Delhi District Court
Smt. Sapna Sharma vs Sh. Manoj Kumar Garg on 2 September, 2022
IN THE COURT OF SH. ARUN KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
RCA DJ No. 156/2018
CNR No. DLCT 01-012380-2018
Sh. Vijay Kumar Sharma (Since Deceased)
(Through LRs)
1. Smt. Sapna Sharma
W/o Late Sh. Vijay Kumar Sharma
2. Mr. Rohit Sharma
S/o Late Sh. Vijay Kumar Sharma
Both C/o:
Shops Private No. 33-34
Part of Property No. 1/1300 to 1318
Known as Balaji Motor Market
Sultan Singh Building
Kashmere Gate, Delhi-110006 ......Appellant
Versus
Sh. Manoj Kumar Garg
S/o. Sh. Sudarshan Kumar Garg
R/o. B-151, Opp. Surya Nagar, Rampuri
Ghaziabad, Uttar Pradesh .......Respondent
Date of Institution of Appeal : 25.09.2018
Date of Judgment : 02.09.2022
Appeal under Sectrion 96 of the CPC against the impugned
Judgment and Decree dated 27.08.2018 passed by the Hon'ble
Court of Sh. Dheeraj Mittal, Civil Judge-02(Central), Tis Hazari
Courts, Delhi in Civil Suit No. 97381/2016 titled as Sh. Manoj
Garg v. Sh. Vijay Kumar Sharma
RCA DJ 156/2018
Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg
Judgment dated 02.09.2022 Page 1 of 22
JUDGMENT
1. The present appeal arises out of the judgment and decree dated 27.08.2018 passed by the court of Ld. Civil Judge -02(Central), Tis Hazari Courts in Civil Suit No. 97381/2016 (hereinafter referred to as the impugned judgment), whereby, Ld. Trial Court has decreed the suit of the plaintiff for recovery of possession of the suit property i.e. shops private No. 33 - 34, part of property No. 1/1300 to 1318, known as Balaji Motor Market, Sultan Singh Building, Kashmere Gate, Delhi - 110006, on an application of the plaintiff under Order XV CPC.
2. Impugned judgment and decree dated 27.08.2018 has been challenged by the appellant, who was the defendant in the aforesaid suit, inter-alia on the ground that Ld. Trial Court has failed to appreciate that order XV of the CPC has been omitted by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2018 w.e.f. 03.05.2018 and hence, the application filed by the respondent under Order XV CPC on 26.03.2018 had already become infructuous and did not require consideration. It has further been submitted by the appellant that Ld. Trial Court has also failed to appreciate that once the application of respondent under Order XII Rule 6 CPC had already been dismissed vide order dated 08.02.2016, whereafter the matter was listed for evidence of the respondent, no further application under Order XV of the CPC could have been filed by the respondent on the same facts/grounds, more so, when the matter had already been fixed for trial after framing of issues.
RCA DJ 156/2018Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 2 of 22
3. Another ground for challenging the impugned judgment and decree, as per memo of appeal, is that Ld. Trial Court has wrongly held that the orders dated 03.09.2015 and 06.10.2015 passed in Civil Suit No. 50/2012 would operate as res-judicata between the parties in a subsequent civil suit and while so holding has failed to appreciate that the suit No. 97381/16 was not a subsequent suit, but was filed during the pendency of the 1st suit and even before passing of the aforesaid two orders. It is further submitted that Ld. Trial Court has failed to appreciate that the rights of the parties stand crystallized on the date of institution of the suit and law applicable on the date of filing of the suit would continue to apply until the suit is disposed of or adjudicated. The impugned judgment has also been challenged on the ground that Ld. Trial Court has wrongly held that the appellant cannot be termed as a legal occupant of the suit property after termination of the tenancy while failing to appreciate that the possession of the premises by a tenant for the purpose of Section 19 of the Slum Clearance Act cannot be termed as unlawful merely by virtue of termination of tenancy under Section 106 of the Transfer of Property Act.
4. It has further been alleged in the grounds of appeal that Ld. Trial Court has failed to appreciate that it could not have dealt with the issues raised by the respondent on the basis of orders passed in the earlier suit without amendment of the pleadings, more so, when the appellant had given sufficient facts in his written statement with supporting documents, which were sufficient to prove that no cause of action had arisen in favour of the respondent. Another ground, on which the impugned decree is RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 3 of 22 sought to be challenged, is that the impugned judgment and decree dated 27.08.2018 has been passed by Ld. Trial Court in a hasty manner without considering the actual facts thereby jeopardizing the valuable rights of the appellant/defendant.
