Delhi District Court
Sh.Girish Son Of Sh. Balwant Singh vs Smt. Shyama Wife Of Sh. Babu Lal on 30 January, 2013
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No.100/2011
Date of Institution of Appeal : 05.05.2011
Date on which Reserved for Judgment : 29.11.2012
Date of Judgment/Order : 30.01.2013
Case I.D. Number : 02402C138272011
IN THE MATTER OF:-
1. SH.GIRISH SON OF SH. BALWANT SINGH
C/o M/s GIRISH SWEET CORNER
SHOP No.1, GALI No.2. PLOT No.2
SEWA SADAN BLOCK, MANDAWALI FAZALPUR
DELHI 110 092
2. SH.BALWANT
C/o M/s GIRISH SWEET CORNER
SHOP No.1, GALI No.2. PLOT No.2
SEWA SADAN BLOCK, MANDAWALI FAZALPUR
DELHI 110 092
.....APPELLANTS.
VERSUS
SMT. SHYAMA WIFE OF SH. BABU LAL
RESIDENT OF P-65, OLD PILANJI,
NEAR SAROJINI NAGAR
NEW DELHI
.......RESPONDENT
AND
RCA No.148/2011
Date of Institution of Appeal : 14.07.2011
Date on which Reserved for Judgment : 29.11.2012
Date of Judgment/Order : 30.01.2013
RCA 100 and 148 of 2011 1/18
Case I.D. Number : 02402C204692011
IN THE MATTER OF:-
SMT. SHYAMA WIFE OF SH. BABU LAL
RESIDENT OF P-65, OLD PILANJI,
NEAR SAROJINI NAGAR
NEW DELHI
.......APPELLANT
VERSUS
1. SH.GIRISH SON OF SH. BALWANT SINGH
2. SH.BALWANT
BOTH C/o M/s GIRISH SWEET CORNER
SHOP No.1, GALI No.2. PLOT No.2
SEWA SADAN BLOCK, MANDAWALI FAZALPUR
DELHI 110 092
.....RESPONDENTS
JUDGMENT
1. By the impugned order dated 19.3.2011, the learned Trial Court has decreed the suit of the plaintiff for possession of the property described as two shops in property No.2, Gali No.2 situated in Khasra No.744, Sewa Sadan Block, Mandawali Fazalpur, Delhi. The learned Trial Court has also granted damages at the rate of Rs.1,000/- per month from the date of filing of the suit till the date of decree and at the rate of Rs.3,000/- per month from the date of decree upto the date of handing over possession of the suit alongwith interest at the rate of 6% per annum as well as costs of the suit.
2. Two appeals have been filed against the impugned order. RCA No. 100/2011 has been filed by the original defendants and RCA 148/2011 has been filed by the original plaintiff being aggrieved of the findings of the learned Trial Court that the rate of rent of the premises was Rs.175/- per month and not Rs. 2600/-per month as claimed by the plaintiff.
RCA 100 and 148 of 2011 2/183. There is an application for condonation of delay of 11 days in filing RCA 148/2011. In the application it is stated that the earlier counsel for the appellant/plaintiff had applied for issuance of certified copy of the impugned order on 21.5.2011 and received the same on 4.6.2011. The appellant could not collect the same from his earlier counsel due to the intervening summer vacations. The appellant engaged a new counsel for filing this appeal and approached his earlier counsel for obtaining certified copy of the impugned order. The earlier counsel informed him that the certified copy was misplaced and subsequently the same was found on 13.7.2011 and thereafter the appeal was filed. No reply to this application has been filed by the respondent.
