Rafi Ahmad Khan vs Jalaludin
2011 Latest Caselaw 1912 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 01.4.2011


+RSA No. 210/2010, CM No.20426/2010 (for stay), CM
No.20427/2010 (u/O 41 R.27 CPC) & CM No.6656/2010


RAFI AHMAD KHAN                      ...........Appellant
                         Through:    Mr.Pramod Ahuja, Advocate.

                   Versus

JALALUDIN                            ..........Respondent
                         Through:    Mr.A.K.Srivastva, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers 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

INDERMEET KAUR, J. (Oral)

CM No.20425/2010 (for exmeption)

Allowed subject to just exceptions.

RSA No. 210/2010, CM No.20426/2010 (for stay), CM No.20427/2010 (u/O 41 R.27 CPC) & CM No.6656/2010

1. This appeal has impugned the judgment and decree dated

01.10.2010 which has endorsed the finding of the trial judge dated

01.5.2010 whereby the suit filed by the plaintiff Jalaludin seeking

possession of the suit property i.e. the property bearing No.152/2,

Gali No.536, Gali No.8, Main Road Jafrabad, Markazi Chowk,

Seelampur, Delhi (hereinafter referred to as „the suit property‟)

had been decreed in his favour.

2. The case of the plaintiff is that he is the owner/landlord of

the suit property. It had been let out to the defendant vide rent

agreement dated 10.02.1970; rent was Rs.40/- per month. The

defendant had failed to pay the rent w.e.f. 01.10.2005. Legal

notice was issued. The defendant was asked to vacate the suit

property but he paid no heed. Suit was accordingly filed.

3. In the written statement, it was contended that this court has

no jurisdiction to entertain the suit; defendant was not in arrears of

rent.

4. From the pleadings of the parties five issues were framed.

Oral and documentary evidence was led which included PW-2

Halka Patwari, Village Jafrabad who had appeared from the office

of the SDM Seelampur. PW-2 had deposed that Village Jafrabad is

a separate revenue estate. This was as per the summoned record.

Khatoni and Khasra of the aforenoted suit property has been

proved as Ex.PW-2/1; on oath it was stated that Village Jafrabad is

a rural area and Beroz Village (un-inhabitable area).

5 Both the two fact findings courts have returned concurrent

finding in favour of the plaintiff thereby decreeing the suit of the

plaintiff. Defence of the defendant that Village Jafrabad has been

notified by the government and has come within the purview of the

Delhi Rent Control Act, 1957 (hereinafter referred to as „the

DRCA‟) had been rejected as it was never proved. In defence the

defendant had produced the notification dated 20.2.1986 of the

Ministry of Urban Development (Ex.DW-3/9). This notification was

issued under Section 1(2) of the DRCA notifying certain revenue

estates. Zones and Revenue Estates had been depicted given in a

separate column; Shahdara Zone is shown at serial no.IV. The

revenue estates falling in the said zone have been separately

notified. Admittedly Seelampur forms a part of it. Jafrabad is not a

part of this notification. In this context the testimony of PW-2 has

attained relevance. He has on oath as per the summoned record

stated that Village Jafrabad is a separate revenue estate.

6. This is a second appeal. On behalf of the appellant it has

been urged that the suit property is located in Village Jafrabad

which is a part and parcel of Seelampur and Seelampur having

been notified as an urban area the necessary implication is that

Jafrabad is also notified as an urban area. This submission of the

learned counsel for the appellant falls flat in view of the version of

PW-2 who was an official witness and has deposed that village

Jafrabad is a separate revenue estate. Ex.DW-3/9 which is the

notification dated 20.2.1986 does not mention Jafrabad in the list

of revenue estates. The contention of the learned counsel for the

appellant that the suit property is within the purview of the DRCA

is thus belied.

7. Along with this appeal, an application under Order 41 Rule

27 of the Code of Civil Procedure (hereinafter referred to as „the

CPC‟) has also been filed wherein permission is sought to place on

record three documents.

8. Body of the application has been perused. The first

document is a purported report from the office of the SDM which

has been obtained pursuant to an RTI filed which purportedly

shows that the Village Jafrabad is in the Revenue Estate, Sub-

Divison, Seelampur. The next two documents are two receipts

issued by the MCD whereby conversion charges had been taken by

the MCD for using this property. Contention in this application is

that the said documents are genuine documents and inadvertently

they could not be placed on record earlier. In spite of due diligence

these documents could not be filed. Permission is sought to place

then on record.

9. Order 41 Rule 27 of the Code reads as follows:

"27.Production of Additional Evidence in Appellate Court-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate court, But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

10. There is no doubt that this Court has powers to admit

additional evidence even at a second appeal stage. Provisions of

Order 41 Rule 27 of the Code however have to be complied with.

Lack of "due diligence" on the part of the appellant has neither

been detailed nor explained in the application; mere reference to

the word "due diligence" does not fulfill the parameters required in

order that a prayer under this provision of law is allowed. It is also

not the case of appellant that this information was earlier not

available with him for any particular reason; the first document

sought to be placed on record is a report of the SDM of the year

2008; how and why it was not available to the appellant earlier is

not even mentioned in the body of the application. This provision

of law has not been engrafted to fill in lacuna or to delay the

proceedings which the appellant is purporting to do.

11. Counsel for the appellant is pressing his claim mainly on the

first document. Even assuming that this first document is taken on

record (report of the SDM) it only states that Village Jafrabad is in

the revenue estate of the Sub-Division, Seelampur. PW-2 who was

the Halka Patwarti of Jafrabad and had produced the summoned

record; having come into witness box in his official capacity, had

clearly stated on oath that Jafrabad is a separate revenue estate. A

Sub-Division is different from a revenue estate. The notification

Ex.DW-3/9 has notified the list of revenue states. Jafrabad was not

a part of this notification. This application has no merit.

12. Substantial questions of law have been embodied on page

four of the body of the appeal. They are largely bordered on this

argument. No such substantial question of law has arisen.

13. Appeal as also the pending applications are dismissed.

INDERMEET KAUR, J.

APRIL 01, 2011 nandan