Delhi High Court
Lajpat Rai Madan vs Mcd & Ors. on 15 November, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.346/2010
% 15th November, 2011
LAJPAT RAI MADAN ..... Appellant
Through: Mr. Surendra Mishra, Advocate.
versus
MCD & ORS. ..... Respondents
Through: Ms. Madhu Tewatia, Advocate with
Ms. Sidhi Arora, 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? Yes
3. Whether the judgment should be reported in the Digest? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal under
Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment of the trial Court dated 10.2.2010 whereby the suit of the
appellant/plaintiff for recovery of possession, injunction etc. was
dismissed. By the impugned judgment the suit has been dismissed
because as per the admitted stand of the appellant, the respondent
No.1 is a tenant of the appellant with respect to the suit premises. The
suit has been held to be barred by Section 19 of the Slums Areas
(Improvement and Clearance) Act, 1956 as no prior permission was
taken from the designated authority under this Act prior to filing of the
suit.
2. The case as set up in the plaint was that the respondent
No.1/MCD/tenant has demolished the tenanted premises and therefore
by demolition of the premises, the relationship of landlord and tenant
between the parties has come to an end and thereby the Civil Court
was claimed to have jurisdiction to determine the suit. I may note that
the respondent No.1/MCD in the written statement had also taken up a
plea that the Civil Court has no jurisdiction by virtue of Section 50 of
the Delhi Rent Control Act, 1958 and which is an aspect which is duly
mentioned in the beginning of the impugned judgment.
3. Learned counsel for the appellant argues that there is no
provision in the Delhi Rent Control Act whereby eviction can be allowed
on a tenant demolishing the tenanted premises. It is also argued that
suit could not have been dismissed by applying the provision of Order
7 Rule 11 CPC.
4. In my opinion, the appeal is liable to fail not only on the
ground which is given in the impugned judgment, of the suit being
barred by Section 19 of the Slums Areas (Improvement and Clearance)
Act, 1956 but also because of the bar of a Civil Court to deal with the
suit with respect to termination of tenancy and eviction of the tenant
from a suit premises which is within the purview of the Delhi Rent
Control Act.
5. The contention of the learned counsel for the appellant
that there is no provision in the Delhi Rent Control Act to cause
eviction of a tenant where the tenant has demolished the premises is
incorrect because Section 14(1)(j) of the Act specifically gives a ground
for eviction whether tenant causes substantial damage to the tenanted
premises. The Supreme Court in the case of T. Lakshmipathi and
Others Vs. P. Nithyananda Reddy and Others (2003) 5 SCC 150
has laid down that even if a building is destroyed or demolished, the
lease is not determined when the land beneath it continues to exist.
6. Accordingly, the suit so far as the relief of
possession/eviction is concerned was not maintainable as the same
was barred by Section 50 of the Delhi Rent Control Act because
eviction of a tenant in the circumstances as mentioned by the
appellant/plaintiff can only take place by means of filing of a petition
before the Rent Controller under the Delhi Rent Control Act by making
and proving the necessary averments as required under Section
14(1)(j) of the Act.
7. So far as the applicability of Section 19 of the Slum Areas
(Improvement & Clearance) Act, 1956 is concerned there cannot be
any doubt because the premises are clearly situated in a slum area.
Therefore prior to filing an eviction petition under Section 14(1)(j) of
the Delhi Rent Control Act, the permission of the designated authority
will have to be taken, in addition to the fact that the Civil Court has no
jurisdiction to pass an eviction decree against a respondent/tenant
which is a tenant under the Delhi Rent Control Act.
8. There is one aspect which however will have to be
considered, though the same has not been argued on behalf of the
appellant. This aspect is that besides claiming possession and
ejectment of the tenanted premises the suit also prays for arrears of
rent, damages for demolishing the building and injunction. These are
aspects which a Rent Controller under the Delhi Rent Control Act has
no jurisdiction to deal with and therefore the Civil Court will continue to
have jurisdiction so far as these aspects are concerned. It is however
clarified that this Court is not making any observation on merits of the
case inasmuch as the respondent No.1/MCD has denied all the
contentions as raised by the appellant/plaintiff in the plaint.
9. The impugned judgment therefore is sustained however
not by applying the provision of Order 7 Rule 11 CPC but on admitted
facts by applying the provisions of Order 12 Rule 6 read with Section
2(2) CPC so as to pass a decree for dismissal of the suit so far as the
reliefs claimed for possession and ejectment are concerned. Section
2(2) CPC envisages a decree for part of the disputes in a suit. So far as
the other causes of action and the reliefs are concerned, the suit will
however continue.
10. Parties to appear before the District & Sessions Judge, Tis
Hazari, Delhi on 14th December, 2011 and on which date the District &
Sessions Judge will mark the suit to a competent Court for disposal in
accordance with law so far as the reliefs claimed for injunction,
recovery, arrears of rent and damages are concerned.
11. Appeal is disposed of accordingly, leaving the parties to
bear their own costs.
VALMIKI J. MEHTA,J
NOVEMBER 15, 2011
Ne
