Delhi High Court
Smt. Urmila And Anr. vs Ram Wati And Anr. on 19 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.68/2012
% 19th March, 2014
SMT. URMILA AND ANR. ....Appellants
Through: Mr. A.K. Srivastava, Advocate.
VERSUS
RAM WATI AND ANR. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.7260/2012 (condonation of delay)
1. Delay of 305 days in filing the appeal is condoned as there is no
representation on behalf of the respondents.
C.M. stands disposed of.
+ RSA No.68/2012 and C.M. No.7261/2012 (stay)
2. This Second Appeal is filed under Section 100 of Code of Civil
Procedure, 1908 (CPC) impugning the judgment of the first appellate court
dated 24.1.2011. The first appellate court by its impugned judgment set
aside the judgment of the trial court dated 30.9.2005 by which the suit of the
RSA No.68/2012 Page 1 of 5
respondents herein for declaration and permanent injunction was dismissed.
The first appellate court accordingly granted the decree for declaration and
permanent injunction as sought for by the plaintiffs/respondents.
3. The dispute in the present case pertains to one room in the
property bearing no.N-175, Gali no.7, Sadatpur Extension, Delhi-94. As per
the case of the respondents/plaintiffs, the defendant no.1/appellant no.1 was
the sister-in-law and defendant no.2/appellant no.2 is the brother of plaintiff
no.2/respondent no.2. Plaintiff no.1/respondent no.1 is the wife of plaintiff
no.2/respondent no.2. The tenanted room was let out to the defendant no.2
at Rs.200/- per month w.e.f 1.12.1992 and which is shown in red colour in
the site plan Ex.PW1/A. Since the appellants/defendants started creating
hurdles after April, 1993 by claiming ownership of the suit property, the
subject suit for declaration and injunction was filed. The case of the
appellants/defendants as per their joint written statement was that the suit
property was jointly purchased by plaintiff no.2/respondent no.2 and
defendant no.2/appellant no.2 in the year 1982 from their joint funds. It was
accordingly contended by the appellants/defendants that they are co-owners
of the suit property. The tenancy in favour of the defendant no.2 was also
denied with respect to one room in the property at Rs.200/- per month. The
RSA No.68/2012 Page 2 of 5
case of arrears of rent as put forth by the respondents/plaintiffs was also
denied.
4. The first appellate court has held that appellants are not the
owners of the suit property by virtue of the documents Ex.DW1/A to
Ex.DW1/C dated 16.12.1982 and that the respondents/plaintiffs are owners
of the suit property by virtue of the documents Ex.PW1/B (Colly). The first
appellate court notes that the documents filed by the appellants/defendants
as Ex.DW1/A to Ex.DW1/C dated 16.12.1982 could not be referred to
inasmuch as the said documents were sought to be brought in by means of
an application under Order 6 Rule 17 of CPC to amend the written statement
and which application was dismissed by the trial court vide order dated
13.4.2004. The appellants/defendants challenged the order in this Hon'ble
Court by filing of C.M.(M) No.1196/2004 but the same was also dismissed
on 23.11.2004. Therefore, there was finality to the order of the trial court
dated 13.4.2004 by which the documents relied upon by the
appellants/defendants could not be referred to.
5. In my opinion, once the appellants/defendants were denied
permission to place on record the documents Ex.DW1/A to Ex.DW1/C by
the order dated 13.4.2004 of the trial court, and which achieved finality as it
RSA No.68/2012 Page 3 of 5
merged with the order dated 23.11.2004 passed in C.M.(M) No.1196/2004
dismissing the challenge to the order dated 13.4.2004, therefore the first
appellate court was justified in discarding such documents Ex.DW1/A to
Ex.DW1/C and holding that the respondents/plaintiffs were the owners of
the property by means of the documents Ex.PW1/B (Colly).
6. On behalf of the appellants/defendants, it was argued before
this Court that the suit for declaration and injunction was not maintainable
without the respondents/plaintiffs seeking the consequent relief of
possession. This aspect has been considered by the first appellate court and
held that there is no defect in the suit because the tenancy was covered under
the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') and
consequentially possession could only have been asked for by the
respondents/plaintiffs before the Rent Controller under the Act. Therefore,
the suit for declaration seeking declaration as to ownership of the rights of
the respondents/plaintiffs was maintainable in the civil court and Section 34
of the Specific Relief Act, 1963 did not bar such a suit. The first appellate
court notes in para 9 of the impugned judgment that in fact there is already
an eviction order passed against the appellants/defendants in the proceedings
initiated before the Rent Controller under the Act. I am also informed by the
RSA No.68/2012 Page 4 of 5
counsel for the appellants that possession has already been taken from the
appellants/defendants of the suit property, however, the
appellants/defendants are stated to have filed an appeal against the eviction
decree passed under the Act. I therefore reject the argument that suit for
declaration was not maintainable on the ground that the possession was not
claimed in the civil suit.
7. I am also of the opinion that there is a ring of truth in the case pleaded
by respondents/plaintiffs inasmuch as, if they wanted to set up a false case of
tenancy of defendant no.2, then, the rent would not have been stated at
below Rs.3500/- pm for giving defendant no.2 protection under the Delhi
Rent Control Act. Plaintiffs would well have stated rent to be just above
Rs.3500/- pm so that appellants/defendants could be easily evicted by filing
a suit for possession before the civil court.
8. In view of the above, I do not find any error or illegality in the
judgment of the first appellate court, much less a substantial question of law
arising under Section 100 CPC, and therefore this second appeal is
dismissed, leaving the parties to bear their own costs.
MARCH 19, 2014/Ne VALMIKI J. MEHTA, J.
