SUPREME COURT OF INDIA
Narender
Vs.
Pradeep Kumar
C.A.No.2997 of 2005
(P.Venkatarama Reddi and A.K.Mathur JJ.)
03.05.2005
A. K. Mathur, J.
1. Leave granted
2. This appeal is directed against an order passed by learned Single Judge of
the High Court of Delhi at New Delhi in Civil Miscellaneous Main No.328 of 2003
on July 23, 2004 whereby the order dated April 24, 2003 passed by the Rent
Control Tribunal which dismissed the appeal of the respondent herein arising
out of the order of the Additional Rent Controller, Delhi who decreed the
eviction of the respondent under Section 14(1)(h) of the Delhi Rent
Control Act 1958( hereinafter to be referred to as "the Act") was
set aside and the case was remitted back to the trial Court. Aggrieved against
this order, the present petition by way of special leave petition was filed.
3. It may be relevant to mention here that the plaintiff filed a suit for
eviction of the respondent from the premises under his tenancy in the House No.
11/8, Sarvapriya Vihar, New Delhi under Section 14(1)(h) of the Act. The
premises in question having one drawing room, one bed-room, kitchen, bath room
and one W.C. situated on the second floor was let out to the respondent on a
monthly rent of Rs.2200/- by the appellant. No rent agreement was executed.
4. The respondent was residing in the said premises along with his family since
the inception of the tenancy. It was alleged that the wife of the respondent
purchased a flat bearing No. A-35/D situated in D.D.A. Flats Complex at
Munirka, New Delhi by an agreement of sale on March 15, 1995 under a general
power of attorney of the same date and got the said flat converted in to
freehold property and a conveyance deed dated September 5, 2000 was registered
before the Sub-Registrar on September 6, 2000 vide document No.12663,
Additional Book No.1, Volume No.343 at pages 156-157 in the name of the wife of
the respondent. It is also alleged that the wife of the respondent was a
house-wife and she had no independent source of income.
5. It was also alleged that the respondent has acquired this D.D.A. flat
through his wife. Under these circumstances, the appellant prayed that the
respondent- defendant be evicted from the premises in question.
6. Summonses were issued and the same were served on the respondent i.e.
through process server and through registered post with acknowledgment due. But
none appeared for the respondent before the Additional Rent Controller and
therefore, the suit was decreed ex parte. The appellant examined number of
witnesses and exhibited certain documents. Learned Additional Rent Controller
after review of the evidence on the record accepted the evidence as none has
appeared to rebut the same and granted a decree for eviction on being satisfied
that all the ingredients of Section 14(1)(h) of the Act stood established by
Order dated 21st November, 2002. Thereafter, an application was filed by the
respondent under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure
for setting aside the ex parte decree dated November 21, 2002. This application
was dismissed by the Additional Rent Controller by its order dated March 5,
2003. This order rejecting the application filed under Order IX Rule 13 of the
Code of Civil Procedure for setting aside the ex parte decree was not
challenged and it attained finality. However, the respondent thereafter filed
an appeal being R.C.A. No.179 of 2003 before the Additional Rent Control
Tribunal, Delhi against Order and Decree passed by the Additional Rent
Controller on 21st November, 2002. Though the appeal was barred by time yet the
delay in filing the appeal was condoned. Learned Tribunal after considering the
facts and law on the subject dismissed the appeal by its order dated April 24,
2003.
7. It was held by the Tribunal that the wife of the respondent has already
acquired an alternative residential accommodation bearing No.A-35/D, D.D.A.
Flat, Munirka, New Delhi and has further observed that the decree was granted
ex parte and that ex parte order has not been set aside. Therefore, learned
Tribunal did not feel persuaded to interfere in the appeal and consequently the
same was dismissed. Aggrieved against this order passed by the Tribunal on
April 24, 2003, a writ petition under Article 227 of the Constitution was filed
by the respondent before the High Court of Delhi. Learned Single Judge of the
High Court after considering the matter observed that without going into the
intricacies of the material produced and without going into the legality of the
ex parte order not being challenged, learned Single Judge felt persuaded that
an opportunity of hearing should be given to the writ petitioner- the
respondent herein and as such set aside the order and granted leave to defend
the suit. Aggrieved against this order passed by the learned Single Judge of
the High Court of Delhi on July 23, 2004, the present Special Leave Petition
was filed.
8. We have heard learned counsel for the parties and have also gone through the
order of the learned Single Judge of the High Court. The first and foremost
point is when the summonses were served on the respondent and he did not
appear, he has to thank himself for serious lapse on his part. Both learned
Additional Rent Controller as well as the learned Rent Control Tribunal have
found that the summonses were served by registered post with acknowledgment due
as well as through the process of the Court.
9. Despite that the respondent has chosen not to put in appearance. Therefore,
there was no option left on the part of the Additional Rent Controller to
proceed against the respondent. It examined the ex parte order on merit and
held that the plaintiff has successfully proved his case under Section 14(1)
(h) of the Act. It was also held that an application for setting aside the ex
parte decree was filed, but that application was dismissed on March 5, 2003.
The respondent did not take up this matter before the higher forum and felt
satisfied with the order dated March 5, 2003 dismissing his application for
setting aside the ex parte order under Order IX Rule 13 of the Code of Civil
Procedure. Therefore, the ex parte decree passed by the learned Additional Rent
Controller became final. Against this order of the Tribunal, a writ petition
under Article 227 of the Constitution was filed and the learned Single Judge
only felt persuaded to remand the case back to the Additional Rent Controller
for disposal. We fail to understand how can learned Single Judge exercises
extraordinary jurisdiction under Article 227 for the benefit of a person who
himself has not pursued his application under Order IX Rule 13 of the Code of
Civil Procedure which was dismissed.
10. The Rent Control Tribunal both on facts and law has found that the view
taken by the Additional Rent Controller is correct as the wife of the
tenant-respondent has purchased a flat and they have alternative accommodation.
We do not see any ground for giving this latitude to the respondent. We
are of the view that the view taken by the learned Single Judge of the High
Court appears to be not sustainable in view of the concurrent finding by the
courts below i.e. the Additional Rent Controller as well as the Rent Control
Tribunal. No reasons are disclosed in the order of the High Court for holding
that the alternative accommodation acquired was not for residential purpose.
11. We do not see any reason for the High Court to have interfered with the matter. Hence, we allow this appeal and set aside the impugned order dated July 23, 2004 passed in Civil Miscellaneous Main No. 328 of 2003 by the High Court of Delhi and affirm the orders passed by the Additional Rent Controller as well as the Rent Control Tribunal. There shall be no order as to costs.