Shri Maharaj Singh vs Shri Ram Babu
2011 Latest Caselaw 1916 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 01.04.2011


+                 RSA No.331/2006 & CM No14084/2006



SHRI MAHARAJ SINGH                       ...........Appellant
                  Through: Mr. K. Sunil, Advocate.

                  Versus

SHRI RAM BABU                                   ..........Respondent.
                        Through: None

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 Nos14085/2006 (Exemption)

Allowed subject to just exceptions.

RSA No.331/2006 & CM No14084/2006

1 This appeal has impugned the judgment and decree dated

05.09.2006 which has reversed the findings of the trial Judge dated

30.07.2005. Vide judgment and decree dated 30.07.2005 the suit

filed by the plaintiff Maharaj Singh seeking possession of the suit

property i.e. property comprising of one room forming part of

property No. A-1/19, Gali No. 1, Nehru Vihar, Karawal Nagar, Delhi

had been decreed in his favour. A decree of permanent injunction

had also been given restraining the defendant from transferring/

alienating the suit property; decree of mesne profits @ ` 100/- per

month from the date of filing of the suit till the date of possession

had also been accorded in favour of the plaintiff. This was reversed

by the impugned judgment. The impugned judgment on all counts

except one has supported the findings of the trial Judge. The

impugned judgment had invoked the provisions of Section 50 of the

Delhi Rent Control Act (DRCA) and had held that since the parties

were governed by a landlord-tenant relationship, the rent of the

premises was admittedly below `3,500/-, a suit for possession was

not maintainable; bar of Section 50 of the said Act was applicable;

jurisdiction of the Civil Court was barred; the Rent Controller alone

had the jurisdiction to entertain the suit. This judgment is the

subject matter of appeal.

2 This is a second appeal. It had been admitted and on

06.08.2009, the following substantial question of law was

formulated:-

"Whether the provisions of Delhi Rent Control Act as amended are applicable to the property in dispute? If so its effect?"

3 None has appeared on behalf of the respondent inspite of

service.

4 The suit property has admittedly is a part of Nehru Vihar,

Karawal Nagar, Delhi. Record shows that in the written statement

in para 4 a preliminary objection had been taken by the defendant

that the suit is barred under Section 50 of the DRCA; replication

had refuted this stand.

5 The trial Judge had framed various issues which inter-alia

reads as under:-

1. Whether the suit of the plaintiff is not maintainable? OPD

2. Whether the suit is not barred by principle of res-judicata? OPD

3. Whether the plaintiff is entitled for decree of possession and permanent injunction as prayed for? OPP.

4. Whether the plaintiff is entitled for mesne profits, if so at what rate and for what period? OPP

5. Relief.

6 No issue on the bar of Section 50 of the DRCA had been

framed. Obviously for this reason, no evidence was led on this

point. Today it has been urged by learned counsel for the appellant

that the suit property is not covered by DRCA and in the absence of

any issue having been framed and the parties not being relegated

to lead evidence on this score, there was nothing before the Court

to hold that this suit property was in fact covered by the DRCA. It

is pointed out that the suit property is an unauthorized locality;

Karawal Nagar is not covered by the DRCA; civil suit would then be

maintainable. It is further pointed out that the possession of the

suit property has since been returned back to the plaintiff. The

impugned judgment had also noted this fact but had held that

restitution would follow as per law. It is pointed out that the

defendant/respondent has since filed a restitution application

which is pending before the concerned court.

7 Record shows that admittedly no issue on the bar of Section

50 of the DRCA had been framed. It was not a contentious point

between the parties. Obviously for this reason, the parties could

not lead any evidence on this score. There was no evidence before

the first appellate court to hold that the provisions of DRCA would

not applicable to the instant situation; this was especially so in

view of stand taken by the plaintiff wherein he had refuted this

position. The DRCA would not suo-moto be applicable to each and

every locality in Delhi; in certain cases certain areas are notified

which come within the purview of DRCA and certain areas are

excluded. Since no evidence had been led on this score, the

plaintiff was precluded from bringing before the Court evidence

contrary to this; his contention being that the suit property is not

covered by the DRCA.

8 This finding in the impugned judgment is thus an illegality. It

is liable to be set aside. It is accordingly set aside. Appeal is

allowed. Suit of the plaintiff stands decreed.

INDERMEET KAUR, J.

APRIL 01, 2011 a