* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.138/1996
% 22nd August, 2016
SHRI R.K. RAMETRA AND ANOTHER ..... Appellants
Through: Mr. K. Sunil, Advocate.
versus
SHRI PRAKASH CHAND KAUSHIK ..... Respondent
Through: Mr. R.K. Trakru, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 30508/2016 (for exemption)
Exemption allowed, subject to all just exceptions.
C.M. stands disposed of.
REVIEW PETITION No. 373/2016
1. This Review Petition under Section 114 of the Code of Civil
procedure, 1908 (CPC) is filed by the appellants/defendants/tenants pursuant to
the Order passed by the Supreme Court on 29.6.2016 in two Special Leave
Petitions („SLPs‟), the relevant SLP in the present case admittedly being SLP
(C) No. 13229/2016. The Order of the Supreme Court dated 29.6.2016 reads as
under:-
RSA No. 138/1996 Page 1 of 9
"ITEM NO. 47 COURT NO.3 SECTION XIV
SUPREMECOURTOFINDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).12776/2016
(Arising out of impugned final judgment and order dated 04/03/2016 in RFA
No.163/1986 passed by the High Court of Delhi at New Delhi)
M/S VISHAL TIMBER TRADERS AND ANR Petitioner(s)
VERSUS
PRAKASH CHAND KAUSHIK Respondent(s)
WITH
SLP(C) No.13229/2016
(With Interim Relief and Office Report)
Date : 29/06/2016 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE DR. JUSTICE D.Y.CHANDRACHUD
For Petitioner (s) Mr. Shashi Bhushan Kumar, Adv.
Mr.K.Sunil, Adv.
For Respondent (s) Mr.R.K.Trakru, Adv.
Mr. Mukesh Jain, Adv.
Upon hearing the counsel the Court made the following
ORDER
Learned counsel for the petitioners vehemently contends, that the jurisdictional aspect has wrongly been considered by the High Court. It is submitted, that the matter could not have been disposed of on the basis of the earlier proceedings pending before the Rent Controller which was sought to be withdrawn by the petitioners. The reason for the same is depicted in ground `F' in SLP(C)No.13229 of 2016, which is extracted hereunder: "For that the Impugned Judgment passed by Hon'ble High Court is bad and is liable to be set aside/quashed as the High Court has not considered aspect of earlier initiating the proceedings under Delhi Rent Control Act, 1958 and thereafter the petition was not pursued for the reason that the area where the property is situated was not brought within the ambit of Delhi Rent Control Act, 1958 and after the notification it was brought so. RSA No. 138/1996 Page 2 of 9 Consequently the respondent had withdrawn the petition filed by the respondent. However, the fact remained that the tenanted premises has been brought within the ambit of Delhi Rent Control Act, 1958." Having perused the impugned order, we are satisfied that the purely legal position raised in ground `F' in SLP(C)No.13229 of 2016, has not been examined by the High Court. In the above view of the matter, we consider it just and appropriate to allow the petitioners to file a review petition before the High Court solely based on the legal position emanating out of ground `F', extracted above. In case the petitioners do not succeed in the review petition filed by them before the High Court, they shall have the liberty to approach this Court against the order passed on review. Needless to mention, that the High Court should not feel that this Court, through the instant order, has expressed any opinion on the merits of the controversy.
The special leave petitions stand disposed of in the manner indicated above.
(SATISH KUMAR YADAV) (RENUKA SADANA)
AR-CUM-PS COURT MASTER"
(underlining added)
2. This Court has, therefore, to examine the review petition on the basis of ground „F‟ reproduced in the order of the Supreme Court.
3. Before I turn to ground „F‟ certain facts are required to be noted in the order to remove some confusion which has occurred on account of there being two suits filed by the respondent/plaintiff. Respondent/plaintiff let out two plots to the appellants/defendants. The two plots are the front side plot and the back side plot existing in the larger Plot no. WZ-1 total measuring 16½ Biswas, Khasra no. 70, Ganesh Nagar, Najafgarh road, New Delhi. Putting it in other words, the total area of 16½ Biswas forming plot no. WZ-1 contains, inter alia, two plots, a front side plot and a back side plot, and which two plots were let out to the appellants/defendants/tenants under two separate rent agreements. Besides the front plot and the back plot there are various other plots forming RSA No. 138/1996 Page 3 of 9 part of the total area of land measuring 16½ biswas being plot no.WZ-1 belonging to the respondent/plaintiff. The present Regular Second Appeal filed under Section 100 CPC is with respect to the back side plot let out by the respondent/plaintiff to the appellants/defendants/tenants under the Lease Deed dated 12.10.1974 on a monthly rent of Rs.300/-. The Courts below by its Judgments dated 21.2.1994 (Trial Court) and 1.11.1996 (First Appellate Court of Additional District Judge) have held that the Delhi Rent Control Act, 1958 would not apply to the plot in question because the Delhi Rent Control Act only applies to a „premises‟ which is a constructed premises. The courts below, therefore, have held that since only a plot, not a constructed premises, was let out to the appellant/defendants/tenants, the plot would fall outside the Delhi Rent Control Act and the mere fact there was some temporary construction on the same would not bring the premises in question under the Delhi Rent Control Act.
