Delhi District Court
Sh. Ram Kewal vs Smt. Rajeshwari on 29 May, 2017
IN THE COURT OF ADDITIONAL DISTRICT JUDGE OF SHAHDARA DISTRICT:
AT KARKARDOOMA COURTS: DELHI.
PRESIDED OVER BY SH. RAVINDER SINGH
RCA No. 135/16 (Old no. 11/2016)
Unique I.D. No. 02402C0011632016
Sh. Ram Kewal
S/o Sh. Bashu Dev
R/o B1/300, First Floor, gali no. 10,
Harsh Vihar, Delhi110093
............... Appellant
Versus
Smt. Rajeshwari
W/o Sh. Dharampal
R/o B1/300, Gali no. 10,
Harsh Vihar, Delhi110093
............... Respondents
Date of Institution : 28012016 Order reserved on : 15052017 Order passed on : 29052017 Appeal against the judgement and decree dated 23122015 passed in Civil Suit no. 382/2012 JUDGMENT
1. Vide this judgment, I shall dispose off appeal filed by Sh. Ram Kewal RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 (defendant in suit) for setting aside the judgment and decree dated 23122015 (for short 'the impugned judgment') passed in Suit bearing no. 382/2012 titled as 'Rajeshwari V/S Ram Kewal' by Ld. ACJ/CCJ/ARC Shahdara, District, Delhi, whereby suit of Rajeswari (plaintiff in suit) was decreed for possession of the suit property as well as for damages @ Rs. 700/ p.m. with cost quantified as Rs. 15,000/.
2. For the sake of convenience, parties are referred as per their ranks before the Ld. trial court.
3. The facts as set out by the plaintiff/respondent in her suit are that she is owner /landlady of property bearing no. B1/300, Gali no. 10, Harsh Vihar, Village Mandoli (in Revenue Estate of Mandoli), Delhi93. She let out one room, common latrine bathroom at first floor of the above said property to defendant (hereinafter referred as suit property) on a monthly rent of Rs. 700/ p.m. Plaintiff alleged that she had filed a petition U/s 14(1)
(a) Delhi Rent Control Act (hereinafter referred as D.R.C.act), against defendant under the impression that the suit property is covered under the D.R.C.act, whereas the area of suit property is not notified under the D.R.C.act. Plaintiff further alleged that petition U/s 14(1)(a) DRC act was RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 upheld till Hon'ble High Court but none of the parties have raised any objection qua nonapplicability of the D.R.C.act. Plaintiff claimed that defendant has filed a petition U/s 45 of D.R.C.act and she had also filed execution petition which she would get adjourned since die till the decision of court on the point of applicability of D.R.C.act. Plaintiff further alleged that judgment passed in petition U/s 14(1)(a) D.R.C.act on 2709 2010 and all the proceedings arising out of it are null and void being passed by the court having no jurisdiction, hence, she terminated the tenancy of the defendant by giving notice dated 27112012 and directed the defendant to hand over the possession of suit property. But inspite of service of notice, defendant has not handed over the possession of suit property. Accordingly, plaintiff filed the suit for declaration declaring the judgment of Ld. ARC dated 2792010 passed in eviction petition no. E179/10 as null and void being without jurisdiction and further for recovery of possession of suit property and damages @ Rs. 1500/p.m. w.e.f. the date of filing of suit till handing over the possession of suit property as well as for permanent injunction.
4. Defendant/appellant contested the suit by filing his written statement (W.S.) stating therein that plaintiff has concealed material fact RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 to the effect that eviction petition filed by plaintiff against him was decided in his favour on 2792010 (date wrongly written as 2182010). So, he filed appeal against the same before Ld. Addl. Rent Controller Tribunal (hereinafter referred as Ld. ARCT) which was decided in his favour on 06 122010 but he did not fulfill the condition of the order of Ld. ARCT. Hence, the plaintiff filed revision before Hon'ble High Court of Delhi in which the order of Ld. ARCT was set aside vide order dated 2352011 and delay has been condoned in deposit of rent and therefore, instant suit of the plaintiff is barred by section 11 and section 12 of Civil Procedure Code. Defendant also claimed that he is a good pay master but the plaintiff is trying to evict him forcibly. Defendant also alleged that plaintiff is not the owner of the suit property as there is no registered Sale deed in her favour and the actual owner is Gaon Sabha. Further notice of termination of tenancy is not as per law, accordingly, defendant has prayed for dismissal of suit.
5. Plaintiff/respondent filed replication wherein she denied the contents of W.S. and reiterated the facts stated in the plaint.