4. A perusal of the record shows that the impugned order was passed on 19.3.2011, application for issuance of certified copy was filed on 21.5.2011, the same was prepared on 1.6.2012 and the appeal was filed on 14.7.2011. No benefit of the period for preparation of the certified copy is available to the appellant since the application for issuance of certified copy was filed on 21.5.2011 which is beyond the period of 30 days (limitation for filing appeal) from the date of impugned order i.e. 19.3.2012. Even benefit of intervening summer vacation is not available to the appellant since the period of limitation had already expired prior to commencement of the summer vacation. The appeal is therefore barred by the time by about 87 days and not 11 days as claimed by the appellant. As recorded, no reply to this application has been filed by the respondents
5. In the case of Ram Nath Sao versus Gobardhan Sao reported in AIR 2002 SC 1201, the Hon'ble Supreme has been pleased to reiterate that the explanation furnished by a litigant for condonation of delay should not be rejected when arguable points of fact and law are involved in the case as the same would cause enormous loss to the party against whom lis would terminate. The Hon'ble Supreme Court referred to its earlier judgment in the case of N Balakrishnan versus N Krishnamurthy reported in AIR 1998 SC 322 in which it was held that it was to be remembered that in every case of delay, there could be some lapse on the part of the litigant but that alone is not sufficient to turn down his plea and to shut the door against him. Unless the explanation suffers from malafide or is not RCA 100 and 148 of 2011 3/18 put forward as his dilatory strategy, the Court has to show utmost consideration in such matters.
6. Keeping in view the judgment of the Hon'ble Supreme and the fact that original defendants have also filed appeal against the the impugned order, the application for condonation of delay is allowed subject to payment of cost of Rs. 5,000/- in favour of the respondent/defendant.
7. Brief facts leading to filing of the these appeals are that the plaintiff filed a suit before the learned Trial Court claiming to be absolute owner of property No.2, Gali No.2 situated in Khasra No.744, Sewa Sadan Block, Mandawali Fazalpur, Delhi measuring 200 sqyds. The plaintiff has averred that she has constructed several shops in the said properties and identified the same by numbers given by her as shop No.1 to shop No.7. It is averred that shop No.1 was let out to the defendant no.1 while shop No.2 was let out to the defendant No.2 (herein after referred to as the suit property) at the monthly rent of Rs.1200/- and Rs.1400/- respectively. The defendant No.1 is the son of the defendant No.2. It is averred that the plaintiff had issued notice to the defendant no.2 dated 9.5.2001 and in reply to the same the defendant No.2 denied the tenancy and stated that Sh.Girish - his son (defendant No.1) was the tenant in respect of both the shops. The plaintiff has averred that without getting into controversy, the plaintiff admits defendant No.1 to be tenant of both the shops at the consolidated monthly rent of Rs.2600/- per month.
8. It is averred that the said property is not subject to the provisions of Delhi Rent Control Act 1958 being exempted under the provisions of Section 3(3) of the said Act. It is averred that both the shops had been let out to the defendant no.1 at a monthly rent of Rs.2600/- without any written rent agreement. The tenancy of the defendant No.1 commences from the first day of each English calendar month and ends on the last day of the same month. It is averred that since the inception of the tenancy, the defendants had been harassing the plaintiff on petty issues. They had filed civil suits and other litigation and the defendant No.2 also filed a petition under section 45 (3) of the Delhi Rent Control Act which was dismissed RCA 100 and 148 of 2011 4/18 by the Court of the Addl.Rent Controller, Kkd.Courts, Delhi on 20.4.1998 holding that the premises were not covered under Delhi Rent Control Act on the ground that the premises were constructed only in the year 1995 and section 3(d) of the Delhi Rent Control Act excluded operation of the Act for any property constructed on or before 1988, for a period of 10 years from the date of completion. It is averred that the appeal of defendant No.1 in the court of Rent Control Tribunal was also dismissed on 28.7.1998.
