Ram Nath Chitkara vs Dewan Chand
1986 Latest Caselaw 330 Del

JUDGMENT

Sultan Singh, J.

(1) On 10-2-1984 the plaintiff filed a suit for cancelling agreement of lease dated 9-6-1983 and for permanent injunction restraining the defendant from using the said agreement in any legal proceedings. The plaintiff was allowed to amend the plaint. By the amended plaint dated 6-11-1984 the plaintiff prayed for a decree for declaration that the agreement of lease dated 9-6-1983 having been brought about by fraud of the defendant was void and unenforceable and did not create relationship of landlord and tenant between the parties The defendant in the written statement raised various objections One of the objections was that the (r)uit was barred under Section 50 of the Delhi Rent Control Act, 1958. By judgment dated 1-8-1985 the trial court held that the suit was barred and dismissed the suit.

(2) The plaintiff filed an appeal and the Senior Sub-Judge, held that the finding of the trial court that the suit was barred by Section 50 of the Delhi Rent Control Act was not correct, that the judgment and order of the trial court amounted only to rejection of plaint under Order 7 Rule 11 of the Code which was not appealable under Order 43 of the Code of Civil Procedure. The lower appellate court thus dismissed the appeal. The plaintiff has filed the second appeal.

(3) Briefly the facts as alleged in the amended plaint dated 611-1984 are that the defendant was a tenant under the plaintiff in respect of part of the premises No.5377/VII, 58. G.B. Road Delhi at a monthly rent of Rs. 34.50 shown red in the plan; the plaintiff had obtained an order of eviction in case No. 356 on 1979 on 9-8-1982 passed by the Rent Controller, Delhi; the defendant's appeal against the eviction order was dismissed b> the Rent Control Tribunal as well as by the High Court. The plaintiff further alleged that earlier there was on order of eviction against the defendant and his second appeal against that order of eviction was pending in the High Court being S.A O. No. 267 of 1978 and in order to wriggle out of the two orders of eviction, the defendant with mala fide, dishonest and fraudulent motives approached the plaintiff with a promise, to enhance the rent to Rs. 400.00 per month in case afresh agreement of lease was executed; the defendant fraudulently and dishonorly induced the plaintiff to enter into an agreement of lease dated 9th June, 1983 The plaintiff pleaded various grounds for holding that the agreement of lease dated 9-6-1983 was a void instrument. The plaintiff thus prayed for a decree for declaration that the agreementofleasedated9-6-1983havingbeenbroughtabout by fraud was void and unenforceable and did not create relationship of landlord and tenant between the parties.

(4) The short question is whether the relief claimed by the plaintiff is barred under Section 50 of the Delhi Rent Control Act, 1958 which reads as under: "(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. (2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement, abate. (3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day, of August, 1958 from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then, notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as Controller thinks fit. (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."

Under this provision matters relating to the fixation of standard rent in relation to any premises governed by the Rent Act, eviction of any tenant there from or any other matter which the Controller under the Rent Act is empowered to decide, cannot be entertained or adjudicated upon by a civil court. In other words, all matters the cognizance of which cannot be taken by the Rent Controller are to be tried by a civil court. Section 9 of the Code of Civil Procedure also provides that the courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or implied barred. The plaintiff in this suit claims that the agreement of lease dated 9th June. 1983 between the parties is void, unenforceable and does not create relationship of landlord and tenant No provision of the Rent Control Act has been pointed out under which such a matter can be entertained and adjudicated upon by the Rent Controller under the Delhi Rent Control Act, 1958. I am therefore, of the opinion that the present suit is not barred under Section 50 of the Delhi Rent Control Act, 1958 and the civil court has jurisdiction to entertain and adjudicate upon the matters in dispute alleged in the plaint.

(5) Learned counsel for the plaintiff submits that the lower appellate court after holding that the suit was not barred under Section 50 of the Delhi Rent Control Act ought to have accepted the appeal and remanded the suit for trial in accordance with law. He submits that he filed appeal against the judgment and decree dated 1st August. 1985 of trial court dismissing the suit. He further submits that the lower appellate court failed to appreciate that even if the judgment of the trial court amounted to an order rejecting the plain the same was deemed to be decree and appealable as such. There is substance in his argument. Section 2(2) of the Code provides that the rejection of plaint is deemed to be a decree and as such the order rejecting the plaint is appealable under Section 96 of the Code. In other words, the appeal filed by the plaintiff against the judgment and decree of the trial court dismissing his suit was maintainable before the Senior Sub-Judge even if the order of trial court amounted to rejection of plaint. Learned counsel for the defendant however submits that the appeal before the Senior Sub Judge was not maintainable. He submits that filing of an appeal rejecting plaint is barred under Order 7 rule 13 of the Code. I do not agree. Order 7 rule 13 of the Code provides that the rejection of a plaint shall not preclude the plaintiff from presenting a freshed plaint in respect of the same cause of action. It does not provide that the order rejecting the plaint will not be appealable. The provision regarding the appeal is contained in Section 96 of the Code. Under Section 2(2) of the Code the rejection of & plaint is deemed to be a decree and therefore an order rejecting the plaint is appealable under Section 96 of the Code. I therefore bold that the judgment of the lower appellate court that the appeal was not maintainable is contrary to law.

(6) The second appeal is allowed with costs setting aside the judgment of the trial court and the judgment of the Senior Sub-Judge holding that appeal of the plaintiff before him was not maintainable It is held that the present suit is not barred under Section 50 of the Delhi Rent Control Act, 1958 and. is friable by the civil court The suit is remanded to the trial court for decision in accordance with law Parties are directed to appear before the trial court on 10th November, 1986.