Delhi High Court
R.K.Rametra & Anr. vs Prakash Chand Kaushik on 4 March, 2016
Equivalent citations: AIR 2016 DELHI 127, 2016 (3) ADR 600, (2017) 2 RENCR 94, (2017) 2 RENTLR 329, (2016) 229 DLT 13
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ RSA 138/1996 & CM APPL.3598/2007, 8751/2008, 16575/2010
Decided on: 4th March, 2016
R.K.RAMETRA & ANR. ..... Appellants
Through: Mr. K. Sunil, Advocate
versus
PRAKASH CHAND KAUSHIK ..... Respondent
Through: Mr. R.K. Trakru, Advocate with
Ms. Bela Khattar, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. The only substantial question of law which was framed by my learned predecessor vide order dated 20.03.1997 was "Whether the plaintiff‟s suit is barred under Section 50 of the Delhi Rent Control Act?"
2. In order to consider as to whether the suit is barred by Section 50 of the Rent Act it will be pertinent here to reproduce the exact language of Section 50 of the Delhi Rent Control Act which reads as under:-
RSA 138/1996 Page 1 of 11
"50. Jurisdiction of civil courts barred in respect of certain matters -
(1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
.............
(4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
3. Further, it may also pertinent here to mention that the definition of the word "premises" as given in Section 2(i) of the DRC Act, 1958, reads as under:-
"premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes:-
i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;RSA 138/1996 Page 2 of 11
ii) any furniture supplied by the landlord for use in such building or part of the building;
but does not include a room in a hotel or lodging house".
4. Further, Section 3 lays down that the Act is not to apply to certain premises and these are like premises belonging to the govt. where the rent of the premises is, more than 3500 per month, etc.
5. A conjoint reading of the aforesaid two provisions would clearly show that the jurisdiction of a civil court is barred where the rent of the premises is less than 3,500/- rupees and secondly where the property which has been let out to the tenant is constituting „premises‟.
6. The definition of the word „premises‟ clearly shows that if a vacant land has been let out to a party then it will not be treated as a premises then it will not be enjoying such a protection under the Rent Act.
7. Coming back to the facts of the present case, the respondent/plaintiff in the instant case had filed a suit for possession in respect of plot No.WZ-1, measuring 16½ Biswas, Khasra No.70, Ganesh Nagar, Najafgarh Road, New Delhi which RSA 138/1996 Page 3 of 11 was let out to the appellant/defendant vide Rent Deed dated 12.10.1974 on a monthly rent of Rs.300/- per month. It was stated that the tenancy of the appellant/defendant commenced from 01.10.1974 although the rent deed was executed on 12.10.1974. The appellant/defendant was the sole proprietor of the defendant No.2 and it was alleged that he was not paying arrears of rent therefore, respondent/defendant did not want to keep him as a tenant. After termination of tenancy by sending him a notice dated 22.05.1981 which was duly served and therefore he chose to file the suit for ejectment.
8. The appellant/defendant filed his written statement and took the plea that the respondent/plaintiff had no locus standi to file the suit as he was neither the owner nor the landlord. It was alleged that the DDA and the Union of India had acquired the property by virtue of a Notification issued under Section 4 and 6 of the Land Acquisition Act and they were necessary party to the suit. The termination of the tenancy was also denied. It was also denied that the civil court had the jurisdiction to decide the matter. It was also denied that the appellant/defendant was in arrears of rent.
RSA 138/1996 Page 4 of 11
9. On the pleadings of the parties the following issues were framed:-
"1. Whether the suit premises have been acquired by the DDA/UOI and they are necessary parties to the suit?
2. Whether the plaintiff is owner/landlord of the suit premises? OPD.
3. Whether the tenancy of the defendant has been terminated by valid notice? OPD.
4. Whether the suit is barred under Section 50 of the DRC Act? OPD.
5. Whether the defendant has executed rent deed dated 12.10.74 in favour of the plaintiff, If so, its effect? OPD.
6. Whether the suit is not properly valued for purposes of court fee and jurisdiction? OPD.
7. Whether the plaintiff is entitled to decree of possession and rent/damages as claimed in the suit? OPD.
8. Relief."
10. The respondent/plaintiff in support of his case examined two witnesses, namely, PW-1 Shri Prakash Chand, i.e. respondent and PW-2 Bal Kishan. While as the appellant/defendant in support of his case examined DW-2 Smt. Urmila Nagpal and DW-3 R.K. Rametra after which his evidence was closed vide order dated 14.10.1993.
RSA 138/1996 Page 5 of 11
11. The learned trial Court passed a decree of possession after hearing the arguments on 21.02.1994 which was assailed by the appellant/defendant in RCA No.36/1994. The learned Appellate Court upheld the judgment and decree passed by the trial Court and hence the present appeal between the parties.
