Sh. Sanjay Kumar Sharma vs Smt. Santosh & Ors.
2011 Latest Caselaw 98 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                       RFA No.415/2000


 %                                                    7th January, 2011
SH. SANJAY KUMAR SHARMA                          ...... Appellant
                                     Through:     Mr. Harish Malhotra,
                                                 Advocate with Mr.
                                                 Tanuj Khurana,
                                                 Advocate.
                        VERSUS

SMT. SANTOSH & ORS.                              ...... Respondents

                                     Through:    Mr. Arun Kuamr
                                                 Srivastava, Advocate
                                                 with Mr. M.S. Panwar,
                                                 Advocate.


 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. Nos.16438/2010 (condonation of delay) and 16437/2010 (restoration) in RFA No.415/2000

Counsel for the respondents does not oppose the allowing

of these applications. Hence, the delay for filing the application for re-

admission of the appeal is condoned and appeal is restored to its

original number.

Applications stand disposed of.

RFA No.415/2000

1. The challenge by means of the first appeal under Section

96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment and decree dated 6.5.2000 whereby the suit of the

respondents/plaintiffs for possession and recovery of rent was decreed.

2. The facts of the case are that the respondents/plaintiffs let

out to the appellant/defendant the property No.135A measuring 450

sq. yds. in village Dasgaraha, New Delhi. The lease is said to be

pursuant to a document exhibited as Ex.P12 before the trial Court.

There is also a simultaneous receipt which has been exhibited as

Ex.P13. The document Ex.P12 is not a lease deed in the sense of the

term of the document, but, it is only a record of a transaction which is

signed by the respondents alone. As per this document, the tenancy

commenced from 17.10.1983 and was for five years. This tenancy

came to an end therefore on 17.10.1988. On account of the appellant

having failed to vacate the suit premises, legal notices dated

10.3.1988, 14.7.1988, 1.10.1988 and 30.11.1988 were served on the

appellant asking for payment of rent and terminating the tenancy. On

failure of the appellant in paying the rent, the subject suit for

possession and recovery of rent was filed.

3. The trial Court has held that the document Ex.P12 could be

looked into because it was merely a record of transaction and not of

itself creating a lease because it was a document signed only by the

respondents. In any case, even if this document cannot be looked into

because it ought to have been registered the appellant at best would

have been a monthly tenant and whose tenancy could have been

terminated by a legal notice under Section 106 of the Transfer of

Property Act. It is not disputed by the learned senior counsel for the

appellant that notices were duly sent to the appellant and as per which

the tenancy was terminated being the notice dated 1.10.1988

(Ex.PW1/2) and more particularly the notice dated 30.11.1988

(Ex.PW1/7).

4. In view of the above, the facts which emerge are that the

appellant is admittedly only a tenant. Either he was a tenant for a

fixed term or a tenant from month to month. In case, he was a tenant

for a fixed term, the fixed term expired on 17.10.1988. If he was a

tenant from month to month basis, his tenancy stands terminated by

means of the legal notice.

5. Accordingly, the appellant would be liable to be evicted

from the suit premises which is only a plot of land.

6. Learned senior counsel for the appellant very vehemently

argued that the premises were covered by Delhi Rent Control Act,

1958 (hereinafter refer to as the 'said Act') and Section 50 of the said

Act bars the jurisdiction of the Civil Court. It is contended that the

appellant had raised construction and therefore he was entitled to

protection under the said Act. I am unable to agree with the

contention of the counsel for the appellant because admittedly what

was let out was only a plot of land. Delhi Rent Control Act, 1958 applies

when what is let out is a constructed premises and not a plot of land.

If the appellant has made any construction on a plot of land he is fully

entitled to remove any construction made by him which in any case in

the present case is just about one room. The other construction is said

to be a boiler installed by the appellant in the suit land. Accordingly, in

my opinion, the appellant cannot have any protection of the Rent Act

and therefore the Civil Court's jurisdiction is not barred by Section 50

of the said Act. I may also note that no such plea was raised before

the trial Court and nor has any issue been framed thereon. The

impugned judgment also does not show that this case was argued on

behalf of the appellant on this basis. Thus this issue, a mixed question

of law and fact, cannot be raised for the first time in this Court. I have

therefore dealt with the arguments of bar of jurisdiction of Civil Court

only in deference to the arguments of the learned senior counsel for

the appellant.

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

with the impugned judgment and decree. Appeal is therefore

dismissed, leaving the parties to bear their own costs. Interim orders

stand vacated.

JANUARY 07, 2011                               VALMIKI J. MEHTA,J
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