9. It is averred that at the time of letting out construction in the premises was not complete and there was no electricity and water connection. The defendants committed theft of electricity for which raid was conducted by the electricity department which registered a case of electricity theft against them. It is averred that the defendants had not tendered rent with effect from 1995 at the rate of Rs. 2600/- per month. However, the plaintiff claims arrears of rent for last three years which was legally recoverable. The plaintiff has claimed that she is entitled to interest at the rate of 15% per annum on the said amount and damages at the rate of Rs.5,000/- per month with effect from 1.4.2002. The plaintiff has also claimed that she is entitled to possession of the suit property. It is averred that in these circumstances the plaintiff issued notice to the defendant no.2 in respect of shop No.2 and thereafter sent notice to defendant no.1 on 19.12.20011 under section 106 of the Transfer of Property Act terminating his tenancy. The defendant replied to the said notice vide reply dated 2.1.2002 denying any liability. It is averred that the plaintiff had earlier filed a suit for possession which had been withdrawn with permission to file the present suit. The plaintiff has therefore prayed for decree for recovery of Rs.93,600/- towards arrears of rent with effect from 1.4.1999 to 31.12.2002 at the rate of Rs.2,600/- per month; decree for possession of the suit premises; decree for future damages/occupation charges at the rate of Rs.5,000/- per month from the date of filing of the suit till the date of recovery of possession, interest at the rate of 18% per annum besides costs of the suit.
10. Upon summons of the suit being issued, defendant no.1 filed written RCA 100 and 148 of 2011 5/18 statement raising preliminary objection to the effect that the suit was not maintainable as the premises were constructed prior to the year 1988 and the provisions of Delhi Rent Control Act would apply to the said property; earlier husband of the plaintiff - Sh.Babulal son of Sh.Ram Sarup had filed a suit for eviction on account of default in payment of rent on 9.8.1996 which was dismissed in default by the Court of the Rent Controller and as such this suit was not maintainable. The rent has been deposited under section 27 of the Delhi Rent Control Act and despite objection being raised by the plaintiff order was passed by the Court of the then Addl.Rent Controller in DR 101/1996 vide order dated 20.3.1999 in which it was held that the petition was not barred under section 3(d) of the Delhi Rent Control Act and the appeal against the said order being RCA No.267/1999 was also dismissed by the Rent Control Tribunal, on 28.8.1999 holding that the ground floor was constructed prior to the year 1988; that defendant No.2 had filed a suit for permanent injunction being CS 195/1996 in which the plaintiff and her husband Babu Lal gave statement that they shall not dispossess the defendant from the suit premises without process of law; that criminal proceeding arising out of FIR 726/1995 PS Trilokpuri under section 39/44 of the Indian Electricity Act has also been decided in which it was found that although Babulal was mentioned at Srl No.10 as person indulging in theft of electricity, he was not challaned as his name appeared in the list of witnesses. The defendant No.1 further claimed that he was a tenant in the shop no.1 which was consisting of one big shop and one small shop at the monthly rent of Rs.175/- per month.
11. Separate written statement was also filed by defendant No.2 in which he has denied title of the plaintiff qua the suit property. The defendant has denied that Delhi Rent Control Act does not apply to the suit premises or that the same were let out at the monthly rent of Rs.2600/-.
12. Replication to the written statements of the defendants No.1 and 2 were fled by the plaintiff reiterating the contentions made in the plait and denied the stand taken by the defendants in their written statement.
RCA 100 and 148 of 2011 6/1813. On the pleadings of the parties, the learned Trial Court vide order dated 24.1.2004 framed the following issues :
1.Whether the plaintiff is entitled for recovery of Rs.93,600/- as arrears of rent for the last three years in respect of the suit property w.e.f. 1.4.1999 to 31.12.2002 at the rate of Rs.2600/- per month? OPP
2.Whether the plaintiff is entitled for the decree of possession as prayed for in the plaint? OPP
3.Whether the plaintiff is entitled for the damages?OPP
4.Whether the suit is barred under section 50 of the Delhi Rent Control Act?OPD
5.Relief.
14. In support of her case, the plaintiff examined her husband Babu Lal as PW-1, Sh.Chhotelal as PW-2, Sh.Indejeet Kumar as PW-4, Sh.Shyam Singh as PW-5 and Sh.Dinesh Prasad Gupta as PW-6 and one more witness Sh.Satish Kumar as PW-6 and thereafter plaintiff's evidence was closed. It may be noted that no witness has been examined as PW-3 and this fact has also been recorded by the learned Trial Court in the impugned order. On the other hand, the defendants examined Sh.Girish as DW-1 and Sh.Kamal Kishore as DW-2 and closed their evidence.