5. On the aforesaid grounds, appellant has prayed for setting aside the impugned judgment and decree dated 27.08.2018 passed by Ld. Civil Judge-02(Central) in the aforesaid suit.
6. Notice of the present appeal was thereafter issued to the respondent in terms of order dated 25.09.2018. Respondent appeared in response to notice of the appeal, however, no reply to the appeal has been filed on behalf of the respondent. Final arguments were thereafter heard in the appeal on 17.08.2022.
7. During the course of arguments, counsel for appellant has once again reiterated the grounds pleaded by the appellant in his appeal and has relied upon the following judgments:
a) Rajender Bansal & Ors. V. Bhuru(D) Thr. (2017)2 CLJ 347 SC,
b) Harish Chander malik v. Vivek Kumar Gupta & Ors. (2012)II AD (Delhi) 228
c) P.N.Bhatt v. Kaushalya Devi (1982) 21 DLT 295
8. On the other hand, it is submitted by Ld. Counsel for Respondent that Ld. Trial Court has rightly decreed the suit of respondent in exercise of powers under Order XV CPC, which is still in the statute book and has RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 4 of 22 been omitted only in its application to the commercial disputes, since the settlement of issues by itself is no bar to the exercise of the said power by a Civil Court. He further submits that even dismissal of the application of respondent under Order XII Rule 6 CPC could not have barred the respondent from approaching the Court with an application under Order XV CPC considering the change in circumstances, in as much as, at the time of dismissal of the application under Order XII Rule 6 CPC i.e. on 08.02.2016, the finding of Ld. Trial Court in CS No. 50/2012 as to the agreed rate of rent of the tenanted premises being Rs. 8,000/- had not attained finality, which, according to him, has attained finality only upon dismissal of SLP No. 27944/2016 by Hon'ble Supreme Court of India vide order dated 30.09.2016.
9. He further submits that the plea of Appellant regarding non- applicability of res-judicata qua the finding of Ld. Trial Court as to the agreed rate of rent in the Civil Suit No. 50/2012 does not survive in view of the Judgment dated 20.07.2016 of Hon'ble Delhi High Court in RSA No. 179/2016, wherein, the same plea of the appellant has already been rejected by Hon'ble Delhi High Court. In support of his submissions Ld. Counsel for Respondent has relied upon the following judgments:
a) Shiv Kumar v. Sumit Gulati RSA No. 417/2015 decided by Hon'ble Delhi High Court on 04.12.2015
b) Bhupinder Jit Singh v. Sonu Kumar CRP No. 176/2017 decided by Hon'ble Delhi High Court on 12.10.2017.
10. Ld. Counsel for respondent has thus prayed for dismissal of present appeal of the appellant with heavy costs.
RCA DJ 156/2018Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 5 of 22
11. I have heard the submissions made on behalf of the parties and have perused the material available on record in the present appeal as well as the record of Ld. Trial Court in CS No. 97381/2016. I have also carefully gone through the judgments relied upon by the parties in support of their respective submissions.
12. Before proceeding further, I deem it appropriate to highlight few dates and events relevant for adjudication of the present appeal, which are as follows:
28.04.2012: Civil Suit No. 50/2012 was filed by the respondent against the appellant seeking recovery of possession of suit property, Arrears of Rent and Mesne Profits/damages;
02.04.2013: An application filed by respondent in the aforesaid suit under Order 2 Rule 2 CPC seeking permission to abandon the claim of possession and mesne profits, with liberty to file a fresh suit qua the said reliefs after obtaining permission under Section 19 of the Slum Area (Improvement and Clearance) Act, was allowed;
28.01.2015: Requisite sanction from the Competent Authority obtained by the Respondent u/s 19 of the Slum Area (Improvement and Clearance) Act.
03.02.2015: The present suit no. 97381/16 for recovery of RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 6 of 22 possession of the suit property filed by the respondent.
