Md. Yamin vs Saira
2011 Latest Caselaw 827 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No. 42/2011


%                                                     10th February, 2011

MD. YAMIN           .                              ...... Appellant
                          Through:    Mr. Triloki Pandit with
                                      Mr. R.M.Sharma, Advs.

                          VERSUS


SAIRA                                              ...... Respondent
                          Through:    None

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    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?


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of the present Regular First Appeal

under Section 96 of the Code of Civil Procedure, 1908 is to the impugned

judgment and decree dated 9.9.2010 whereby the respondent's/plaintiff's

suit for possession and mesne profits was decreed.

2.            The property in question is a plot admeasuring 47 square yards

bearing number 30 situated in Khasra No.311, Village-Nasirpur, Delhi now

known as Indra park, Block-J, New Delhi and the municipal number now given

is RZ-26/P-30-A, Gali No.10-E, Indra Park, Palam Colony, New Delhi.           The
RFA No. 42/2011                                                        Page 1 of 4
 appellant was the tenant in the suit property under one Mohammad Ibrahim

and from which Mohammad Ibrahim the respondent/plaintiff had purchased

the property. The rent paid was at the rate of Rs.1,100/- per month. The

respondent/plaintiff filed the suit after termination of tenancy by a notice

dated 9.8.2004 as it was alleged that the appellant had failed to pay the

arrears of rent of the tenanted premises.

3.          After pleadings were completed, the Trial Court framed the

following issues:-

            "1.      Whether plaintiff is the owner of the suit property?
                     OPP
             2.      Whether the plaintiff is entitled to relief of permanent
                     injunction and possession in respect of the suit
                     property? OPP
            3.       Whether the plaintiff is entitled to mesne profits. If
                     so, to what extent and from when? OPP.
            4.       Whether the suit is bad for non-joinder of parties?
                     OPP.
            5.       Relief."

4.          On issue no.1, the Trial Court has held the respondent/plaintiff to

be owner of the property on the basis of the document exhibited as

Ex.PW1/A, which is the sale deed dated 2.6.2004. The Trial Court has held

that merely because the appellant wanted a preferential right to purchase

the   property    from     the   erstwhile   owner,   cannot    mean     that   the

respondent/plaintiff was not the owner.          Once the sale deed has been

executed by the erstwhile owner Mohammad Ibrahim in favour of the

respondent/plaintiff, the Trial Court has rightly decided issue no. 1 holding

the respondent/plaintiff to be the owner of the property. In this regard, no

RFA No. 42/2011                                                        Page 2 of 4
 other factual aspects were pressed before this Court.

5.          The appellant/defendant had claimed the status of a protected

tenant under the Delhi Rent Control Act, 1958 with respect to the suit

property and it was therefore on the appellant to show that the provisions of

the Delhi Rent Control Act were extended to this area. This case was argued

extensively by one Mr. Ranjit Kumar Dubey, Advocate on 19.1.2011 and

whereafter the case was adjourned only for the purpose of the appellant

filing in this Court a notification extending the application of the Delhi Rent

Control Act to the subject area. Adjournment was however sought on the

next date i.e., 7.2.2011 on the ground that the said counsel Mr. Ranjit Kumar

Dubey was not available and today yet another counsel has appeared for the

appellant to reargue the matter. In any case, the only issue was whether the

Delhi Rent Control Act, 1958 applied to the area in question or not.

Ordinarily, this notification, assuming it existed had to be filed before the

Trial Court showing the applicability of the Delhi Rent Control Act to the

premises in question, however, this was not done and only to avoid any

injustice, an opportunity was given by this Court in appeal, to file the

notification showing the applicability of the Delhi Rent Control Act, 1958.

However, such notification has not been filed till date.

6.          In view of the above, I do not find any reason to interfere with

the impugned judgment and decree because the appellant was indeed a

tenant whose tenancy was terminated by a legal notice dated 9.8.2004 and

the premises in question does not fall within the scope of Delhi Rent Control
RFA No. 42/2011                                                    Page 3 of 4
 Act, 1958. No other issue was advanced. The appeal is therefore without

merit, and is accordingly dismissed, leaving the parties to bear their own

costs.

CM Nos.1188/2011 & 1189/2011

           No orders are required to be passed in these applications as the

main appeal is disposed of and therefore these applications are also

disposed of having become infructuous.




FEBRUARY 10, 2011                            VALMIKI J. MEHTA, J.

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