Delhi High Court
Shri Subhash Chand Dass vs Shri Ram Gopal Aggarwal on 9 September, 2013
Author: V.K. Shali
Bench: V.K. Shali
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 182/2013
SHRI SUBHASH CHAND DASS ..... Appellant
Through: Mr.Puneet Verma, Advocate.
versus
SHRI RAM GOPAL AGGARWAL ..... Respondent
Through: Mr.S.N.Gupta and
Mr.S.S.Shukla, Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
ORDER
% 09.09.2013
1. This is a regular second appeal filed by the appellant against the judgment dated 20.07.2013 passed by the learned ADJ in RCA No. 5/2013 upholding the judgment and decree dated passed by the Civil Judge.
2. The learned counsel for the appellant has stated that two substantial questions of law are arising from the present appeal. The first question is that the suit filed by the respondent/plaintiff was barred by Section 50 of the Delhi Rent Control Act, 1958 as RSA 182/2013 Page 1 of 10 the rent of the premises in question was less than Rs.3,500/- and the second question being that the appellant/defendant was entitled to raise the question of title so far as the respondent/plaintiff being the owner in respect of the first floor of the premises in question, was concerned. It has been contended that both these issues required consideration and the learned trial court as well as the appellate court have grossly erred in deciding both these issues against the appellant/defendant. He has further placed reliance on two judgments i.e. Sh.Ripu Daman Haryal & Anr v. Miss Geeta Chopra & Anr.; ILR (2011) V Delhi 406 and M.L.Aggarwal vs. Oriental Bank of Commerce & Ors; 2006 (88) DRJ 214 (DB) in order to canvass the point that he can raise the question of title so far as the respondent/plaintiff is concerned.
3. Before seeing as to whether the questions which are sought to be raised by the learned counsel for the appellant as substantial questions of law, a brief background of the case is required to be given.
4. The respondent/plaintiff filed a suit for possession and mesne profits/damages against the appellant/defendant. The sum and RSA 182/2013 Page 2 of 10 substance of the case which was set up by the respondent/plaintiff was that the appellant was a tenant in respect of the ground floor and the first floor of property bearing No.49-A, Pratap Nagar, Patparganj, Delhi under the respondent/plaintiff at a monthly rent of Rs.4,300/-. The respondent/plaintiff had also given the detailed sequence of events in which the tenancy in respect of both the floors i.e. ground floor and the first floor, which was originally independent, came to be merged together in favour of the appellant at a monthly rent of Rs.4,300/- as alleged by the respondent/plaintiff.
5. The appellant took the plea that he was the tenant only in respect of the ground floor of the suit premises on a monthly rent of Rs.2,070/- while as in respect of the first floor, he was not the tenant. It was also stated that since the respondent/plaintiff was claiming the appellant to be tenant in respect of the first floor, which was being denied, therefore, the appellant was entitled to raise the question of title so far as the first floor of the property in question was concerned. As regards the ground floor, it was sought to be urged that the rent as claimed by the appellant was RSA 182/2013 Page 3 of 10 less than Rs.3,500/-, therefore, he was protected by virtue of Section 50 of the Delhi Rent Control Act, 1958.
6. On the pleadings of the parties, the following issues were framed:
"i) Whether the suit is bad for the lack of action? (OPP)
ii) Whether the suit is hit by the provisions of Rent Control Act? (OPD)
iii) Whether the suit is bad for the non-joinder of the parties? (OPD)
iv) Whether the suit is barred under the provisions of the Delhi Land Restriction & Transfer Act? (OPD)
v) Whether the plaintiff is owner/landlord of the suit premises? (OPP)
vi) Whether the tenancy of the defendant has been duly terminated by the plaintiff? (OPP)
vii) Whether the plaintiff is entitled for the possession of suit property? (OPP)
viii) Whether the plaintiff is entitled for the recovery of money if so what sum? (OPP)
ix) Whether the plaintiff is entitled for the damages, mense profit, is so at what rate and for which period? (OPP)
x) Whether the plaintiff is entitled for interest if so, at what rate and for which period? (OPP)
xi) Relief."RSA 182/2013 Page 4 of 10
7. After the parties were permitted to adduce their respective evidence, the trial court came to a definite finding holding the appellant to be the tenant under the respondent/plaintiff in respect of the ground floor as well as the first floor on a monthly rent of Rs.4,300/- apart from electricity and water charges.
8. In view of the aforesaid finding, the trial court passed a decree of ejectment in favour of the respondent/plaintiff and against the appellant/defendant. The appellant/defendant was further directed to pay damages/mesne profits at the rate of Rs.7,000/- per month from 01.01.1996 till handing over of possession of suit property to the respondent/plaintiff along with interest @ 9% per annum from the date of filing of the suit till realization.