13.07.2015: Following Issues were settled by Ld. Trial Court in the aforesaid suit:
1.) Whether the defendant is in legal occupation of the shop? OPP (onus shifted to defendant vide order dated 06.10.2015)
2.) Whether the defendant is a tenant in the shop in question on a monthly rent of Rs. 2,000/-0 which bars the jurisdiction of this Court as per Section 50 of the Delhi Rent Control Act? OPD
3.) Whether the suit is liable to be stayed under Section 10 of the CPC? OPD
4.) Whether the plaintiff is entitled to the relief of possession as prayed for? OPP
5.) Relief.
03.09.2015: Suit No. 50/12 of the respondent qua the reliefs of Arrears of Rent @Rs. 8,000/- per month and mesne profits was decreed by Ld. Trial Court.
06.10.2015: Ld. Trial Court in the present suit has decided the issue no. 2 regarding bar on jurisdiction of this Court under Section 50 of DRC Act on the basis of principle of res-judicata in view of judgment dated 03.09.2015 in CS No. 50/2012 and issue no. 3 regarding the applicability of doctrine of res-sub judice in RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 7 of 22 terms of Section 10 CPC against the appellant, observing that the earlier suit has already been decided holding the rate of rent to be Rs. 8,000/- per month and no appeal by that date had been preferred by the appellant. Simultaneously, onus to prove the issue no. 1 i.e. whether the defendant/appellant was in legal occupation of the suit shop was shifted to appellant/defendant.
08.02.2016: The application of respondent in the present suit under Order XII Rule 6 CPC was dismissed by Ld. Trial Court on the ground that there was no admission on the part of the appellant either in the present case or in the earlier suit no.
50/2012 regarding the rate of rent of the suit property being Rs. 8,000/- and the finding of Ld. Trial Court in the previous suit vide judgment dated 03.09.2015 qua the rate of rent being Rs. 8,000/- per month had not attained finality, the said order being a subject matter of appeal by the appellant as on the aforesaid date.
04.05.2016: First appeal bearing no. RCA 80/2015 preferred by the Appellant against the judgment and decree dated 03.09.2015 in CS No. 50/2012 was partly allowed and the decree dated 03.09.2015 to the extent of award of mesne profits was set aside in view of abandonment of the aforesaid relief by the respondent vide his application under Order II Rule 2 CPC.
20.07.2016: RSA No. 179/2016 preferred by the appellant against the judgment dated 04.05.2016 of Ld. First Appellate RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 8 of 22 Court in the aforesaid suit was dismissed by Hon'ble High Court of Delhi.
30.09.2016: The SLP No. 27944/2016 preferred by the appellant against the judgment dated 20.07.2016 of Hon'ble High Court in RSA 179/2016 was dismissed by Hon'ble Supreme Court.
26.03.2018: The respondent has moved an application under Order XV CPC seeking pronouncement of judgment on the ground that the finding of Ld. Trial Court in CS No. 50/2012 vide judgment dated 03.09.2015 regarding the agreed rate of rent being Rs. 8,000/- per month has attained finality with dismissal of SLP No. 27944/2016 by Hon'ble Supreme Court vide order dated 30.09.2016.
28.05.2018: Appellant filed a reply to the application of respondent under Order XV CPC objecting the application, on the grounds similar to the grounds taken in the present appeal except that the principal of res-judicata does not apply to the facts of the case, while admitting all the orders/judgments passed in proceedings arising out of CS 50/2012.
27.08.2018: The impugned order allowing application of respondent under Order XV CPC was passed by Ld. Trial Court.
13. So far as the challenge to the impugned judgment and decree RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 9 of 22 dated 27.08.2018 on the ground that the application of respondent under Order XV CPC was not maintainable in view of omission of Order XV CPC by The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 is concerned, it is significant to note that Amendments as per Schedule appended to the aforesaid Act, by virtue of Section 16(1) of the aforesaid Act shall only apply to the suits in respect of commercial disputes of the specified value and not to the other suits. The aforesaid objection having not been taken by the appellant before Ld. Trial Court, there was no occasion for Ld. Trial Court to deal with the same. However, in view of the aforesaid discussion, challenge to the impugned judgment on the said ground is liable to be rejected.
