Delhi District Court
Judgment: vs . on 3 January, 2017
1
In the court of Ashwani Kumar Sarpal, Additional District Judge1,
North East District, Karkardooma Courts, Delhi
Mohd. Saalim
vs.
Sayada Begum
(RCA No. 78/16)
Date of filing of appeal2782016
Date when order reserved14122016
Date of final decision312017
(APPEAL AGAINST THE JUDGMENT & DECREE DATED 282016 PASSED IN
CIVIL SUIT NO. 105361/15 BY COURT OF SH. PRASHANT SHARMA,
ACJ/ARC/CCJ (NE) KARKARDOOMA COURTS, DELHI)
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JUDGMENT: Respondent/plaintiff filed suit for possession and damages against her tenant i.e. appellant/defendant in respect of room along with Varanda, kitchen, bathroom and toilet situated on first floor of the property bearing no. A16/5, Gali no. 6 (Old gali no. 1), Rajender Prasad Marg, Chauhan Banger, Delhi. The relationship between parties as landlady and tenant, rate of rent at Rs. 125/ per month qua rented premises as well as receipt of notice of termination of tenancy u/s 106 of Transfer of Property Act was admitted on the part of the defendant.
Ld. Trial Court on the basis of admissions made in the written statement decreed the suit under Order 12 Rule 6 CPC in 2 respect of relief of possession vide order dated 1932014 and proceeded with the matter to determine the quantum of damages after framing issues.
This order dated 1932014 was challenged by the defendant before this court but his appeal was dismissed on 1610 2014. Defendant filed second appeal in the Hon'ble High Court and vide order dated 24112015, the matter was remanded back to the ld. Trial Court to determine after trial the question whether the suit property is covered under the provisions of Delhi Rent Control Act. Thereafter plaintiff withdrew the relief in respect of damages.
In compliance of the order of Hon'ble High Court, ld. Trial Court framed fresh issues and after taking evidence of both the parties, again decreed the suit on 282016. Defendant has again come in appeal before this court.
As per Hon'ble High Court order dated 24112015, only question whether the provisions of Delhi Rent Control Act are applicable or not in respect of the suit property and whether the suit before civil court is maintainable has to be decided. I have heard counsel for both the parties and gone through the record.
Suit property is situated in village Ghonda Chauhan Banger. There is no dispute of the proposition that not only the notification under section 507 of Delhi Municipal Act to declare the area as urbanized but also a separate notification under section 1 (2) of Delhi Rent Control Act is required to be issued for that area where suit property is situated to attract the provisions of Delhi Rent Control Act as well as to debar the civil courts to entertain suit for eviction of the tenant who is paying monthly rent of less than Rs. 3,500/ per month. In this regard, law is well settled by Supreme Court in case Mitter Sen Jain vs. Shakuntala Devi 85 (2000) DLT 658 followed by our own High Court in cases Rajpal Singh vs. Deen Dayal Kapil 3 207 (2014) DLT 651 and Sohan Pal vs. Umashankar (2014) 2 RCR (Rent) 12.
Village Ghonda Chauhan Banger where the suit property is situated is a separate and distinct village having separate identity and jurisdiction from other villages namely Ghonda, Ghonda Gujran Banger, Ghonda Neemka and Ghonda Chuhan Khadar. This fact is also clear from the notification bearing no. 133021/3/70LI dated 20 81974 issued under section 22 (1) of Delhi Development Authority Act as it clearly reveals that these villages are separate, independent and not one and the same. Even from the statement of DW1, official witness of the defendant himself, it is established that village Ghonda Chauhan Banger is an independent village of NorthEast Delhi district.
