Smt. Sangeeta vs Smt. Anita Arora
2016 Latest Caselaw 6357 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  RSA No. 23/2016

%                                                             4th October, 2016
SMT. SANGEETA                                                         ..... Appellant

                          Through:       Mr. Kushbir Singh and Ms. Shaiza,
                                         Advocates.

                          versus

SMT. ANITA ARORA                                                 ..... Respondent

                          Through:       Mr. Rajat Aneja, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

RSA No. 23/2016 and C.M. Appl. No. 2323/2016 (under Order XLI Rule 5 read with Section 151 CPC for suspension of impugned order) and C.M. Appl. No. 2325/2016 (for condonation of delay of 21 days in re-filing the appeal under Section 5 of the Limitation Act)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant/defendant/tenant against

the concurrent Judgments of the courts below; of the Trial Court dated 6.5.2014

and the First Appellate Court dated 19.8.2015; by which the suit for possession

and mesne profits filed by the respondent/plaintiff/landlady against the

appellant/defendant has been decreed. The suit has been decreed after issues

were framed and evidence was led by both the parties.

2. The following aspects are undisputed as appearing from the record

of the trial court, as also the judgments of the courts below; and also as per the

arguments before this Court:-

(i) That there is relationship of landlady and tenant between the

parties and the respondent/plaintiff is the landlady and appellant/defendant is

the tenant.

(ii) The suit premises do not have protection of the Delhi Rent Control

Act, 1958, inasmuch as, rate of rent is Rs.5,500/- per month i.e above Rs.3,500/-

per month.

(iii) Tenancy of the appellant/defendant has been terminated in terms of

the Legal Notices dated 3.9.2012 and 5.10.2012 and, the latter notice was duly

replied to by the appellant/defendant vide her Reply dated 17.10.2012.

3. The only dispute is that whether the appellant/defendant is a tenant

in the property no. J-5/49, 1st floor back portion, Rajouri Garden, New Delhi or

she is a tenant in the property no. J-5/49A, 1st floor back portion, Rajouri

Garden, New Delhi. I may note that the appellant/defendant is a tenant in a two

room set on the back portion of the first floor of the property, and which area of

tenancy is also not in dispute. The appellant/defendant claims that property

number is not J-5/49, but J-5/49A. In fact, now even the respondent/plaintiff

admits that the property is J-5/49A and which number was originally wrongly

written as J-5/49 in the plaint as also in the rent agreement which was executed

between the parties, the rent agreement being proved on record before the trial

court as Ex.PW1/1. I may note that respondent/plaintiff at the conclusion of

arguments before the trial court had moved an application for amending the

plaint as also taking the evidence to be read as not being with respect to the

property no. J-5/49, 1st floor back portion, Rajouri Garden, New Delhi as the

tenanted premises but the tenanted premises being property no. J-5/49A, 1st

floor back portion, Rajouri Garden, New Delhi, but that application was

dismissed by the trial court.

4. Counsel for the appellant/defendant has very vehemently argued

before this Court that the entire pleadings and the entire evidence led by the

respondent/plaintiff is with respect to the suit property being the two rooms set

on the back portion of first floor of property no. J-5/49, Rajouri Garden, New

Delhi, whereas now it is admitted that the property is J-5/49A, Rajouri Garden,

New Delhi, and therefore, the suit was liable to be dismissed.

5. In my opinion, the argument urged on behalf of the

appellant/defendant is a totally frivolous argument to say the least and this

argument wrongly seeks to take benefit of an inadvertent mistake committed by

the respondent/landlady in mentioning the wrong municipal number of the suit

property. In fact, I must note that if a suit is contested to the hilt on a particular

municipal number being taken as the number of the suit property, and it is

decided accordingly, but later it is found that the suit property municipal

number is wrong, then even at that stage the judgment and decree already

passed can be amended under Section 152 CPC, i.e, an issue of just

administrative or clerical or inadvertent mistake as to a municipal number of a

suit property cannot hit the substance of the disputes and the decision on merits

already passed. Therefore, if once after the judgment and decree is passed the

municipal number of the suit property can be corrected under Section 152 CPC,

then there is no reason why the respondent/plaintiff cannot say even before the

final judgment was passed by the trial court, and now before this Court also,

that the suit be treated not with respect to the two rooms set on the back portion

of first floor of property no. J-5/49, Rajouri Garden, New Delhi, but for the two

rooms set on the back portion of first floor of property no. J-5/49A, Rajouri

Garden, New Delhi.

6. I fail to understand any prejudice whatsoever to the

appellant/defendant by the correct description being given of the property,

inasmuch as, the appellant/defendant admits to be a tenant of the

respondent/plaintiff/landlady, admits paying rent at Rs.5,500/- per month to the

respondent/plaintiff/landlady and also the factum with respect to receiving of

the Notice dated 5.10.2012 terminating the tenancy sent by the

respondent/plaintiff/landlady under Section 106 of the Transfer of Property Act,

1882 and which notice with the courier receipt was proved before the trial court

as Ex.PW1/7 and Ex.PW1/8 respectively and the reply of the

appellant/defendant to this legal notice was proved as Ex.PW1/9.

7. In view of the above, this second appeal is totally frivolous and

without any merit, and is therefore dismissed with costs of Rs.50,000/-. Costs

of Rs.50,000/- shall be paid by the appellant/defendant/tenant to the

respondent/plaintiff/landlady within a period of four weeks from today.

8. C.M. Appl. No. 2325/2016 is allowed by condoning the delay of 21

days in re-filing the appeal and accordingly disposed of. Since the Regular

Second Appeal is dismissed therefore C.M. Appl. No. 2323/2016 is also

dismissed.

OCTOBER 04, 2016                                     VALMIKI J. MEHTA, J
AK