14. The next ground for challenge to the impugned judgment, as already noted hereinabove, is that the application of respondent under Section XII Rule 6 CPC having already been dismissed vide order dated 08.02.2016 and matter having already been adjourned for evidence after framing of issues, no further application under Order XV CPC could have been filed on the same facts. In the light of the facts narrated in para 12 of this judgment, it is apparent that at the time of settlement of issues by Ld. Trial Court on 13.07.2015, the earlier suit no. 50/12 had not been disposed off and hence, Ld. Trial Court was duty bound to settle the issues on the basis of pleadings of the parties. Moreover, the primary reason for dismissal of application of respondent under Order XII Rule 6 CPC, as per order dated 08.02.2016 was that even in the earlier suit, the appellant had not admitted the RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 10 of 22 agreed rate of rent to be Rs. 8,000/- and the finding of Ld. Trial Court in Civil Suit no. 50/2012 qua the agreed rate of rent between the parties being Rs. 8,000/- per month, was under challenge in RCA No. 80/2015 and had thus not attained finality, which was not the case at the time of decision on issue nos. 2 and 3 by Ld. Trial Court vide order dated 06.10.2015. However, after dismissal of the aforesaid application under Order XII Rule 6 CPC by Ld. Court vide order dated 03.02.2016, the aforesaid finding of Ld. Trial Court, attained finality with the decision of Hon'ble Supreme Court dated 30.09.2016 in SLP no. 27944/2016.
15. Thus, in view of the aforesaid facts, it can't be said that the application under Order XV CPC was filed by the respondent on same facts/grounds. Even otherwise, although Order XII Rule 6 CPC and Order XV Rule 1 CPC may be two sides of the same coin, however, provisions of Order XV Rule 3 CPC deals with a situation different from the one contemplated under Order XII rule 6 CPC, albeit even these two provisions in some fact situations may be applied simultaneously. For example, when on the first hearing of the case, the court finds that in view of admissions on the part of the parties-either express or implied, the parties are not at variance and hence, no issues of fact or law arise in the case, the Court may proceed to pronounce the judgment at once under both the provisions i.e. under Order XII Rule 6 CPC and Order XV Rule 1 CPC. On the other hand, though a judgment under Order 12 Rule 6 CPC may be passed at any stage i.e. either before or after settlement of issues, the only pre-condition being the admission by either of the parties, a judgment under Order XV Rule 3 CPC RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 11 of 22 empowers the Court to pronounce a judgment only after settlement of issues. Thus, the submission of Ld. Counsel for appellant that having settled the issues vide Order dated 13.07.2015, the Court could not have pronounced the judgment on an application under Order XV CPC is liable to be rejected.
16. Next, it has been sought to be contended by ld. Counsel for appellant that Ld. Trial Court has wrongly applied the principle of res- judicata, the present suit not being a subsequent suit, having been filed during pendency of the earlier suit. The aforesaid submission, in my considered opinion, does not lie in the mouth of appellant, in as much as, it was the appellant alone who, in his written statement in the present suit, has sought stay of proceedings in the present suit in terms of Section 10 of the CPC on account of pendency of the earlier suit no. 50/2012. It is settled legal position that a subsequent suit can be stayed in terms of Section 10 of the CPC only if the finding in the earlier suit shall operate as res-judicata in the subsequent suit. Even otherwise, the submission of Ld. Counsel for appellant is liable to be rejected in view of Explanation 1 appended to Section 11 of the CPC, which defines the term former suit as used in Section 11 of the CPC to mean a suit which has been decided prior to the present suit, whether or not it was instituted prior thereto. Thus, even if the suit no. 50/2012, would have been filed after filing of the present suit, but considering the fact that it was decided prior to the present suit, the finding in suit no. 50/2012, having a bearing on the issues settled in the present case, shall operate as res-judicata in the present case. Moreover, in my considered RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 12 of 22 opinion, even independent of the principle of res-judicata, the doctrine of issue estoppel debars the court from fresh adjudication on the issue already decided in the former suit no. 50/2012.
17. There is another reason for rejection of the aforesaid submission of Ld. Counsel for appellant. A perusal of record reveals that in RSA No. 179/2016 before Hon'ble High Court of Delhi, Appellant had made a desperate attempt to request Hon'ble High Court of Delhi to observe that the findings in two judgments i.e. the judgment of ld. Trial Court in judgment dated 03.09.2015 in CS No. 50/2012 and judgment of Ld. First appellate Court in judgment dated 04.05.2016 in RCA No. 80/2015 should not be held as res-judicata in further proceedings against the appellant and the said prayer of the appellant was rejected by Hon'ble Delhi High Court in para no. 12 of its judgment dated 20.07.2016. Ld. Trial Court in the impugned judgment has thus rightly relied upon the said observations of Hon'ble Delhi High Court while rejecting the contention of Ld. Counsel for appellant on the said ground.
