Delhi District Court
Lav Kumar Agrawal vs . Sunita Chhabra on 30 November, 2019
RCA No.69/2011 (61020/16)
Lav Kumar Agrawal Vs. Sunita Chhabra
IN THE COURT OF VIKAS DHULL: ADDITIONAL DISTRICT
JUDGE01, TIS HAZARI COURTS (WEST), DELHI
RCA No. 69/2011 ( 61020/16)
(Suit No.465/2007)
In the matter of :
Lav Kumar Agrawal
S/o Sh.Santosh Kumar Agrawal
6C, D.D.A.Flats, Boulevard Road
Delhi110054. ... Appellant
Versus
Sunita Chhabra
W/o Sh.Rajender Chhabra
14/31B, Tilak Nagar
New Delhi110018. ... Respondent
Date of institution of appeal : 24.12.2011
Date on which judgment reserved :19.11.2019
Date on which judgment pronounced : 30.11.2019
ORDER
1. Vide the present appeal, appellant has challenged the judgment dated 25.11.2011 (hereinafter referred to as the impugned judgment) of the Ld.Trial Court vide which suit of plaintiff/respondent was decreed and Page: 1/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra defendant/appellant was directed to handover the vacant and peaceful possession of the property i.e. Flat No. 6C, DDA Flats, IInd Floor, Boulevard Road, Tis Hazari, Delhi110054 with further direction to pay arrears of rent and damages.
2. The brief facts which are relevant for deciding the present appeal are that respondent/plaintiff had filed a suit for recovery of possession, arrears of rent, mesne profit and in the said suit, it was averred by respondent/plaintiff that she is the owner / landlord of flat bearing No. 6C,DDA Flats, Iind Floor, Boulevard Road, Tis Hazari, Delhi 110054 (hereinafter referred to as suit property).
3. It was further averred that appellant/defendant is a tenant at a monthly rent of Rs.3,600/per month w.e.f. 01.01.2006.
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4. The tenancy of the appellant/defendant was terminated vide notice dated 23.07.2007 and accordingly, the present suit was filed for recovery of possession and arrears of rent and mesne profits.
5. The appellant/defendant did not file his written statement and further, his defence was struck off vide order dated 30.08.2010.
6. Thereafter, respondent/plaintiff had examined herself as PW1. Appellant/defendant did not cross examine respondent/plaintiff and even no evidence was lead on record by appellant/defendant as his defence was struck off.
7. Thereafter, the Ld.Trial Court, after hearing final arguments had vide impugned judgment dated 25.11.2011, decreed the suit of respondent/plaintiff and directed the Page: 3/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra appellant/defendant to handover the vacant physical possession of suit property to respondent/plaintiff and further ordered for arrears of rent of Rs.63,300/ and damages @ 3,600/ per month from 01.09.2007 till the possession of the suit property is handed over to respondent/plaintiff.
8. Aggrieved by the aforesaid judgment, appellant/defendant has preferred the present appeal.
9. Notice of the appeal was issued to respondent, who had filed a reply.
10. During the pendency of the appeal, appellant/defendant had filed an application under Order 1 Rule 10 CPC for impleadment of Delhi Urban Shelter Improvement Board as respondent no.2, on the ground that suit property Page: 4/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra lies in the Slum notified area and owner of the same is Delhi Urban Shelter Improvement Board and respondent is a trespasser in the suit property.
11. The said application of the appellant/defendant was dismissed vide order dated 05.12.2014. Thereafter, appellant/defendant had filed an application for review of aforementioned order and the application for review was dismissed by this court on 02.08.2019.
12. Thereafter, appellant/defendant had filed three applications during the pendency of this appeal which were dismissed on 31.10.2019.
13. Thereafter, appellant/defendant has challenged the order dated 31.10.2019 before the Hon'ble High Court of Delhi by filing CM (M) No. Page: 5/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra 1598/2018. The said petition was disposed of by the Hon'ble High Court of Delhi vide order dated 07.11.2019 whereby it was directed to this court by the Hon'ble High Court of Delhi to conduct a brief hearing, capture the points for determination and thereafter, hear the arguments on appeal.
