Delhi District Court
Faqruddin S/O Late Kabiruddin vs Sheikh Mohd. Nabi on 29 August, 2018
BEFORE SHRI TALWANT SINGH
DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
CNR NO. DLCT010004532012
RCT No. 30252/2016
1. Faqruddin S/o Late Kabiruddin
2. Zahiruddin S/o Late Kabiruddin
3. Saghiruddin S/o Late Kabiruddin
4. Moinuddin S/o Late Kabiruddin
5. Aminuddin S/o Late Kabiruddin
6. Raisuddin S/o Late Kabiruddin
7. Hafizuddin S/o Late Kabiruddin
8. Zahira D/o Late Kabiruddin
9. Naeema D/o Late Kabiruddin
10. Raeesa D/o Late Kabiruddin
11. Hameeda D/o Late Kabiruddin
12. Fahima D/o Late Kabiruddin
13. Zahida D/o Late Kabiruddin
All through their Special Attorney
Sh. Faqruddin/Appellant No.1
All residents of:
747, Phatak Dhobian, First Floor
Farash Khana, Delhi110006 .....Appellants
Versus
1. Sheikh Mohd. Nabi
RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 1 of 12
S/o Late Sheikh Mohd. Ilyas
R/o 747, Phatak Dhobian, Ground Floor
Farash Khana, Delhi110006
2. Mohd. Din
S/o Mohd. Ismail (Deceased)
[His LRs transferred the Ground Floor
Premises of H.No. 747, Phatak Dhobian,
First Floor, Farash Khana, Delhi110006
to respondent no.1 during the trial
and left for unknown place] .....Respondents
Date of filing of Appeal : 05.11.2012
Date of reserving Order : 10.07.2018
Date of Order : 29.08.2018
ORDER ON APPEAL AS WELL AS ON APPLICATION
UNDER ORDER XLI RULE 27 R/W SECTION 151 CPC
FOR LEADING ADDITIONAL EVIDENCE
Present appeal has been filed against impugned judgment dated 29.09.2012 passed by Ld. ARC/Central whereby eviction petition under Section 14(1)(b) of the Delhi Rent Control Act, 1958 (herein after referred to as the "DRC Act") was allowed and eviction order was passed for recovery of tenanted premises.
2. Alongwith present appeal, an application under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure, 1908 (CPC) for leading additional evidence has also been filed. In the application, it is mentioned that in the impugned judgment Ld. Trial RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 2 of 12 Court has held that documents Ex. PW5/B1 and B2 leave no room for the doubt that Kabiruddin, predecessor of appellants, came into possession of one room of first floor in 1961, while there are some authentic documentary proofs to show that the family of said Kabiruddin was already in occupation of the premises in question even prior to 1952 and there are some authentic documentary proofs viz. Ration card, passports, birth certificates and school record as well as the official record from MCD wherein late Kabiruddin was employed. It is stated that these documentary proofs could not be proved before the Ld. Trial Court despite exercise of due diligence and for lack of proper guidance from the previous counsel while the said documents are sufficient authentic proofs to show the real period of occupancy of the family of the appellants in the said premises prior to 1952 to disprove the case of the respondent No.1 who has claimed the occupancy of the family of Kabiruddin in the said premises only w.e.f. the year 1961. It has been prayed that appellants be allowed to prove their documentary proofs. Copies of said documents have been filed along with list of the documents.
3. In reply to the said application, it is mentioned that appellant took more than 6 years in producing his evidence before Ld. Trial Court and many opportunities were availed by the appellant to lead his evidence and there is no relevancy of the documents as sufficient documents were already there on record which prove that RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 3 of 12 the appellant was stranger to the premises prior to 1961; application is baseless and it is also silent for not bringing said documents on record for the last 21 years; several counsels were engaged by the appellant, so there was no question of lack of proper guidance and advice; authentic documents have been already produced; even the appellants could not have gone against the Government record which itself establishes that applicants joined the premises illegally in 1961 and not prior thereto. Documents sought to be produced are not sufficient or reliable and on these grounds, it is prayed that application be dismissed.
4. I have heard Ld. Counsel for both the parties on appeal as well as application under Order XLI Rule 27 CPC and perused the record.