4. A learned Single Judge of this Court vide Judgment dated 4.3.2016 dismissed the Regular Second Appeal by observing that since there is no constructed premises, the Delhi Rent Control Act will not apply to a mere plot having temporary construction of wooden planks. The learned Single Judge held that once there were findings of facts by the courts below that there was only temporary construction and therefore there existed no „premises‟ under the Delhi Rent Control Act, hence no substantial question of law arose for entertaining of the second appeal. The relevant observations in this regard made RSA No. 138/1996 Page 4 of 9 by the learned Single Judge are contained in paragraphs 2, 3, 5, 6 and 13-20 of the Judgment dated 4.3.2016 and which paragraphs read as under:-
"2. In order to consider as to whether the suit is barred by Section 50 of the Rent Act it will be pertinent here to reproduce the exact language of Section 50 of the Delhi Rent Control Act which reads as under:- "50. Jurisdiction of civil courts barred in respect of certain matters - (1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
.............
(4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
3. Further, it may also pertinent here to mention that the definition of the word "premises" as given in Section 2(i) of the DRC Act, 1958, reads as under:-
"premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes:-
i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;
ii) any furniture supplied by the landlord for use in such building or part of the building; but does not include a room in a hotel or lodging house".
XXXXX
5. A conjoint reading of the aforesaid two provisions would clearly show that the jurisdiction of a civil court is barred where the rent of the premises is less than 3,500/- rupees and secondly where the property which has been let out to the tenant is constituting „premises‟.
6. The definition of the word „premises‟ clearly shows that if a vacant land has been let out to a party then it will not be treated as a premises then it will not be enjoying such a protection under the Rent Act.RSA No. 138/1996 Page 5 of 9
XXXXX XXXXX
13. The contention of the learned counsel for the appellant has been that the „premises‟ in question which was let out to him were not a vacant land but a premises. For the purpose of establishing this factum of the tenanted portion not being a vacant land but a „premises‟, the learned counsel for the appellant has referred to following sentences from the cross-examination of PW-1 and PW- 2 to contend that the portion which was let out to the appellant/defendant was not a vacant land.
"... the property in question was having temporary wooden pharras at the time of letting out. The property is being assessed to house tax by the corporation. It is correct that the plot in question comes within the revenue estate of Nangle Jaleb. As there was no construction at property in question so I have not shown the same in Ex.P2. Vol. it was simple a boundary wall. Since it was temporary construction as such it is not shown in site plan........."
14. A perusal of the aforesaid sentences was sought to be interpreted that PW-1 namely, the respondent/plaintiff himself has admitted that at the time when the tenancy was created there were certain wooden planks and therefore, if there was a structure created by wooden planks than the vacant land in question which is stated to be let out to the appellant/defendant by virtue of which it ceased to be a vacant land. It has also been contended by Mr. Sunil, the learned counsel for the appellant/defendant that the rent agreement which is sought to be relied upon has not been proved in accordance with law as it was not validly exhibited and no exhibit has been put on the same and therefore, it cannot be read in evidence.
15. It was also contended that the original of said Rent Deed was not produced which was reflected from the testimony of PW-2 Bal Kishan.
16. Thirdly, it has been contended by Mr. Sunil that for the purpose of relying upon the premises being a vacant land, the learned trial Court has mis- interpreted the evidence which has been adduced and thus arrived at a perverse finding. He has also submitted that during the tenancy period, there was fire at the premises in question because of which wooden structures were gulled and they were reerected by the appellant which were not objected to by the respondent which shows that it was premises merely because the respondent did not object to the re-erection of earlier temporary structures, does not mean that the vacant land which was let out has became premises. Therefore, this argument does not have any merit.