14. Pursuant to directions of the Hon'ble High Court of Delhi vide order dated 07.11.2019, I have heard appellant in person and Sh.Sudhanshu M.Kumar, Ld.counsel for respondent, in brief, on appeal. After hearing both the parties, following points arise in the appeal for determination:
1. Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside in the light of Section 19 of the Slum Areas ( Improvement and Clearance) Act, Page: 6/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra 1956 and in the light of order dated 05.04.2011 of the Appellate Court passed in MCA No. 14/10?
2. Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside in the light of Section 50 of the Delhi Rent Control Act, 1958 as rate of rent was less than Rs.3,500/per month as respondent was not entitled to claim Rs.100/ towards water charges?
3. Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as Ld.Trial Court has not decided the issue of jurisdiction raised by the appellant vide his application dated 27.02.2008?
4. Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as appellant has not been given an opportunity of being heard prior to the passing of the impugned judgment and decree?
5. Whether the impugned judgment and decree passed by the Ld.Trial Court Page: 7/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra is required to be set aside as decree has been prepared in violation of order 20 Rule 6A CPC?
6. Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as appellant concealed the material facts regarding the property being covered under the Slum Areas (Improvement and Clearance) Act, 1956
15. I have also heard parties on the aforementioned points for determination.
16. It was submitted by appellant that the impugned judgment is required to be set aside as the suit property in question is situated in Slum area and no prior permission of the competent authority has been taken under Section 19(1)(A) of the Slum Areas ( Improvement and Clearance) Act, 1956 (hereinafter referred to as Slum Act) for filing a suit for eviction.
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17. It was further submitted that in the appeal filed by plaintiff/appellant (herein respondent) against dismissal of her application under Order XXXIX Rule 10 CPC, Ld.Appellate Court of Ms.Hemani Malhotra, Ld.ADJ (as she then was), had dismissed the appeal vide order dated 05.04.2011 on the ground of suit property falling in slum notified area. Accordingly, it was submitted that since prior permission to institute a suit for eviction was not taken under Section 19(1)(A) of the Slum Act, therefore, the impugned judgment is required to be set aside. In support of his contention, appellant/defendant has relied upon the Notification SRO 1252 dated 10.04.1957.
18. It was further submitted that the suit filed by plaintiff/respondent was also barred by Section 50 of the Delhi Rent Control Act, 1958 Page: 9/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra (hereinafter referred to as DRC Act) as rent of the suit property was Rs.3,500/per month.
19. It was submitted that respondent/plaintiff had averred in her suit and had deposed in her evidence that rent of the suit property was Rs.3,600/per month and this included Rs.100/ towards water charges.
20. It was further submitted that appellant/defendant had obtained information under the RTI from Delhi Jal Board and in the said reply, Delhi Jal Board had informed the appellant/defendant that there was no lawful water connection at the suit property and the said document was also taken on record by Ld.Trial Court vide order dated 22.10.2011.
21. It was further submitted that in the appeal, respondent/plaintiff has not disputed the reply of Page: 10/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra Delhi Jal Board regarding there being no lawful water connection at the suit property. Therefore, respondent/plaintiff could not have claimed Rs.100/ towards water charges from appellant/defendant and therefore, the rent was Rs.3,500/per month of the suit property and hence, provisions of DRC Act were attracted and the present suit filed for eviction was not maintainable in the light of bar contained in Section 50 of the DRC Act.
22. It was further submitted that the impugned judgment and decree of the Ld.Trial Court is also required to be set aside as Ld.Trial Court had not decided the issue of jurisdiction raised by the appellant/defendant vide his application dated 27.02.2008.
