Delhi High Court
Seema Bansal vs Chitra Garg on 23 December, 2009
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.567/2009 and CM No.16685/2009
# SEEMA BANSAL ..... Appellant
Through: Mr. Ashish Dholakia &
Mr. Adarsh Priyadarshan,
Advs.
versus
$ CHITRA GARG ...... Respondent
^ Through: Mr. Arun Mohan, Sr. Adv.
with Mr. Arvind Bhatt, Adv.
Date of Hearing : November 20, 2009
% Date of Decision : December 23, 2009
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether reporters of local papers may be
allowed to see the Judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. The Appellant by way of the present Appeal impugns the
Order dated 09.09.2009 whereby the learned Single Judge was
pleased to dismiss the Preliminary Objection as to the
jurisdiction of this Court raised by the Defendant/ Appellant by
way of IA No. 2028/1997 which the learned Single Judge has
dismissed with costs.
2. At the fulcrum of the dispute is the suit property bearing
No. R-96, Greater Kailash-I New Delhi, which was given on lease
by late Col. Harjeet Singh to one Mr. Pires, Sole Proprietor of
Mr. Pires‟ Private School. The letting was for a period of 3 years
with effect from 1.10.1971. On 27.09.1974, a fresh lease was
executed by late Col. Harjeet Singh, this time with Mr. Pires‟
Private School through its partner Mr. Maurice Wilford Pires at
a monthly rent of Rupees 1,800/-. Eviction Petition No. 96/1978
was filed by the said Col. Harjeet Singh on the ground of bona-
fide requirement. After demise of Mr. Pires, the Defendant was
allowed to defend the petition before Rent Controller. The said
Eviction Petition was dismissed by the learned Rent Controller
vide Judgment dated 3.12.1985 on the ground that the purpose
of the letting was not residential. In 1986, another Eviction
Petition was filed by the heirs of Col. Harjeet on the ground that
the Respondent had, without the written consent of the
Owner/Landlord, sublet, assigned and parted with possession of
the leased premises to Respondent (Defendant in the Suit).
While a third eviction petition was also pending before the Rent
Controller, the Petitioners sold the premises to Mrs. Chitra
Garg, the Plaintiff herein, by a registered Sale Deed dated
19.02.1992. A Suit was then brought by her on 10.11.1993,
bearing CS (OS) No. 2565 of 1993, for possession and mesne
profits against the Defendant/Appellant. In the said suit, the
Defendant, vide IA No. 2028/97, raised an objection to the
jurisdiction of the Civil Court in light of the bar on jurisdiction of
the Civil Court under Section 50 of Delhi Rent Control Act, 1958
as the said premises were said to be governed by the Delhi Rent
Control Act, 1958 („DRC Act‟ for short).
3. The case of the Plaintiff in the present suit is that the
Defendant No.2, that is, Mrs. Seema Bansal was an employee of
Pires‟ Private School who later self styled herself as Principal. It
is further averred that the Defendant entered into the
possession of the property as a trespasser and that she had
been alleging herself to be a tenant by virtue of being the
partner of Pires‟ Private School.
4. In their Written Statement, the Defendants, inter alia,
pleaded that Defendant No.2 had become the owner of the
property by adverse possession in October, 1989. According to
her pleadings her adverse possession commenced from October,
1977, that is, from the time of expiry of the second Lease Deed.
In her Statement recorded on 15th May, 1995 under Order X of
Code of Civil Procedure, 1908 („CPC‟ for short), the Defendant
No. 2(Appellant before us) admitted that she had been
depositing the rent of the property in the Court and that she had
not paid any House Tax of the property. She has also stated that
though her possession of the property was that of a tenant, she
was the owner by adverse possession. On a query from the
Court, she categorically stated that "my claim is only on adverse
possession".
5. Subsequently, Issues were framed by the Court and
applications were filed by both the sides; Order XII Rule 6 of the
CPC application by the Plaintiff and Order VII Rule 11 of the
CPC by the Defendant. Another application, bearing IA
No.12804/2000, was also filed by the Defendant to amend her
Written Statement. After hearing the arguments on the issue of
jurisdiction in light of the bar under Section 50 of DRC Act, the
learned Single Judge held that the Defendants (Appellants
before us) were not entitled to contest the jurisdiction of the
Civil Court to entertain the suits on the basis of the bar under
Section 50 of DRC Act.
6. The learned Counsel for the Appellant has urged before
the Trial Court, as well as before us, that the Defendants had
entered into the possession as tenants being one of the Partners
of Pires‟ Private School and their possession as tenant has been
accepted by the Owner. It is thus argued that once the
Appellant entered upon the possession of the demised premises
in the capacity of a tenant, she would be protected by the
provisions of the DRC Act and the claim based on adverse
possession will not oust the jurisdiction of Rent Controller
before whom the eviction petitions were pending.