5. Case of the respondent No.1/landlord Sheikh Mohd Nabi before Ld. Trial Court was that entire first floor and part of the 2 nd floor of property No. 747, Phatak Dhobian, Farash Khanna, Delhi was let out to tenant Mohd. Din in 1948 but Mohd. Din unlawfully sublet or parted with possession of portion of tenanted premises comprising of one room, one kitchen and courtyard at first floor to Kabiruddin in 1961. Kabiruddin died in 1989 and thereafter his widow and his two daughters were occupying the premises. It has been further mentioned that Mohd. Din further unlawfully sublet a Barsati and courtyard to Fakruddin and Moinuddin @ Babban in 1969 and both were sons of RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 4 of 12 Kabiruddin. The tenant Mohd. Din did not defend the proceedings; other contesting respondents pleaded that they were lawful sub tenants of the premises comprising of one room, one Barsati on monthly rent of Rs.10/ since 01.04.1950 and there was no need to take written consent of the landlord in this regard as Delhi Rent Control Act was not enacted till that date. It has been further denied that the subtenancy was created in 1961 and since the landlord was residing in the same street, so landlord had implied notice of said sub tenancy.
6. The landlord examined 7 witnesses in support of his case and respondents produced 3 witnesses. PW3 Meeraj Meer testified that he was residing in the neighbourhood. As per him, Mohd. Din resided at first floor of property No. 747, Phatak Dhobiyan, Farash Khanna, Delhi as a tenant. He further deposed that in 1961, Mohd Din permitted Kabiruddin for sometime to live in one room on first floor for treatment of his ailing wife. On the other hand, RW2 Mohd. Ashraf testified that he was also living in the neighbourhood. He further deposed that father of Fakruddin, namely Sh. Kabiruddin came to House No. 747 in 1950 and now his family members are residing there. He further deposed that he visited the house of Fakruddin number of times.
7. RW3 Mohd. Usman testified that he is also living in the neighbourhood since 1947. He deposed that Mohd. Din was residing RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 5 of 12 on first floor of property No. 747 with his family since 1948 and Kabiruddin used to reside at first floor and second floor of the same property since 1950.
8. PW1 Sheikh Mohd Nabi has deposed on the lines of petition and other witnesses of the landlord were official witnesses/ Architect.
9. RW1 Fakruddin deposed on behalf of contesting respondents on the lines of written statement. RW1 further stated that they are lawful subtenants since 01.04.1950 and this fact was admitted by tenant Mohd Din in previous litigations. Copies of those litigations are placed on record as Ex.RW1/1 to Ex.RW1/3. He also stated that an intimation of subtenancy was also sent to Kabiruddin in compliance of provisions of law, so ground of subtenancy was not made out. He had also taken the ground that permission to file petition under Section 19 of the Slum Areas Act was not taken. As per RW1, extent of premises given in subtenancy is one room, one kitchen, open courtyard and common latrine on the first floor and two Barsatis on the second floor of premises No. 747, Phatak Dhobian, Farash Khanna, Delhi. No action was taken by the landlord for 40 years. Electric meters are installed in the premises in question in the name of Sh. Kabiruddin and this witness. The Delhi Rent Control Act was not in existence when subtenancy was created, so there was no question of obtaining written consent of the landlord.
RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 6 of 1210. In crossexamination, it is admitted by RW1/appellant that no rent agreement was executed when they occupied the property with Mohd Deen. Rent was being paid to Mohd. Deen during his lifetime. After death of Mohd. Din, the petitioner/landlord refused to receive the rent. No rent receipt was executed by Mohd Deen. He denied the suggestion that Mohd Din had given property to them in 1961 for a period of 2 months. It is further stated that electricity connection was installed in the name of his father as also in his name about 40 years ago. Ration card was also issued in the year 1950. He further stated that he has birth certificates of his younger brothers and sisters and he could produce the same on record. He admitted that none of the LRs of Mohd. Din were residing at the premises in dispute after his death and his portion is now with the petitioner/landlord. Further crossexamination of RW1 was deferred with directions to produce the documents for the period 19501961. Further crossexamination of RW1 took place on 08.10.2008 and on that date, copies of abovesaid records were filed on record. He admitted in his crossexamination that address is not mentioned in the copy of ration card filed by him, and it is mentioned at the place of Code number. He also admitted that area and Gali are not mentioned at the place of Code number. He denied the suggestion that he was filing ration card of some other place by misusing the Code number. He stated that his father was a Government Servant in Ayurvedic RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 7 of 12 Dispensary.
11. In the present case, letting out of premises by Sheikh Mohd. Nabi to Mohd. Din and subtenancy created in favour of Kabiruddin are not in dispute. Only question to be decided is whether disputed premises was sublet in the year 1950 or 1961/1969.