23. It was submitted that the appellant/defendant had filed an application Page: 11/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra dated 27.02.2008 under Order VII Rule 11 CPC questioning the jurisdiction of the Ld.Trial Court in the light of there being no prior permission obtained by respondent/plaintiff under Section 19 (1)(A) of the Slum Act. However, the said application was never disposed of by the Ld.Trial Court and, therefore, the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as jurisdiction of the Ld.Trial Court was barred in the light of Section 19(1)(A) of the Slum Act.
24. It was further submitted that the impugned judgment and decree of the Ld.Trial Court is also required to be set aside as appellant/defendant was never afforded an opportunity of being heard, at the stage of final arguments.
25. It was submitted that appellant/defendant had the right to be heard at the stage of final Page: 12/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra arguments but record reflects that no opportunity was granted to appellant/defendant to lead final arguments.
26. It was further submitted that the impugned judgment and decree of the Ld.Trial Court is also required to be set aside as decree has been prepared in violation of Order XX Rule 6A Code of Civil Procedure, 1908 (hereinafter referred to as CPC).
27. Lastly, it was submitted that the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as the same has been obtained by respondent/plaintiff by concealing the material facts regarding property being covered under the Slum Act. Accordingly, a prayer was made to set aside the impugned judgment and decree passed by the Ld.Trial Court and allow the appeal.
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28. On the other hand, Ld.counsel for respondent/plaintiff submitted that in the present case, it is an admitted case of appellant/defendant that he was the tenant of respondent/plaintiff and there is no defence of appellant/defendant in the present case as he had failed to file his written statement on record and even his defence was struck off.
29. It was further submitted that the evidence lead on record by respondent/plaintiff has gone unrebutted and uncontroverted as appellant chose not to cross examine respondent/plaintiff despite grant of opportunity. Therefore, whatever respondent/plaintiff had deposed was deemed to have been admitted by appellant/defendant.
30. It was further submitted that although the suit property falls in the slum notified area but Page: 14/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra the issue of jurisdiction before the Ld.Trial Court was decided by the Ld.Trial Court in favour of respondent/plaintiff and appellant/defendant did not challenge the order of the Ld.Trial Court before any higher court.
31. It was admitted by respondent's/plaintiff's counsel that as per reply given by Delhi Jal Board, under the Right to Information Act, there exits no lawful water connection in the suit property. However, it was submitted that the rent of suit property was Rs.3,600/per month which stood proved on record by unrebutted testimony of PW1. Therefore, there was no question of application of provisions of DRC Act and the suit filed by respondent/plaintiff was very much maintainable.
32. It was further submitted that appellant/defendant was granted ample Page: 15/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra opportunities to lead final arguments vide orders dated 21.11.2011 and 25.11.2011 but it was the appellant/defendant, who did not avail the opportunity. Therefore, the contention of appellant/defendant that he was not afforded an opportunity of being heard, is contrary to record and on this ground, judgment and decree cannot be set aside.
33. It was further submitted that there is no illegality in preparation of decree and whatever material facts were required to be disclosed in the plaint for the purpose of suit for recovery of possession, arrears of rent, damages/mesne profits was duly disclosed by respondent/plaintiff and no material facts were concealed.
34. It was concluded by saying that none of the grounds raised in the present appeal call for any interference in the impugned judgment and Page: 16/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra decree of the Ld.Trial Court. Accordingly, a prayer was made to dismiss the appeal.
35. I have considered the rival submissions of respective parties. I have also summoned the trial court record and have carefully perused the same.
36. Now, I shall take up the various points for determination for decision.
37. (1). Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside in the light of Section 19 of the Slum Areas ( Improvement and Clearance) Act, 1956 and in the light of order dated 05.04.2011 of the Appellate Court passed in MCA No. 14/10?
The contention of appellant/defendant that impugned judgment and decree is required to be set aside as suit filed by respondent/plaintiff seeking eviction of appellant/defendant was barred under Section 19(1)(A) of the Slum Act as no prior permission was sought from the Page: 17/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra competent authority before filing the suit, deserves to be rejected.