18. While relying upon the judgment of Hon'ble Supreme Court in Rajender Bansal & Ors. V. Bhuru(D) Thr. (2017)2 CLJ 347 SC, it is sought be contended by ld. Counsel for appellant that Ld. Trial Court has failed to appreciate that the law applicable on the date of filing of the suit will continue to apply until suit is disposed of or adjudicated since rights of the parties stands crystalized on the date of institution of the suit. Though, there can be no two views about the RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 13 of 22 propositions of law laid down by Hon'ble Supreme Court in the aforesaid judgment, however, admittedly there is neither any change in law from the date of filing of the suit by the respondent against the appellant, nor any law different than that was applicable at the time of institution of suit has been applied by Ld. Trial Court. Mere application of principle of res-judicata on the basis of findings of Ld. Trial Court in CS No. 50/12 in its judgment dated 03.09.2015, which had been upheld upto the Supreme Court, can't be said to a change in law having taken place during the pendency of the suit, in as much as, the doctrine of res-judicata is there in the statute book since 1908.
19. The appellant has also sought to challenge the finding of Ld. Trial Court that the appellant can't be termed as a legal occupant, while relying upon the judgment of Hon'ble Delhi High Court in Harish Chander Malik v. Vivek Kumar Gupta & Ors. 2012 II AD(Delhi) 228. In the aforesaid judgment, Hon'ble Delhi High Court while relying upon the judgment of Hon'ble Supreme Court in Lal Chand (daed) by LRs and Ors. V. Radha Kishan AIR 1977 SC 789 and judgments of Hon'ble Delhi High Court in Bardu Ram Dhanna Ram v. Ram Chander Khirbu AIR 1972 Delhi 34(FB) and Shyam Kishore & Anr. V. M/s Roop saree kendra & Ors. 105(2003) DLT 422 has held that a notice under Section 106 of the Transfer of Property Act does not convert the possession of a tenant in respect of premises in the slum area into a wrongful possession or unlawful possession for the reason that wherever there is statutory protection against dispossession by operation of law, the possession of RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 14 of 22 a person despite termination of his lease is deemed to be lawful possession under authority of law.
20. The aforesaid observations were made by Hon'ble Delhi High Court while rejecting the contention of the appellant in the aforesaid case that after service of notice under Section 106 of the Transfer of Property Act, the respondents in the aforesaid case had ceased to be tenants and were merely unauthorized occupants not entitled to the benefit of Section 19 of the Slums Act. Hon'ble Delhi High Court in the aforesaid judgment has also rejected the contention of appellants in the said case that if the provisions of Delhi Rent Control Act, 1958 are not applicable to a premises on account of its rent being more than Rs. 3,500/- per month, the provisions of Slum Act shall also not apply.
21. There is no dispute about the aforesaid propositions, however, in my considered opinion, the appellant in the present case can't derive any benefit from the said observations, in as much as, with the grant of requisite sanction by the competent authority in terms of Section 19 of the Slum Area (Improvement and Clearance) Act vide order dated 28.01.2015, the statutory protection enjoyed by the appellant under the said Act is no more available to the appellant, whose contractual tenancy has since long been terminated not only by efflux of time but also by a notice under Section 106 of the Transfer of Property Act. The protection under Section 19 of the Slum Area (Improvement and Clearance) Act, though, is in addition to the protection under the provisions of Delhi rent Control Act, 1958, as held by Hon'ble Delhi RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 15 of 22 High Court in the aforesaid judgment, however, in my considered opinion, the scope of protection under both the statutes is altogether different. Whereas, the protection under the provisions of Delhi Rent Control Act, is enjoyed by a tenant till the time of passing of an eviction order by Ld. Rent Controller upon proof of existence of grounds of eviction given in the said Act, the protection under the Slum Area (Improvement and Clearance) Act, after termination of contractual tenancy is enjoyed by a tenant only till grant of sanction by a competent authority in terms of Section 19 thereof.
