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Delhi District Court

Smt. Kanchan Gill vs Smt. Manjit Kaur on 20 May, 2022

     IN THE COURT OF ADJ­07, SOUTH­EAST DISTRICT, SAKET COURTS,
                                           DELHI


Presided By: Mr. Jay Thareja, DHJS

RCA No: 22/2022

Smt. Kanchan Gill
W/o. Sh. Rajender Singh Gill
R/o. J­4/113­B, 3rd Floor, DDA Flats,
Kalkaji, New Delhi­110019.
                                                                       ... Appellant
                                           Versus
Smt. Manjit Kaur
W/o. Late Kanhaiya Lal
R/o. J­4/113­B, 3rd Floor, DDA Flats,
Kalkaji, New Delhi­110019.
                                                                    ... Respondent


                       APPEAL UNDER SECTION 96 OF CPC, 1908

                                               DATE OF INSTITUTION : 12.04.2022
                                  DATE OF RESERVING FOR JUDGMENT : 20.05.2022
                                                 DATE OF DECISION : 20.05.2022

                                         JUDGMENT

1. The appellant/tenant (henceforth 'appellant') has filed this appeal under Section 96 read with Order XLI of CPC, 1908, challenging the Order as well as the consequent decree dated 11.03.2022, passed by the Court of Ld. JSCC­cum­ASCJ­cum­GJ, South­East District, Saket Courts, New Delhi (henceforth 'Ld. Trial Court') in the counter­claim filed by the respondent/landlord (henceforth 'respondent') against the appellant, registered as CS SCJ RCA No.22/2022 Smt. Kanchan Gill v Smt. Manjit Kaur Page No.1 of 7 No.1016/21, Ms. Manjit Kaur v Ms. Kanchan Gill (henceforth 'subject counter­ claim').

2. By way of the impugned Order and the consequent decree dated 11.03.2022, the Ld. Trial Court, has (a) allowed the application filed by the respondent under Order XII Rule 6 of CPC,1908 and resultantly, granted/decreed the relief of possession/ejectment sought by respondent qua the tenanted premises viz. third floor of J­4/113B, DDA Flats, Kalkaji, New Delhi and (b) in exercise of power under Order XVA of CPC, 1908, directed the appellant to pay to the respondent, occupational charges qua the tenanted premises at the rate of Rs.10,500/­ per month w.e.f. August, 2020.

3. In the impugned Order dated 11.03.2022, the Ld. Trial Court, after meticulously examining the pleadings of the parties, has concluded that the respondent is entitled to the relief of ejectment/possession qua the tenanted premises as per Order XII Rule 6 of CPC, 1908 because in her written statement, the appellant has admitted that she was inducted as a tenant qua the tenanted premises by the respondent vide rent agreement dated 05.09.2019, at a monthly rent of Rs.10,500/­; because in the written statement, the appellant has admitted that she had paid rent at the rate of Rs.10,500/­ per month to the respondent, till July 2020; because as such, the Delhi Rent Control Act, 1958, does not apply to the tenancy of the appellant qua the tenanted premises; because the tenancy of the appellant qua the tenanted premises stands definitely determined upon expiry of 15 days from the service of the subject counter­claim upon the appellant and because the agreement to sell dated 07.08.2020, propagated by the appellant and denied by the respondent, even if believed to be a genuine document, RCA No.22/2022 Smt. Kanchan Gill v Smt. Manjit Kaur Page No.2 of 7 cannot result in the protection of the tenancy of the appellant qua the tenanted premises as per Section 53A of the Transfer of Property Act, 1882 as it is neither stamped nor registered as per the amendments made in the Indian Stamp Act, 1899 and the Indian Registration Act, 1908 w.e.f. 24.09.2001. 1 Also, in the impugned Order dated 11.03.2022, the Ld. Trial Court, has concluded that the appellant is liable to pay to the respondent, occupational charges qua the tenanted premises at the rate of Rs.10,500/­ per month w.e.f. August, 2020 as per Order XVA of CPC, 1908 because the agreement to sell dated 07.08.2020, propagated by the appellant and denied by the respondent, does not absolve the appellant from paying the admitted sum of Rs.10,500/­ per month to the respondent and because its an admitted position inter­se the parties that the appellant has not paid the said sum to the respondent, w.e.f. August, 2020. 2

