Anil Pathak & Anr vs Arvind Goyal
2015 Latest Caselaw 1118 Del

*                   HIGH COURT OF DELHI AT NEW DELHI

+                                R.S.A. No.19/2015

                                     Decided on : 6th February, 2015

ANIL PATHAK & ANR                                    ...... Appellant

                      Through:     Mr.Sanjeev Bajaj, Advocate.

                        Versus

ARVIND GOYAL                                         ...... Respondent

                      Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM No.836/2015

1. Allowed subject to deficiency being rectified.

2. The application stands disposed of.

RSA No.19/2015

1. The present regular second appeal has been filed seeking to set

aside the order of the learned trial court dated 05.04.2014 and of the first

appellate court 15.11.2014, both of which have returned a concurrent

finding against the appellants.

2. The respondent/plaintiff had filed a suit for permanent injunction,

eviction and mesne profits against the respondents seeking ejectment of

the appellants/defendants from the suit property i.e. Property bearing

No.201, Mukund House, Azadpur Commercial Complex, Delhi-33 and

the same was decreed by the trial court in favour of the

respondent/plaintiff and against the appellants/defendants. To reach such

a finding, the trial court found that the landlord-tenant relationship

between the parties stood admitted. It was confirmed by an order passed

on 25.01.2007 in the proceedings before the Addl. Rent Control Tribunal

where the appellant/defendants had admitted the respondent/plaintiff as

their landlord and had also paid the rent. The last paid rent was

Rs.3,850/- per month which was voluntarily increased by the

appellants/defendants and continued to be paid during the pendency of

the suit. Thus, the applicability of the Delhi Rent Control Act, 1958 was

negated and the rent being in excess of Rs.3,500/-, the matter ought to

have been disposed on the basis of the said admission by the appellants

under Order 12 Rule 6 CPC. There was absolutely no need for trial in the

matter and the parties have been unnecessarily burdened with the same.

In this regard, the court found support from Skyland International Private

Ltd. v. Kavita P. Lalwani ; 191 (2012) DLT 594. Without finding any

fault with the notice issued by the respondent/plaintiff under Section 106

of the Transfer of Property Act to the appellants, the court observed that

the service of summons of a suit for possession is itself sufficient notice

to quit in view of the judgment in Jeevan Diesel Vs. Jasbir Singh

Chadha; 185 (2011) DLT 402.

3. The appellants/defendants challenged the said order before the first

appellate court which also concurred with the views taken by the trial

court and the appeal was dismissed both on merits and being barred by

time.

4. With respect to the judgment relied upon by the learned counsel for

the appellants/defendants in Mohammad Ahmad and Anr. vs. Atma Ram

Chauhan and Ors.; Civil Appeal No.4422 of 2011 decided on 13.05.2011

taking the plea that if the present and prevalent market rent assessed and

fixed between the parties is paid by the tenant then no eviction

proceedings can be initiated by the landlord for a period of five years, the

first appellate court found that the facts of the said case were entirely

different from the present case. The case reported related to UP Urban

Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The

present appeal had been filed by the appellants/defendants against the

impugned judgment passed in a suit filed by the respondent/plaintiff for

eviction and as per Section 50 of the Delhi Rent Control Act if the rate of

rent is more than Rs.3,500 per month, then it is beyond the purview of the

Delhi Rent Control Act. Hence, the argument could not be substantiated

in the eyes of law.

5. Also on the count of delay in filing the appeal, the first appellate

court observed that it is the duty of the applicant to explain the delay on

day to day basis and in the absence of the same, the application is not

maintainable and the discretion available to the court under Section 5 of

the Limitation Act, 1963 has to be exercised to advance substantial justice

for which the appellants had failed to make out a case.

6. I have gone through the instant regular second appeal, the

submissions made by the learned counsel for the appellant and also

through the concurrent finding returned by the two courts below. I do not

find any fault with the same and no question of law much less a

substantial question of law arises in the matter. The two courts have

returned a concurrent finding that the appellant is a tenant and the rent is

more than Rs.3,500/- and, therefore, he does not have the protection of

the Rent Act. The judgment which had been relied upon by the appellant

for enhancement of rent and consequently non-eviction was a case under

the Rent Act. Therefore, it will not be proper to apply the said judgment

to the facts of the present case as the facts of the two cases are totally

different.

7. Accordingly, the present regular second appeal is dismissed.

CM No.835/2015

1. In view of the dismissal of the appeal, no further directions are

called for on this application.

2. Dismissed.

V.K. SHALI, J FEBRUARY 06, 2015/dm