38. The protection given under Section 19(1)(A) of the Slum Act to appellant/defendant as a tenant is available to appellant/defendant in his personal capacity and the same can be waived by him.
39. If the protection available under Section 19(1)(A) of the Slum Act is waived by appellant/defendant as a tenant, then he is estopped from taking such a plea at the appellate stage.
40. There is nothing to suggest that the suit filed by respondent/plaintiff is barred by any law. Therefore, appellant/defendant is estopped from raising plea of maintainability of the suit at the appellate stage.
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41. I am fortified in my reasoning by the judgment of the Hon'ble High Court of Delhi reported as Shri Chiraguddin Vs. Smt. Urmila Rani & Ors. decided on 11.09.2014 in CM (M) No. 653/2012.
42. The issue before the Hon'ble High Court of Delhi was whether a right created under Section 19 of the Slum Act can be waived and is deemed to have been waived by a tenant, in facts of the case.
43. The facts of the case before the Hon'ble High Court of Delhi was that in a petition filed for eviction of tenant under Section 14(1)(a) of the DRC Act, on the ground of nonpayment of rent, tenant had not taken any defence of suit property being in slum notified area, in the written statement. After the eviction order was passed by Page: 19/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra the Additional Rent Controller, the same was challenged in an appeal before the Rent Control Tribunal, which had dismissed the appeal of tenant. Hence, the tenant had approached the Hon'ble High Court of Delhi by filing aforementioned CM(M) Petition.
44. The Hon'ble High Court of Delhi relied upon paras 11 to 14 of the judgment of the Hon'ble Supreme Court of India delivered in Martin and Harris Ltd. Vs. VIth Additional District Judge and Ors., AIR 1998 SC 492 wherein it was held as follows: "11. So far as this point is concerned it must be held on the clear language of the first proviso to Section 21(1) of the Act that application for possession Under Section 21(1)(a) had to be filed by the landlord concerned not earlier than expiry of six months from the date of issuance of the notice by the landlord. On the facts of the present case it cannot be disputed that when the notice was Page: 20/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra issued on 20.09.1985 the application for possession could not have been filed by the respondent invoking the grounds mentioned in Clause (a) of Section 21(1) of the Act, at least till 20.03.1986, while the application was filed in January 1986. To that extent it can be said that the application was premature. The provision in this connection has to be treated to be mandatory.
12. However the further question survives for consideration, namely, whether the beneficial provision enacted by the Legislature in this connection for the protection of the tenant could be and in fact was waived by the tenant. So far as this question is concerned on the facts of the present case the answer must be in the affirmative. As we have noted earlier after the suit was filed the appellant filed its written statement on 17.09.1986. In the said written statement the appellant, amongst others, did take up the contention that the application as filed by the respondentlandlord Under Section 21(1)(a) was not maintainable and was premature as six months' period had not expired since the service of notice dated Page: 21/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra 20.09.1985 when the suit was filed. But curiously enough thereafter the said contention raised by the appellant in written statement was given a goby for reasons best known to the appellant. It is easy to visualise that if at that stage the appellant had pressed for rejection of the application on the ground of Section 21(1)(a) as not showing completed cause of action due to non expiry of six months from the date of service of notice invoking Order VII Rule 11(a) and (d), CPC, alleging that the plaint did not disclose a cause of action or it appeared to be barred by law, respondentplaintiff could have withdrawn the suit on that ground under Order XXIII Rule 1 Subrule (3), CPC as the suit based on grounds Under Section 21(1)(a) of the Act would have been shown to have suffered from a formal defect and he would have been entitled to claim liberty to file a fresh suit on the same cause of action after the expiry of six months' period from the date of service of notice. That opportunity was lost to the respondent landlord as the appellant did not pursue this contention any further. On the Page: 22/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra contrary appellant joined issues on merits by seeking permission to cross examine the plaintiff on merits of the case on grounds as pleaded Under Section 21(1)(a) of the Act. When the decree was passed against the appellant, even while challenging the said decree in appeal no such ground was taken in the Memo of Appeal, nor was it argued before the First Appellate Court. Under these circumstances, the High Court rightly held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned senior counsel, Shri Rao, for the appellant invited our attention to a decision of this Court in the case of Badri Prasad and Others v. Seth Nagarmal (1959) Supp (1) SCR 769:
(AIR 1959 SC 559). In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 Subsection (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during arguments in Page: 23/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmal Nargoremuil v. Triton Insurance Company Ltd., (1925) LR 52 Ind App 126: (AIR 1925 PC 83), extracted with approval the observations of Lord Sumner at page 128 of the Report of the Privy Council judgment to the following effect : "The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset : Nixon v. Albion Marine Insurance Co. [1867] L.R. 2 Ex. 338. The enactment is prohibitory.
