Delhi rent control act
CA Vijay Kumar
(Querist) 06 April 2013
This query is : Resolved
Hi and I evry Thank to you all for your precise opinion. I need for your opinion in the next cses which are:
A Leave to defend was dismissed regarding of Suit premises of Second Floor of Double Storey Building as mentioned in Site Plan without taking the following ground:-
1. The suit premise on Second Floor of Double Storey Building which belong the Ministry of Urban & Development, Government of India which was given on lease for 99 years to Mr A and on his death to his wife Mrs A and afterward Mrs A has transferred it to Mr X by way of sale deed. This property is still in the name of Ministry of Urban & Development, Government of India as “lesser” and Mr A as “lessee” in Lease and Conveyance Deed in the record of govt. In sale Deed Mrs A as vender and Mr X as vendee for transfer of suit property on lease. Is the suit premise exempted on ownership basis u/s 3(a) of DCR Act, 1958 being it belongs to Government Property? Or it still attracts the provisions of DCR Act, 1958? (Documents was submitted at the time of petition)
2. Proviso to sec 3(b) of DCR Act, 1958 for any tenancy created by a grant from the Government in respect of the premises taken on lease or requisitioned, by the Government. This proviso is applicable to only sec 3(b) of DCR Act, 1958 or sec 3(a) of DCR Act, 1958 also?
3. As per Sale Deed and Lease and Conveyance Deed, Mr X is lessee by way of sale deed only First Floor of Double Storey Building premises with the same address. While Mr X intentionally claimed in his eviction petition u/s 14(1)(e) of DRCA,1958 that Mr X is also owner of First Floor and Second floor of the said property. Mr X has not submitted any legal proof of ownership of Second Floor of said property. Mr X had also submitted affidavit on this ground. (correctness and genuineness of the documents submitted by Mr X as landlord in his eviction petition was challenged by tenant in his first reply)
4. As Site Plan prepared by panel architecture as submitted by Mr X in his eviction petition on which basis suit premises was not proper and exactly displayed in said Site Plan and Second Floor or second floor word was not mentioned in Site Plan of Double Storey Building. As Double Storey Building consists Ground Floor and First Floor. This Site plan has been considered for order by ARC. However This site plan is different from the Site Plan certified by the Ministry of Urban & Development, Government of India. In Ministry Site plan, Double Storey building area was charged to 50:50 to Ground floor and first floor. Can Double Storey Building consist the Second Floor which was relied by ARC in his order of dismissal of leave to defend?
5. Tenant was paying rent to another person from the starting. But from the last 4 of5 years backs and to present Tenant is depositing amount to Mr X on behalf of that person without knowing fact that Mr X is not owner of suit premises. Still Tenant is paying amount by way of money order to Mr X. (This fact was not well taken in first reply by Tenant).
6. As a rejoinder was not filled by the consular of Tenant in time and due to illness without any fault of Tenant and orderly leave to defend was dismissed by ARC.
What will be remedies to Tenant? Kindly explain in brief. Can you suggest properly.
Thanks and It is higly appreciable.
Raj Kumar Makkad
(Expert) 06 April 2013
1. Section 3(a) of ibid Act is clear according to which Delhi Rent Control Act 1958 shall not be applicable to govt. premises.
2. Proviso to section 3(b) of ibid act mention about 'let out' but in the given case Mrs. A has subsequently sold out so the Act shall not apply in the given case.
3. Para no. 3 mentions only facts.
4. Original site plan shall superceed the latter.
5. Landlord is not required to be owner of the premises.
6. Tenant can move an application for filing rejoinder.
CA Vijay Kumar
(Querist) 07 April 2013
Sir Please Be Specific and accurate
prabhakar singh
(Expert) 07 April 2013
You too need to be specific and accurate while stating facts.
What transpires to me that after serving a notice to vacate premises plaintiff filed suit for eviction under order 37 of C.P.C.
Plaintiff would have served defendant Summons form 4.
After this service defendant is required to put appearence with notice to plaintiff or his counsel(any delay in appearance is condonable under the rule itself)whereafter such appearance Plaintiff has to serve defendant with summons of judgement receiving which defendant is put appearance within 10 days with affidavit and application praying leave to defend(any delay in appearance is condonable under the rule itself).
It also transpires that defendant delayed in appearance and applying for leave to defend.
But it is not clear whether any delay condonation was prayed or not and it is also not clear what was the ground showing
leave to defend.
The story stated by you is not material at the stage you are.
Then unless contents of notice served on defendant, reply if any by defendant,as well as delay in appearance, condonation moved or not,grounds of leave to defend remains untold nothing can be accurately told.
So i can just tell you to go through
M/s Mechalec Engineers and Manufactures v. M/s Basic Equipment Corporation (1977) 1 SCR 1060,
provided you understand your facts.
Raj Kumar Makkad
(Expert) 07 April 2013
When you facts are not specific, how can you expect from the experts to be specific?
DEFENSE ADVOCATE.-firmaction@g
(Expert) 07 April 2013
There is basic difference between condo nation provided in rule four and dismissal of application for leave to defend.
First of all just find below an article about the case law mentioned by Shri Prabhakar Singh.
The Supreme Court in its landmark judgment, in M/s Mechalec Engineers and Manufactures v. M/s Basic Equipment Corporation (1977) 1 SCR 1060, has examined the principles which are to be considered while granting leave to defend in Summary Suits under the provisions of Order XXXVII of the Code of Civil Procedure, 1908. The Court has observed as under;
In Smt. Kiranmoyee Dassi & Anr. v. Dr. J. Chatterjee(1), Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253):
"(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the Plaintiff is not entitled to judgment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entit leave to defend.
BUT THIS IS THE SITUATION WHEN DEFENDANT HAS APPEARED AND SOUGHT LEAVE TO DEFEND. HOWEVER IF THE DEFENDANT HAS NOT APPEARED THAN HE CAN SEEK RELIEF UNDER RULE FOUR.
prabhakar singh
(Expert) 07 April 2013
One thing more Only revision not any appeal would lie when leave to defend has been refused.Even from a decree passed u/order 37 only revision lies.
CA Vijay Kumar
(Querist) 07 April 2013
Raj ji your reply is still good and but we are not able to link your reply for in our next step that is why we need some clarification. If you hurt I am very realy sorry.
Raj Kumar Makkad
(Expert) 07 April 2013
Vijay ji! You never hurt me and I do not feel like that. I just want specifically your requirement so that I may further review my reply or make more clarification against a particular query.
