Delhi District Court
Rajeev Gulati vs . Ramesh Kumar Rakheja on 16 April, 2015
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CS No. 364/13
Rajeev Gulati Vs. Ramesh Kumar Rakheja
16.04.2015
Present: None.
Matter was fixed for orders on the application under Order XIV Rule 5 read
with Section 151 CPC moved by the defendant for framing additional issues.
It is stated in the application that the Court framed issues in the present
matter on 16.12.2014 but inadvertently certain disputed facts were left out as no issue
was framed qua those facts. In para No. 10 of the application, defendant has listed out
following issues that need to be framed:
i) Whether the matter pertains to the single tenancy as
contended by plaintiff or four different and distinct tenancy
rights as contended by defendants? OPP & OPD
ii) What is the area of space under tenancy rights of the
defendant / and other persons of the suit property, which could
be at the most be ordered to be evicted in case plaintiff is
entitled to possession thereof in the present case? OPP
iii) Whether the plaintiff can seek possession in present suit
in respect of the space other than under tenancy rights, which
the defendant and other persons are enjoying otherwise and /
or by way of adverse possession for the last 37 years? OPP
iv) Whether the suit of the possession for area of space not
under the tenancy right is time barred? OPD
v) Whether Sh. Mahender Kumar Rakheja, the brother of
the defendant had validly surrendered & relinquished his
tenancy of 100 sq. ft. in the suit property in favour of the
defendant? OPP
vi) Whether the space measuring 250 sq. ft. of the statutory
tenancy right of Jagdish Tailors and also space of 100 sq. ft of
the statutory right of Banarsi Lal Manchanda in lawful
possession of the defendant for consideration is under the
tripartite memorandum of understanding / otherwise? OPD
vii) If so, whether the lawful possession of defendant as to
aforesaid space measuring 350 sq. ft. under two separate
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statutory tenancy rights of Jagdish Tailors and Banarsi Lal
Manchanda respectively for consideration under the tripartite
memorandum of understanding / otherwise can be terminated
without due process of law of terminating the statutory tenancy
rights of Jagdish Tailors & Banarsi Lal Manchanda? OPP
viii) Whether the plaintiff can legally recover the possession
from the defendant by way of present suit in respect of (250 sq.
ft + 100 sq. ft. = 350 sq.ft.) a part of suit property which is in
fact under the statutory tenancy right of Jagdish Tailors &
Banarsi Lal Manchanda but in possession of the defendant for
consideration? OPP
ix) Whether the defendant was inducted in the suit property
in the year 1976 or in the year 1987 as alleged by the parties?
OPP & OPD
x) Whether the site plan one filed by the plaintiff is correct?
OPP
Reply to this application was filed by the plaintiff wherein it is stated that
the present application is gross abuse of the process of law. It is further stated that the
proposed issues are absolutely unnecessary, beyond the scope of the pleadings and the
defendant is now trying the put up a new and concocted case by way of the present
application. The application has been strongly opposed by the plaintiff.
Arguments have been heard on the application and record perused.
I will decide the application by taking up each proposed issue one by the
one.
Issue No.1: Whether the matter pertains to the single
tenancy as contended by plaintiff or four
different and distinct tenancy rights as
contended by defendants? OPP & OPD
The plaintiff has alleged that there is single tenancy with respect to 100 sq.
ft. area in favour of the defendant while it is case of the defendant in his written
statement that there are four distinct and separate tenancies out of which three
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tenancies are in his favour and fourth tenancy is in favour of his brother Sh. Mahender
Kumar Rakheja. If the plaintiff is able to prove that the tenancy is single, then present
suit will be out of the purview of Delhi Rent Control Act and on the other hand if
defendant is able to prove that there are four different and distinct tenancies, the nature
of the suit would differ. Hence, this is a material averment affirmed by one party and
denied by another. Hence, isue is required to be framed qua this averment.
Issue No.2: What is the area of space under tenancy rights
of the defendant / and other persons of the suit
property, which could be at the most be ordered
to be evicted in case plaintiff is entitled to
possession thereof in the present case? OPP
Plaintiff has averred that the defendant is in possession of 1100 sq. ft.
area. Defendant has admitted at para No. 14.5A of his written statement that total area
in his possession is 1100 sq.ft. as alleged by the plaintiff. Hence there is no dispute
about area that is under the possession of the defendant and therefore no such issue is
required to be framed.