It is not confined to affording a party a protection, of which he may avail Page: 24/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra himself or not as he pleases." The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a Court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the Statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months' period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned Page: 25/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. Result was that the respondentlandlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondentplaintiff had proved his case on merits.
13. It is not possible to agree with the contention of the learned senior counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on the ground of bona fide requirement as envisaged by Section 21(1)(a) of the Act, still the protection available to such tenants as found in the proviso would give the tenants concerned a locus penitential to Page: 26/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra avail of it or not. It is easy to visualise that proceedings Under Section 21(1)(a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the prescribed authority. The ground raised by the landlord Under Section 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J&K., (1994) 4 SCC 422, wherein Hansaria, J., speaking for a Bench of two learned Judges has Page: 27/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceeded against by the person giving the notice, in paragraph 16 and 17 of the Report as under :
"As to when violation of a mandatory provision makes an order a nullity has been the subjectmatter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar v. Government of the province of Madras AIR (1947) PC 197 in which while accepting that Section 80 of the CPC is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council, 54 Ind. App 338: (AIR 1927 PC 176) it was held that even if a notice Under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as Page: 28/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by the section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve "an important purpose", in which case there would not be waiver (see paragraph 14).
This point had come up for examination by this Court in Dhirendra Nath Gorai v. Shudhir Chandra Ghosh, AIR 1964 SC 1300: (1964) 6 SCR 1001 and a question was posed in paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania, ILR 35 Cal. 61 at page 72 and some other decisions of the Calcutta High Court along with one of the patna High Court and it was held that if a judgmentdebtor, despite having received notice of proclamation of sale, Page: 29/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra did not object to the noncompliance of sale, did not object to the non compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest."
Consequently it must be held that the provision for six months' notice before initiation of proceedings Under Section 21(1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it, consciously and being alive to the clear factual situation that the suit was filed on that ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground Page: 30/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit' being premature having been filed before the expiry of six months from the date of the suit notice.
14. Apart from waiver the appellant was estopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost an opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit as seen earlier. The second point for consideration is, therefore, answered in the negative, in favour of the respondentlandlord and against the appellant." (emphasis is mine)
45. After relying upon the judgment of the Page: 31/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra Hon'ble Supreme Court of India delivered in Martin and Harris Ltd.'s case (supra), the Hon'ble High Court of Delhi in Shri Chiraguddin's case ( supra) has held as follows: "9. In my opinion, learned counsel for the respondents/landlords is justified in placing reliance upon the ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd.
(supra) and which clearly holds that if the provision of a statute gives certain right to a tenant, such a right is available to a tenant and can be waived by him. In my opinion, the right given as per Section 19 of the Slum Act is a right available with the petitioner/tenant in his personal capacity, and once no such objection was taken before the Additional Rent Controller who decided the main case under Section 14(1)(a) of the Act, such a right has clearly been Page: 32/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra waived by the petitioner/tenant. The impugned judgment of the Rent Control Tribunal has effectively held the same vide para 13 of the same, and to which reasoning the ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra) is to be added.
