grounds assigned in the application dated 29.11.1996 for the recalling/review of the order dated 14.08.1996, whereby the evidence of the present petitioner(respondent) was closed and that without affording any opportunity to the present petitioner to adduce evidence , the petition under section 14(1)(e) of the act has been decided. (6) copy of the order dated 3.9.1996 passed by this court in cm(m) 206/96 and cm 1466/96 has been placed for perusal. it is suggested there from that the said petition was filed against the order disallowing the amendment of the written statement and it has been observed - 'the learned additional rent controller declined to accommodate the petitioner inspire of a request for adjournment for that date and his evidence was closed. so far as this is concerned, it is open to the petitioner to move the additional rent controller explaining the reasons for his absence on that date and praying for recall of the order and grant of an opportunity to the petitioner for recording his remaining evidence. if that is done, the learned additional rent controller will decide such application on its own merits in accordance with law. (7) in para 25 of the present petition, it has been stated that pursuant to the high court's order dated 3.9.1996, the petitioner moved application dated 29.11.1996 before the arc for recall of its ex parte order dated 14.8.1996, by 'which he closed the evidence of the petitioner and grant of an opportunity to the petitioners for recording their remaining evidence. (8) mr.goswami, learned counsel for the respondent has placed the copy of the order dated 29.11.1996 passed by the arc. it is stated therein that the respondent moved an application under section 151 code of civil procedure whereby an opportunity was prayed to allow the respondents to lead their evidence in terms of order and observations made by the high court in case cm(m) 206/96 on 3.9.1996. in the said order, it is stated-.................'as regarding petitioner's contention that his evidence was closed by this court(a.r.c.), it was observed that petitioner could move this court(arc) explaining reasons for his absence and this court (arc) will decide such application on merits.' the arc in the order dated 29.11.1996 observed that 'on 14.8.1996 this case was fixed for evidence of the respondent but on that date none appeared from respondent side till 2.30 p.m. except thereafter the clerk of respondent's counsel appeared and informed this court that counsel was busy in the high court. now it is sought to be explained that since counsel was busy in the high court respondent should not be prejudiced by closing his evidence. this submission of ld. counsel is misconceived in a way that even respondent's evidence had already been closed way back in 1986........' (9) it does not appear from the copy of the order dated 29.11.1996 that the ground assigned for setting aside the order dated 14.8.96 whereby the respondent's evidence was closed and the said order sought to be reviewed/recalled, was considered in the order dated 29.11.1996 by the arc. it is not suggested that the ground assigned for the purpose of review/recalling of the order dated 14.8.1996 and affording an opportunity to the respondent to adduce remaining evidence was considered and rejected on its merits as required in the order dated 3.9.1996 in cm(m) 206/96 passed by this court, as pointed out above. the rejection of the prayer of the respondent was on the ground other than the merits or otherwise of the ground stated in the application dated 29.11.1996. in other words, the application dated 29.11.96 was not decided on its merits, as required in the order dated 3.9.1996. (10) under the circumstances, it appears that application dated 29.11.1996 for recalling of the order dated 14.8.96 and giving the petitioner(respondent) an opportunity to adduce his remaining evidence in light of the order dated 3.9.1996 was not decided on its own merits and thereforee, the order dated 29.11.1996 can not be regarded the one as required by the order dated 3.9.1996, and, thereforee, no opportunity to the petitioner/respondent as required. (11) at this juncture, mr.goswami, counsel for the respondent states that in view of the above, the impugned order dated 19.7.1997 passed u/s.14(1)(e) of the act directing eviction of the petitioner(respondent) be set aside and the matter be remanded to the arc for deciding the application dated 29.11.96 on its own merits and thereafter to decide the petition u/s.14(1)(e) of the act on the basis of the evidence on record and in accordance with law. (12) in view of the above, the present petition is allowed. the order dated 19.7.1997 under section 14(1)(e) of the act, directing the eviction of the petitioner (original respondent-tenant) from the premises bearing no.2/14, kalkaji extension, new delhi is set aside. the petition under section 14(1)(e) of the act is remanded to the arc for deciding the application dated 29.11.1996 on its own merits i.e. considering the merits of the grounds assigned for review/recalling of the order dated 14.8.1996 and thereafter to decide the petition under section 14(1)(e) of the act on the basis of the evidence on record and in accordance with law. the parties shall appear before the arc on 9.12.1997 and thereafter, the petition u/s.14(1)(e) of the act be decided as pointed out above expeditiously.
Judgment:

N.G. Nandi, J.

(1) In view of the appearance of Mr.Sanjay Goswami for the caveator/respondent, no further order is necessitated in this caveat and the same stands disposed of. C.R.1044/97 & C.M.3674/97

(2) Notice to show cause to the respondent as to why the petition be not admitted.

(3) MR. SANJAY Goswami, learned counsel wp1 leaves the service and accepts the notice.