6. Ld. Trial court on the basis of the pleadings framed following issues RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 vide order dated 26082015:
1.Whether the suit of the plaintiff is barred by section 50 of DRC Act ? (OPD)
2.Whether the suit of the plaintiff is barred by the section 11 and section 12 of CPC? (OPD)
3.Whether the plaintiff is entitled to relief of declaration as prayed for? (OPP)
4.Whether the plaintiff is entitled to relief of possession as prayed for? (OPP)
5.Whether the plaintiff is entitled to the damages as prayed for ? (OPP)
6.Whether the plaintiff is entitled to relief of permanent injunction as prayed for? (OPP)
7.Relief.
7. To substantiate her case, plaintiff/respondent examined two witnesses i.e. she herself as PW1 & Sh. Shiv Kant Sharma, Patwari from the office of SDM Seelampur as PW2.
8. PW1 deposed on affidavit Ex. PW1/1. She generally deposed on the same lines of plaint. She proved the site plan of suit property as Ex. PW1/1, judgment dated 27092010 passed by Ld. ARC as Ex. PW1/2, legal notice of termination of tenancy dated 27112012 as Ex. PW1/3, postal receipt as Ex. PW1/14 and reply to the legal notice dated 27112012 as Ex. PW1/5.
9. PW2 produced record of Khasra no. 22/4 failling in Revenue Estate of Village Mandoli Delhi as Ex. PW2/1. During cross examination he RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 admitted that record is not having the name of plaintiff. He also deposed that above khasra number is having 4 bigas and 4 biswas land.
10. Defendant/appellant examined one witness in support of his case i.e., he himself as DW1.
11. DW1 led his evidence on affidavit Ex. DW1/A. He generally deposed on the same line of W.S. DW1 during his cross examination deposed that plaintiff rented out suit property to him and at the time of creation of tenancy the rate of rent was Rs. 700/ p.m.. He admitted that he received the legal notice of plaintiff dated 271112 (Ex. PW1/3) which was replied by him vide reply dated 27112012 (Ex. PW1/5).
12. After hearing the argument of Ld. counsel for the parties, Ld. trial court held that defendant has not brought any cogent material on record in the form of any notification issued by the Government or otherwise to support the contention that suit is barred by the D.R.C.act. Further defendant made a statement on oath on 0682014 in petition no. E.No.72/11 U/s 45 of D.R.C.act that property in question (suit property) is beyond the purview of the D.R.C.act. Further, Ld. Trial Court held that no RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 finding on the issue of question of jurisdiction with respect to the applicability or nonapplicability of the D.R.C.act to the property in dispute had been given by the Ld. ARC. So in the absence of any finding to the question of jurisdiction qua property in dispute, it can not be said that finding of Ld. ARC which is a court of limited jurisdiction granting eviction in favour of the plaintiff/landlord would operate as resjudicate to the present suit filed before court of unlimited jurisdiction i.e., Civil Court. Hence, Ld. Trial Court, decided issue no. 1 & 2 against the defendant whereas it decided issue no. 3, 4 & 5 in favour of plaintiff.
13. Feeling aggrieved with the impugned judgment, appellant/defendant preferred the instant appeal.
14. I have heard the arguments of Ld. Counsel of the appellant/defendant as well as Ld. Counsel for plaintiff/respondent and perused the trial court record including the evidence led by the parties, oral and documentary. I have also gone through the impugned judgment.
15. The main contention of Ld. Counsel for defendant/appellant that RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 plaintiff/respondent in her earlier proceeding U/s 14(1)(a) D.R.C.act, claimed that the area of suit property covered under D.R.C act, so she can not be permitted to take a different inconsistent position in subsequent proceeding that area of suit property does not cover under the D.R.C.act, hence, plaintiff suit is barred by resjudicata and same is liable to be dismissed U/s 11 of CPC.
16. Ld. Counsel for the plaintiff/respondent contended that plaintiff filed eviction petition before the court of rent controller under bonafide intention that the area of suit property is covered under the DRC act, but later on she came to know that the area of suit property is not covered under the DRC Act, so the judgment passed on 2792010 by Ld. ARC in eviction petition E 179/10 is without jurisdiction and as such suit is not barred U/s 11 of CPC.
17. The fact which is not in dispute are as under:
I) Plaintiff let out suit property to defendant on a monthly rent of Rs. 700/ p.m.
ii) Plaintiff earlier initiated proceedings U/s 14 (1)(a) of the D.R.C.act against defendant .
RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18
iii) Eviction petition U/s 14(1)(a) was allowed by Ld. ARC vide order dated 2792010.
iv) Defendant filed an appeal against order dated 2792010 before Ld. ARCT but order of Ld. ARCT dated 06122010 was not complied with by defendant.
v) Plaintiff filed revision before Hon'ble High Court and Hon'ble High Court vide order dated 2352011 set aside the order of Ld. ARCT dated 06122010.
vi) Defendant is in possession of suit property.
vii) Defendant filed petition U/S 45 of the D.R.C. act on 1332009.
The said petition was dismissed as withdrawn vide order dated 068 2014 on statement of defendant that suit property is beyond the purview of D.R.C act .
18. The issue which is to be determined whether suit property is covered under the Delhi Rent Control Act or not.
19. PW1 deposed that area of suit property i.e., Village Mandoli (in revenue estate of Mandoli) is not notified under the D.R.C.act, hence the same is governed under Transfer of Property Act (TPA Act) and therefore, judgment dated 2792010 passed in eviction petition and all proceeding arises out of same being passed by the court having no jurisdiction so same are null and void.
20. Plaintiff in para no. 2 of his plaint stated as under
RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 "The petitioner let out one room and common latrine bathroom of the first floor of the abovesaid property i.e., bearing no. B1/300, Gali no. 10, Harsh Vihar, Vill. Mandoli, Delhi93 "hereinafter called the suit property" as shown in red colour in site plan of the property attached herewith as Annexure P1". In reply to the aforesaid para the defendant in his written statement stated as under:
"That the contents of para no. 2 of the suit are admitted need no explanation".
21. From the aforesaid pleading of the parties, it is clear that suit property is situated in village Mandoli (revenue estate Mandoli). Further PW2 also testified that Kh. no. 22/4 falls in revenue estate of Mandoli which is Ex. PW2/A. The defendant has not produced any material on record which shows that area where suit property is situated is notified under the D.R.C.act. It is pertinent to mention that appellant/defendant filed petition U/s 45 of D.R.C.act on 1332009, wherein he got recorded his statement on 0682014 to the effect that suit property is beyond the purview of the D.R.C.act, hence, defendant petition U/s 45 of D.R.C.act RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 qua was dismissed as withdrawn. In view of above, I am of considered opinion that Ld. Trial Court has rightly observed as under:
" That the defendant has not brought any cogent material on record in the form of any notification issued by the Govt. or otherwise to support the contention that suit is barred by Delhi Rent Control Act. The plaintiff has been crossexamined by defendant at length, but the factum of nonapplicability of Delhi Rent Control Act remain unassigned and uncontroverted. The plaintiff on the other hand through application has filed the copy of the statement of the defendant dated 0682014, given on oath in petition no. E. No. 72/11 wherein the defendant, plaintiff in that petition stated that property in question is beyond the purview of the Delhi Rent Control Act. Plaintiff has also summoned one witness i.e., PW1 Sh. Shiv Kant Sharma, who has proved that as per record Kh. No. 22/4 falls in the revenue estate of Mandoli Delhi which is Ex. PW2/A".
22. Further Ld. Trial Court also observed as under:
"Coming to the case in hand although the proceedings under section 14(1)(a) Delhi Rent Control act wherein the eviction RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 order has been passed against the defendant was previous to the present suit. Yet the question of jurisdiction with respect to the applicability or nonapplicability of the Delhi Rent Control act to the property in dispute had never been the matter directly and substantially in issue in the proceedings under section 14(1)(a) Delhi Rent Control Act initiated by the plaintiff against the defendant. No finding on the issue of the question of jurisdiction with respect to the applicability or nonapplicability of the Delhi Rent Control Act to the property in dispute had been given by Ld. ARC. In the absence of any finding on the question of jurisdiction with respect to the applicability or nonapplicability of the Delhi Rent Control Act to the property in dispute, it cannot be said that the finding of Ld. ARC which is a court of limited jurisdiction granting eviction in favour of the plaintiff landlord would operate as resjudicata to the present suit filed before court of unlimited jurisdiction i.e., Civil Court".
23. In view of aforesaid discussion, I am of considered view that Ld. Trial Court rightly reached to the conclusion that area of suit property is not covered under the D.R.C act, hence, suit is not barred by section 50 of D.R.C act.
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24. Now, it is to be seen whether plaintiff/respondent suit is barred by resjudicata U/s 11 of CPC in view of her earlier proceeding filed U/s 14 (1)
(a) of D.R.C act.