15. After considering the evidence on record, the learned Trial Court has decreed the suit of the plaintiff for possession and also granted mesne profit in favour of the plaintiff as indicated above.
SUBMISSIONS IN RCA No.100/2011
16. The original defendants are the appellants in this appeal. Learned counsel for the appellant has argued that the learned Trial Court has failed to appreciate that the suit property was constructed prior to the year 1988 and relied upon the cross examination of PW-1 in this regard. He argued that Sh.Dinesh Kumar Gupta PW-6 was occupying the first floor of the property since the year 1990. As the suit RCA 100 and 148 of 2011 7/18 premises are situated on the ground floor, it is not possible that the same were constructed after construction of the first floor. He relied upon Ex.PW-6/D-2 which is the police verification carried out in respect of the said witness showing him to be in occupation of the premises since the year 1990. Learned counsel for the appellant relied upon the order of the Addl.Rent Controller by which it was held that section 3(d) of the Delhi Rent Control Act was not applicable to the suit premises. He submitted that Sh. Babulal, husband of the plaintiff, had filed a petition under section 14(1)(a) of the Delhi Rent Control Act against the appellant and submitted that the present plaintiff can not turn around and claim that the Delhi Rent Control Act was not applicable to the suit property. He submitted that Ex.PW-1/8 was the construction agreement produced by the plaintiff by which contractor was appointed by Sh.Babulal husband of the plaintiff on 1.5.1994. In his cross examination PW-1 has stated that he had completed construction of 80 rooms on 1.3.2004 although agreement Ex.PW-1/8 was for construction of only 28 rooms. He argued that PW-5 had deposed that he had sold the suit property to the plaintiff who was paying property tax for the same since the year 1972. He replied upon the evidence of PW-6 who admitted his police verification vide document Ex.PW-6/D-2. Counsel for the appellant further argued that the judgments relied upon by the learned Trial Court in the impugned order pertain to the Uttar Pradesh Urban Buildings (Regulation of letting, Rent and Eviction) Act 1972 which is not parimateria to the provisions of section 3(d) of the Delhi Rent Control Act, 1958 and thus the said judgments were not applicable to the case at hand.
17. With regard to the findings on the claim for damages, learned counsel for the appellant submitted that since the provisions of section 3(d) of the Act did not apply to the suit premises, there was no question of termination of the tenancy and consequent entitlement of the plaintiff to damages as decreed.
18. Learned counsel for the respondent, on the other hand, argued that the period of 10 years as provided under section 3(d) of the Delhi Rent Control Act is to be reckoned from the date of completion of construction. He submitted that the RCA 100 and 148 of 2011 8/18 defendants had filed a petition under section 45(3) of the Delhi Rent Control Act for electricity supply to the premises which had been dismissed and the said order was not varied in the appeal. He submitted that findings in the said order would operate as res judicata for the purpose of these proceedings. For this, he relied upon the cross examination of DW-1 on this aspect wherein it was admitted that the appeal had been dismissed. He submitted that the suit of the plaintiff was filed in the year 2002 and since construction was completed in the year 1995 the suit was within 10 years of the same and therefore Delhi Rent Control Act did not apply. He submitted that document Ex.PW-6/D-2 police verification report of PW-6 was a manipulated document and was secondary evidence and could not be relied upon. He submitted that PW-6 turned hostile and deposed in favour of the defendant. He submitted that the defendant had moved an application under section 65 of the Evidence Act to prove several police verification reports placed on record by him but the said application was dismissed by the learned Trial Court on 1.12.2005 and thus Ex.PW-6/D-2 could not be relied upon. He further submitted that even if some rooms in the same premises had been constructed earlier, the provisions of Section 3(d) of the Delhi Rent Control Act would apply to the additions made and existence of the old construction would not negate the benefit of section 3 (d) of the Delhi Rent Control Act. He submitted that there was no evidence on record to hold that PW-6 was tenant of first floor and the appellant was on the ground floor of the said premises.
