Delhi High Court
Sant Ram Pandey vs Mahesh Rathore on 16 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.660/2017
% 16th February, 2018
SANT RAM PANDEY ..... Appellant
Through: Mr. J.K. Tripathi, Advocate.
versus
MAHESH RATHORE ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.26664/2017 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
RFA No.660/2017
2. This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit
impugning the judgment of the Trial Court dated 20.3.2017 by which
trial court has dismissed the suit for possession, arrears of rent,
damages and permanent injunction with respect to the suit property
which as per the suit plaint is two rooms on the ground floor of
property no. 631-A, Gali No.12, Shaheed Bhagat Singh Colony,
Karawal Nagar, Delhi.
3. Admittedly, there is a relationship of landlord and tenant
between the parties. Admittedly the rate of rent as per the
appellant/plaintiff is Rs.2,200/- per month. Therefore once the rent is
less than Rs.3,500/- per month, respondent/defendant will have
protection of the Delhi Rent Control Act, 1958 and the suit for
possession with respect to tenanted premises cannot be filed in the
civil court.
4. There is however an issue as to whether the
respondent/defendant had only one room with him in tenancy or had
two rooms in the tenancy. In this regard the trial court has rightly held
that no evidence having any substance was led by the
appellant/plaintiff except self-serving statement in deposition, and
therefore, the trial court held has that once the respondent/defendant
claimed to be a tenant of two rooms and not one room therefore it
cannot be held that the respondent/defendant is a tenant only of one
room and not two rooms and that the appellant/plaintiff is entitled as
claimed to possession of one room of which tenancy was never
created in favour of the respondent/defendant.
5. With respect to rate of rent, it is noticed that the
appellant/plaintiff contended that rate of rent was originally Rs.1,500/-
per month and which was increased to Rs.2,200/- per month w.e.f
1.10.2012 and that rent at Rs.2,200/- was claimed from 1.5.2013 and
though there is no dispute between the parties that rent is not paid
from 1.5.2013 but since the respondent/defendant contended that rent
was Rs.500/- per month and not Rs.2,200/- per month, Therefore, the
trial court has refused to grant a money decree for arrears of rent at
Rs.2,200/- per month w.e.f 1.5.2013.
6. Since trial court has held that appellant/plaintiff failed to
prove that tenancy was only of one room therefore there did not arise
passing of any decree for damages in favour of the appellant/plaintiff
and against the respondent/defendant with respect to the second room
and which second room effectively therefore also has been held to be
in the tenancy of the respondent/defendant by the trial court.
7. A civil suit is decided on preponderance of probabilities.
If the appellant/plaintiff comes to the court and pleads tenancy at a
particular rate of rent, it is the appellant/plaintiff who has to prove that
rate of rent. The appellant/plaintiff failed to prove the rate of rent at
Rs.2,200/- per month. Also, once the rate of rent is below Rs.3,500/-
per month with respect to tenanted premises, suit could not be filed in
the civil court as Section 50 of the Delhi Rent Control Act operates as
a bar for filing of the suit in the civil court with respect to the tenanted
premises. Also, trial court has rightly decided on balance of
probabilities that the appellant/plaintiff failed to prove that tenancy
was only of one room and not two rooms because
respondent/defendant claimed tenancy of two rooms and
appellant/plaintiff failed to prove by any substantial evidence much
less documentary evidence that tenancy was of one room and not two
rooms.
8. In view of the above, there is no merit in the appeal.
Dismissed.
FEBRUARY 16, 2018 VALMIKI J. MEHTA, J
Ne