DW1 in his deposition also stated that Village Ghonda Chauhan Banger is still a rural village and has not been urbanized till date. He produced notification bearing no. F.9 (2)/66Law Corp. dated 2851966 issued under section 507 of Delhi Municipal Corporation Act which shows that only revenue estate of village Ghonda situated in Shahdara Zone was urbanized. He further produced another notification no. TCO/82/47 dated 2341982 and it shows that revenue estate of village Ghonda Neemka has been urbanized. Thus, the statement of DW1 as well as notifications issued under section 507 of Delhi Municipal Corporation Act produced by him clearly shows that village Ghonda Chauhan Banger where suit property is situated is still an urban village. In absence of any other notification produced by the defendant before ld. Trial Court, there is no other option except to hold that provisions of Delhi Rent Control Act are not applicable to the place where suit property is situated and thus the bar of section 50 of this Act is not applicable. Accordingly civil court has jurisdiction to try suit for eviction of tenant and there is no need for landlord to 4 approach Rent Court even if the monthly rent is less then Rs. 3,500/ per month.
Counsel for the defendant cited case law Aftab Ahmed vs. Kanti Devi 2016 (229) DLT 3 and argued that village Ghonda Chauhan Banger has already been urbanized vide notification dated 2351963 as held in this case by Hon'ble High Court, so civil court has no jurisdiction to try the suit which is hit by section 50 of Delhi Rent Control Act. However, this contention is not acceptable because the Hon'ble High Court in this case has specifically held that this point was never raised before Trial Court at any stage, so it cannot allow to be raised first time in the High Court on new facts as matter was decided on merits. Some reliance placed on record by tenant in this cited case on RTI reply was never considered and the submissions raised on behalf of tenant were rejected by holding that question of jurisdiction was a mixed question of law and fact and was required to be decided on merits through evidence which was never produced earlier. Hence, it has to be held that Hon'ble High Court in this cited case has never decided that village Ghonda Chauhan Banger is an urbanized village.
Revenue estate of a particular village may include more than one village. It is also possible that revenue estate zone is different from the village itself. The argument is advanced on behalf of defendant that revenue estate of village Ghonda which was urbanized through notification dated 2551963 included all other villages namely Ghonda Gujran Banger, Ghonda Neemka, Ghonda Chuhan Khadar as well as Ghonda Chauhan Banger so the suit was hit by section 50 of Delhi Rent Control Act. This submission is liable to be rejected because if revenue estate of village Ghonda included all other villages mentioned above, then there was no occasion and necessity available for the MCD to issue fresh notification qua village Ghonda 5 Neemka only through 2341982 to urbanized it. Defendant has not brought anything on record to show that revenue estate of village Ghonda included all other villages namely Ghonda Gujran Banger, Ghonda Neemka and Ghonda Chuhan Khadar as well as village Ghonda Chuahan Banger. Thus, it has to be held that revenue estate of village Ghonda Chauhan Banger is different from all other villages and was required to be separately notified for the purpose of its urbanization which has not been done so far. Defendant tried to take benefits of words 'the entire remaining area of the said revenue estate which has not so far been urbanized' appearing in the notification dated 2851966 but the same cannot be given when it could not be established that revenue estate of village Ghonda had included all other villages including village Ghonda Chuahan Banger. Thus, it is hereby held that village Ghonda was only urbanized through notification dated 2851966 and not other villages having this similar prefix name.
Counsel for the defendant referred to one notification dated 8121954 bearing no. F.4 (19)/50LSG issued under Punjab Municipal Act and argued that area of village Ghonda Chauhan Banger was included in the area of Municipal Committee of Shahdara and vide first schedule of Delhi Rent Control Act, such area automatically comes under the purview of this Act. It is argued that though, this notification was not brought on record in the ld. Trial Court nor such plea was taken there but judicial notice of the same may be taken now. However, this submission cannot be allowed as considering the same would amount to ignoring the other evidence of the defendant already led in the shape of DW1 and this plea would contradict the other specific evidence on the Trial Court record. Further more, there was no evidence on record before ld. Trial Court by showing any plan that boundaries of village Ghonda Chauhan 6 Banger were falling within the Northern boundaries of erstwhile Municipal Committee of Shahdara. No application has been moved by defendant even in this appeal under Order 41 Rule 27 CPC for leading additional evidence, so this plea raised cannot be entertained. Delhi High Court in similar situation in above cited case Aftab Ahmed vs. Kanti Devi 2016 (229) DLT 3 declined to permit tenant for raising new grounds and pleas on some RTI replies and held that a fact must be pleaded and proved by the party who asserts the same.
