Delhi District Court
Prithipal Singh vs Satpal Singh (Now Deceased) on 19 January, 2012
1
IN THE COURT OF SHRI O.P. GUPTA,
DJ&ASJ-In-Charge(West)/ARCT,DELHI
***
Unique ID NO. 02401C0517742011
RCT No. 52/11
Prithipal Singh
S/o Late Shri Harnam Singh
R/o 1-C/46, Ramesh Nagar,
Namdhari Colony,
New Delhi 110015 ....Appellant
Versus
Satpal Singh (now deceased)
Through Lrs.
(i) Smt. Surinder Kaur (Widow)
(ii) Sh. Hardeep Singh ( Son )
Both R/o I-C/67, Ramesh Nagar,
Namdhari Colony,
New Delhi 110015.
(iii)S. Surjit Singh ( Son )
R/o I-C/46, Ramesh Nagar,
New Delhi - 110015.
(iv) Ms. Paramjit Kaur ( Daughter)
W/o Mr. Kuldeep Singh
R/o A-164, Sudershan Park,
New Delhi - 110015.
(v) Ms. Harjinder Kaur ( Daughter)
W/o Mr. Amarjit Singh
(vi) Ms Manjit Kaur
W/o Mr. Amrivir Singh
Lrs (v) to (vi) to be served
at C/o Shri Surjeet Singh
RCT No. 52/11 1 of 6
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R/o 1-C/46, Ramesh Nagar,
Namdhari Colony,
New Delhi 1100 ....Respondents
Date of Institution : 11.11.2011
Arguments heard on : 10.01.2012
Date of Order : 19.01.2012
ORDER
1. Aggrieved by order dated 30.09.2011 passed by Ld. ARC, the landlord has preferred the present appeal. The said order dismissed application U/s 151 CPC moved by the appellant for issuing Warrant of Possession regarding remaining portion shown green in site plan of property no. 1C/46, Namdhari Colony, Ramesh Nagar, Delhi. The background of the case is that Bailiff got possession of two rooms shown red in said site plan delivered to the appellant in execution of the eviction order but refused to get the possession of the portion shown green delivered to the appellant.
2. The appellant filed an eviction petition U/s 14(1)(e) r/w Section 25 B DRC Act. The respondent moved an application for leave to defend after the expiry of 15 days and an eviction order was passed. Later on the same was RCT No. 52/11 2 of 6 3 set aside U/o 37 Rule 4 Civil Procedure Code by Ld. Additional Rent Controller. In appeal the Hon'ble High Court upheld the said order. The said order was reversed by the Hon'ble Supreme Court. Thus the parties never went through trial.
3. The counsel for the respondent filed copy of eviction petition to make out that in para 8 of the petition the appellant mentioned two rooms of ground floor with uncovered courtyard as shown red in the site plan.
4. The counsel for the appellant refuted the arguments by submitting that in para 17 of the petition the appellant has already mentioned that respondent has however carried out unauthroised addition or alteration in the suit premises shown in green colour in the site plan.
5. Para 20 of the petition containing prayer clause already recites that eviction order was sought in respect of portion shown in the red and green colour in the site plan annexed situated at 1C/46, Namdhari Colony, Ramesh Nagar, Delhi-110015. The counsel for the appellant RCT No. 52/11 3 of 6 4 submitted and rightly so that para 8 of the eviction petition cannot be read in isolation. The petition has to be read as a whole including paras 17 & 20. It is not that appellant has concealed something or is trying to add something. Rather he has already explained that part of the portion were let out and remaining part was unauthorisedly constructed by respondent. When, a tenant is to be evicted from the portion let out to him, he has to go from the portion unauthorisedly constructed by him also. It cannot be that he is allowed to retain the portion unauthorizedly constructed by him.
6. The counsel for the appellant also urged that if the eviction order did not mention about portion shown green, the same was not disallowed also.
7. The counsel for the appellant produced copies of site plan filed by both the parties. The copy of site plan filed by the appellant has been marked as Mark A with date of 28.02.2001/date of eviction order. The other copy is one filed by respondent which does not contain any mark. In the said copy the respondent has shown room on first floor RCT No. 52/11 4 of 6 5 (shown in green by the appellant) in red colour. The same means that respondent was treating that room also as a part of the tenanted premises. Now he cannot be allowed to contend that said portion is independent.
8. The counsel for the appellant also argued that shed, WC, Bath, Kitchen at ground floor and room on first floor shown in green colour in the site plan filed by him forms part of the bigger red portion. That was separately shown in green to indicate that it was unauthorisedly built by the respondent. Otherwise it was part of the eviction petition and the eviction order should be construed as having been passed in respect of the whole portion. The argument appears to be well founded.
9. The counsel for the appellant relied upon decision of Hon'ble Supreme Court in Sardar Singh Vs Atma Ram Properties ( P) Ltd. 2009 Rajdhani Law Reporter 338 in which it was held that if a tenant of upper floor raises some construction on the tenanted premises and a eviction decree is passed against him, then he must quit the illegally built portion. Claiming illegally built portion as RCT No. 52/11 5 of 6 6 an independent premises is abuse of process of law.
10. The present case is squarely covered by the cited decision. The appeal is accepted, impugned order is set- aside, application u/s 151 CPC moved by the appellant is allowed. It is directed that Ld. ARC would issue Warrant of Possession in respect of portion shown green in site plan Mark A of property No. 1-C/46, Namdhari Colony, Ramesh Nagar, Delhi. Trial Court Record be sent back along with the copy of this order. Appeal file be consigned to record room.
Announced in open court on
this 19th January, 2012. (O.P. GUPTA)
DJ&ASJ-In-Charge(West)/ARCT
Delhi
RCT No. 52/11 6 of 6