Shri Bansai Lal (Deceased) ... vs Shri Chander Singh
2011 Latest Caselaw 1202 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                           Date of Judgment: 28.02.2011


+                        RSA No.2/2001



SHRI BANSAI LAL (DECEASED) THROUGH L.RS.
                             .............Appellant
              Through: Mr.A.P.S.Ahluwalia, Sr. Advocate
                        with Mr.S.S.Ahluwalia, Advocate.
                   Versus

SHRI CHANDER SINGH                   .............Respondent

                   Through:    Mr. Sunil Malhotra, 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?

3. Whether the judgment should be reported in the Digest?

INDERMEET KAUR, J.(oral)

1. This appeal has impugned the judgment and decree dated

3.11.2000 which has reversed the finding of the trial judge. The

trial judge had decreed the suit of the plaintiff. Impugned

judgment had dismissed it.

2. The case of the plaintiff is that he is a tenant in the suit

property. He had sought a decree of declaration and permanent

injunction that he be treated as a tenant and the defendant be

injuncted from dispossessing him. It is not in dispute that

earlier the parties had been relegated to eviction proceedings

before the Rent Controller. Eviction Petition No.5/1978 had

been filed by Chander Singh against his tenant Krishan Hari

where the plaintiff Bansi Lal was arrayed as a sub tenant. This

eviction petition had been decreed and the ouster of the plaintiff

had been ordered on 29.1.1983. In appeal before the Rent

Control Tribunal vide judgment and decree dated 15.9.2004 the

order dated 29.1.1983 was set aside. It was held that the Delhi

Rent Control Act is not applicable to the suit property. Rent

Controller is not vested with the jurisdiction to deal with the

matter. This was affirmed in second appeal on 15.11.2004.

3. Learned counsel for the appellant has drawn attention of

this Court to the impugned judgment. It is pointed out that in

para 5 and 9 of the impugned judgment reference has been

made to the judgment dated 29.1.1983 which had since

admittedly been set aside. The impugned judgment had relied

upon the finding 29.1.1983 to dismiss the suit of the plaintiff. It

is pointed out that this is a perversity. It is pointed out that up

to para 8 the averments qua the application under Order 41

Rule 27 of the Code of Civil Procedure alone had been

discussed. Para 9 has not discussed the evidence of the parties.

It is thus clear that the impugned judgment has reversed the

finding of the trial judge without appreciating the oral and

documentary evidence of the parties; a valuable right has thus

been lost to the appellant whose documentary evidence had not

been adverted to by the first appeal court. This is borne out

from the record.

4. On this score, learned counsel for the appellant has placed

reliance upon a host of judgments to substantiate his submission

that it is the bounden duty of the first appeal court to deal with

all contentions raised by the parties both oral and documentary;

if it shies from such a duty it amounts to a perversity. In 20

2010(10) Scale B.V.Nagesh Vs. H.N. Sreenivasa Murthy the

manner in which the first appeal has to be deal with the

judgment of the trial court has been detailed; it can in no

manner be a cryptic order.

5. In view of the aforenoted material which has come on

record this is a fit case where the matter should be remanded

back for decision by the first appeal court on its merits. Parties

are directed to appear before District & Sessions Judge, Tis

Hazari, Delhi on 11.3.2011 at 10.30 AM who will assign the

matter to the concerned court who shall decide the matter by

passing a speaking and reasoned order.

(INDERMEET KAUR) JUDGE FEBRUARY 28, 2011 nandan