SUBMISSIONS IN RCA No.148/2011
19. The original plaintiff in the suit is the appellant herein. Learned counsel for the appellant has argued that the rent of the suit premises was Rs.2600/-per month but the learned Trial Court has erred in holding that the rent was Rs.175/-
per month. He submitted that the damages granted by the learned Trial Court were insufficient and claimed that the plaintiff would be entitled to mesne profits from the date of termination of tenancy at the rate as claimed in the plaint.
20. Learned counsel for the respondents supported the findings of the learned trial Court that the rent of the suit premises was Rs.175/- per month and relied on RCA 100 and 148 of 2011 9/18 the admissions of PW-1 - husband of the plaintiff in this regard.
21. I have heard learned counsel for the parties and have perused the record.
22. My findings issue-wise are as under:
ISSUE No.4
23. Issue No.4 was whether the suit of the plaintiff was barred under section 50 of the Delhi Rent Control Act. The case of the plaintiff was that the suit property was constructed in the year 1995 and as the suit was filed in the year 2002, the provisions of the said Act would not be attracted in view of the bar provided under section 3(d) of the Act. Learned Trial Court while coming to its findings on this issue has placed reliance on the following judgments of the Hon'ble Supreme Court :-
(i) AIR 1992 SC 1230(2) titled Om Prakash Gupta & Others versus Dig Vijendra Gupta & Others
(ii) AIR 2007 SC(supp) 911 titled Mundri Lal versus Sushila Rani & Others
24. Learned counsel for the defendants had argued that the provisions of this Act were not parimateria to the Delhi Rent Control Act. Before proceeding further, it will be expedient to notice the relevant provisions of both the Acts. The relevant portion of section 2(2) of the Uttar Pradesh Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 reads as under :-
"(2)[Except as provided in sub-section (5) of Section 12 sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing int his At shall apply to a building a period of ten years from the date on which its construction is completed] [Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a bank or a co-operative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest) whichever is shorter] RCA 100 and 148 of 2011 10/18 [Provided further that where construction of a building is completed on or after April 26, 1985, then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed].
Explanation I - [For the purposes of this section]
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purpose of supervising the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;
(b)"construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;
(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition;"
25. The relevant portion of section 3 of the Delhi Rent Control Act reads as under :-
"3. Act not to apply to certain premises - Nothing in this Act shall apply
(d) to any premises constructed or after the commencement of the Delhi Rent Control (Amendment) Act 1988, for a period of ten years from the date of completion of such construction."
26. Section 2(i) of the Delhi Rent Control Act, 1958 defines "premises" as under :-
"(i) "premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose, and includes -
(i) the garden, grounds and outhouses, if any, appertaining to such building or part of the building;RCA 100 and 148 of 2011 11/18
(ii)any furniture supplied by the landlord for use in such building or part of the building;
but does not include a room in a hotel or lodging house."
27. As can be noticed from the provisions of both these Acts that the same are not parimateria to each other. Although both the Acts provide for exemption of the applicability of the Act to the premises constructed for a period of ten years from the date of completion of the construction, there is a vast difference when it comes to the question of explaining and describing 'construction of a building'. The UP Act postulates different dates of completion of construction in respect of different parts of the same building. Under the UP Act, there can be different dates of completion for different parts of the same building; construction of a new building in the place of an existing building which has been wholly or substantially demolished; and where substantial addition is made to a minor existing construction, the date of completion of the existing building would be deemed to be the date of completion of the substantial addition. There is no such corresponding provision in the Delhi Rent Control Act. In other words, section 3(d) of the Delhi Rent Control Act, does not lucidly lay down any provision to deal with a situation of different dates of construction in the same building for the purposes of applicability of the exemption provision. In the opinion of this Court, if the intention of the legislature was to provide for different dates of completion of construction in the same premises for the purposes of section 3(d) of the Delhi Rent Control Act, then such provision would have been made in section 3(d) of the Act as has been incorporated in the explanation to section 2(2) of the UP Act. Hence, the provisions of Section 3(d) of the Delhi Rent Control Act will apply to the whole of the premises in a uniform manner. There can not be different dates of completion of construction of different portions of the same building for the purposes of section 3(d) of the Delhi Rent Control Act. The date of completion of construction is to be reckoned from the date of completion of the first constructed portion of the premises and no benefit of section 3(d) of the Act can be extended to additions carried out to any portion of the existing building.