9. The appellant, feeling aggrieved by the aforesaid judgment and decree, preferred the first appeal before the court of ADJ. The learned ADJ revisited the entire evidence as well as the pleadings of the parties and confirmed the findings returned by the trial court with regard to the applicability of the Act holding the appellant to be tenant under the respondent/plaintiff at a monthly RSA 182/2013 Page 5 of 10 rent of Rs.4,300/- as a composite tenancy in respect of the ground floor and the first floor.
10. Still not being satisfied, the appellant/defendant has preferred the present regular second appeal.
11. I have considered the submissions advanced by the learned counsel for the appellant/defendant which are stated to be substantial questions of law arising from the appeal. However, I am not impressed at all with the submissions of the learned counsel for the appellant in respect of the aforesaid two questions, both with regard to the appellant being the tenant only in respect of the ground floor at a monthly rent of Rs.2,070/- or that there was separate tenancy in respect of the first floor under the respondent/plaintiff and, therefore, the appellant/defendant was entitled to challenge the title of the respondent/plaintiff. This is on account of the fact that a concurrent finding has been returned by the two courts below, which does not suffer from any perversity. The finding of the two courts below is that the appellant is a tenant in respect of the entire ground floor and the first floor on a monthly rent of Rs.4,300/-. The learned counsel RSA 182/2013 Page 6 of 10 for the appellant has made submissions before this court so as to take this court on a voyage to determine and re-appreciate the evidence with regard to the rent being less than Rs.3,500/- and because of the rent being less than Rs.3,500, the appellant being protected under the Delhi Rent Control Act, 1958. These questions, which have been raised by the learned counsel for the appellant hereinabove, both with regard to the quantum of rent and the consequent protection under the Delhi Rent Control Act, 1958 or the factum that there are separate tenancies in respect of the ground floor and the first floor are essentially questions of fact in respect of which concurrent finding has been returned by the two courts below against the appellant. I, therefore, feel that there is no substantial question of law arising from the present appeal.
12. So far as the question of reliance by the appellant on the judgments is concerned, where it has been observed that the title of a person can be challenged on the ground that the title is not perfect, it may be said that these are essentially cases where the opposite party is claiming himself to be the owner of a property on the basis of power of attorney, Will, receipt, etc. while as in the instant case the respondent is claiming that the appellant is a RSA 182/2013 Page 7 of 10 tenant of both ground floor and the first floor for a rent of `4,300/- while as appellant is admitting that he is the tenant of only ground floor and challenging the title of the respondent of first floor. That issue does not arise in the instant case for the simple reason that there is a composite tenancy in respect of the portions of the ground floor and the first floor under the occupation of the appellant and thus the question of title cannot be raised by the appellant-tenant as the same is barred by virtue of Section 116 of the Evidence Act, 1872. The judgments which have been relied upon by the learned counsel for the appellant are also distinguishable from the facts of the case in hand on account of the fact that the judgment referred to in the case of Sh.Ripu Daman Haryal's case (supra) was essentially a case where the probate petition was involved while as in the instant case, there is no question of probate involved and what is involved is a question of eviction of the appellant.
13. In totality of the circumstances, I feel that there is no substantial question of law arising from the present appeal and the same is dismissed.
RSA 182/2013 Page 8 of 10
14. At this stage, the learned counsel for the appellant has stated that since the appellant is running a business, therefore, two months time may be given to vacate the premises in question though initially the learned counsel for the respondent had stated that he has no objection to the grant of two months time to the appellant to vacate the premises in question subject to the appellant paying a sum of Rs.30,000/- by way of damages for user and occupation of the premises in question for a period of two months, but subsequent thereto, he had agreed that the appellant may continue to pay the damages at the rate of Rs.7,000/- only, as directed by the courts below. However, he has put a rider that the appellant shall file an undertaking within a period of two days from today that he shall vacate the premises in question on or before the expiry of two months.
15. Having regard to the aforesaid submission, with respect to the question of time being granted to the appellant to vacate the premises in question, the appellant is granted time to vacate the premises in question on or before 10.11.2013. During the period of his occupation of the premises in question, the appellant shall not cause any substantial damage or changes to the property and RSA 182/2013 Page 9 of 10 he shall not create any third party interest in respect of the premises in question and after vacating the same, he shall hand over the vacant and peaceful possession of the property on or before 10.11.2013 to the respondent/decree holder. The appellant shall also clear the entire arrears of damages in terms of the orders passed by the two courts below in respect of the electricity and water charges.
16. Let an undertaking, as directed hereinabove, be filed by the appellant before the Registrar of this court within a period of two days from today.
17. List the matter before the Registrar on 16.09.2013.
18. The learned counsel for the respondent/decree holder shall not press his execution application till 10.11.2013.
19. Dasti.
V.K. SHALI, J SEPTEMBER 09, 2013/dm RSA 182/2013 Page 10 of 10