Delhi High Court
Purshottam Das vs Pratik Jain on 31 May, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 107/2010
Date of Decision: May 31, 2010
PURSHOTTAM DAS ..... Appellant
Through: Mr. Sugriva Dubey, Adv.
versus
PRATIK JAIN ..... Respondent
Through: Nemo.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
RSA 107/2010
1. Plaintiff (Respondent herein) filed a suit for possession and
damages against the Defendant (appellant herein) alleging that
defendant was kept as a watchman by Rakesh Kumar Jain, the
then owner of property No.1875, Gali No.2, Kailash Nagar,
Delhi, who was carrying on the business of building materials
in the said premises. Defendant being watchman was given
one room measuring 8 x 8 feet on licence by Rakesh Kumar.
The property was subsequently purchased by the Plaintiff
from Rakesh Kumar vide registered Sale Deed dated
12.5.2005. After purchase of the property, he requested the
defendant to vacate the premises and also served him with a
legal notice for revocation of licence dated 29.5.2006.
However, defendant failed to hand over the vacant possession
of the suit property. Hence, a suit for possession and damages
@ Rs.5500/- along with interest @ 15% per annum was filed.
2. Trial Court dismissed the suit with the observations that on
preponderance of probabilities, Plaintiff had failed to prove
that Defendant is a licencee and the defendant in view of the
uncontroverted testimony and on preponderance of
probabilities proved that he is a tenant in the suit property.
3. Plaintiff challenged the judgment and decree of the Trial
Court dated 9.10.2009, in appeal being RCA No.29/2009.
The Appellate Court on the basis of evidence available on
record allowed the appeal and set aside the judgment and
decree of the Trial Court, holding that defendant was
employed to keep watch over the property and was inducted
as a licencee in the suit property.
4. Impugned in this appeal is the judgment and decree of the
First Appellate court dated 27.03.2010.
5. Mr. Sugriva Dubey, counsel for the appellant has argued that
jurisdiction of the Civil Court was barred by virtue of Section
50 of Delhi Rent Control Act (hereinafter referred to as „DRC
Act‟) as defendant was inducted as a tenant in the suit
property. The Appellate Court went wrong in holding that
Civil Court had the jurisdiction to entertain the suit.
6. I find no merits in these submissions. After assessment of
oral evidence and other documents proved on record by the
parties, the First Appellate Court concluded that defendant
was a licencee in the suit property. This is a finding on fact
which cannot be disturbed by this Court in the second appeal.
It is well founded principle of law that First Appellate Court
has every power to assess and re-assess evidence of the
parties while deciding the appeal. Since, as per the findings
of the Appellate Court, Defendant was provided with a room
as a licencee to enable him to perform his duties as a
watchman of the entire property, no substantial question of
law arises which is to be determined by this court. As it was
held that no relationship of landlord and tenant existed
between the parties, premises in question are not governed by
DRC Act. Therefore, plaintiff rightly filed a suit for
possession and damages in the Civil Court.
7. Counsel for the appellant has submitted that suit has not been
properly valued for the purposes of court fee and jurisdiction
and therefore, substantial questions of law, whether suit can
be valued arbitrary on assumptions and whether the suit for
possession for immovable property the value can be fixed at
Rs.10,000/- for the purposes of possession or it should be
market value of the property.
8. In para 8 of the plaint, plaintiff has valued the suit for
purposes of court fee and jurisdiction in the following
manner:-
"8. That the suit has been valued for the
purposes of jurisdiction on the relief of
possession at the rate of Rs.10000/- per month,
on which the court fee stamp of Rs.1126/- and
for the recovery of the relief of damages of
Rs.5500/-, on which the court fee stamp of
Rs.686-80p, totaling to the sum of Rs.1812-80p
has been paid."
9. In para 4 of preliminary objections in the written statement,
defendant sought dismissal of the suit for want of proper court
fee. Defendant never raised any objection to the valuation of
the suit for the purposes of court fee and jurisdiction. It is not
disclosed as to how proper court fee was not paid. Para 8 of
the plaint has been replied in the written statement as
follows:-
"8. That para 8 of the plaint is wrong and the
same is denied. It is denied that proper court
fee has been paid."
10. It is pertinent that the objection raised by the defendant
regarding non-payment of court fee was never pressed by
him. His emphasis has been on the jurisdictional aspect of the
civil court to entertain the suit for possession. Neither any
issue was framed by the Trial Court nor any submission was
made during the course of arguments on behalf of the
defendant that suit was undervalued for the purposes of court
fee and jurisdiction or that the valuation was not correct.
11. In the appeal as well, no arguments were raised to valuation
of the suit for the purposes of court fee and jurisdiction. It is
pertinent that Mr. Sugriva Dubey was the counsel for the
appellant before the First Appellate Court. After having lost in
the first appeal, this appeal may be a camouflage to retain
possession of the suit premises and to avoid execution of the
decree passed against the appellant. Plaintiff had valued the
suit at Rs.10,000/- for the purposes of possession and
Rs.5500/- for purposes of mesne profits and paid the requisite
court fees.
12. Under these circumstances, when the judgment and decree of
the appellate court is passed on assessment of oral as well as
documentary evidence and on facts, no substantial question of
law arises in this appeal.
13. Hence, appeal being without any merit is hereby dismissed.
CM Nos.10469/2010 (for stay) & 10470/2010 (for exemption)
14. Since appeal has been dismissed, both these applications
have become infructuous. The same are accordingly disposed
of.
ARUNA SURESH, J.
MAY 31, 2010
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