Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 19 RC ARC 457/25
RAJKUMAR BARI Vs. MITTER SAIN
28.03.2026
Present: Ms. Ashi, Ld. Counsel for the petitioner.
Ms. Vaishali Singh, Ld. Counsel for the respondent no. 2
(through VC).
Respondent no. 2 in person.
Respondent no. 1 has expired.
Matter is listed for arguments on the provision under
Section 15(1) as well as an application under Order 1 Rule 10(2) filed on
behalf of petitioner and another application under Section 5 of Limitation
Act filed on behalf of respondent no. 2.
In between proceedings, replication has been filed on
behalf of petitioner on 12.02.2026. Taken on record. Copy supplied in
advance.
At this stage, additional affidavit has been filed in support
of the replication on behalf of petitioner. Taken on record. Copy supplied.
Passover sought on behalf of respondents.
Put up at 11:30 am.
(DIVYA GUPTA)
ARC-02 (Central), THC,
28.03.2026
At 11:30 AM
Present: Ms. Ashi, Ld. Counsel for the petitioner.
Sh. Hitendra Mehlwal, Ld. Counsel for the respondent no.2
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Firstly, an application under Order 1 Rule 10(2) CPC filed
on behalf of petitioner is taken up. It is submitted that it was apprised by
respondent no.2 that respondent no.1 herein was sister of respondent no.2
and she has expired before filing of the present petition. That respondent
no.2 has also filed DR petitions and there is a landlord tenant relationship
between petitioners and respondent no.2 and suit property is in possession
of respondent no.2. Hence, it is prayed that respondent no.1 be deleted from
the array of parties.
Heard. Perused.
Admittedly, respondent no.1 has expired before filing of
the present petition. It is a settled law that eviction petition filed against a
dead person is a nullity. In this regard reference can be also made on the
judgment of Hon’ble Apex Court titled as Pankajbhai, Rameshbhai
Zalavadiya Vs. Jethabhai Kalbhai Zalavadiya in Civil Appeal no. 15549/17
decided on 03.10.2017.
Hence, present application is hereby allowed and respondent
no.1 is deleted from the array of parties.
Petitioners are directed to file amended memo of parties
within 10 days with an advance copy to the opposite party.
Now another application under Section 5 Limitation Act r/w
Section 151 CPC filed on behalf of respondent no. 2 is taken up.
Arguments heard. Record perused.
It is submitted by respondent no. 2 that delay in filing of WS
was not intentional that petitioner supplied the copy of documents on
14.10.2025 after which respondent and his counsels started collecting
necessary documents from concerned Civil Courts and certified copies had
to be applied for. Hence, it is prayed that delay in filing of WS be condoned.
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Reply has been filed on behalf of petitioner objecting the
aforesaid application mainly on the ground that no plausible explanation
has been given for non-filing of WS within statutory period. Hence, it is
prayed that present application be dismissed with costs.
As per record, respondent no. 2 was duly served on
23.09.2025 and WS has been filed on 09.12.2025. Record shows that on
08.10.2025, petitioner was directed to supply fresh copy of petition along
with annexures to the counsel for respondent no. 2 within 7 days. The case
of the respondent no.2 is that he received the complete copy on 14.10.2025.
Though there is delay in filing of WS, however, same has been filed within
extended period of 90 days. Further, it is trite that procedure is a handmaid
of justice and no parties should suffer due to procedural technicalities.
Hence, taking a liberal view present application under Section 5 Limitation
Act r/w, Section 151 CPC is hereby allowed and disposed off accordingly.
However, to balance the scale of justice, cost of Rs. 2000 is hereby imposed
upon the respondent no.2 payable to the opposite side.
Now, arguments on the provision under section 15 (1)/ (4) of
DRC Act heard. Record perused.
Perusal of written statement filed by respondent no. 2 shows
that respondent has admitted being in possession of subject premises in the
capacity of tenant and stated that he is ready and willing to deposit the
admitted rent @ Rs. 40/- per month under protest. However, respondent
no.2 has disputed landlord-tenant relationship with the petitioner alleging
that petitioner is not the lawful owner of subject premises as property is
owned by Sh. Babu Lal and that after his death rent is being collected by
legal heirs of Late Sh. Babu Lal.
During the course of arguments, it is submitted by the Ld.
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Counsel for respondent no.2 that he has no objection if order under section
15(4) of DRC Act is being passed. Provision of section 15(4) of DRC Act is
reproduced as under:
“(4) If, in any proceeding referred to in sub-section (1) or sub-
section (2), there is any dispute as to the person or persons to
whom the rent is payable, the Controller may direct the tenant
to deposit with the Controller the amount payable by him
under sub-section (1) or sub-section (2) or sub-section (3), as
the case may be, and in such a case no person shall be entitled
to withdraw the amount in deposit until the Controller decides
the dispute and makes an order for payment of the same.”
The present petition has been filed on 30.07.2025. Legally, the
respondent is liable to pay the rent three years preceding to the date of the
petition, if not paid already.
Accordingly, as per section 15(4) of DTC Act, at this stage,
respondent no. 2 is directed to deposit the entire arrears of rent (if due) at an
admitted rate of rent Rs. 40/- per month for the period of three years prior to
filing of present petition along with the interest of 15% per annum upon the
delayed payment within one month of the date of this order.
Respondent no. 2 is further directed to deposit future rent and
subsequent rent, month by month, at the aforesaid rate @ Rs. 40/- per
month without prejudice to rights and contentions of the parties, on or
before 15th of each English Calendar month during the pendency of the
present petition. Needless to say, that the rent, if any, already paid for the
above period shall be adjusted accordingly. Further no person shall be
entitled to withdraw the amount in deposit until the Court decides the
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dispute and makes an order for payment of the same.
At this stage, certain documents have been filed on behalf
of respondent no.2, which are judicial records of other matters. Copy
supplied. Taken on record. It is argued that present petition is not
maintainable as petitioner has sold the suit property.
Petitioner sought one opportunity to file affidavit in reply to
aforesaid documents. Let the same be filed within two weeks from today
with advance copy to the opposite side.
Put up for further proceedings 05.06.2026
(DIVYA GUPTA)
ARC-02 (Central), THC,
28.03.2026
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