28. The learned Trial Court had placed reliance on the cases of Om Prakash RCA 100 and 148 of 2011 12/18 Gupta & Others versus Dig Vijendra Gupta & Others (supra) as well as Mundri Lal versus Sushila Rani & Others (supra). In the said cases, the Hon'ble Supreme Court was concerned with the interpretation of section 2(2) of the Uttar Pradesh Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972. Since the provisions of UP Act are materially different from the provisions of Delhi Rent Control Act, the said judgments have no applicability to the facts of the present case.
29. In order to prove that the suit property was constructed in the year 1995, the plaintiff examined Sh.Chhotey Lal as PW-2 who deposed by way of affidavit Ex.P-2. PW-2 deposed that he had entered into a contract for construction of property No.2, Gali No.2 situated in Khasra No.744, Sewa Sadan Block, Mandawali Fazalpur, Delhi, on 1.5.1994 vide Ex.PW-1/8. Ex.PW-1/8 is a handwritten document executed by PW-2. The same recites that PW-2 was given a contract by Sh.Babu Lal (husband of the plaintiff) for construction of four large shops, three small shops on the ground floor, and 14 shops each on the first floor and second floor of these premises at Rs.22/- per sqft for which Rs.25,000/- had been paid in advance. Agreement also recites that the construction has to be of three floors and as and when work would progress, payment would be made. Thus as per Ex.PW-1/8, PW-2 was to construct 35 shops on the ground, first and second floors. PW-2 has further deposed in his affidavit that the plot was vacant having one temporary tin shed without any mortar at the time of commencement of construction.
30. PW-2 was cross examined by the counsel for the defendants. In his cross examination, PW-2 has deposed that "I have completed 24 rooms on the ground floor and 48 rooms on the 1st floor and the IInd floor and 7 shops on the ground floor in 1995." As per the cross examination, PW-2 has constructed a total of 79 shops in the said premises although he was contracted to construct 35 shops. In his cross examination, PW-2 has deposed that before execution of the agreement Ex.PW-1/8, he had not made any construction. He deposed that after completing the construction as per the contract, the remaining work was also RCA 100 and 148 of 2011 13/18 allocated to him although there was no written agreement. He admitted that the fact of making construction other than that mentioned in the agreement Ex.PW-1/8, had not been stated in his affidavit.
31. PW-6 is Sh.Dinesh Prasad Gupta, another tenant of the plaintiff in the same premises. He deposed in chief that he was inducted as a tenant in the year 1998-99. During cross examination, an affidavit Ex.PW-6/D1 was put to this witness. Ex.PW-6/D1 is an affidavit of Sh.Dinesh Prasad Gupta which was filed on 15.5.2004 by way of evidence in which it is stated in para 1 that he was a tenant of the plaintiff since the year 1995-96. PW-6 was further confronted with a document Ex.PW-6/D2 which is a police verification report of Sh.Dinesh Prasad Gupta as tenant by PS Mandawali Fazalpur. The said document was admitted by this witness and he has admitted that the portions A, C and E were in his handwriting and has also admitted his photograph at point B. The witness has also stated that the signatures of Sh.Babu Lal were at point D on this document. As per this police verification report, PW-6 Dinesh Prasad Gupta is a tenant in the same premises since the year 1990.
