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2015 DIGILAW 18 (DEL)

Aman Gupta v. Ashok Kumar Sarna

2015-01-06

V.K.SHALI

body2015
Judgment V.K. Shali, J. 1. This is a contempt petition filed by the petitioner against the respondent on account of the alleged wilful disobedience of the order passed by the court on 2.4.2013 by virtue of which the revision petition of the respondent was treated as disposed of by granting one year’s time to the respondent to vacate the premises till 3.4.2014. 2. Briefly stated that facts of the case are that the present petitioner had filed an eviction petition against the respondent in respect ground floor of the shop bearing No.1565/30, Naiwala, Karol Bagh, New Delhi-110005. The respondent herein was using the said tenanted premises for the purpose of running motor parts shop in the name and style of Sarna Motors of which he was stated to be the sole proprietor. 3. Vide order dated 6.9.2012, the learned Rent Controller passed an order of eviction against the respondent after rejecting the leave to defend filed by him. It may be pertinent here to mention that when the notice of the eviction petition was issued to the respondent, he was served through his brother Pradeep Kumar, on the same address where the respondent was residing. Pradeep Kumar is alleged to be running the shop of motor parts only in the premises in question. 4. Feeling aggrieved on account of the eviction order having been passed on 6.9.2012 against the respondent herein, he filed a revision petition in the High Court bearing No.576/2012 titled Ashok Kumar Sarna vs. Aman Gupta under Section 14 (1) (e) read with Section 25-B of the Delhi Rent Control Act, 1958, which was heard by Hon’ble Ms. Justice Veena Birbal. 5. On 2.4.2013, after hearing the arguments, the learned judge of this court noted that the respondent herein (petitioner in the revision petition) did not press his revision petition and only took the plea that as the property was let out to him for commercial purpose, therefore, two years’ time may be given to vacate the premises. After due submissions by the respective sides, the petitioner had agreed to the time till 3.4.2014 to vacate the tenanted premises. This was allowed by the learned single judge, subject to his payment of user charges @ Rs.500/- per month on or before 10th of every month and clearance of all the arrears within a period of four weeks. After due submissions by the respective sides, the petitioner had agreed to the time till 3.4.2014 to vacate the tenanted premises. This was allowed by the learned single judge, subject to his payment of user charges @ Rs.500/- per month on or before 10th of every month and clearance of all the arrears within a period of four weeks. The respondent was also directed to file an undertaking in this regard. 6. In the month of April, 2013 itself, the respondent filed his undertaking stating that he shall vacate the premises in terms of the undertaking and for the period 6.9.2012 till 3.4.2014, on which date the time of one year would expire. He had undertaken that he will pay the arrears and also the subsequent damages/mesne profits on or before 10th of each succeeding English calendar month. This undertaking has been admitted by the respondent during the course of this hearing and he has put his signatures on the undertaking in token of its correctness. 7. The grievance of the petitioner now is that the respondent, after having availed of the benefit of the entire period of one year, has failed to vacate and handover the peaceful, vacant possession of the shop in question to the respondent and thus, he is guilty of wilful disobedience of the undertaking purported to have been given by him. 8. A show cause notice was issued to the respondent who had put in appearance and stated that he has already vacated the premises in question and handed over the vacant possession of the same to the present petitioner. 9. In view of the aforesaid rival and contradictory stands having been taken by the two parties, as to whether the possession of the suit property has been delivered to the petitioner or not, the court gave a notice in writing to the petitioner to show cause as to why he should not be punished for contempt of court for having not complied with his undertaking. A copy of the show cause notice is attached as a part of the court record. 10. A copy of the show cause notice is attached as a part of the court record. 10. The respondent has filed his reply to the said show cause notice and taken the plea that he had not only cleared the entire arrears but also vacated the premises on 2.4.2014 at about 7:30 p.m. in the presence of Swaran Singh, Trilok Singh and Suraj Prakash, who helped the respondent in shifting his goods and that at the time of vacating the premises, the petitioner was also present. It is also stated by him that so far as the payment of damages or user charges is concerned, that was also paid by him in advance and the necessary averments in this regard are contained in para 3 and 4 of the reply. On the basis of these specific averments made in the reply, the respondent has denied the fact that possession of the suit premises has not been handed over to the petitioner. 11. I have heard the learned counsel for the petitioner as well as learned counsel for the respondent and have also gone through the record. The main question which is involved in the instant case is as to whether the respondent has wilfully disobeyed the undertaking given by him by virtue of which, he was under an obligation to have vacated the premises on or before 3.4.2014. 