Bata India Limited v. Smt. Sarla Sharma (Since Deceased) Through Lr S and Ors

NAVIN CHAWLA, J APRIL 22, 2021/rv/P/ G

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 26.02.2021 Date of decision: 22.04.2021 + CM(M) 558/2020 & CM APPL. 28639/2020 BATA INDIA LIMITED ..... Petitioner Through: Mr.Sanjeev Sindhwani, Sr.Adv. with Mr.T.K.Ganjoo, Adv. versus SMT. SARLA SHARMA (SINCE DECEASED) THROUGH LRS AND ORS ..... Respondents Through: Mr.Sandeep Sethi, Sr. Adv. with Mr.Asif, Adv. for R-3, R-4 & R-5. Mr.Praveen Suri, Adv. for R-1, R- 2, R-6, R-7 & R-8. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed by the petitioner challenging the judgment dated 15.10.2020 passed by the learned Rent Control Tribunal, West District, Tis Hazari Courts, New Delhi in the Appeal, being RCT No. 36 of 2016 titled Bata India Ltd. v. Smt. Sarla Sharma & Ors., holding that an appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') challenging an order of dismissal of an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') in an eviction petition to which Section 25B of the Act is applicable, is not maintainable. Page 2 2. The brief background of the facts, before adverting to the question of law raised with respect to the maintainability of the appeal, is as under: a) An Eviction Petition, being E. No. 195 of 2008, titled Smt. Sarla Sharma v. M/s Bata India was filed by the respondent under Section 14(1)(e) of the Act. b) On 23.12.2009, an order of eviction was passed ex parte in the abovementioned Eviction Petition against the petitioner and in favour of the respondent. c) The petitioner filed an application under Order IX Rule 13 of the Code praying for setting aside of the eviction order passed ex parte. d) After deliberating over the abovementioned application of the petitioner, the learned Additional Rent Controller, vide order dated 03.06.2011, passed the following direction: "From the perusal of the documents filed on record it is not clear that who was in the employment of the respondent/applicant at the relevant period of service nor the said fact has been disclosed in the entire application that who was the store Manager or the competent person to receive the summons during that relevant period except the certificate issued by one Mr. AK. Dutta without having any seal wherein it has been mentioned that Mr. B. Kapoor and Mr. Brij Bhushan both salesmen were employed at the branch of the applicant in the suit premises without filing of details of date of their employment or any other document showing their transfer/posting with the respondent at the suit premises. However, since the respondent/applicant denied the service, Page 3 therefore, considering the allegations raised on behalf of the respondent/applicant is being given liberty to lead evidence on the point of service but subject to deposit of the occupation charges at a rate of Rs. 25,000/- per month in view of the judgment of Hon'ble Supreme Court in S.L.P. (C) no. 6319 of 2007, titled as Mohammand Ahmed & Anr. Vs. Atma Ram Chauhan & Ors. reported in 179 (2011) DLT 532 from the month of July 2010 i.e. after expiry of statutory period as provided U/s. 14 (7) of D.R.C. Act upto the month of June 2011 within one month and subject to deposit of the further occupation charges at the said rate from the month of July 2011 on or before the 15th of each English Calender month during the pendency of the present case as the premises is situated in Chandni Chowk area and is consisting of more than about 800 sq. ft. as stated during the course of arguments. It is made clear that the amount so deposited will not be allowed to be withdrawn during the pendency of the present application and in case respondent fails to succeed said amount will be payable to the petitioner without prejudice to his rights and contention and if the applicant will succeed, he will be entitled to withdraw the said amount. Application is disposed off accordingly. It is further made clear that if applicant fai