32. During the course of arguments, learned counsel for the plaintiff/appellant has argued that PW-6/D2 was not admissible in evidence since the original of the same had not been summoned from the record of the police station. He argued that an application under section 65 of the Evidence Act of the defendants seeking permission to lead secondary evidence had been dismissed by the learned Trial Court on 1.12.2005. I have gone through the Trial Court Record. By order dated 1.12.2005, the learned Trial Court had declined the prayer of the defendant to lead secondary evidence in respect of police verification report of certain tenants on the ground that the same can be proved by summoning the record from the police station. It is settled law that an admission is the best form of evidence. In the opinion of this court, this order can not come into the way of admissibility of Ex.PW-6/D2 since the witness of the plaintiff himself has admitted his handwriting and signature thereon.
RCA 100 and 148 of 2011 14/1833. The evidence of PW-2 Chhotey Lal regarding the date of completion of construction when compared with the evidence of PW-6, another tenant of the plaintiff throws up certain contradictions. In para 4 of his evidence by way of affidavit, PW-2 has deposed that at the time of commencement of construction, the plot was vacant with one temporary tin shed without any mortar. PW-6 Dinesh Prasad Gupta has admitted in his cross examination Ex.PW-6/D2, his tenant verification report of PS Mandawali Fazalpur, as per which he was a tenant in the suit property since the year 1990. In his cross examination as well, PW-6 has admitted that the contents of the police verification report were made in his handwriting and the same were correct. Sh.Babu Lal husband of the plaintiff was examined as PW-1 who deposed by way of affidavit Ex.PW-1/1. In his cross examination, PW-1 admitted that Dinesh Kumar Gupta was his tenant in the same suit premises since the year 1990. It thus stands proved that PW-6 Dinesh Prasad Gupta was a tenant in the same premises at least since the year 1990. For him to be a tenant, there must have been some constructed portion in existence. As per PW-2, there was no constructed portion in the plot when he commenced construction in the year 1994. Evidence of PW-2 regarding the date of commencement and completion of construction is unreliable.
34. The only finding which can be rendered in view of this evidence is that the premises were in existence at least since the year 1990. As the suit of the plaintiff has been filed on 16.4.2002, the protection of section 3(d) of the Delhi Rent Control Act is not available to the suit premises.
35. Learned counsel for the parties have relied upon certain orders passed by the Court of the Addl.Rent Controller and of the Rent Control Tribunal between the parties. Reliance has been placed by the plaintiff/appellant on the order dated 28.7.1998 passed by the Court of Addl.Rent Control Tribunal by which RCA No.69/1998 titled "Girish versus Shyama etc" was dismissed. Perusal of the certified copy of the said order reveals that the defendant No.1 Girish had filed a petition under section 45 of the Delhi Rent Control Act for restoration of electricity supply in the suit premises. Along with the same, an application under section RCA 100 and 148 of 2011 15/18 45(3) of the Act was filed for interim relief. The application under section 45(3) of the Act was dismissed by the Court of the Addl.Rent Controller by order dated 20.4.1998 holding that the premises were constructed in the year 1995 and the provisions of the Act stood excluded by virtue of section 3(d) of the Act. Aggrieved by the said order, defendant No.1 Girish filed RCA No.69/1998 which was dismissed by order dated 28.7.1998 by the Court of the Addl.Rent Control Tribunal holding that there was no infirmity in the order of the Addl.Rent Controller.
36. The defendant No.1 - Girish had filed DR No.101/1996 under section 27 of the Delhi Rent Control Act for depositing rent before the Court of the Addl.Rent Controller, Delhi. The said application was allowed by order dated 20.3.1999. The learned Addl.Rent Controller rejected the contention of the plaintiff - Shyama that the premises were exempt under section 3(d) of the Act. Against the order dated 20.3.1999, Smt.Shyama RCA No.267/1999. The said appeal was disposed of by the Court of Rent Control Tribunal by order dated 20.8.1999 holding that the Court of the Addl.Rent Controller must permit the appellant to lead evidence to prove date of completion of construction. The Court of the Rent Control Tribunal, set aside the order dated 20.3.1999 and remanded the matter to the Court of Addl. Rent Controller, with the direction to the appellant Smt.Shyama to file objections against deposit of Rent with further direction to the Addl.Rent Controller to proceed in accordance with law and to decide the same. The said matter is stated to be still pending.
