Shri Maharaj Singh vs Shri Ram Babu

Indermeet Kaur, J.

CM Nos. 14085/2006 (Exemption)

Allowed subject to just exceptions.

RSA No. 331/2006 & CM No. 14084/2006

This appeal has impugned the judgment and decree dated 05.09.2006 which has reversed the findings of the trial Judge dated 30.07.2005. Vide judgment and decree dated 30.07.2005 the suit filed by the Plaintiff Maharaj Singh seeking possession of the suit property i.e. property comprising of one room forming part of property No. A-1/19, Gali No. 1, Nehru Vihar, Karawal Nagar, Delhi had been decreed in his favour. A decree of permanent injunction had also been given restraining the Defendant from transferring/alienating the suit property; decree of mesne profits @ Rs. 100/- per month from the date of filing of the suit till the date of possession had also been accorded in favour of the Plaintiff. This was reversed by the impugned judgment. The impugned judgment on all counts except one has supported the findings of the trial Judge. The impugned judgment had invoked the provisions of Section 50 of the Delhi Rent Control Act (DRCA) and had held that since the parties were governed by a landlord-tenant relationship, the rent of the premises was admittedly below Rs. 3,500/-, a suit for possession was not maintainable; bar of Section 50 of the said Act was applicable; jurisdiction of the Civil Court was barred; the Rent Controller alone had the jurisdiction to entertain the suit. This judgment is the subject matter of appeal.

This is a second appeal. It had been admitted and on 06.08.2009, the following substantial question of law was formulated:

Whether the provisions of Delhi Rent Control Act as amended are applicable to the property in dispute? If so its effect?

None has appeared on behalf of the Respondent in spite of service.

The suit property has admittedly is a part of Nehru Vihar, Karawal Nagar, Delhi. Record shows that in the written statement in para 4 a preliminary objection had been taken by the Defendant that the suit is barred u/s 50 of the DRCA; replication had refuted this stand.

The trial Judge had framed various issues which inter-alias reads as under:

Whether the suit of the Plaintiff is not maintainable? OPD

Whether the suit is not barred by principle of res-judicata? OPD

Whether the Plaintiff is entitled for decree of possession and permanent injunction as prayed for? OPP.

Whether the Plaintiff is entitled for mesne profits, if so at what rate and for what period? OPP

Relief.

No issue on the bar of Section 50 of the DRCA had been framed. Obviously for this reason, no evidence was led on this point. Today it has been urged by learned Counsel for the Appellant that the suit property is not covered by DRCA and in the absence of any issue having been framed and the parties not being relegated to lead evidence on this score, there was nothing before the Court to hold that this suit property was in fact covered by the DRCA. It is pointed out that the suit property is an unauthorized locality; Karawal Nagar is not covered by the DRCA; civil suit would then be maintainable. It is further pointed out that the possession of the suit property has since been returned back to the Plaintiff. The impugned judgment had also noted this fact but had held that restitution would follow as per law. It is pointed out that the Defendant/Respondent has since filed a restitution application which is pending before the concerned court.

Record shows that admittedly no issue on the bar of Section 50 of the DRCA had been framed. It was not a contentious point between the parties. Obviously for this reason, the parties could not lead any evidence on this score. There was no evidence before the first appellate court to hold that the provisions of DRCA would not applicable to the instant situation this was especially so in view of stand taken by the Plaintiff wherein he had refuted this position. The DRCA would not slow-motion be applicable to each and every locality in Delhi; in certain cases certain areas are notified which come within the purview of DRCA and certain areas are excluded. Since no evidence had been led on this score, the Plaintiff was precluded from bringing before the Court evidence contrary to this; his contention being that the suit property is not covered by the DRCA.

This finding in the impugned judgment is thus an illegality. It is liable to be set aside. It is accordingly set aside. Appeal is allowed. Suit of the Plaintiff stands decreed.