Reliance is also placed by counsel for defendant on one award of Land Acquisition Collector bearing no. 1/201314 of Ghonda Chauhan Banger containing averment in para no. 3 that this village is urbanized vide notification no. F9 (2)/66 Law Corp dated 2851966. However, this notification was neither filed in the Trial Court record nor it was ever tendered in evidence. Thus, the same cannot be taken into consideration when DW1 has specifically stated that this village was not urbanized so far and it is still a rural village. Defendant is infact now trying to produce such documents which will negitivate the statement of his own official witness DW1 which act and conduct cannot be permitted. There is no explanation why these documents were not produced before ld. Trial Court or shown to DW1.
Counsel for defendant argued also while citing case law Lt Foods Ltd. vs. Sachdeva & Sons Rice Mills Ltd. 2009 (165) DLT 611 that judgment of ld. Trial Court is liable to be set aside as it has incorporated two paragraphs no. 17 and 18 as it is which were mentioned in the earlier judgment of this court dated 16102014 that is already set aside. In this cited case, the use of 'cut and paste' method of computer system while preparing written statement was deprecated by Hon'ble High Court so the amendment was allowed to be made in the written statement subject to heavy costs. However, this judgment is not applicable in the present situation. Otherwise also, it 7 is not a valid ground to set aside the judgment as a whole. Even if these two paragraphs are not read and considered, then that will not affect the decision of ld. Trial Court in any manner.
It is also stated on behalf of defendant that another court of Sh. G.N. Pandey, ADJ has held in different matter titled as Qaisar Dad Khan vs. Sayada Begum that village Ghonda Chauhan Banger is an urbanized village. It is stated that evidence led in this case should have been read in the present case also by the ld. Trial Court before passing the impugned judgment. However, neither any copy of the judgment of court of Sh. G.N. Pandey, ADJ nor any evidence led in that case was brought before the ld. Trial Court. Counsel for plaintiff stated that this judgment is already under challenge in the Hon'ble High Court in appeal. I am of the view that this matter was to be decided on merits on the basis of evidence led in it by ld. Trial Court as Hon'ble High Court in its order dated 24112015 had given directions to the Trial Court to decide on merits after trial. Full opportunities were given by the ld. Trial Court to defendant to lead evidence after reframing of issues but he opted to examine only one official witness DW1. Here in the present case, the evidence led by defendant especially of DW1 after taking opportunity from Hon'ble High Court, if is considered, then it has to be held that village Ghonda Chauhan Banger is still not urbanized and thus provisions of Delhi Rent Control Act are not applicable.
In the notification bearing no. 133021/3/70LI dated 208 1974 issued under section 22 (1) of Delhi Development Act, village Ghonda Chauhan Banger has been specifically notified for development and maintenance as green zone. Even if for the sake of arguments, it is held that this notification dated 2081974 is not applicable and relevant being not issued under section 507 of Delhi Municipal Corporation Act but that is no consequence because from 8 the evidence of DW1 and documents produced by him, it is clear that village Ghonda Chauhan Banger is still a rural village and has not been urbanized under section 507 of Delhi Municipal Corporation Act. Accordingly, when no initial notification under Delhi Municipal Corporation Act is issued for this village and it is still a rural village, then provisions of Delhi Rent Control Act are not applicable and civil court has jurisdiction to try the suit.
In view of the above discussions, it is hereby held that there is no infirmity in the order of ld. Trial Court and the same cannot be set aside. Ld. Trial Court has correctly given findings that civil court has jurisdiction to decide the suit and bar of Delhi Rent Control Act is not applicable. As per Hon'ble High Court order dated 24112015, only this point was to be decided as other facts regarding relationship, rate of rent and service of notice of termination of tenancy were already admitted facts. The decree of possession was rightly passed so the judgment and decree of ld. Trial Court is accordingly upheld. Appeal is hereby dismissed leaving both the parties to bear their own costs. However, I am granting two months time to the appellant/defendant to vacate the suit property. Trial Court record be sent back with copy of this judgment and appeal file be consigned to record room.
(Ashwani Kumar Sarpal) Dt. 312017. Addl. District Judge1