Delhi District Court
Nirmal Kumar vs Shree Jain Khartargachh Sangh (Regd.) on 23 August, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
ARCT No. 06/2012
ID No.: 02406C0019142012
Nirmal Kumar
Private Shop No. 9 & 10
228A, Masjid Moth, Jain Dadabari Temple,
New Delhi 110049. ... Appellant.
Versus
Shree Jain Khartargachh Sangh (Regd.)
2936, Jain Paushal, Katra Khushal Rai,
Kinari Bazar, Delhi 110006 ... Respondent.
Instituted on: 25.01.2012
Judgment reserved on: 23.08.2012
Judgment pronounced on : 23.08.2012
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Controller Act, (hereinafter referred to as the "DRC Act") is directed against judgment dated 02.09.2011 passed by Sh. Sandeep Yadav, Rent Controller (South), on the file of case regsitered as ARCT No. 06/2012 Nirmal Kumar Vs. Shree Jain Khartargachh Sangh (Regd.) 1 of 8 E21/09(1994), whereby the appellant was found having committed a default in payment of rent within the mischief of Section 14(1)(a) DRC Act but it being a case of first default, the proceedings were closed with benefit of Section 14(2) DRC Act, having been extended in his favour, in respect of tenanted premises described as shop no. 9 & 10 forming part of property no. 228A, Dadabari Temple, Masjid Moth, New Delhi.
2. The said judgment was passed on the petition brought by respondent claiming to be the landlord qua the appellant in respect of the tenanted portion.
3. On notice, the respondent appeared to resist the appeal.
4. I have heard Sh. V. K. Sharma, advocate for the appellant and Sh. K.L. Sharma, advocate proxy on instructions from Sh. Nishant, advocate for the respondent. I have gone through the trial court record.
5. The case of the respondent before the Rent Controller was that the appellant has been a tenant in the demised premises under it at the rate of Rs. 600/ per month exclusive of all other charges. It was alleged that the appellant had failed to pay or tender the rent to the respondent with effect from 01.10.1988 within two months from the date of service of notice of demand dated ARCT No. 06/2012 Nirmal Kumar Vs. Shree Jain Khartargachh Sangh (Regd.) 2 of 8 27.05.1994.
6. The petition was contested by the appellant denying the relationship of landlordtenant between the parties. He claimed that he is a tenant under " Shree Jin Kushal Suri Jain Khartargachh Dadabari Trust". The appellant denied that he had been served with any legal notice of demand by any competent or authorised person on behalf of the landlord. He denied that he owed any rent to the respondent. He further contended that the petition has been filed concealing the material facts to the effect that the tenanted premises has been transferred to Shree Jin Kushal Suri Jain Khartargachh Dadabari Trust pursuant to a unanimous decision taken in a meeting of the respondent on 20.04.1986, where after, the said other trust had started realising the rent from the appellant against proper duly stamped receipts. The appellant further contended before the Rent Controller that on account of the said transfer, the respondent has started refusing the rent tendered to it, in which context reference was made to two communications, one dated 17.04.1989 and the other dated 20.09.1987.
7. The case was tried before the Rent Controller on the basis of evidence led by the appellant examining Mr. Shanti Kumar, as ARCT No. 06/2012 Nirmal Kumar Vs. Shree Jain Khartargachh Sangh (Regd.) 3 of 8 the sole witness. It appears the appellant also examined himself as RW1 but his crossexamination "could not be completed" (as noted in para 6 of the impugned judgment). On this account, the learned Rent Controller declined to read the said evidence of the appellant for purposes of adjudication.
8. At the hearing on this appeal, both sides have jointly submitted that similarly placed seven other appeals on identically presented cases of the respondent against seven other tenants, the main appeal being ARCT No. 29/10 titled Arun Singhal Vs. Shree Jain Khartargachh Sangh (Regd.), this court vide judgment dated 17.11.2011 had remanded the said other cases to the Rent Controller for passing fresh judgment on the basis of evidence led, the said order having been passed with the consent of both sides.
