Ashok Kumar & Anr vs Paramjeet Kaur & Anrq
2013 Latest Caselaw 4932 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 28th October, 2013

+       RFA 785/2010 & CM No.21229/2012 (for vacation of stay)

      ASHOK KUMAR & ANR                                  ..... Appellants
                 Through:              Mr. B.P. Dhalla, Adv.

                                  Versus

    PARAMJEET KAUR & ANR               ..... Respondents

Through: Mr. Manish Kohli with Mr. Pradeep Shukla & Mr. Manjeet Pathak, Advs.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree (dated 13.09.2010 of

the Court of Additional District Judge, (Central-12), Tis Hazari Courts,

Delhi in Civil Suit No.470/09 (Unique case ID No.02401C0984832005)

filed by the respondents / plaintiffs) directing the appellants / defendants

to hand over vacant and peaceful physical possession of suit shop bearing

Municipal No.43/1073, Kalkaji, DDA Flats, New Delhi and to pay mesne

profits / damages for use and occupation.

2. Notice of the appeal was issued on the contention of the counsel for

the appellants / defendants that the appellants / defendants were the

tenants at a rent of less than Rs.3,500/- per month and not a licensee in

the said shop and the Civil Court thus did not have the jurisdiction under

Section 50 of the Delhi Rent Control Act, 1958 to pass an order of

ejectment and subject to the payment of rent / licence fee by the

appellants / defendants at the agreed rate, the execution of the judgment

and decree was also stayed. Vide subsequent order dated 28.03.2011, the

Trial Court record was requisitioned.

3. The appeal was on 29.07.2011 admitted for hearing and ordered to

be listed in due course and the earlier interim order confirmed.

4. The respondents / plaintiffs filed CM No.21229/2012 for vacation

of the interim order.

5. Notice of the said application was issued and finding the appellants

/ defendants to be indulging in dilatory tactics, vide order dated

18.09.2013, the application for vacation of stay as well as the appeal were

listed for today for hearing.

6. The counsel for the appellants / defendants states that the entire up-

to-date amount as per the interim order in this appeal has been paid. The

counsel for the respondents / plaintiffs confirms the same but states that

the same has been paid only on execution being reactivated.

7. The counsel for the appellants / defendants refutes and states that

the payment was made without notice of execution also and was accepted

by the respondents / plaintiffs.

8. Be that as it may, the counsels have been heard on the appeal also.

9. The counsel for the appellants / defendants has at the outset raised

the same contention, that the appellants / defendants are tenants in the

property at a rent of less than Rs.3,500/- per month and could not have

been evicted by the Civil Court.

10. However a perusal of the impugned judgment and decree shows

that though the appellants / defendants had taken the defence of being a

tenant and not a licensee in the property, as contended by the respondents

/ plaintiffs and the following issues were framed in the suit on

19.10.2006:

"1. Whether the suit of the plaintiff is barred U/s 50 of Delhi Rent

Control Act? OPD

2. Whether the suit is not maintainable U/s 41 (h) of Specific

Relief Act.

3. Whether plaintiff has no locus standi to file the present suit?

OPD.

4. Whether the suit has been properly valued for the purpose of

court fee and pecuniary jurisdiction ? OPP

5. Whether the suit has been signed, verified and instituted by

competent person? OPP

6. Whether plaintiff no. 2 is entitled for the decree of possession in his favour as claimed ? OPP

7. Whether plaintiffs are entitled for the decree of recovery of

mesne profits as claimed ? OPP

8. Whether plaintiffs are entitled for the decree of permanent

injunction as claimed against the defendants ? OPP

9. Relief."

but the Issue No.1 aforesaid was ordered to be treated as a

preliminary issue and was decided on 02.03.2007 against the appellants /

defendants and in favour of the respondents / plaintiffs and it was held

that the appellants / defendants had failed to prove the relationship of

landlord and tenant and were clearly in unauthorized occupation of the

premises and thus the provisions of Section 50 of the Delhi Rent Control

Act, 1958 were not attracted. Thereafter the parties went to trial on other

issues and on which the impugned judgment dated 13.09.2010 has been

pronounced. The impugned judgment under Issue No.6 aforesaid also,

merely records that since the appellants / defendants vide order dated

02.03.2007 have been held to not be tenants in the premises, there was no

bar to the claim of the respondents / plaintiffs for possession being

entertained by the Civil Court.

11. I have also perused the memorandum of appeal in the present case

and do not find the appellants / defendants to have sought setting aside of

the said order / judgment dated 02.03.2007.

12. I have as such enquired from the counsel for the appellants /

defendants as to how, his contention of the appellants / defendants being

a tenant in the property at the rate of Rs.2,500/- per month and not the

licensee and the Civil Court not having jurisdiction, can be considered at

this stage.

13. The counsel for the appellants / defendants has not been able to

give any answer and has rather moved on to his other contentions.

14. The counsel for the respondents / defendants per contra has in this

regard relied upon:

(a) Abdul Wahid Vs. Hameed Mian MANU/DE/1170/2010

holding that a judgment on a preliminary issue having not

been challenged, attains finality;

(b) H.P. Housing & Urban Development Authority Vs. Shyam

Singh Negi (2006) 9 SCC 224 holding that what is not

challenged attains finality;

(c) Judgment dated 25.09.2007 in LPA No.1234/2007 titled

Bhagwati Transport Corporation Vs. Employees

Transport Funds Appellate Tribunal where a Division

Bench of this Court held that when an order is not

challenged, it reaches finality particularly when no

challenge thereto is made in the subsequent appeal also;

and,

(d) Food Corporation of India Vs. S.N. Nagarkar AIR 2002

SC 808 holding that an order having been allowed to attain

finality cannot be agitated subsequently.

15. The counsel for the appellants / defendants, by referring to Suraj

Lamp and Industries Pvt. Ltd. Vs. State of Haryana (2012) 1 SCC 656

has next contended that the respondents / plaintiffs claim title to the

property on the basis of Agreement to Sell, Power of Attorney, Will etc.,

which have been held to be not conferring title to the premises, are not

entitled to the decree for possession thereof.

16. The learned Additional District Judge on this aspect has held that

the appellants / defendants having come into possession of the property

through the respondents / plaintiffs, cannot deny the title of the persons

who have inducted them into possession and has relied upon the principle

of estoppel against a tenant and of a licensee in possession, enshrined in

Section 116 of the Indian Evidence Act, 1872.

17. Neither can any error be found in the reasoning given nor has the

counsel for the appellants / defendants even attempted to give any

argument in opposition thereto.

18. The last argument urged by the counsel for the appellants /

defendants is, that without a notice determining the licence, no ejectment

proceedings could have been initiated. Reliance in this regard is placed

on Asghar Vs. Uttar Pradesh Govt. AIR 1954 Allahabad 649.

19. However the argument is made on the basis of a judgment

pertaining to Section 111(g) and 114A of the Transfer of Property Act,

1882. The relationship of a licensee is on the contrary governed by the

provisions of the Indian Easement Act, 1882. The counsel for the

appellants / defendants is unable to show as to how the said judgment

would thus be applicable. With respect to a licence, there is no pari

materia provision and not only so, the only remedy provided for wrongful

eviction of a licensee under Section 64 of the Easement Act is for

compensation and not for repossession.

20. No other argument has been raised.

21. No merit is thus found in the appeal which is dismissed with costs.

22. The counsel for the respondent has in Court handed over Fee

Certificate which is taken on record.

Decree sheet be prepared.

s RAJIV SAHAI ENDLAW, J OCTOBER 28, 2013 'gsr'