(4) In this petition under Section 25(B)8 of the Delhi Rent Control Act (hereinabove referred to as 'the Act'), the petitioner (original respondent-tenant) has been assailing the order dated 19.07.1997 whereby the learned Additional Rent Controller granted eviction against the present petitioner/original respondent-tenant and decreed the petition under section 14(1)(e) of the Act.

(5) One of the grounds in the present petition is that despite the order dated 3.9.96 by the High Court in CM(M)206/96 and Cm 1466/96, the Arc did not consider the merits of the grounds assigned in the application dated 29.11.1996 for the recalling/review of the order dated 14.08.1996, whereby the evidence of the present petitioner(respondent) was closed and that without affording any opportunity to the present petitioner to adduce evidence , the petition under Section 14(1)(e) of the Act has been decided.

(6) Copy of the order dated 3.9.1996 passed by this court in CM(M) 206/96 and Cm 1466/96 has been placed for perusal. It is suggested there from that the said petition was filed against the order disallowing the amendment of the written statement and it has been observed - 'The learned Additional Rent Controller declined to accommodate the petitioner inspire of a request for adjournment for that date and his evidence was closed. So far as this is concerned, it is open to the petitioner to move the Additional Rent Controller explaining the reasons for his absence on that date and praying for recall of the order and grant of an opportunity to the petitioner for recording his remaining evidence. If that is done, the learned Additional Rent Controller will decide such application on its own merits in accordance with law.

(7) In para 25 of the present petition, it has been stated that pursuant to the High Court's order dated 3.9.1996, the petitioner moved application dated 29.11.1996 before the Arc for recall of its ex parte order dated 14.8.1996, by 'which he closed the evidence of the petitioner and grant of an opportunity to the petitioners for recording their remaining evidence.

(8) MR.GOSWAMI, learned counsel for the respondent has placed the copy of the order dated 29.11.1996 passed by the ARC. It is stated therein that the respondent moved an application under Section 151 Code of Civil Procedure whereby an opportunity was prayed to allow the respondents to lead their evidence in terms of order and observations made by the High Court in case CM(M) 206/96 on 3.9.1996. In the said order, it is stated-.................'As regarding petitioner's contention that his evidence was closed by this Court(A.R.C.), it was observed that petitioner could move this Court(ARC) explaining reasons for his absence and this court (ARC) will decide such application on merits.' The Arc in the order dated 29.11.1996 observed that 'on 14.8.1996 this case was fixed for evidence of the respondent but on that date none appeared from respondent side till 2.30 p.m. except thereafter the clerk of respondent's counsel appeared and informed this Court that counsel was busy in the High Court. Now it is sought to be explained that since counsel was busy in the High Court respondent should not be prejudiced by closing his evidence. This submission of ld. counsel is misconceived in a way that even respondent's evidence had already been closed way back in 1986........'

(9) It does not appear from the copy of the order dated 29.11.1996 that the ground assigned for setting aside the order dated 14.8.96 whereby the respondent's evidence was closed and the said order sought to be reviewed/recalled, was considered in the order dated 29.11.1996 by the ARC. It is not suggested that the ground assigned for the purpose of review/recalling of the order dated 14.8.1996 and affording an opportunity to the respondent to adduce remaining evidence was considered and rejected on its merits as required in the order dated 3.9.1996 in CM(M) 206/96 passed by this court, as pointed out above. The rejection of the prayer of the respondent was on the ground other than the merits or otherwise of the ground stated in the application dated 29.11.1996. In other words, the application dated 29.11.96 was not decided on its merits, as required in the order dated 3.9.1996.

(10) Under the circumstances, it appears that application dated 29.11.1996 for recalling of the order dated 14.8.96 and giving the petitioner(respondent) an opportunity to adduce his remaining evidence in light of the order dated 3.9.1996 was not decided on its own merits and thereforee, the order dated 29.11.1996 can not be regarded the one as required by the order dated 3.9.1996, and, thereforee, no opportunity to the petitioner/respondent as required.

(11) At this juncture, Mr.Goswami, counsel for the respondent states that in view of the above, the impugned order dated 19.7.1997 passed u/s.14(1)(e) of the Act directing eviction of the petitioner(respondent) be set aside and the matter be remanded to the Arc for deciding the application dated 29.11.96 on its own merits and thereafter to decide the petition u/s.14(1)(e) of the Act on the basis of the evidence on record and in accordance with law.

(12) In view of the above, the present petition is allowed. The order dated 19.7.1997 under Section 14(1)(e) of the Act, directing the eviction of the petitioner (original respondent-tenant) from the premises bearing No.2/14, Kalkaji Extension, New Delhi is set aside. The petition under Section 14(1)(e) of the Act is remanded to the Arc for deciding the application dated 29.11.1996 on its own merits i.e. considering the merits of the grounds assigned for review/recalling of the order dated 14.8.1996 and thereafter to decide the petition under Section 14(1)(e) of the Act on the basis of the evidence on record and in accordance with law. The parties shall appear before the Arc on 9.12.1997 and thereafter, the petition u/s.14(1)(e) of the Act be decided as pointed out above expeditiously.