Aftab Ahmed @ Sikender vs Kanti Devi
2016 Latest Caselaw 1038 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                   RC. REV. 192/2013 & CM APPL.1357/2013

                                       Pronounced on: February 10, 2016

       AFTAB AHMED @ SIKENDER                ..... Petitioner
                   Through: Mr. Pranesh, Advocate with Mr.
                            Amitabh Krishn, Advocate
                   versus

       KANTI DEVI                                        ..... Respondent
                          Through:     Mr. Girish Chandra, Advocate

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

V.K. SHALI, J.

1. The present Revision Petition has been filed against the order dated

13.02.2013 passed by the ARC, (North-East), Karkardooma

Courts, New Delhi by which eviction petition filed by

Respondent/landlady under Section 14D against petitioner/tenant

herein was allowed on merits.

2. Before dealing with the contentions of the counsel, it would be

pertinent to give a brief background of the case.

3. The Respondent, Smt. Kanti Devi had filed an eviction petition

under Section 14D of DRC Act, seeking possession of the suit

premises i.e. one hall on Ground Floor in the property bearing No.

C-213, Gali No.6, Chauhan Bangar, Main Brahm Puri Road, Delhi-

110053 from petitioner/tenant. It was stated in the petition that the

suit premises were let out by the husband of the respondent 12

years ago and the same is being used by the petitioner/tenant as a

godown for commercial activities. It was further averred that after

the death of the husband of respondent/landlady Shri Rajinder

Singh, the petitioner/tenant attorned to her. It was also stated that

the premises are required bona fide for residential use of the

respondent.

4. The petitioner was granted leave to defend on 22.01.2010 and he

filed his written statement in which the bona fide need was denied

and it was further stated that the scarcity of accommodation is self-

created since the respondent/landlady had demolished 5 rooms out

of the 10 rooms in the suit premises which existed prior to filing

the petition. It was also stated that the respondent is in occupation

of 4 rooms and 1 hall and that the area of suit premises is 350 sq.

yards. Further, respondent was stated to be in possession of two

properties i.e. in Gali No.5, Main Road, Brahampuri and at

Babarpur, Delhi and therefore has sufficient alternative

accommodation available to her.

5. It was further averred that the daughter of the respondent was

married and her sons were also running a hotel and a gym and she

had sufficient accommodation for business purposes.

6. Both the parties led their evidence. The petitioner examined 3

witnesses to support his case and similarly the respondent/landlady

also examined 3 witnesses including herself.

7. The Ld. ARC on the basis of pleadings and the evidence of the

parties came to a conclusion that all the ingredients of Section 14D

are made out and accordingly passed an order of eviction against

the petitioner/tenant. It was observed in the order that the suit

property was partitioned and therefore the plea of petitioner/tenant

that entire property was available to respondent was of no avail.

Further, there was no evidence to substantiate the availability of

other accommodation to the respondent/landlady. It was also

observed that the suit premises were already being put to mixed use

and could therefore be used for residential purpose as well.

8. I have heard the arguments of the learned counsel for the parties

and have gone through the record.

9. It is reflected in the order dated 22.10.2013 that the possession of

suit premises has already been taken by the respondent through

bailiff in the execution proceedings.

10. The counsel for petitioner has now assailed this order of eviction

by contending that Rent Controller had no jurisdiction to entertain

the Eviction Petition since no notification regarding Chauhan

Bangar area as per Section 1 (2) of DRC Act, 1958 was issued and

therefore the Act itself in not applicable to the area where the suit

property is situated. Reliance in this regard has been placed on

Mitter Sen Jain v. Shankuntala Devi; (2000) 9 SCC 720.

11. The counsel for respondent has disputed this contention and has

placed on record a copy of an RTI reply dated 16.06.2015 wherein

the Director (Delhi Division) has stated that Delhi Rent Control

Act, 1958 is in force in all the areas mentioned in the two

notifications issued in 1979 and 1986. Another RTI reply dated

23.07.2015 by SDM (Seelampur) states that there is no village by

the name of Chauhan Bangar and the actual name is Ghonda

Chauhan Bangar. He has further contended that Village Ghonda

Chauhan Bangar falls in Shahdara revenue district which has been

urbanized vide notification dated 23.05.1963. Reliance has been

placed on Sh. Ganpat Ram v. Smt. Gayatri Devi; 19 (1981) DLT

82. It is further stated that the tenant had not taken plea in the

written statement regarding non-applicability of DRC Act in

Seelampur area and it was consequently held that said area being

situated within the limits of erstwhile Delhi Shahdara Municipal

Committee and Delhi Rent Control Act was held to be applicable

by virtue of Item No.4 of the

Schedule to the Act.

12. In this way, in the present case, there are two documents which

need interpretation in order to ascertain whether suit property is

governed by the provisions of DRC Act or not. The counsel for the

respondent has placed reliance on Jangbir v. Mahavir Prasad

Gupta; AIR 1977 SC 27 to contend that interpretation of these

documents primarily involves a question of fact and not a question

of law regarding jurisdiction as posed before this court.

13. The perusal of these documents which have been brought before

this Court only shows that issue of jurisdiction being a mixed

question of facts and law can only been decided after evidence

produced by the parties. The impugned order has been passed on

merits and the issue which is sought to be raised before this court

was never raised before Rent Controller or the Executing Court and

therefore it cannot be tried summarily at such a late stage. Even

before this court, the counsel for petitioner filed a separate

application bearing C.M No. 1357/2015 on 19.01.2015 i.e. almost

2 years after filing the petition to raise the issue of jurisdiction

when the decree against him stands already executed and the

possession has been already taken by the Respondent.

14. Therefore, in my considered view this issue is highly belated and

cannot be raised before this court now. The petitioner should have

been vigilant enough to bring this issue up during the trial itself

since it involves the question of jurisdiction which is a mixed

question of facts and law. Law comes to the aid of the persons who

are vigilant about their rights not to those who sleep over them. An

issue which could have been decided at preliminary stage in

eviction petition itself cannot be re-agitated at a stage when rights

of the parties have crystallized and possession of suit property has

already been taken by Respondent/landlady.

15. Moreover, it is settled law that a fact must be pleaded and proved

by the party who asserts such fact. Therefore, the petitioner being

tenant should have set up the plea of Chauhan Bangar area not

being under DRC Act in his pleadings during the trial and

produced the evidence to support his contention. Further it has

been shown that there is no revenue district by the name of

Chauhan Bangar. The revenue district is Shahdara of which said

village is a part. That being the position, the point which has been

urged by the Appellant is only a ploy to perpetrate to the detriment

of respondent. Moreover, there is a doctrine of falsa demonstratio

non nocet by virtue of which it can't be contended that a small part

of area can be excluded from a large abadi area without any

reason.

16. In view of the aforesaid discussion, I feel that the present revision

petition is totally misconceived and the same is dismissed.

17. Pending applications also stand disposed of and stay order against

eviction, if any, stands vacated.

V.K. SHALI, J.

FEBRUARY 10, 2016 LT