4. In my view, the decision of the Ld. Trial Court, of allowing the application filed by the respondent under Order XII Rule 6 of CPC, 1908, does not warrant any interference by this Court because it is in accordance with the judgments of the Hon'ble High Court of Delhi in Bhupender Jit Singh v Sonu Kumar, (2017) SCC OnLine Del 11061, A.N. Kaul v Neerja Kaul & Anr., (2018) SCC OnLine Del 9597, ASV Industry & Anr v Surinder Mohan and Anr., (2013) SCC Online Del 3176, Rajiv Ohri v Anil Aggarwal, (2013) SCC OnLine Del 3178, Sanjiv Pathak v Som Nath & Ors, (2013) SCC Online Del 3038, Shiv Kumar v Sumit Gulati, (2015) SCC OnLine Del 13857, Hari Gopal Manu v B.S. Ojha (2016) SCC Online Del 985 and the Order dated 08.4.2021, passed by the 1 While drawing this conclusion, the Ld. Trial Court, has relied upon the judgment of the Hon'ble High Court of Delhi in M/s. Jagdambey Builders Pvt. Ltd. v J.S. Vohra, 2016 (228) DLT 49. 2 While drawing this conclusion, the Ld. Trial Court, has relied upon the judgment of the Hon'ble High Court of Delhi in Raghubir Rai v Prem Lata & Anr. (2014) 211 DLT 516(DB).

Smt. Kanchan Gill v Smt. Manjit Kaur Page No.3 of 7 Hon'ble High Court of Delhi in RFA No. 218/2021, Karan Kapoor v Madhuri Kumar.3

5. In Bhupender Jit Singh v Sonu Kumar, (2017) SCC OnLine Del 11061 and A.N. Kaul v Neerja Kaul & Anr. and (2018) SCC OnLine Del 9597, the Hon'ble High Court of Delhi has laid down law to the effect (i) that the plaintiff, if otherwise found entitled to a decree on admission, cannot be deprived thereof by astute drafting of the written statement and / or by taking pleas therein, which have no legs to stand upon; (ii) the Court is to read the pleadings of the parties meaningfully; (iii) issues are to be framed on 'material' and not on all propositions of law and fact and (iv) a plea, which on the face of it is found by the Court to be untenable, does not require framing any issue. In my view, in this case, the Ld. Trial Court has followed the said law, in letter and spirit and rightfully, prevented the appellant, from defeating the legitimate claim of the respondent qua grant of possession of the tenanted premises, on the strength of legally untenable pleas.

6. In ASV Industry & Anr v Surinder Mohan and Anr., (2013) SCC Online Del 3176, Rajiv Ohri v Anil Aggarwal, (2013) SCC OnLine Del 3178, Sanjiv Pathak v Som Nath & Ors, (2013) SCC Online Del 3038, Shiv Kumar v Sumit Gulati, (2015) SCC OnLine Del 13857, Hari Gopal Manu v B.S. Ojha (2016) SCC Online Del 985 and the Order dated 08.4.2021, passed by the Hon'ble High Court of Delhi in RFA No. 218/2021, Karan Kapoor v Madhuri Kumar, the Hon'ble High Court of Delhi, has rejected defence(s) of the defendants/tenants, based on insufficiently stamped and unregistered agreements to sell, allegedly executed by 3 By way of the said Order, the Hon'ble High Court of Delhi, has upheld Orders, similar to the impugned Order, passed by this Court, in CS No. 867/2018, Madhuri Kumar v Karan Kapoor.

