Smt. Zothanpari Hrashel Tuli vs Sh. Abijit Basu & Anr.
2011 Latest Caselaw 955 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No. 108/2011


%                                                  17th February, 2011

SMT. ZOTHANPARI HRASHEL TULI                           ...... Appellant
                   Through:           Mr. Amitesh Mishra, Advocate with Mr.
                                      Nakul Sachdeva, Advocate

                          VERSUS


SH. ABIJIT BASU & ANR.                                  ...... Respondents
                          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)


C.M.No.3424/2011 in RFA No.108/2011

              Exemption allowed subject to just exceptions.

              Application stands disposed of.

C.M. No.3422/2011 in RFA No.108/2011

              For the reasons stated in the application, delay in refiling the

appeal is condoned.

              Application stands disposed of.

C.M. No.3423/2011 in RFA No.108/2011

              This is an application for seeking exemption from filing Court

RFA No. 108/2011                                                   Page 1 of 5
 fee. In my opinion, this application besides being mischievous is clearly

an abuse of process of the law. One reason for ordinarily not allowing this

application is that the impugned judgment is dated 12.8.2010 and the

appeal was filed for the first time on 11.11.2010 and whereafter it has

been brought up today after Court hours at 5.00 P.M. claiming urgency.

Therefore, I have said that the application is nothing but a sheer abuse of

the process of law.   The counsel for the appellant has undertaken on

behalf of the appellant to file the Court fee within a period of one week

and consequently the appeal is being entertained. Since, however, I have

heard the matter, I grant time to the appellant to deposit the court fee

within a period of one week from today.

           C.M. stands disposed of.

+ RFA No.108/2011

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

to the impugned judgment and decree dated 12.8.2010 whereby the suit

of the respondents/plaintiffs for recovery of possession and mesne profits

in respect of the tenanted premises has been decreed.

2.         Before I proceed to dispose of the appeal on merits, I may

notice certain facts which would show the endeavour of the appellant not

only to over reach this Court but also abuse the process of law. I have

already noted while disposing of the C.M. No.3423/2011 that there was no

reason for not having filed the Court fee up to date.      Further, it has

already been noted that the challenge is laid to the impugned judgment

and decree which was passed way back on 12.8.2010 and with respect to

which appeal was for the first time filed on 11.11.2010.    Not only this,
RFA No. 108/2011                                                Page 2 of 5
 there is a caveat and the caveator would have no information of the

appeal being listed after Court hours when it has been listed before this

Court for hearing through a supplementary list on the ground that police is

throwing out the goods of the appellant from the tenanted premises.

3.          By the impugned judgment and decree, trial Court has arrived

at a finding of fact that the appellant was a tenant under the respondents

of the tenanted premises being the first floor and barsati floor of House

No.229, Jor Bagh, New Delhi. The trial Court has referred to the fact that

in reply to the legal notice of the plaintiffs Ex.PW1/6 dated 9.12.1996 the

appellant   specifically   admitted   that   she   was   a   tenant   of   the

respondents/plaintiffs.    Further, an injunction suit was also filed by the

appellant against the respondents/plaintiffs, Ex.PW1/2 being the plaint of

the injunction suit, wherein, the appellant's own case was that she was a

tenant in the premises from November/December, 1992.            Even in her

cross-examination, while deposing as DW-1 it was admitted by the

appellant that she was paying rent to the respondents/plaintiffs.          The

tenancy of the appellant was originally terminated by means of a notice

dated 9.12.1996 and whereafter a suit was filed. That suit was however

withdrawn by the respondents/plaintiffs.     Since that suit was withdrawn

there was no decision on merits and therefore there does not arise an

issue of the decision in the earlier suit operating as resjudicata.        The

present suit was filed after service of a fresh legal notice dated 6.1.2005,

Ex.PW1/9, which conferred a fresh cause of action. There is therefore no

bar of filing of the subject suit as is contended by the counsel for the

appellant who has relied upon Order 23 Rule 1 CPC.
RFA No. 108/2011                                                  Page 3 of 5
 4.          In view of the above, there is a relationship of landlord and

tenant between the parties. The rate of rent being Rs.13,200/- per month

i.e. above Rs.3500/- per month, the appellant has no protection of the

Delhi Rent Control Act, 1958. The tenancy has been terminated by means

of the legal notice dated 6.1.2005 and receipt of which notice is admitted

by the appellant. The trial Court has therefore rightly decreed the suit for

possession. There is no merit in the contention of the learned counsel for

the appellant that respondents are not the owners. Trial Court has in this

regard rightly relied upon Section 116 of the Evidence Act, 1872 that the

appellant cannot deny the title of the landlords. Even so far as mesne

profits are concerned though no arguments were raised by the appellant

before this Court, I must note that the trial Court has rightly relied upon a

registered lease deed of premises situated adjacent to the subject

property of which rent was Rs.1,50,000/- per month and granted the

lesser rate of Rs.90,000/- per month in view of the fact that the subject

premises were older than the other premises.

5.          In view of the detailed facts noted above, there are no

disputed question of facts which require summoning of the trial Court

record.   No other issue was pressed or argued before this Court.        The

appeal being an abuse of process of law, on account of facts already

noted above, the same is dismissed with costs of Rs.25,000/- which shall

be paid within a period of two weeks from today.

            List this case for ensuring compliance of the order for

payment of the Court fee by the appellant and also for payment of costs

on 9th March, 2011.
RFA No. 108/2011                                                  Page 4 of 5
 Caveat No. 145/2011 in RFA No.108/2011

           There is no appearance on behalf of the caveator since the

case was taken up after Court hours. Since I have dismissed the appeal,

the caveat stands discharged.




FEBRUARY 17, 2011                            VALMIKI J. MEHTA, J.

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