12. After appreciating the available record and statements of the parties/ witnesses examined by them, Ld. ARC reached to the conclusion that subletting was not created in the year 1950 and said subletting was created in the year 1961 and 1969. The impugned judgment also shows that judgment of the Civil Court dated 31.10.1969 Ex.RW1/1 passed in the suit filed by Mohd. Din for mandatory injunction against Kabiruddin and judgment dated 17.02.1979 Ex. RW1/3 passed in a suit for possession filed by Mohd. Din against Kabiruddin and Fakhruddin were not relied upon by Ld. ARC in view of provisions of Section 43 and Section 13 of the Evidence Act and finding of Ld. ARC in this regard is correct as judgment in a previous suit though not interse parties is admissible to a limited extent but finding given therein would not be binding on the petitioner/landlord as he was not a party to those litigations. Ld. Trial Court has rightly concluded that commencement period of sub tenancy was not an issue in those judgments and thus they were of no help to case of respondents.
13. While addressing arguments on application under Order RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 8 of 12 XLI Rule 27 CPC, Ld. Counsel for the appellants has reiterated the points raised in the application whereas it is submitted on behalf of the respondent/landlord that the family of Kabiruddin came to occupy the tenanted premises in 1961 and it has been already proved on record on the basis of government documents; so application is liable to be rejected.
14. If the subtenant is in possession of the tenanted premises prior to 09.06.1952 i.e. prior to notification of Delhi Rent Control Act, 1958, no eviction order can be passed against such subtenant. Photocopies of the documents such as passports, birth certificates have also been filed on record along with application under Order XLI Rule 27 CPC. These document, on the face of them, show that Kabiruddin had some connection with the disputed premises even prior to 1961. It is pertinent to mention here that this Tribunal is not taking any cognizance of these documents at this stage as the same have neither been filed nor proved on record. These documents are government documents and cannot be brushed aside. Accordingly, I am of the view that these documents are relevant to prove the case of subtenant that they are in possession of the tenanted premises even prior to 1952. This Tribunal needs to take a judicial view on these documents before deciding the present appeal. The moot question to be decided is whether appellants were in possession of the premises in dispute as subtenants since 1950 and these documents are essential RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 9 of 12 for this Court to reach to a final conclusion as to the date on which subtenancy was created, so this Court exercises its power under Order XLI Rule 27(1)(b) of the CPC, which is reproduced herein under:
"(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause."
15. It was held by Hon'ble Supreme Court of India in "Union of India vs. Ibrahim Uddin & Anr." (Civil appeal No. 1374 of 2008 decided on 17.07.2012) that an application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 10 of 12 adduced.
Ratio of this judgment is applicable to the facts of the case in hand.
16. Accordingly, following additional issue is framed:
"Whether appellants are in possession of the premises in question since 01.04.1950 or the subtenancy was created prior to 09.06.1952 ?"
17. The appellants should be given a chance to prove said documents by summoning original documents from respective departments. These are not the documents, which can be manufactured.
18. Accordingly, the application under Order XLI Rule 27 read with Section 151 CPC is allowed and matter is remanded back with directions to Ld. ARC to allow the present appellants to lead evidence to prove authenticity of above mentioned documents filed as Annexure A5 to A12 alongwith the application XLI Rule 27 CPC being copies of record of Passports, Ration Card and Birth Certificates. Needless to say that landlord/respondent shall also get an opportunity to lead evidence in rebuttal. Parties shall be at liberty to summon records and witnesses to prove/disprove these documents. No party shall request for unnecessary adjournments. Evidence is to be recorded by Ld. ARC within a period of six months from today, subject to cause diary of the concerned Ld. ARC. TCR be sent back alongwith copy of the order. Parties are directed to appear before Ld. RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 11 of 12 ARC on 14.09.2018. The eviction order dated 29.09.2012 shall not be executed in the meantime. Appeal file be consigned to record room.
19. The parties are at liberty to move appropriate application for its revival after evidence has been recorded as directed above.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2018.09.05
15:09:57 +0530
Announced in the open Court (TALWANT SINGH)
th
Dated: 29 August, 2018 District & Sessions Judge (HQs)
Rent Control Tribunal
Tis Hazari Courts : Delhi
RCT No. 30252/16 Faqruddin & Ors. v. Sheikh Mohd. Nabi & Anr. Page 12 of 12