12. I have heard Mr. K. Sunil, the learned counsel for the appellant/defendant on the question of law formulated by this Court. I have also heard Mr. R.K. Trakru, the learned counsel for the respondent/plaintiff.
13. The contention of the learned counsel for the appellant has been that the 'premises' in question which was let out to him were not a vacant land but a premises. For the purpose of establishing this factum of the tenanted portion not being a vacant land but a 'premises', the learned counsel for the appellant has referred to following sentences from the cross-examination of PW-1 and PW- 2 to contend that the portion which was let out to the appellant/defendant was not a vacant land.
"... the property in question was having temporary wooden pharras at the time of letting out. The property is being assessed to house tax by the corporation.RSA 138/1996 Page 6 of 11
It is correct that the plot in question comes within the revenue estate of Nangle Jaleb. As there was no construction at property in question so I have not shown the same in Ex.P2. Vol. it was simple a boundary wall. Since it was temporary construction as such it is not shown in site plan........."
14. A perusal of the aforesaid sentences was sought to be interpreted that PW-1 namely, the respondent/plaintiff himself has admitted that at the time when the tenancy was created there were certain wooden planks and therefore, if there was a structure created by wooden planks than the vacant land in question which is stated to be let out to the appellant/defendant by virtue of which it ceased to be a vacant land. It has also been contended by Mr. Sunil, the learned counsel for the appellant/defendant that the rent agreement which is sought to be relied upon has not been proved in accordance with law as it was not validly exhibited and no exhibit has been put on the same and therefore, it cannot be read in evidence.
15. It was also contended that the original of said Rent Deed was not produced which was reflected from the testimony of PW-2 Bal Kishan.
RSA 138/1996 Page 7 of 11
16. Thirdly, it has been contended by Mr. Sunil that for the purpose of relying upon the premises being a vacant land, the learned trial Court has mis-interpreted the evidence which has been adduced and thus arrived at a perverse finding. He has also submitted that during the tenancy period, there was fire at the premises in question because of which wooden structures were gulled and they were re- erected by the appellant which were not objected to by the respondent which shows that it was premises merely because the respondent did not object to the re-erection of earlier temporary structures, does not mean that the vacant land which was let out has became premises. Therefore, this argument does not have any merit.
17. I have carefully considered the submissions made by the learned counsel of the appellant. However, I find myself unable to agree to any of the submissions made by him. So far as the cross- examination wherein the respondent/plaintiff in his testimony has admitted that there were certain wooden planks and a boundary wall was erected does not show that there was any construction temporary or permanent which was in existence at the premises in RSA 138/1996 Page 8 of 11 question which could make a vacant land as a 'premises'. Merely because wooden planks are mentioned by the witness does not mean that there was some structure which was erected. On the contrary, it is stated that wooden planks which were stated to be lying could have been lying on the vacant land itself and merely because the witness has stated that that the wooden planks were lying on the ground floor it does not change the nature of the land. Therefore, I do not attach any weight to this contention of the learned counsel for the appellant that presence of wooden planks at the land goes to show that there was some structure casting at the land in question which would make it premises and thus it will be covered by the Rent Act barring the jurisdiction of Civil Court.
18. The factum of the property having been let out to the appellant/defendant as being vacant land further gets corroborated by the fact that there is a Rent Deed executed by the respondent/plaintiff in favour of the appellant/defendant wherein he admits that he is taking the vacant land and the said Rent Deed does not talk about existence of any construction on the land in the contents. That being the position, the factum of land having been RSA 138/1996 Page 9 of 11 let out even though the Rent Deed may not be exhibited formally does not digress from the Court placing reliance on the same. I, therefore, feel that this submission of the learned counsel for the appellant untenable in law.
19. Further, there is a concurrent finding of the fact returned by the two Courts below that what was let out to the appellant/defendant was only a vacant parcel of land. Merely because this Court, being a Superior Court may arrive at a different conclusion on the basis of the evidence, would not be a ground to set aside the concurrent finding of the fact returned by the two Courts below if it was one of the highly and probable possibility and substitute its own finding. I feel that the contention of the learned counsel for the appellant/defendant is totally misconceived. There is no merit in the Regular Second Appeal and the submission that the suit in the instant case was barred by Section 50 of the DRC Act. In my considered opinion, as the property which was let out to the appellant/defendant was a vacant parcel of land, therefore, the provision of the Rent Act were not at all applicable and the RSA 138/1996 Page 10 of 11 respondent was well in its right to file a suit for ejectment and possession.
20. For the aforesaid reasons, I feel that the answer to the question which has been formulated by my learned predecessor as to whether the jurisdiction of the Civil Court is barred under Section 50 of the DRC Act gets answered in negative and since answer to the question is in negative, therefore, the appeal is liable to be dismissed. It is accordingly dismissed.
21. Pending applications also stands disposed of.
V.K. SHALI, J.
MARCH 04, 2016 vk RSA 138/1996 Page 11 of 11