10. I may note that if the argument which is urged on behalf of the petitioner with respect to non maintainability of the petition under Section14(1)(a) of the Act is accepted on the ground that there was no jurisdiction of the Additional Rent Controller to pass the judgment decreeing the petition under Section 14(1)(a) of the Act, the same would create a very peculiar position because it is perfectly possible that an eviction petition may be decreed right till the Supreme Court and thereafter in execution proceedings an objection would be taken with respect to the fact that the eviction petition itself Page: 33/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra was not maintainable in view of the fact that the premises are situated in a slum area and permission of the slum authority was not taken under Section 19 of the Slum Act. To accept such an argument would mean grave harassment of the landlady and allowing a tenant to plead the rights which were waived by him i.e the tenant will be allowed to plead nonexistence of jurisdiction although such an issue is an issue of a right which can be waived, and was in fact waived by not raising the same. After many years of litigation in which the landlady is successful in obtaining an eviction order, to argue that the entire proceedings for eviction must fail cannot be accepted. I cannot subscribe to such a view in view of the categorical ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra). In para 14 of the judgment in the case of Martin and Harris Ltd.
Page: 34/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra (supra) Supreme Court has applied the principle of estoppel in a case having facts such as the present because if objection under Section 19 of the Slum Act was taken in the written statement, the landlordswould have simply withdrawn the petition at that stage and sought permission under Section 19 of the Slum Act. Thus landlords having changed their position to their detriment by pursuing the eviction petition for a longer period of time (at least eight years), petitioner is estopped from raising the issue of maintainability only before the first appellate court.
11. It is an extremely important aspect to note that slum area is now only a mere nomenclature because really there are no slums and there is no slum area except that an area in the old Delhi, popularly known as walled city of Delhi, has been categorized as a slum area under the Slum Act although in fact and Page: 35/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra reality the entire walled city of Delhi/old Delhi is a totally built up area and therein exist some of the most valuable immovable properties; both commercial and residential; in Delhi. Actually Slum Act was passed in the year 1956 as per the situation then prevailing but today in the year 2014 really there are no slums but only huge costly buildings, both commercial and residential, though technically they continue to be labeled as a slum area .
12. In view of the above, I do not find any merit in the petition and the same is therefore dismissed, leaving the parties to bear their own costs."
46. In the present case also, the facts have come on record to show that appellant/defendant had waived his right of protection provided by Section 19(1)(A) of the Slum Act regarding taking of prior permission of the competent authority Page: 36/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra before filing the suit for eviction. Therefore, the facts of the present case are squarely covered by the judgment of the Hon'ble Supreme Court of India delivered in Martin and Harris Ltd.'s case (supra) and judgment of the Hon'ble High Court of Delhi delivered in Shri Chiraguddin's case (supra).
47. The facts which show that appellant/defendant had waived his right are that apart from taking objection regarding Section 19(1)(A) of the Slum Act in application under Order VII Rule 11 CPC, appellant/defendant had not pursued his objection any further after the dismissal of his application under Order VII Rule 11 CPC on 03.08.2009. If appellant/defendant had pursued his objections regarding protection available under Section 19(1)(A) of the Slum Act diligently and seriously by challenging the order dated 03.08.2009 before the Hon'ble High Court Page: 37/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra of Delhi or by seeking review of order dated 03.08.2009 in the light of order of the appellate court dated 05.04.2011 of Ms.Himani Malhotra, Ld.ADJ (as she then was) passed in MCA No. 14/10 whereby appeal of appellant/plaintiff (respondent herein) was dismissed on the ground of suit property being prima facie falling in slum notified area, then it is quite possible that respondent/plaintiff might have withdrawn the suit with permission to file a fresh suit after taking permission of the competent authority under the Slum Act.