17. I have carefully considered the submissions made by the learned counsel of the appellant. However, I find myself unable to agree to any of the submissions made by him. So far as the crossexamination wherein the respondent/plaintiff in his testimony has admitted that there were certain wooden planks and a boundary wall was erected does not show that there was any construction temporary or permanent which was in existence at the premises in question which could make a vacant land as a „premises‟. Merely because wooden RSA No. 138/1996 Page 6 of 9 planks are mentioned by the witness does not mean that there was some structure which was erected. On the contrary, it is stated that wooden planks which were stated to be lying could have been lying on the vacant land itself and merely because the witness has stated that that the wooden planks were lying on the ground floor it does not change the nature of the land. Therefore, I do not attach any weight to this contention of the learned counsel for the appellant that presence of wooden planks at the land goes to show that there was some structure casting at the land in question which would make it premises and thus it will be covered by the Rent Act barring the jurisdiction of Civil Court.
18. The factum of the property having been let out to the appellant/defendant as being vacant land further gets corroborated by the fact that there is a Rent Deed executed by the respondent/plaintiff in favour of the appellant/defendant wherein he admits that he is taking the vacant land and the said Rent Deed does not talk about existence of any construction on the land in the contents. That being the position, the factum of land having been let out even though the Rent Deed may not be exhibited formally does not digress from the Court placing reliance on the same. I, therefore, feel that this submission of the learned counsel for the appellant untenable in law.
19. Further, there is a concurrent finding of the fact returned by the two Courts below that what was let out to the appellant/defendant was only a vacant parcel of land. Merely because this Court, being a Superior Court may arrive at a different conclusion on the basis of the evidence, would not be a ground to set aside the concurrent finding of the fact returned by the two Courts below if it was one of the highly and probable possibility and substitute its own finding. I feel that the contention of the learned counsel for the appellant/defendant is totally misconceived. There is no merit in the Regular Second Appeal and the submission that the suit in the instant case was barred by Section 50 of the DRC Act. In my considered opinion, as the property which was let out to the appellant/defendant was a vacant parcel of land, therefore, the provision of the Rent Act were not at all applicable and the respondent was well in its right to file a suit for ejectment and possession.
20. For the aforesaid reasons, I feel that the answer to the question which has been formulated by my learned predecessor as to whether the jurisdiction of the Civil Court is barred under Section 50 of the DRC Act gets answered in negative and since answer to the question is in negative, therefore, the appeal is liable to be dismissed. It is accordingly dismissed." (underlining added)
5. It is therefore clear that the subject suit which was filed for recovery of possession of the back side plot comprised in the property no.WZ-1, and the suit was not with respect to properly constructed premises and therefore the Delhi Rent Control Act did not apply. I might note that the size of the plot RSA No. 138/1996 Page 7 of 9 in question, which is the subject matter of this present suit and this Regular Second Appeal, is of 550 sq. ft. having dimensions of length of 51 feet, breadth of 11 ft. 7 inches on one side and 12 feet on the other side.
6. I have already reproduced the order of the Supreme Court and the directions to this Court to decide the review petition on the basis of ground „F‟, which is reproduced in the order of the Supreme Court. I have underlined the relevant portions of ground „F‟ and which shows that the ground „F‟ is predicated on extension of the Delhi Rent Control Act, noting that the Delhi Rent Control Act applies to only those areas in Delhi where the Act is extended/notified for application. However, I note that the issue in the present case as argued is not with respect to extension of the Delhi Rent Control Act to the area in question which was the subject matter of ground „F‟ but the fact that even if the Delhi Rent Control Act stands extended to the area in question, since what is let out is not premises but only a plot of land with temporary construction, consequently, the Delhi Rent Control Act will not apply.
7. Therefore, nothing will turn for decision on merits in this Regular Second Appeal or in the review petition because of ground „F‟ because the issue taken as decided is that as per ground „F‟ there is extension of the Delhi Rent Control Act to the area in question, but even if the Delhi Rent Control Act is extended to the area in question, appellants/defendants/tenants will not have protection under the Delhi Rent Control Act with respect to the premises which is let out is only a plot of land with temporary construction. I note that the two RSA No. 138/1996 Page 8 of 9 earlier litigations filed by the parties; by the tenants for fixing the standard rent and landlord for eviction; were only withdrawn and hence there were no decisions in the same being heard and finally decided and it is not held in these earlier cases that a „premises‟ under the Delhi Rent Control Act was let out to the tenants.
8. In view of the above, I find that there is no merit in the review petition on the basis of ground „F‟ as the courts below as also the Judgment of the learned Single Judge dated 4.3.2016 shows that the appellants/defendants/tenants are tenants not with respect to a premises under the Delhi Rent Control Act, inasmuch as, what was let out to the appellants/defendants/tenants was only a plot of land with temporary construction with wooden planks.
9. This Review petition is accordingly dismissed. All connected applications are also dismissed.
AUGUST 22, 2016 VALMIKI J. MEHTA, J
AK
RSA No. 138/1996 Page 9 of 9