Smt. Kanchan Gill v Smt. Manjit Kaur Page No.4 of 7 the plaintiffs/landlords and granted/upheld the decrees of ejectment/possession, in favor of the plaintiffs/landlords. In my view, the law regarding Section 53A of the Transfer of Property Act, 1882 and the law regarding the effect of the amendments made in the Indian Stamp Act, 1899 and the Indian Registration Act, 1908 w.e.f. 24.09.2001 to the agreements to sell, propagated by defendants/tenants, as explained in the aforesaid judgments, squarely applies to the case of the appellant/tenant herein and as a result, the appellant has no legally tenable defence, in respect of the claim of the respondent qua grant of possession of the tenanted premises.

7. Lastly, in my view, the challenge made by the appellant by way of this appeal, qua the direction given by the Ld. Trial Court, in accordance with Order XVA of CPC, 1908, is not maintainable before this Court, (a) because as per Order XLIII Rule 1 of CPC, 1908, a direction given by the Ld. Trial Court, by exercising power under Order XVA of CPC, 1908, is not appealable before this Court and (b) because judgments of the Hon'ble High Court of Delhi in Raj Kumar Rajora & Ors. v Ajay Dhingra & Ors., CM(M) No. 345/2018, decided on 09.01.2020 and Rashi Misra v B. Kalyan Raman, CM(M) No. 278/2020, decided on 26.04.2022, reflect that the remedy for a defendant/tenant, aggrieved by an Order passed by a Trial Court under Order XVA of CPC, 1908, is to approach the Hon'ble High Court of Delhi under Article 227 of the Constitution of India.

8. In light of the aforesaid and in light of the fact that in respect of the challenge qua the relief of ejectment/possession granted by the Ld. Trial Court to the respondent, the appellant has not filed the requisite ad­valorem court­fees in this Court, this appeal is dismissed as per Order XLI Rule 11(1) of CPC, 1908, RCA No.22/2022 Smt. Kanchan Gill v Smt. Manjit Kaur Page No.5 of 7 with directions to the appellant to immediately vacate the tenanted premises, in compliance of the impugned Order and consequent decree dated 11.03.2022 of the Ld. Trial Court.

9. Before parting with this judgment, it is clarified that the submission of the Ld. Advocate for the appellant that the non­stamping and the non­registration of the agreement to sell dated 07.08.2020, as per the amendments made in the Indian Stamp Act, 1899 and the Indian Registration Act, 1908 w.e.f. 24.09.2001, should not be read against the appellant because the tenanted premises is situated in a locality where the government has banned registration of title documents, has not been found worthy of being considered as part of the aforesaid adjudication (a) because even if the government has banned registration of title documents, as submitted by the Ld. Advocate for the appellant, the appellant could have surely got the agreement to sell dated 07.08.2020 stamped as per the amendments made in the Indian Stamp Act, 1899 w.e.f. 24.09.2001 (i.e. as per Article 23A of Schedule 1 of the said Act); (b) because neither the amendments made in the Indian Stamp Act, 1899 and the Indian Registration Act, 1908 w.e.f. 24.09.2001 nor the judgments of the Hon'ble High Court of Delhi identified in paragraph 6 of this judgment, carve out an exception for localities of Delhi, where the government, presumably in order to prevent citizens from doing power of attorney transactions, has banned registration of title documents and (c) because the said submission of the Ld. Advocate for the appellant points to the irresistible conclusion that the alleged agreement to sell dated 07.08.2020, having been made, in violation of public policy of the government, is hit by Section 23 of the Contract Act, 1872 and can never result in a registered sale deed qua the tenanted premises being executed RCA No.22/2022 Smt. Kanchan Gill v Smt. Manjit Kaur Page No.6 of 7 in favor of the appellant by the respondent.

10. The Reader is directed to prepare a decree sheet, as per this judgment. Also, the Ahlmad is directed to send a certified copy of this judgment and the consequent decree to the Ld. Trial Court for record. After compliance of the said directions by the Reader and Ahlmad, the file shall be consigned to record room. Digitally signed by JAY JAY THAREJA THAREJA Date:

2022.05.20 16:54:59 +0530 Announced in open Court (Jay Thareja) today on 20.05.2022 Ld. ADJ­07, South East District, Saket Courts/Delhi RCA No.22/2022 Smt. Kanchan Gill v Smt. Manjit Kaur Page No.7 of 7