Delhi High Court

Sh Ajab Singh vs Shri Mukesh Chand Gupta on 2 May, 2011

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 02.05.2011


+                 R.S.A.No. 285/2007 & CM No. 15799/2007

SH AJAB SINGH                                  ...........Appellant
                        Through:    Mr. Sanjeev Joshi, Advocate.

                  Versus

SHRI MUKESH CHAND GUPTA                         ..........Respondent
                 Through:           None.

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

26.09.2007 which had endorsed the findings of the trial Judge

dated 23.01.2007 whereby the suit filed by the plaintiff seeking

possession of the suit property i.e. property bearing No.1/5294,

Gali No. 10, Balbir Ngar, Shahdara, Delhi leased out at a rental of

`2,800/- per month had been decreed.

2 The plaintiff claimed himself to be owner of the aforenoted

suit property. It had been let out to the defendant @ `2,800/- per

month. It was contended that the suit property is located in

Village Sikdarpur/Babarpur; the defendant cannot seek protection

under the Delhi Rent Control Act (DRCA); the defendant is a

chronic defaulter in making the payment of license fee; inspite of

legal notice dated 08.08.2001, he had not vacated the suit

property.

3 The defendant contested the suit. In the written statement,

it was stated that the bar of Section 50 of DRCA is applicable. On

merits, the receipt of the notice was denied; it was denied that the

plaintiff is entitled to recovery of suit property.

4 On the pleadings of the parties, the following nine seven

issues were framed:-

"1. Whether the defendant is licensee in respect of suit shop and not a tenant? OPP.

2. If the defendant is a tenant. If so, held on and provisions of DRC Act are not applicable to the suit shop, Whether the tenancy of the defendant had been terminated as per law? OPP

3. Whether the provisions of DRC Act are not applicable to the suit shop? (Both the parties)

4. Whether the plaintiff is entitled to possession of the suit shop as prayed for? OPD

5. Whether the plaintiff is entitled to a decree for a sum of Rs.7800/- as prayed for and also for future damages as prayed for? OPP

6. Whether the plaintiff is entitled to interest on the decretal amount, if any, if so, at what rate and for what period? OPP

7. Whether the plaintiff has suppressed material facts and has not approached this court with clean hands? OPD

8. Whether the plaintiff forcefully got the signatures of the defendant on some blank paper and receipt dated 11.5.2001 as averred in para 3 of the reply on merits? If so, to what effect? OPD

9. Relief."

5 Issue No. 3 was treated as a preliminary issue. The trial

Judge vide judgment dated 08.08.2003 held that since the suit

property has been urbanized and provisions of DRCA have been

extended to the revenue estate of Shahdara, the suit is barred

under Section 50 of the DRCA; rent is admittedly below `3,500/-,

suit of the plaintiff is not maintainable; suit was accordingly

dismissed.

6 This judgment had been appealed. The first appellate court

had remanded the matter back to the trial Judge. Oral and

documentary evidence was led by the respective parties which

included two witnesses on behalf of the plaintiff and one witness

on behalf of the defendant. Testimony of PW-1 had been

examined. The plaintiff had categorically deposed on oath that the

location of the suit property has not been notified under the

DRCA; suit land is located in Sikdarpur/Babarpur; defendant is not

entitled to the protection under DRCA. Khasra Girdawari Ex. PW-

1/1 and the site plan of the suit property Ex. PW-1/2 had been

examined. Contention of the defendant was that the suit property

is located in the revenue estate of Shahdara and the DRCA is

applicable. PW-2 Dinesh Bansal who had appeared from the SDM

office had on oath deposed that Sikdarpur and Shahdara revenue

estates are two separate revenues and revenue estate Shahdara is

also known as revenue estate Shahdara Chandrawali. Gazette

notification dated 25.03.1979 notified under section 1 (2) of the

DRCA showed that the revenue estate of Sikdarpur had not been

notified and the provisions of DRCA have not been extended to the

revenue estate of Sikdarpur. The trial Judge was of the view that

the suit property is not covered by the DRCA. Legal notice

Ex.PW-1/3 had also been proved. The defendant was held to be

defaulter in paying rent, suit of the plaintiff was accordingly

decreed along with mesne profits.

7 In appeal, this finding was endorsed by the impugned

judgment.

8 The impugned judgment had inter-alia on the first argument

noted as follows:-

"The appellant/defendant does not dispute the letting out of the suit property by the respondent/plaintiff. The respondent/plaintiff in support of his plaint filed affidavit Ex.PW1 wherein the respondent/plaintiff reiterated the contents of the plaint. The respondent/plaintiff also relied upon the Khasra Girdawari of the suit property Ex.PW1/1. The appellant/defendant during the cross

examination does not put suggestion that the Khasra Girdawari pertaining to Khasra No. 199 of Village Sikdarpur is not the suit property. As per the Khasra Girdawari Ex. PW1/1, the suit land is of Village Sikdarpur and shown to be residential area.

The Hon'ble Supreme Court of India in case Mitter Sen Jain Vs. Shakuntala Devi 85(2000) Delhi Law Times 658 (SC) has held that-

„Even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to Sub-section (2) of Section 1 of the Delhi Rent Control Act. Unless the area is so specified in the Schedule by a notification, the provisions of the Delhi Rent Control Act cannot be made applicable to that area. It is admitted that no notification has yet been issued under the proviso to Sub-section (2) of Section 1 of the Delhi Rent Control Act specifying Sagarpur area within the schedule of the Act. In absence of such a notification, the provisions of Delhi Rent Control Act cannot be enforced to the area, namely, Sagarpur.‟

In the present case, the village Sikdarpur was added in the Union Territory of Delhi. However, there is no notification filed by the appellant/defendant or any other document filed on record to show that the Revenue Estate of Sikdarpur is urbanized and Delhi Rent Control Act is applicable to the Revenue Estate of Sikdarpur. Unless the Revenue Estate of Sikdarpur where the suit property is notified for its urbanization, the same cannot be said to be covered under the Delhi Rent Control Act. The plea taken by the Learned Counsel of appellant/defendant that the suit of the respondent/plaintiff is barred u/s 50 of Delhi rent Control Act, 1958 is without force.

9 This finding calls for no interference. The notification of

25.03.1979 had evidenced that the revenue estate of Sikdarpur

had not been notified for the applicability of provisions of DRCA.

Further the judgment of Mitter Sen Jain as quoted above had also

been adverted to. The court had also recorded a fact finding on

the admission of the defendant wherein he had admitted that he

had paid rent only upto May, 2001; he was a defaulter; the

plaintiff was the owner of the suit property. The decree of the trial

Judge was accordingly endorsed.

10 This is a second appeal. It has been admitted and on

19.11.2008, the following substantial question of law was

formulated:-

"Whether by virtue of notification No. F.9(2) 66-Law. Corp. dated 28.05.1966 the findings recorded by the courts below that the Delhi Rent Control Act was not applicable to the suit premises is sustainable?‟

11 On behalf of the appellant, it has been urged that the

judgment of the trial Court is illegal as by virtue of the notification

dated 28.05.1996, the suit property which is located in Balbir

Nagar has been notified as urban and the provisions of DRCA are

alone applicable. A copy of this notification has been shown for

the perusal of this Court. Admittedly this notification has not seen

the light of day either before the trial Judge or before the first

appellate court. There is also no application filed before this Court

for taking on record the aforenoted documents by availing of the

provisions of Order XLI Rule 27 of the Code of Civil Procedure.

This document is not on Court record. The value or authenticity of

this document cannot be gone into by a court sitting in second