22. In the case in hand, in para 9 of the plaint, the respondent has specifically alleged that he has got the necessary permission from the Competent Authority (DUSIB) vide CA(DUSIB) no. 119/2013 vide order dated 28.01.2015. In the corresponding para of the written statement of the appellant, there is no denial of the aforesaid fact and hence, the said fact stands admitted by the appellant in his written statement. Ld. Trial Court while deciding the issue no. 1 against the defendant has not made any reference to the aforesaid permission/sanction under Section 19 Area (Improvement and Clearance) Act and to that extent the impugned judgment can be faulted, however, in view of the aforesaid discussion the conclusion arrived at by Ld. Trial Court as to status of appellant qua the suit property can't be said to be wrong.
23. There is another aspect of the matter. It is significant to note that the present suit before Ld. Trial Court was filed by the respondent RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 16 of 22 merely for a decree for recovery of possession of the suit property and not for mesne profits and hence, the issue regarding the nature of occupation of the appellant of the suit property was even not required to be settled. From the pleadings of the parties, it appears that the same has been settled by Ld. Trial Court in view of averments made by the respondent in para 10 of the plaint that after termination of tenancy of the appellant/defendant on 30.08.2011, the appellant/defendant had become an unauthorized occupant of the tenanted premises and is liable to pay Rs. 15,000/- per month as mesne profits for occupying the property unauthorizedly and corresponding averments of the appellant in his written statement that the possession of appellant/defendant qua the suit property is legal and therefore he is not liable to pay any damages. Thus, it is apparent that the said pleadings were relevant only for determination of the claim, if any, of the respondent in respect of mesne profits and the said relief having not been claimed by the respondent in the present suit, the issue no. 1 was not required to be settled and if settled, Ld. Trial Court instead of dealing with the same could have simply deleted the same in exercise of its powers under Order XIV Rule 5 CPC.
24. Though Ld. Trial Court has failed to exercise the aforesaid power vested in it to strike off the issue no. 1, considering the law that the first appeal is a continuation of the suit, the issue no. 1 is hereby struck off by this Court in exercise of its powers under Order XIV rule 5 CPC read with Section 107 CPC.
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25. Next, it is sought be contended by Ld. Counsel for appellant that while passing the impugned judgment, Ld. Trial Court could not have traveled beyond pleadings and since the plea taken by the respondent in his application under Order XV CPC were not incorporated in pleadings by way of amendment, the same could not have formed the basis for decreeing the suit of respondent. In support of his submission, he has relied upon the judgment of Hon'ble Delhi High Court in P.N.Bhatt v. Kaushalya Devi (1982) 21 DLT 295. There can be no two views about the proposition of law laid down by Hon'ble Delhi High Court in the aforesaid judgment, however, in my considered opinion, the aforesaid judgment is not applicable to the facts of the present case.
26. It is significant to note in this regard that the respondent in his plaint has categorically alleged that the agreed rate of rent of the suit property was Rs. 8,000/-, whereas, appellant in his written statement had taken a plea that the agreed rate of rent was Rs. 2,000/- per month and hence, the jurisdiction of the court was barred in terms of Section 50 of the Delhi rent Control Act, 1958. It was in order to substantiate his aforesaid plea that the respondent has relied upon the judgments passed in the earlier suit no. 50 of 2012/appeals arising therefrom between the parties. The respondent in his reply to the application under Order XV CPC has not denied the passing of aforesaid judgments in the earlier suit/appeal. The aforesaid judgments, being relevant within the meaning of Section 40 of the Indian Evidence Act, certified copies thereof were admissible in evidence. Even otherwise, the same stood admitted by the appellant and passing of the same was never a fact in issue in the RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 18 of 22 proceedings before Ld. Trial Court or even before this Court.
27. In view of specific pleadings of the respondent as to the agreed rate of rent being Rs. 8,000/- per month, the judgments in the earlier suit can by no stretch of imagination be said to be evidence beyond pleadings. It is significant to note that in the application under Order XV CPC, the respondent had not taken any fresh plea but has merely derived the attention of the Court to the earlier judgments as admitted piece of evidence, which evidence was sufficient for the court to pronounce judgment on the only surviving issues i.e. issue no. 4 and 5. At this stage, reference to the provisions of Order VI Rule 2 CPC shall be apposite, which requires the pleadings to state merely material facts and not the evidence.