12. The stand which has been taken by the petitioner is that the premises has not been vacated and the possession of the same has not been given to him. In this regard, he has stated that the respondent continues to run motor parts business at the shop in question through his brother which is enough evidence to show that the possession still continues to be with him. He has also stated that the respondent is taking a palpably false plea that the possession has been delivered in the presence of three persons or even in the presence of the petitioner. If the possession had been handed over to the petitioner in his presence, there was hardly any occasion for him to file the present contempt petition. 13. He has also stated that the respondent is taking a palpably false plea that the possession has been delivered in the presence of three persons or even in the presence of the petitioner. If the possession had been handed over to the petitioner in his presence, there was hardly any occasion for him to file the present contempt petition. 13. This fact is disputed by the learned counsel for the respondent, who contends that not only have the mesne profits been paid in terms of the order passed by the court but also the possession of the same has been handed over to the petitioner and thus, the contempt petition deserves to be dismissed. 14. I have carefully considered the submissions. I find the defence of the respondent as totally false and frivolous in contending that the possession of the suit premises has been delivered to the petitioner. This is on account of the fact that admittedly the business of motor parts is being run from the said shop in question. It is not the case of the respondent that his brother was also running a shop or that he was a partner or that he was running an independent motor parts shop from the shop in question. This fact has not been stated by him in the eviction petition; therefore, this plea that the respondent has handed over the possession of the suit premises to the petitioner in the presence of three persons, whose names are mentioned by him in the affidavit, on the face of it is false. He has neither filed their affidavits in support of his contention nor claimed them to be examined. The respondent has also not produced any document duly signed by the petitioner that he has recovered the possession of the premises. Normally, when possession in such a contested matter would be handed over, the parties would protect their interest by obtaining a document in writing. 15. It is also totally false that the petitioner, after receiving the possession, would agitate the same before this court. The respondent was given ample time to rectify his mistake and handover the possession at this belated stage also so as to bring closure to the matter of handing over the possession. However, he has remained stubborn on the point that he has handed over the possession. 16. The respondent was given ample time to rectify his mistake and handover the possession at this belated stage also so as to bring closure to the matter of handing over the possession. However, he has remained stubborn on the point that he has handed over the possession. 16. There is another fact that the respondent was served through his brother, who is living at the same address where the respondent is living. In his leave to defend, he never took the plea that his brother is running the motor parts business from the said shop. Therefore, this is only an afterthought. This is the business of the respondent only. 17. In the reply affidavit, he has given names of the three persons in whose presence the possession was handed over by him but he has not filed affidavit of any one of them or claimed that their evidence be recorded. In such a situation, the only irresistible conclusion which can be drawn by the court is that he is not a trustworthy person and has been speaking lies regarding handing over of the possession. 18. It has also been brought to the notice of the court that the brother of the respondent has already filed objections before the trial court where the execution application of the eviction petition is pending, in which the rights of the brother of the respondent will be decided as to whether he was in occupation of the premises in his own independent right or not. Till the time the same is decided, which is quite a lengthy procedure, I feel it fit that the respondent should not be permitted to enjoy the premises in question. Therefore, I am of the opinion that so far as the suit property is concerned, it deserves to be sealed forthwith so as to stop the use of the premises. The trial court is directed to decide the objections of the brother of the respondent as expeditiously as possible and not later than 28.2.2015 without being influenced by the observations made in this order. 19. I, accordingly, direct that the DCP of the area concerned shall take steps in sealing the suit property. So far as the other reliefs are concerned, they are totally irrelevant and cannot be granted in the instant petition. 20. 19. I, accordingly, direct that the DCP of the area concerned shall take steps in sealing the suit property. So far as the other reliefs are concerned, they are totally irrelevant and cannot be granted in the instant petition. 20. For these reasons, I hold that the respondent is guilty of contempt by violating his undertaking of having not vacated the suit premises till date and thus, he deserves to be dealt with heavily as he has not only lowered the majesty of the court but has also tried to flout the undertaking given by him with impunity. 21. List the matter before the Roster Bench.