7. The Respondent/Plaintiff, however, has taken a diagonally
opposite stand wherein it is argued that on investigation it was
discovered that Mr. Pires who was the original tenant had long
abandoned the premises and the Defendant was not a co-tenant
but a mere trespasser and thus the Controller would not possess
any jurisdiction; and that a civil suit for possession against the
said Defendant was the only and proper remedy left. The
Respondent has further dwelt on the fact that there is a sharp
cleavage in the argument of the Defendants earlier before the
Rent Controller and the Written Statement in the Civil Suit, and
that which is now sought to be taken. It has been pointed out
that after the Plaintiff had instituted a suit in this Court, an
application for substitution as landlord was moved in the
proceedings before the Rent Controller. The said substitution
application was opposed by the Defendant on a plea that since
the Plaintiff had in his suit before the Civil Court pleaded that
the tenant had abandoned the premises and the Defendant is
merely a trespasser therein, the petition before the Rent
Controller will not survive and thus be liable to be dismissed.
The learned Rent Controller, vide order dated 17th May 1996,
held that the plaintiff could not be permitted to continue the
petition for eviction on ground of subletting. The learned Senior
Counsel for the Respondent further points out the pleadings of
the Defendant made in the Written Statement where the
Defendant has not even vaguely raised the plea of being a
tenant and has, to the contrary, maintained the stand of being
the owner by adverse possession. Learned Senior Counsel has
also taken us through the pleadings of the Defendant before the
Hon‟ble Supreme Court in her Special Leave Petition bearing
No. SLP (Civil) 10552/96 arising from the same suit where she
has stuck to her position of being the owner. Thus, it is sought
to be argued that the defendant cannot approbate and
reprobate to preclude the Plaintiff from claiming relief before
the Rent Controller as well as the Civil Court by taking shifting
stands.
8. As we have noted at the commencement of these presents,
the learned Single Judge has rejected the Preliminary Objection.
However, the following Issues have been framed:-
1. Whether the suit property has been properly valued
for purpose of Court Fees?
2. Whether the suit is barred by time?
3. Whether the plaintiff is owner of the property? If
not, to what effect?
4. Whether the defendant No.2 has become owner by
adverse possession?
5. Whether plaintiff is entitled to claim mesne profits
or damages for use and occupation of the
premises by the defendant? If so, at what rate and
for what period?
6. Whether the Plaintiff is entitled to recover
possession?
7. Relief.
9. It is also significant to note that the learned Single Judge
has recorded the sundry applications which are pending,
namely, (a) IA No.4932/1998 of the plaintiff for a decree for
possession on admissions under Order XII Rule 6 of the CPC; (b)
IA No.10486/1998 of the defendant, also under Order VII Rule
11 of the CPC inter alia on the ground of the suit being barred
by time as well as under Section 50 of the Rent Act and Section
9 of the CPC; (c) IA No.10487/1998 also of the defendant under
Order VII Rule 11 of the CPC, again on the ground of the suit
being barred by Section 50 of the Rent Act; (d) IA
No.12804/2000 of the defendant for amendment of the plaint to
take a plea in the written statement of the suit being barred
under Section 50 of the Rent Act; (e) IA No.1472/2001 of the
defendant, again for amendment of the Written Statement.
10. We find no error in the impugned Order. The questions
which are now being agitated before us would be finally and
fully decided in the Suit whenever is led on the Issues that have
been struck. No case is made-out for the dismissal of the Suit at
this stage. Moreover, it is clear by the pendency of several
applications detailed above that the efforts of the Appellant are
to stall the Trial. It is the Plaintiff and not the Defendant who is
usually vexed and troubled by the pendency of the Suit.
Valuable and scarce time of the Court is exhausted in appeals
such as the present one. Having recorded the statement of the
Appellant under Order X of the CPC, the learned Single Judge
had arrived at the conclusion which is neither legally incorrect
nor perverse. In his statement under Order X, the Appellant had
clarified that "my claim is only on adverse possession".
11. Since the impugned Order is passed on a Preliminary
Objection of the Defendant to the jurisdiction of the Court and
the contentious issue will be gone in depth in trial by the
learned Single Judge after recording of the evidence, we refrain
ourselves from making any detailed observation on the merits of
the case in this Appeal.
12. In these circumstances, we fail to appreciate any
reasoning by which the Suit was liable to be dismissed. The
Appeal is dismissed with costs of Rupees 30,000/-. Pending
application also stands dismissed.
13. Trial Court record be sent back.
( VIKRAMAJIT SEN )
JUDGE
December 23, 2009 ( SUNIL GAUR )
tp JUDGE