25. It is already held that suit property is not covered under the D.R.C act, so the judgment passed in earlier proceeding on 2792010 by Ld. Rent Controller is without jurisdiction. In Sushil Kumar Mehta VS Gobind Ram Bohra (dead) through his LR's (1990) 1. SCC 193, Hon'ble Supreme Court held that "In the light of this position in law the question for determination is whether the impugned decree of the Civil Court can be assailed by the appellant in execution. It is already held that it is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord. Thereby the Civil Court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. Therefore, though the decree was passed and the jurisdiction of the Court was gone into in issue Nos. 4 and 5 at the exparte trial, the decree thereunder is a nullity, and does not bind the appellant. Therefore, it does not operate as a resjudicata. The Courts below RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 have committed grave error of law in holding that the decree in the suit operated as resjudicata and the appellant cannot raise the same point once at the execution".
26. In Mathura Prasad Bajoo Jaiswal and Ors VS Dossibai N.B. Jeejeebhoy (1970) 1 SCC 613, Hon'ble Supreme Court observed that " A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicate. Similarly, by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question can not operate as res judicate between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
27. Further, in Smt. Rukmini Debi Vs Smt. Mihir Bala Sarkar, AIR 1977 Cal 161, Hon'ble High Court held that
(a) .........
(b) .........
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(c) When however, the jurisdiction of a Court or tribunal
by statute is dependent on the existence of a certain state of facts or position in law a representation by one party to the other about the existence of a certain state of facts or position in law by themselves will not confer jurisdiction on the Court or the tribunal to adjudicate upon the controversy involved.
(d) The Court or the tribunal in such circumstances will have to determine on materials before it whether it has the jurisdiction to determine the controversy and there can be no estoppal on Court or tribunal by conduct or act of parties. In course of such adjudication the parties will be required to produce evidence relevant to the question of jurisdiction whereon the Court or tribunal will decide if it has the jurisdiction to adjudicate the matters in controversy.
28. Further, in Bhawani Shanker Vs Bakshish Singh (RSA 287/2013 decided by Hon'ble High Court of Delhi on 03012014) Plaintiff/respondent filed an eviction petition against defendant/appellant which he got dismissed on ground that suit proceedings did not fall within the scope of the D.R.C act. Subsequently, plaintiff/respondent filed suit for possession in Civil Court which was dismissed by Ld. Trial Court vide RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 order dated 3132011 holding that suit property is covered in D.R.C act. Plaintiff/respondent filed appeal which was allowed vide order dated 16112013, hence, second appeal before Hon'ble High Court. Hon'ble High Court while dismissing the appeal on 0312014 held that " Even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to SubSection (2) of Section 1 of the Delhi Rent Control Act. Unless the area is so specified in the Schedule by a notification, the provisions of the Delhi Rent Control Act cannot be made applicable to that area. It is admitted that no notification has yet been issued under the proviso to Subsection (2) of Section 1 of the Delhi Rent Control act specifying Sagarpur Area within the schedule of the Act. In absence of such a notification, the provisions of Delhi Rent Control Act cannot be enforced to the area, namely, Sagarpur".
29. In view of aforesaid discussion, it is clear that order/judgment passed by a court which has no jurisdiction is nullity, hence, it does not operate as resjudicate. Accordingly, Ld. Trial court rightly decided issue no. 2 in favour of plaintiff and against defendant by reaching to the conclusion that suit of plaintiff/respondent is not barred in term of her RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18 earlier proceeding U/s 14(1)(a) D.R.C act.
30. It is admitted fact that plaintiff let out suit property to defendant. Hence, defendant has no right to challenge the title of the plaintiff qua suit property. Further defendant admitted the service of notice for termination of his tenancy Ex.PW1/3. Inspite of termination of tenancy defendant/appellant has not vacated the suit property. So under these circumstance, Ld. Trial Court rightly decided issue no. 4 qua possession of suit property in favour of plaintiff.
31. Appellant/defendant has not challenged the impugned judgment on the aspect of damages & interest.
32. In view of above aforesaid discussion, I am of considered view that Ld. Trial Court rightly decreed the suit of the plaintiff vide impugned judgment which has been passed after considering all the parameters into account. The impugned judgment is neither arbitrary nor perverse and same does not suffer any infirmity or illegality. Accordingly, appeal is dismissed.
RCA no. 135/2016 Ram Kewal Vs Rajeshwari Page no. 18 of 18
33. Considering the fact, no order as to cost. Decree sheet be prepared accordingly.
(Announced in the open court (RAVINDER SINGH)
on 29052017) Additional District Judge,
Shahdara District:
Karkardooma, Delhi.
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