IN THE COURT OF SH. Judge's name, LD. ADDITIONAL RENT CONTROLLER-Additional Rent Controller court number, TIS HAZARI COURTS, DELHI.
EVICITION CASE NO. Eviction case number/Eviction case year
IN THE MATTER OF:-
Sh. Petitioner's name: PETITIONER
VERSUS
Sh. Respondent's name: RESPONDENT
N.D.O.H.: Date of next date of hearing
REPLY ON BEHALF OF THE RESPONDENT TO THE APPLICATION FILED BY THE PETITIONER UNDER THE PROVISIONS OF ORDER XXII RULE 10 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908
MOST RESPECTFULLY SHOWETH:-
1.That the aforementioned interim application has been filed by the Petitioner, inter alia, seeking to substitute the proposed applicants, namely Sh. First proposed applicant's name and Sh. Second proposed applicant's name, in the place of the original Petitioner, namely M/s Original petitioner firm name, as is evident from the prayer clause of the said application. The Respondent, having gone through the entire copy of the application and having understood its purport and contents, is filing this reply thereto.
2.That, in brief, the Respondent is reiterating the true and correct facts for the convenience of this Hon'ble Court, which are as follows:-
A. That the Petitioner, i.e., M/s Original petitioner firm name, through its Karta, filed an eviction petition under the provisions of Section 14(1)(a) of the Delhi Rent Control Act in respect of the property bearing No. Municipal number of subject premises, Locality of subject premises, Delhi-Pincode of subject premises (hereinafter referred to as the "SUBJECT PREMISES"), at a monthly rent of INR Monthly rent (₹)/- per month with effect from Month rent increased from Year rent increased from, whereas the earlier rent was INR Earlier monthly rent (₹)/- per month.
B. That the Petitioner further alleges that the Respondent failed and neglected to pay the rent despite service of a demand notice dated Month of demand notice Year of demand notice, whereupon the Petitioner was constrained to initiate appropriate proceedings under Section 19 of the Slum Act, in which, vide an order dated Day of Slum Act order Month of Slum Act order Year of Slum Act order, the said application was allowed.
C. It is pertinent to note that the Petitioner further alleges that the Respondent is in arrears of rent with effect from Day rent fell in arrears from.Month rent fell in arrears from.Year rent fell in arrears from, and that the Petitioner received no pay orders or any letter from the Respondent.
D. That the Respondent sent a cheque of INR Cheque amount (₹)/- to the Petitioner vide cheque No. Cheque number dated Day of cheque date Month of cheque date Year of cheque date, by registered post on Day cheque sent by registered post Month cheque sent by registered post Year cheque sent by registered post, which was duly received by the Petitioner. For reasons best known to the Petitioner, the said cheque was not presented, merely in order to file the present eviction petition on a false pretext.
E. In addition thereto, the Respondent, on Day demand draft issued Month demand draft issued Year demand draft issued, without any legal obligation, also got issued a demand draft bearing No. Demand draft number dated Day of demand draft date Month of demand draft date Year of demand draft date for INR Demand draft amount (₹)/-, which was also sent by registered post to the Petitioner, but the same was likewise not accepted by the Petitioner. It is thus apparent that it is the Petitioner who, even after receiving the cheque and the demand draft, has not presented the same for encashment, so that the present frivolous suit/petition could be filed by the Petitioner.
F. Interestingly, the Petitioner himself has stated in his own petition that the rent was not paid from Month rent unpaid from Year rent unpaid from onwards, and that the notice as alleged by the Petitioner was issued on Month of notice alleged by petitioner Year of notice alleged by petitioner, which clearly indicates the mala fide design on the part of the Petitioner in instituting a false and frivolous case against the Respondent.
G. In addition thereto, the Petitioner owns a number of premises/shops within the same complex, and the Respondent shall file copies of the records of all the shops and other properties owned by the Petitioner, which comprise several floors, as in the case of the subject property. The present petition has been filed by the Petitioner only in order to evict the Respondent in an illegal manner by placing false facts before this Hon'ble Court, solely with a view to evicting the Respondent from the property on false grounds.
3.That the provision of Order XXII Rule 10 is reproduced herein for the convenience of this Hon'ble Court as well as of the parties concerned in the matter:
ORDER XXII RULE 10
1.Procedure in case of assignment before final order in suit.—
(1)In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2)The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
4.Under Rule 10 of Order XXII of the Code, where there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the persons upon whom such interest has devolved. This entitles a person who has acquired an interest in the subject-matter of the litigation by assignment, creation or devolution of interest pendente lite, or any other person interested, to apply to the Court for leave to continue the suit. However, it does not follow that it is obligatory upon such person to do so.
5.A propos the aforementioned, it is settled law that the said rule is an enabling and permissive provision. A Full Bench of the Patna High Court held in Mahanth Sukhdeo Das versus Kashi Prasad Tiwari, AIR 1958 Pat 630 : 1958 BLJR 559, inter alia, that even where a devolution of interest takes place during the pendency of litigation, the litigation may continue. It is open to the assignee to appear in the suit at any stage and defend himself with the leave of the Court, but he cannot seek to be brought on record as of right.