Issue No.3: Whether the plaintiff can seek possession in
present suit in respect of the space other than
under tenancy rights, which the defendant and
other persons are enjoying otherwise and / or by
way of adverse possession for the last 37 years?
OPP
No plea of adverse possession has been raised by the defendant in his
written statement. Therefore, this issue is beyond the pleadings.
Issue No.4: Whether the suit of the possession for area of
space not under the tenancy right is time
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barred? OPD
No such plea has been raised by the defendant in his written statement.
Therefore, this issue is beyond the pleadings.
Issue No.5: Whether Sh. Mahender Kumar Rakheja, the
brother of the defendant had validly surrendered
& relinquished his tenancy of 100 sq. ft. in the
suit property in favour of the defendant? OPP
Defendant has alleged that 100 sq. ft. area of the suit property is under the
tenancy of his brother Sh. Mahender Kumar Rakheja though the physical possession is
with him, and the plaintiff has averred in his replication that the tenancy pertaining to Sh.
Mahender Kumar Rakheja was surrendered and new tenancy was created in favour of
the defendant. Therefore, this is a material averment in dispute and issue on this
averment is required to be framed.
Issue No.6: Whether the space measuring 250 sq. ft. of the
statutory tenancy right of Jagdish Tailors and
also space of 100 sq. ft of the statutory right of
Banarsi Lal Manchanda in lawful possession of
the defendant for consideration is under the
tripartite memorandum of understanding /
otherwise? OPD
and
Issue No.7: If so, whether the lawful possession of
defendant as to aforesaid space measuring 350
sq. ft. under two separate statutory tenancy
rights of Jagdish Tailors and Banarsi Lal
Manchanda respectively for consideration under
the tripartite memorandum of understanding /
otherwise can be terminated without due
process of law of terminating the statutory
tenancy rights of Jagdish Tailors & Banarsi Lal
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Manchanda? OPP
And
Issue No.8: Whether the plaintiff can legally recover the
possession from the defendant by way of
present suit in respect of (250 sq. ft + 100 sq. ft.
= 350 sq.ft.) a part of suit property which is in
fact under the statutory tenancy right of Jagdish
Tailors & Banarsi Lal Manchanda but in
possession of the defendant for consideration?
OPP
Question pertaining to tenancy rights of Sh. Jagdish Tailors and Banarsi
Lal Manchanda are beyond the scope of the present Suit. It is an admitted case of the
defendant that the suit property now is in his possession wherein he is tenant of three
portion and his brother is the tenant of last portion. Hence, the issues are unnecessary
and frivolous as well as beyond the pleadings.
Issue No.9: Whether the defendant was inducted in the suit
property in the year 1976 or in the year 1987 as
alleged by the parties? OPP & OPD
No separate issue is required on this aspect as the issues pertaining to
single tenancy and four different tenancies shall cover the averments raised in this issue
as well.
Issue No.10: Whether the site plan one filed by the plaintiff is
correct? OPP
No such separate issue is required to be framed as this fact is apart of
evidence not averments.
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In view of aforesaid discussion the application is partly allowed and
following additional issues are framed:
1.Whether there is single tenancy in favour of the defendant with respect to suit property as alleged by the plaintiff? OPP
2. Whether there are four different distinct tenancy rights in the suit property as alleged by the defendant? OPD.
3. Whether Sh. Mahender Kumar Rakheja, brother of the defendant, had surrendered his tenancy on 100 square feet portion of the suit property in favour of the defendant in the year 1982? OPP Other issues are unnecessary, frivolous and beyond the pleadings.
Application qua other issues stands dismissed, therefore.
Plaintiff may file reply to the application under Order VIII Rule 1(A) CPC as well as to the application under Section 151 CPC moved by the defendant on 07.04.2015 by the next date of hearing. Matter be put up for arguments on all the four pending applications as per order dated 07.04.2015 for 20.05.2015.
(Jyoti Kler), JSCCASCJGJ/South East Saket Courts, New Delhi/16.04.2015