48. Further, in the present case, defence of appellant/defendant was struck off vide order dated 30.08.2010 in the light of appellant/defendant not filing the Written statement within the prescribed period and appellant/defendant had not challenged the said order before any Higher Court. Therefore, there Page: 38/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra is no objection of appellant/defendant on record in the written statement regarding Section 19(1) (A) of the Slum Act.
49. Further, appellant/defendant also did not cross examine respondent/plaintiff despite grant of opportunity and even no final arguments were lead in the present case. Therefore, the aforementioned conduct of appellant/defendant shows that he had waived his right with regard to protection under Section 19 of the Slum Act.
50. Therefore, accepting this plea at the appellate stage, after contesting the suit and the appeal for around 12 years by respondent/plaintiff will cause serious and grave harassment to respondent/plaintiff by allowing appellant to plead the right of protection which was waived by him. Therefore, appellant/defendant is estopped from raising the Page: 39/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra issue of maintainability before the appellate court.
51. Secondly, the purpose of the Slum Act is to protect the occupiers of properties in slum areas irrespective of the fact that whether they were tenants or not and relevant would it be to highlight that the Slum Act only defines an occupier and does not define a tenant. The object of the Slum Act is to protect the occupiers from eviction unless permission is obtained from the competent authority and relevant would it be to highlight that as per Section 19 of the Slum Act, while granting or declining permission the relevant criteria is the means of the occupier. If the occupier has no means to relocate himself, permission for ejectment has not to be granted inasmuch as it would be presumed that upon ejectment the occupier would create a further slum.
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52. It is well settled that protection under Section 19 of the Slum Act would be available to a person, whether he is a tenant or an occupier, who is poor and is unable to arrange for alternative accommodation.
53. Admittedly, in the present case, appellant/defendant is a lawyer by profession, who is practicing in Delhi Courts for a reasonable time.
54. Since appellant/defendant is a professionally qualified person and is a practicing advocate in Delhi, therefore, it cannot be said that appellant/defendant falls in the category of a "poor person" and if evicted from the suit property, he will create further slum and will not be able to arrange for an alternative accommodation.
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55. The object of Slum Act could not have been to protect such occupiers of the tenanted property, who were not poor and on the contrary, were professionally qualified person. In this context, reliance is placed upon the observation made by the Hon'ble Delhi High Court in the matter of Virender Singh vs State Bank Of India decided on 12 December, 2011 in RFA(OS) 79/2011.
56. In the light of aforesaid discussion, this contention of appellant/defendant has got no force. The same is accordingly, rejected.
57. (2) Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside in the light of Section 50 of the Delhi Rent Control Act, 1958 as rate of rent was less than Rs.3,500/per month as respondent was not entitled to claim Rs.100/ towards water charges?
The contention of appellant/defendant that Page: 42/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra impugned judgment and decree is required to be set aside as respondent/plaintiff has claimed Rs.100/ towards water charges but there is no lawful water connection at the suit property in question, deserves to be rejected.
58. The reason for the same is that firstly, in the present case, there is no defence on record of appellant/defendant that the water connection in the suit property was unlawful.
59. Secondly, the evidence of respondent/plaintiff regarding rent being Rs.3,600/per month which includes Rs.100/ towards water charges remains uncontroverted and unchallenged, in the light of there being no cross examination of respondent/plaintiff.
60. Further, there is no defence of appellant/defendant before Ld.Trial Court that Page: 43/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra water charges which were being collected by respondent/plaintiff, only pertained to lawful water connection being sanctioned by Delhi Jal Board.
61. The respondent/plaintiff was charging Rs.100/ for water charges but nowhere it was pleaded by respondent/plaintiff that she was charging Rs.100/ on account of water being supplied through water connection of Delhi Jal Board.
62. Further, in the light of defence of appellant/defendant being struck off, there was no issue before the Ld.Trial Court as to whether water charges being claimed by respondent/plaintiff were on account of lawful water connection of Delhi Jal Board or otherwise.
