Smt. Zothanpari Hrashel Tuli vs Sh. Abijit Basu and Another

Valmiki J Mehta, J.

C.M. No. 3424/2011 in RFA No. 108/2011

Exemption allowed subject to just exceptions.

Application stands disposed of.

C.M. No. 3422/2011 in RFA No. 108/2011

For the reasons stated in the application, delay in refiling the appeal is condoned.

Application stands disposed of.

C.M. No. 3423/2011 in RFA No. 108/2011

This is an application for seeking exemption from filing Court fee. In my opinion, this application besides being mischievous is clearly an abuse of process of the law. One reason for ordinarily not allowing this application is that the impugned judgment is dated 12.8.2010 and the appeal was filed for the first time on 11.11.2010 and where after it has been brought up today after Court hours at 5.00 P.M. claiming urgency. Therefore, I have said that the application is nothing but a sheer abuse of the process of law. The counsel for the Appellant has undertaken on behalf of the Appellant to file the Court fee within a period of one week and consequently the appeal is being entertained. Since, however, I have heard the matter, I grant time to the Appellant to deposit the court fee within a period of one week from today. C.M. stands disposed of.

RFA No. 108/2011

The challenge by means of the present Regular First Appeal is to the impugned judgment and decree dated 12.8.2010 whereby the suit of the Respondents/Plaintiffs for recovery of possession and manse profits in respect of the tenanted premises has been decreed.

Before I proceed to dispose of the appeal on merits, I may notice certain facts which would show the endeavor of the Appellant not only to over reach this Court but also abuse the process of law. I have already noted while disposing of the C.M. No. 3423/2011 that there was no reason for not having filed the Court fee up to date. Further, it has already been noted that the challenge is laid to the impugned judgment and decree which was passed way back on 12.8.2010 and with respect to which appeal was for the first time filed on 11.11.2010. Not only this, there is a caveat and the caveat or would have no information of the appeal being listed after Court hours when it has been listed before this Court for hearing through a supplementary list on the ground that police is throwing out the goods of the Appellant from the tenanted premises.

By the impugned judgment and decree, trial Court has arrived at a finding of fact that the Appellant was a tenant under the Respondents of the tenanted premises being the first floor and barsati floor of House No. 229, Jor Bagh, New Delhi. The trial Court has referred to the fact that in reply to the legal notice of the Plaintiffs Ex.PW1/6 dated 9.12.1996 the Appellant specifically admitted that she was a tenant of the Respondents/Plaintiffs. Further, an injunction suit was also filed by the Appellant against the Respondents/Plaintiffs, Ex.PW1/2 being the plaint of the injunction suit, wherein, the Appellant''s own case was that she was a tenant in the premises from November/December, 1992. Even in her cross-examination, while deposing as DW-1 it was admitted by the Appellant that she was paying rent to the Respondents/Plaintiffs. The tenancy of the Appellant was originally terminated by means of a notice-dated 9.12.1996 and where after a suit was filed. That suit was however withdrawn by the Respondents/Plaintiffs. Since that suit was withdrawn there was no decision on merits and therefore there does not arise an issue of the decision in the earlier suit operating as resjudicata. The present suit was filed after service of a fresh legal notice dated 6.1.2005, Ex.PW1/9, which conferred a fresh cause of action. There is therefore no bar of filing of the subject suit as is contended by the counsel for the Appellant who has relied upon Order 23 Rule 1Code of Civil Procedure .

In view of the above, there is a relationship of landlord and tenant between the parties. The rate of rent being Rs. 13,200/- per month i.e. above Rs. 3500/- per month, the Appellant has no protection of the Delhi Rent Control Act, 1958. The tenancy has been terminated by means of the legal notice dated 6.1.2005 and receipt of which notice is admitted by the Appellant. The trial Court has therefore rightly decreed the suit for possession. There is no merit in the contention of the learned Counsel for the Appellant that Respondents are not the owners. Trial Court has in this regard rightly relied upon Section 116 of the Evidence Act, 1872 that the Appellant cannot deny the title of the landlords. Even so far as manse profits are concerned though no arguments were raised by the Appellant before this Court, I must note that the trial Court has rightly relied upon a registered lease deed of premises situated adjacent to the subject property of which rent was Rs. 1,50,000/- per month and granted the lesser rate of Rs. 90,000/- per month in view of the fact that the subject premises were older than the other premises.

In view of the detailed facts noted above, there are no disputed questions of facts, which require summoning of the trial Court record. No other issue was pressed or argued before this Court. The appeal being an abuse of process of law, on account of facts already noted above, the same is dismissed with costs of Rs. 25,000/-, which shall be paid within a period of two weeks from today.

List this case for ensuring compliance of the order for payment of the Court fee by the Appellant and also for payment of costs on 9th March 2011.

Caveat No. 145/2011 in RFA No. 108/2011

There is no appearance on behalf of the caveat or since the case was taken up after Court hours. Since I have dismissed the appeal, the caveat stands discharged.