28. Although, the said objection of the appellant had not been specifically dealt with by Ld. Trial Court in the impugned judgment, however, considering the fact that there is sufficient material available on record before this court to decide the said legal issue, in view of aforesaid discussion, challenge to the impugned judgment on this ground also is bound to fail.
29. Considering the fact that all the pleas taken by the appellant in his written statement on merits, already stood adjudicated in the earlier suit no. 50/2012 and appeals arising therefrom and Ld. Trail Court applying the said findings to hold that no triable issue survives in the present case, can't be said to have passed the impugned judgment in haste without RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 19 of 22 considering the actual facts mentioned by the appellant in his written statement, thereby jeopardizing the rights of the appellant. It is further significant to note in this regard that issue no. 2 and 3 stood decided by Ld. Trial Court long ago vide order dated 06.10.2015 based on findings in judgment dated 03.09.2015 in CS No. 50/2012. The order dated 06.10.2015 has not been challenged by Appellant before any Superior Court and subsequently the order dated 03.09.2015 in CS No. 50/2012 has been upheld upto Hon'ble Supreme Court and hence, the order dated 06.10.2015 deciding issues no. 2 and 3 in favour of respondent does not call for any interference. As has already been observed hereinabove, the issue no. 1 did not arise in the said case and hence, the same was required to be struck off and has been struck off by this judgment. Thus, the only issue which was surviving before Ld. Trial Court was issue no. 4 i.e. whether the plaintiff was entitled to the relief of possession as prayed for.
30. For decision of the aforesaid issue in favour of respondent/plaintiff, the only facts required to be established were that 1) Existence of landlord-tenant relationship between the parties; 2) termination of contractual tenancy either by efflux of time or by notice under Section 106 of the Transfer of Property Act; 3) the tenancy of appellant was not protected either under the provisions of Delhi Rent Control Act, 1958 or under the provisions of Slum Area (Improvement and Clearance) Act.
31. The existence of landlord -tenant relationship between the parties was never denied by the appellant. Termination of contractual tenancy by efflux of time even though not admitted by the appellant, termination by RCA DJ 156/2018 Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 20 of 22 notice under Section 106 of the Transfer of Property Act stood admitted/established in view of various judgments of Hon'ble Superior Court that service of a copy of notice with summons of the suit for recovery of possession shall have the effect of termination of contractual tenancy. The third aspect i.e. the plea of tenancy being a protected tenancy under the provisions of Delhi Rent Control Act, 1958 stood determined on the basis of principle of res-judicata in view of judgments in Civil Suit no. 50/12 and appeals arising therefrom.
32. So far as protection under the provisions of Slum Area (Improvement and Clearance) Act is concerned, the same was available till grant of requisite permission by the Competent Authority in terms of Section 19 of the aforesaid Act. Grant of aforesaid permission by the Competent Authority vide order dated 28.01.2015 has never been disputed by the appellant before Ld. Trial Court or before this Court. Thus, it was rightly held by Ld. Trial Court in the impugned judgment that on the date of passing the impugned judgment no issue was surviving which required any further evidence other than what was available before Ld. Trial Court.
33. In view of the aforesaid discussion, it is ordered that the present appeal is hereby dismissed, being devoid of any merits, with cost of Rs. 20,000/- to be paid by the appellant to the respondent for un-necessarily dragging the appellant in the present proceedings and impugned judgment and decree dated 27.08.2018 passed by Ld. Civil Judge- 02(Central) Tis Hazari Courts in CS No. 97381/2016 is upheld.
RCA DJ 156/2018Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg Judgment dated 02.09.2022 Page 21 of 22
34. Decree sheet be prepared accordingly.
Announced in the open court on this day of 02nd day of September, 2022. This judgment consists of 22 number of signed pages.
ARUN Digitally signed by
ARUN KUMAR GARG
KUMAR Date: 2022.09.02
GARG 15:19:52 +0530
(ARUN KUMAR GARG)
Additional District Judge-05(Central)
Tis Hazari Courts, Delhi
RCA DJ 156/2018
Sh. Vijay Kumar Sharma v. Sh. Manoj Kumar Garg
Judgment dated 02.09.2022 Page 22 of 22