63. Therefore, appellant/defendant was Page: 44/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra required to establish this fact on record before the Ld.Trial Court by leading evidence. However, no evidence was being lead on record by appellant/defendant and even he chose not to cross examine respondent/plaintiff despite grant of opportunity. Therefore, this contention of appellant has also got no force and the same is accordingly, rejected.
64. (3) Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as Ld.Trial Court has not decided the issue of jurisdiction raised by the appellant vide his application dated 27.02.2008?
The contention of appellant/defendant that issue of jurisdiction raised by appellant/defendant vide his application dated 27.02.2008 has not been decided by the Ld.Trial Court, is required to be rejected.
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65. The reason for the same is that Ld.Trial Court has decided the issue of jurisdiction raised by appellant/defendant in his application dated 27.02.2008 regarding plaint being liable to be rejected being barred under Section 19(1)(A) of the Slum Act vide order dated 03.08.2009 whereby the application of appellant/defendant was dismissed. Therefore, this contention has got no force and is accordingly, rejected.
66. (4) Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as appellant has not been given an opportunity of being heard prior to the passing of the impugned judgment and decree?
The contention of appellant/defendant that he was not granted an opportunity of being heard prior to passing of impugned judgment also deserves to be rejected as the trial court record reflects that appellant/defendant was granted Page: 46/50 RCA No.69/2011 (61020/16) Lav Kumar Agrawal Vs. Sunita Chhabra opportunity to lead final arguments twice i.e. on 21.11.2011 and again on 25.11.2011 and on both the occasions, it was appellant/defendant, who chose not to avail the opportunity by leading arguments.
67. (5) Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as decree has been prepared in violation of order 20 Rule 6A CPC?
Order XX Rule 6A CPC provides that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.
68. In the present case, judgment was pronounced on 25.11.2011 where as decree was prepared on 03.01.2012.
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69. Admittedly, there has been a delay in preparation of decree but the same is on account of nonfiling of deficient court fees by respondent/plaintiff as per judgment dated 25.11.2011.
70. Record reflects that deficient court fees was filed on record by respondent/plaintiff on 20.12.2011 and thereafter, it was ordered that application be put up with the main file but since main file was not traceable, therefore, it lead to preparation of decree on 03.01.2012. Therefore, delay in preparation of decree has occurred on account of two factors i.e. first, due to nonfiling of deficient court fees and secondly, due to mis placement of judicial record, which factors were beyond the control of court. Further, decree was drawn up expeditiously on furnishing of court fees and after tracing of record.
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71. Further, there is nothing in Order XX CPC which provides that delay in drawing of any decree shall have any adverse effect upon its validity. Therefore, even if there was any delay in preparation of decree, it will not have any effect on the validity of judgment and decree passed by the Ld.Trial Court and merely on this ground, judgment and decree cannot be set aside and this contention is accordingly, rejected.
72. (6) Whether the impugned judgment and decree passed by the Ld.Trial Court is required to be set aside as appellant concealed the material facts regarding the property being covered under the Slum Areas ( Improvement and Clearance) Act, 1956 Lastly, it was the contention of appellant/defendant that material facts were concealed by respondent/plaintiff while obtaining the impugned judgment.
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73. The said contention deserves to be rejected as there is no evidence on record to show that respondent/plaintiff had knowledge that suit property falls in slum notified area and intentionally, she had concealed the said fact in the plaint or in her evidence. Accordingly, this contention of appellant is also rejected.
74. In the light of aforesaid discussion, the appeal filed by appellant is dismissed. No order as to costs. Decree sheet be prepared accordingly.
75. Trial Court Record be sent back to the Ld.Trial Court alongwith a copy of judgment.
76. Appeal file be consigned to record room. Announced in the open court VIKAS Digitally signed by VIKAS DHULL Dated: 30.11.2019 DHULL Date: 2019.11.30 16:39:26 +0530 (Vikas Dhull) ADJ1, Tis Hazari Courts, West, Delhi Page: 50/50