9. A copy of the said judgment dated 17.11.2011 of this court has been submitted at Page31 onwards of the paper book of the appeal at hand. Both sides have drawn attention of the court particularly to paragraphs no. 1823 of the said judgment which read as under: "18. The judgments suffer from a basic defect on which account alone the appeals ARCT No. 06/2012 Nirmal Kumar Vs. Shree Jain Khartargachh Sangh (Regd.) 4 of 8 deserve to be allowed. During the course of evidence the appellants had filed certified copies of pleadings and orders passed in other cases, essentially involving the Trust and the Sangh litigating with each other over the property in question. The learned Rent Controller has refused to look into the said documents on the ground that the official of the concerned courts were not summoned to prove the said documentary evidence. In the opinion of the learned Rent Controller, it was incumbent on the appellant to summon the court officials to prove the pleadings and also orders passed by the courts thereupon. On this, the learned Rent Controller concluded that the documents had not been proved in accordance with law and, therefore, reliance thereupon was misplaced.
19. Faced with this situation, the learned counsel for the respondent in these appeals fairly conceded that it was not proper on the part of the Rent Controller not to examine the impact of the said material which had been introduced in evidence. In this view, they would concede that the matters deserve to be remanded with directions that the Rent Controller shall examine the issues involved taking into account the effect and import of the said evidence also.
20. The learned counsel for the appellants ARCT No. 06/2012 Nirmal Kumar Vs. Shree Jain Khartargachh Sangh (Regd.) 5 of 8 while agreeing to the remand also fairly conceded and gave solemn undertaking that the appellants would not be pressing for any opportunity for adducing any further evidence since whatever evidence required to be produced has already been brought on record of the cases.
21. In the above facts and circumstances, the impugned judgments/orders are set aside. The appeals stand allowed. The matters are remanded to the court of Rent Controller who shall hear the parties afresh on the basis of evidence already led and pass fresh judgment.
22. Given the nature of the controversy and the commonality of the facts and the evidence in these cases, it is desirable that they be heard together and decided through common judgment. I am informed that seven other similarly placed cases instituted by the Sangh respecting certain other adjoining tenanted premises are pending in the court of Sh. Balwant Rai Bansal, Additional Rent Controller (South). It is desirable, as submitted by both sides, that they are also heard together with these seven cases now being remanded. The parties shall be at liberty to approach the Rent Control Tribunal with appropriate prayer for transfer of all these 14 cases to one court.
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23. The parties shall appear before the Rent Controller (South) on 13.12.2011 for further proceedings. Given the old pendency of these cases, it is desirable that they are decided and brought to logical end expeditiously. Both sides submit and undertake that they shall fully cooperate with the concerned court for expeditious disposal and shall not be taking any adjournment when the matters come up for effective hearing. The Rent Controller is requested to decide these cases afresh within a period of three months from the date now fixed."
10.The proxy counsel on instructions of Sh. Nishant, advocate for the respondent fairly submitted that given the earlier aforementioned view in context of similar seven other cases, it is fair and just that the impugned judgment herein is also set aside and the matter is remanded to the court of Rent Controller on same issue. Ordered accordingly.
11.The counsel for the appellant, however, additionally pointed out that in the present case, the evidence of the appellant has been discarded because he could not be crossexamined. He submitted that while the matter is being remanded, one more opportunity be given to him to present himself for further cross ARCT No. 06/2012 Nirmal Kumar Vs. Shree Jain Khartargachh Sangh (Regd.) 7 of 8 examination by the opposite party. The proxy counsel on instructions of counsel for the respondent fairly agrees to this submission.
12.In above view, it is directed that before deciding the case at hand afresh, the learned Rent Controller will give an opportunity to the appellant to present himself and under go crossexamination by the opposite party.
13.The parties are directed to appear before the Rent Controller for further proceedings on 06.09.2012.
14. The trial court record be returned with copy of this judgment.
15. File of the appeal be consigned to Record Room. Announced in open Court today on this 23rd day of August, 2012 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
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