Hindu Shiksha Samiti vs Smt.Sarabjit Kaur & Anr.
2011 Latest Caselaw 1611 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Judgment: 21.03.2011


+                       RSA No.50/2011


HINDU SHIKSHA SAMITI                          ...........Appellant
             Through:         Mr.Vikas Mahajan, Advocate.

                  Versus

SMT.SARABJIT KAUR & ANR.                 ..........Respondents
              Through: Mr. Rajat Aneja, 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?             Yes

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

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

10.01.2011 which had endorsed the findings of the trial Judge

dated 16.01.2010 whereby the suit filed by the plaintiffs Sarabjit

Kaur & Another seeking possession and damages/mesne profits of

the suit property bearing No. C-8/8, Krishna Nagar, Delhi had been

decreed. This decree had been passed on an application under

Order 12 Rule 6 of the Code of Civil Procedure (hereinafter

referred to as the 'Code').

2 Two concurrent findings of fact have been assailed in the

second appeal. On behalf of the appellant, it has been pointed out

that the decree could have followed under Order 12 Rule 6 of the

Code only if there was a clear and categorical admission made by

the defendant which is not so in the instant case. Attention has

been drawn to the averments made in the plaint. It is pointed out

that the plaint itself is confused and there is no specific averment

that the rent of the suit property was more than Rs.3,500/-. Para 4

has been highlighted. This submission of the learned counsel for

the appellant is negatived by the contents of para 4. Para 4

specifically pleads that the rent of the premises was initially

Rs.3,000/- per month which was subsequently enhanced to

Rs.3,300/- per month and thereafter to Rs. 3,630/- per month. The

rent of Rs.3,630/- was to be effective w.e.f. 01.10.2006. The

corresponding para of the written statement has also been

perused. There is no dispute about this specific averment made in

this plaint. It has also nowhere been objected in the written

statement that the rent being below Rs.3,500/- per month, a suit

for possession would not lie and the bar of Section 50 of the Delhi

Rent Control Act is applicable as is now the argument sought to be

urged before this Court.

3 Before the first appellate court, the defendant had also

moved an application under Order 6 Rule 17 of the Code seeking

permission to amend his written statement to the effect that the

rent was below Rs.3,500/- per month. This application had been

dismissed on 15.12.2010. Defendant had been granted permission

to raise the legal plea on non-joinder of the trustees by the

plaintiff; this plea was answered in the impugned judgment in

paras 14-17. No argument has been addressed on this issue today.

4 The impugned judgment calls for no interference. The suit of

the plaintiff seeking possession of the suit property had been

rightly decreed. Relationship of landlord and tenant was not

disputed; there was a specific averment that the rent was more

than Rs.3,500/- per month; it was Rs.3,630/- per month which was

effective w.e.f. 01.10.2006. The termination of tenancy of the

defendant is also not in dispute. It was terminated vide legal notice

dated 07.11.1980. This has also not been argued before this Court.

5 The substantial questions of law have been embodied at page

28 of the body of appeal. No such substantial question of law has

arisen. The two concurrent findings of the fact of the courts below

call for no interference. Appeal is without any merit.

6     Appeal is dismissed in limine.

7     At this stage, learned counsel for the appellant submits that

since a school is running in the aforenoted premises and it has

more than 100 children and a staff of 10-12 teachers, he seeks

some time to vacate the suit property. Counsel for the respondents

has pointed out that the execution proceedings are pending. In

view of the submission that a school is running in the aforenoted

premises and it will necessarily cause hardship to the students and

teachers, (subject to an undertaking to be furnished by an

authorized representative of the appellant within one week from

today to be furnished to the respondents that he will vacate the

suit property within three months.) prayer for vacation of the suit

property after three months from today is accepted. On this

condition, permission is granted to the appellant to vacate the suit

property within three months.

8 A copy of this order be given dasti to both parties under the

signatures of the Court Master.

INDERMEET KAUR, J.

MARCH 21, 2011 a