Delhi High Court
Abdul Wahab & Ors vs Sarfaraz Ali Khan on 15 May, 2015
Author: Mukta Gupta
$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 72/2015
% Decided on: 15th May, 2015
ABDUL WAHAB & ORS ..... Petitioners
Through: Mr. Javed Ahmad and Mr. Abdul
Wajid, Advocates.
versus
SARFARAZ ALI KHAN ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J (ORAL)
CM No.8939/2015 (Exemption)
Allowed, subject to all just exceptions.
CM No. 8940/2015 (Delay in filing)
For the reasons stated in the application the delay of 35 days in filing
the petition is condoned.
Application is disposed of.
C.R.P. 72/2015
1. Aggrieved by the order dated 11th December, 2014 whereby the
application under Order 12 Rule 6 CPC was dismissed, the Petitioners prefer
the present petition.
2. Petitioners filed a suit for possession against Sarfaraz Ali Khan
claiming that Smt. Chameli Devi Gupta was the original owner of the suit
property which devolved on her two legal heirs, that is, Mool Chand and
Gian Chand, who sold their half undivided shares each in the property to
Nasiruddin and Mst. Amina Begum. Nasiruddin and Amina Begum passed
away leaving behind Mohd. Akbar, Mohd. Yahya, Mst. Parveen Begum,
Mst. Yasmeen Begum, Mohd. Imran, Mst. Saira Bani and Mohd. Akram as
legal heirs who sold the suit property, that is, a shop on the ground floor in
property No.509, Tokriwalan, Churiwalan, Jama Masjid, Delhi to the
Petitioners/Plaintiffs. The said shop when purchased had already been let
out to the Defendant/Respondent by Smt. Chameli Devi Gupta. The
Defendant in order to harass the family members of late Chameli Devi Gupta
forged and fabricated a Sale Agreement dated 13th August, 1996. The
Defendant had also filed a civil suit for permanent injunction against Mool
Chand, Gian Chand, Shakuntala Devi and Smt. Anita but withdrew the same
and filed a suit for specific performance of the contract in 1999 against them.
The said suit is still pending before the learned Civil Judge and the
Plaintiffs/Petitioners are also the Defendants in the said suit being Defendant
Nos. 5-A, 5-B and 5-C. It is stated that since the filing of the civil suit, the
Defendants neither paid nor tendered any rent to the landlord nor deposited
the rent in Court and relies upon the alleged forged agreement which is not a
registered document.
3. In the written statement Sarfaraz Ali Khan stated that the suit was not
maintainable and was liable to be stayed under Section 10 CPC in view of
the suit filed by him titled as 'Sarfaraz Ali Khan vs. Mool Chand and others'
for specific performance of the contract and injunction pending before the
learned Civil Judge. It was also stated that the suit was barred under Section
50 of the Delhi Rent Control Act, 1958 (in short 'the DRC Act'). Further the
Petitioners had earlier filed an eviction petition under Section 14 (1) (e) of
DRC Act which petition was withdrawn vide order dated 9th December 2013.
The valuation of the suit with regard to the court fee and jurisdiction was not
proper and the suit was pre-mature as no objection from the competent
authority under the Slum Areas (Improvement and Clearance) Act, 1956 has
not been obtained.
4. In the written statement the only admission was to the extent that Smt.
Chameli Devi Gupta was the owner of the suit property and the Defendant
along with Naseem Jahan was inducted as a tenant in the shop bearing
No.509 however, during her lifetime to meet her basic financial needs
Chameli Devi agreed to sell the two shops bearing No.509 and 512 to the
Defendant for a total consideration of Rs.1 lakhs and out of the same she
received a sum of Rs.80,000/- and executed an Agreement to Sell dated 13th
August, 1996. The balance amount of Rs.20,000/- was payable at the time
of execution and registration of the Sale Deed for which a suit for specific
performance has already been filed as the legal heirs of Chameli Devi
became dishonest and were not willing to execute the Sale Deed. It is
further claimed that the last rent paid to Mool Chand, son of Chameli Devi
Gupta being @ Rs.133/- per month the tenancy was protected under the
provisions of DRC Act besides the Defendant's right to get the Sale Deed
executed and registered in respect of Shop No.509 and 512.
5. On the basis of averments in the written statement and the Defendant
having filed the suit for specific performance of Agreement to Sell and
pleading the bar of Section 50 DRC Act and the fact that the Petitioners in
the suit did not disclose that they had earlier filed a petition for eviction
which was withdrawn, the Court dismissed the application.
6. I have heard learned counsel for the Petitioner.
7. It is trite law that for passing a judgment on admission under Order 12
Rule 6 CPC the admission has to be clear and unambiguous. In the present
case the Defendant has challenged the maintainability of the suit in view of
the protection under the provisions of DRC Act. Further the Plaintiffs had
earlier filed an eviction petition under Section 14 (1) (e) read with Section
25B of the DRC Act which they withdrew with liberty to file a fresh petition
on the same cause of action in accordance with law. There is no averment in
the plaint that the rent of the premises is more than Rs.3,500/- per month
which is admitted. Hence there is no clear unambiguous admission which
would warrant a judgment to be passed by the Civil Judge in the suit filed by
the Petitioners on the basis of admissions of the respondent.
8. I find no infirmity in the impugned order.
9. Petition is dismissed.
(MUKTA GUPTA)
JUDGE
MAY 15, 2015
'vn'