37. From a consideration of the order passed in RCA No.69/1998, it appears that the same was an interim order since it pertained to an application for interim relief under section 45(3) of the Act. The main petition was yet to be decided. Further, in RCA No.267/1999 the Court of the Rent Control Tribunal had remanded the matter to the Addl.Rent Controller to proceed afresh. Neither of these orders have decided the issue of applicability of section 3(d) of the Act to the suit premises finally. Hence, no reliance can be placed on them for the purposes of determination of issue No.4.
RCA 100 and 148 of 2011 16/1838. For the reasons recorded above, I am unable to sustain the findings of the learned Trial Court on issue No.4 and the same are reversed. It is held that the suit of the plaintiff is barred under section 50 of the Delhi Rent Control Act. 1958. Issue No.4 is decided against the plaintiff and in favour of the defendants.
ISSUES No. 239. Issue No.2 was regarding entitlement of the plaintiff to a decree for possession of the suit premises. Since I have already held that the suit of the plaintiff was barred under section 50 of the Delhi Rent Control Act, 1958, the plaintiff will not be entitled to possession of the suit premises. Findings of the learned Trial Court on issue No.2 are also reversed and the same is decided in favour of the defendants.
ISSUE No.1 AND 340. Issue No.1 was regarding entitlement of the plaintiff to recover Rs.93,600/- as arrears of rent for the past three years with effect from 1.4.1999 to 31.12.2002 at the rate of Rs.2600/-per month and issue No.3 was regarding entitlement of the plaintiff for damages.
41. RCA 148/2011 was preferred by the original plaintiff claiming that the learned Trial Court had erred in holding that the rent of the suit premises was Rs. 175/- per month. Sh.Babu Lal husband of the plaintiff was examined as PW-1 who deposed by way of affidavit Ex.PW-1/1. In para 5 of his affidavit, he deposed that the rent of the suit premises was Rs.2600/- per month. In his cross examination conducted on 1.3.2004 he has admitted that the rate of rent of the suit premises mentioned by him in another suit was Rs.175/- per month. He has admitted that one big shop and one small shop were in the possession of defendant No.1 at the rent of Rs.175/- per month. On the basis of this evidence, the learned Trial Court has returned a finding that the rate of rent of the suit premises was Rs.175/- per month. I do not see any reason to interfere with the said findings.
RCA 100 and 148 of 2011 17/1842. The learned Trial Court has returned a finding that the the plaintiff was entitled to recovery of rent for the past three years from the date of filing of the suit at the rate of Rs.175/- per month. These findings were on the admission of the defendants that they had not paid the rent since the year 1995. The appellants/defendants have not disputed these findings in appeal.
43. As regards entitlement of the plaintiff for damages, the learned Trial Court has granted damages to the plaintiff at the rate of Rs.1000/- per month from the date of filing of the suit upto the date of decree and thereafter at the rate of Rs. 3,000/- per month from the date of decree till the date of delivery of possession. The same are based on the findings of the learned Trial Court that the tenancy of the premises stood determined. However, since it has been held by me that the suit of the plaintiff was barred under section 50 of the Delhi Rent Control Act, the plaintiff will not be entitled to any damages. Thus the findings of the learned Trial Court on issue No.3 are set aside.
44. For the reasons recorded above, both the appeals are disposed of in the following manner :-
(i) RCA No.100/2011 is allowed and the suit of the plaintiff for possession of the suit property and claim for damages is dismissed. The plaintiff, however, will be entitled to recovery of arrears of rent at the rate of Rs.175/- per month for a period of three years prior to the date of filing of the suit;
(ii) RCA No.148/2011 is dismissed.
45. Decree sheet be prepared accordingly. Trial Court Record be sent back with a copy of this judgment and appeal files be consigned to the record room. Announced and dictated to the steno in the open Court today i.e. 30.1.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA 100 and 148 of 2011 18/18