6.That the Respondent states that the present petition under the provisions of Section 14(1)(a) of the Act has been filed in respect of the municipal number Municipal number of subject premises, Locality of subject premises. The document annexed alongside the present application, purportedly titled as a partition deed dated Date of partition deed, pursuant to the oral partition/settlement between Names in oral partition/settlement effected on Day oral partition effected Month oral partition effected Year oral partition effected, inter alia, records that the entire unsold portion of the property bearing municipal nos. Start number of property range to End number of property range, Locality of property range, was to be owned by the proposed applicants. As such, the present proposed applicants/petitioners have no locus standi to substitute the existing Petitioner in respect of the subject property, there being no privity of contract.
7.That the Respondent craves the attention of this Hon'ble Court to certain documents, including an affidavit filed alongside the present petition, the rent receipts, and an application under Order XII Rule 6 as filed, from which it is clear that the petition was filed by Original petitioner's name in his individual capacity. Similarly, the rent receipts were issued in his individual name, and the case titled in the application under Order XII Rule 6 is also in the individual name of Sh. Original petitioner's name. This implies that the present suit/petition has been instituted in the name of Sh. Original petitioner's name, the individual, and not in the name of M/s Original petitioner firm name, and as such there is a discrepancy with respect to the ownership/landlord-ship.
8.That the Respondent further submits, in connection with the present Rule, that a party upon whom the interest of the deceased plaintiff or defendant devolves is not entitled, as a matter of right, to continue the suit or appeal. The learned Court, after perusing all the documents on record, is required to exercise its discretion in detail so as to allow or dispose of the application, as the word used in the provision is "may" and not "shall".
9.That the Respondent further craves the leave of this Hon'ble Court to argue, at the time of hearing of the application, on any additional ground or point raised as aforesaid.
REPLY ON MERITS:
That the Answering Respondent hereunder gives its para-wise comments on the interim application filed by the Petitioner, without prejudice to what is stated above. The Answering Respondent emphatically denies all that is contained in the interim application which is contrary to, or inconsistent with, what is stated by the Answering Respondent herein. Unless any averment of the interim application is specifically admitted by the Answering Respondent herein, irrespective of whether a specific traverse is made or not, non-dealing with any particular averment(s) may not be taken as an implied admission.
1.That the contents of the application under reply may kindly be read as part and parcel of this reply, as the same are not being repeated herein for the sake of brevity.
2.That the contents of Para 2 of the present application do not pertain to the Answering Respondent and are therefore denied for want of knowledge. However, the contents of the application under reply may kindly be read as part and parcel of this reply, as the same are not being repeated herein for the sake of brevity.
3.That the contents of Para 3 of the present application do not pertain to the Answering Respondent and are therefore denied for want of knowledge. However, the contents of the application under reply may kindly be read as part and parcel of this reply, as the same are not being repeated herein for the sake of brevity.
4.That the contents of Para 4 of the present application are wrong and the same are denied. It is denied that the right to sue survives in favour of the proposed applicants. However, the contents of the application under reply may kindly be read as part and parcel of this reply, as the same are not being repeated herein for the sake of brevity.
5.That the contents of Para 5 of the present application are wrong and the same are denied. It is denied that, in the facts and circumstances of the case, it is just and proper that the names of the applicants be substituted in place of the original petitioner and that the applicants be permitted to continue with the present proceedings against the Respondent. However, the contents of the application under reply may kindly be read as part and parcel of this reply, as the same are not being repeated herein for the sake of brevity.
6.That the contents of Para 6 of the present application are wrong and the same are denied. It is denied that the present application has been made in the interest of justice and that the same is most bona fide. However, the contents of the application under reply may kindly be read as part and parcel of this reply, as the same are not being repeated herein for the sake of brevity.
7.That the prayer clause of the interim application under reply is wrong and the same is denied. It is denied that, in view of the facts and circumstances of the case mentioned above, this Hon'ble Court may allow the present application.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to dismiss the application under reply filed by the Petitioner with heavy costs.
A. Dismiss the present application.
B. Pass any other or further order which this Hon'ble Court may deem fit and appropriate in the facts and circumstances of the present case.
PLACE: Place of replyRESPONDENT
DATE: Date of replyTHROUGH
COUNSEL
IN THE COURT OF SH. Judge's name, LD. ADDITIONAL RENT CONTROLLER-Additional Rent Controller court number, Place of the court
EVICTION CASE NO. Eviction case number/Eviction case year
IN THE MATTER OF:-
Sh. Petitioner's name: PETITIONER
VERSUS
Sh. Respondent's name: RESPONDENT
AFFIDAVIT
Affidavit of Sh. Deponent's name, S/o Late Shri Deponent's father's name, Shop No. Shop number of deponent, Floor of deponent's premises Floor, Deponent's address, do hereby solemnly affirm and state as under:
1. That I am the Respondent in the above petition and am competent to swear this affidavit.
2. That I am conversant with the facts of the case and have also examined all the relevant documents and records in relation thereto.
3. That the contents of the reply to the interim application are true to my knowledge. I state that there is no false statement or concealment of any material fact, document or record, and the information included therein is, to the best of my knowledge and belief, correct.
DEPONENT
VERIFICATION:
I, the deponent named hereinabove, do hereby solemnly affirm and verify that the contents of the above affidavit are true and correct to my knowledge, that no part of it is false, and that nothing material has been concealed therefrom.
Verified at Place of verification on this Day of affidavit verification day of Month of affidavit verification, Year of affidavit verification.
DEPONENT