Delhi District Court
Smt. Sunita Suri vs Sh. Raman Jain (Deceased) Through Lrs on 23 October, 2020
IN THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE-01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ NO. 610190/16
Date of Institution : 21.01.2014
Date of reservation of Judgment : 23.10.2020
Date of pronouncement of Judgment : 23.10.2020
Smt. Sunita Suri
W/o Late Sh. Surinder Suri
Previously r/o 16/604, First Floor
Gali No. 25, Joshi Road, Karol Bagh,
New Delhi.
Presently at :-
16/627 3rd floor, Gali No.18
Joshi Road, Karol Bagh, New Delhi
.......... Plaintiff
Vs.
Sh. Raman Jain (deceased) Through Lrs-
(a) Smt. Sunita Jain w/o Late Sh. Raman Jain
(b) Sh. Saurabh Jain
(c) Sh. Sachin Jain
both s/o Late Sh. Raman Jain
All R/o BH-433, East Shalimar Bagh, Delhi-88
Also at
First floor of property no. A-1, Street no. 4
Anand Parbat, Indl. Area, New Rohtak Road
New Delhi-110005
..............Defendant
SUIT FOR POSSESSION, RECOVERY OF ARREARS
OF RENT, DAMAGES/MESNE PROFITS AND PERMANENT
INJUNCTION
JUDGMENT
1. Brief facts of the present case as per plaint are :
CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 1/18
(a) That the plaintiff is the owner of upper ground floor and first floor of property bearing no. A-1 forming part of Khasra No. 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd, Delhi.
(b) That the defendant is a tenant in respect of first floor of property bearing no. A-1 forming part of Khasra No. 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd, Delhi ( hereinafter referred to as suit property).
(c) That the defendant was lastly paying rent of the suit property to the plaintiff @ Rs 5000/ month exclusive of other charges.
(c) That the tenancy of the defendant was month to month basis starting from the first day of each calender month.
(d) That the defendant has been very irregular and defaulter in making the payment of the rent to the plaintiff qua the suit property.
(e) That the defendant has failed to pay the rent of the suit property from July 2013 and he failed to pay the arrears of rent to the plaintiff despite repeated requests and reminders and accordingly Rs.
30,000/ was due and payable by the defendant from July 2013 upto December 2013 @ Rs. 5000/month.
(f) That the plaintiff was constrained to terminate the tenancy of defendant by virtue of a legal notice dated 24.12.2013 calling upon the defendant to vacate the suit property and to pay arrears of rent alongwith interest @ 15% p.a. within 15 days from the date of service of notice.
(g) That the said legal notice was duly served upon the defendant on 26.12.2013 but the defendant failed to comply with the same.
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(h) That the defendant is an unauthorized occupant in the suit property and the plaintiff is entitled to seek recovery of possession as well as arrears of rent and mesne profits.
(i) That the value of the suit for the purpose of court fees and jurisdiction is valued at Rs. 60,000 for the relief of possession being the annual rent of the suit property and at Rs. 30,000 for recovery of arrears of rent.
2. By way of present suit, the plaintiff has prayed for the following reliefs :
A. Decree of possession in respect of suit property i.e. A-1 forming part of Khasra No. 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd, Delhi.
B. Decree for the arrears of rent @ Rs 5000/month w.e.f 01.07.2013 to 31.12.2013 with further interest @ 15 % on this amount.
C. Decree for damages @ Rs 5000/ from 11.01.2014 till the filing of the present suit.
D. Decree for mesne profits @ Rs 15,000/month pendente lite and till the delivery of possession. E. Decree for permanent injunction restraining the defendant from creating any third party interest in the suit property F. Costs of the suit.
3. DEFENDANT'S VERSION Litigation by its very nature has two side to a story. To give his version, written statement has been filed on behalf of defendant wherein it is stated:
(a) That plaintiff has no locus standi to file the present suit.
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(b) That the suit of the plaintiff is not maintainable as the suit property falls in slum area and the requisite permission has not been taken before filing of the suit.
(c) That the plaintiff has never been the owner of the suit property and there has been no relationship of landlord and tenant between the parties.
(d) That Ramjas Foundation is the recorded owner of the land under the suit property and as such the suit is bad for non joinder of necessary party.
(e) That the suit of the plaintiff is not properly valued for the purposes of court fees and jurisdiction as the market value of suit property is more than Rs 1 crore.
In reply to the merits the contents of plaint are denied and prayer is made for dismissal of suit.
4. Replication has been filed on behalf of plaintiff wherein the averments made in the plaint are reiterated and the contentions raised in W.S are denied.
5. On the basis of pleadings of parties, following issues were framed by the Ld. Predecessor of this court on 06.05.2014 as under :
1. Whether plaintiff is entitled to the decree of possession as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of arrears of rent as prayed for ? OPP.
3. Whether the plaintiff is entitled to mesne profits, if any at what rate and for what period ? OPP.
4. Whether the plaintiff is entitled to interest if any, at what rate and for what period? OPP.
5. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP.
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6. Whether the plaintiff has no locus standi to file the present suit? OPD
7. Whether the suit is bad for non-joinder of necessary party? OPD
8. Whether the suit is barred U/s 50 of Delhi Rent Control Act? OPD
9. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
10. Whether the suit is hit by section 3 & 4 of Delhi Land Restriction of Transfer Act? OPD
11. Whether the suit is not maintainable in view of preliminary objection no.2 ? OPD
12. Relief.
6. PLAINTIFF EVIDENCE In order to prove her case plaintiff has examined herself as PW-1 and has tendered in evidence her duly sworn in affidavit which is Ex. PW 1/A and additional affidavit which is Ex PW1/A1 and has relied upon the following documents :
1. Copy Of Sale Deed dated 03.02.1995 Mark A
2. Copy of legal notice Ex. PW 1/ 2 3. Postal receipts Ex PW 1/3 4. Courier receipts Ex PW 1/4
5. Reply to legal notice Ex PW 1/5 6. Original Site Plan Ex PW 1/6
7. Certified copy of sale deed dated 11.09.1995 Ex PW 1/7
8. Certified copy of partition deed Ex PW 1/8
7. Besides herself plaintiff has examined two/three other witnesses as follows :
CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 5/18
1. Sh. Surya Prakash, Record Clerk from the office of Sub- registrar-I, Kashmere Gate, Delhi as PW-2
2. Sh. Tushar Suri as PW-3
3. Sh. V.P.Singh Advocate as PW-4 PW-2 had brought summoned record as follows :
1. copy of sale deed dated 03.02.1995 Ex. PW 2/1 (OSR) dated 04.4.2014 All the witnesses were cross-examined and discharged.
Vide statement made by plaintiff PE was closed and the matter was listed for DE.
8. DEFENDANT EVIDENCE In defendant evidence, defendant has examined himself as DW-2 and has tendered in evidence his duly sworn in affidavit as Ex. DW 2/A .Besides himself defendant has examined one other witness i.e. DW-1/ Sh. Jeet Ram , Surveyor from DUSIB who placed on record the copy of notified areas falling under slum notified areas I.e Ex DW1/A (OSR) Both the witnesses were cross-examined by Ld. counsel for plaintiff. Thereafter vide statement made by Ld. counsel for defendant on behalf of defendant DE was closed and the matter was listed for final arguments.
9. Final arguments heard on behalf of both the parties. Written arguments have also been filed on behalf of both the parties.
10. My issuewise findings are as under :
11. ISSUE No.1 and 51. Whether plaintiff is entitled to the decree of possession as prayed for ?
CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 6/18
5. Whether the plaintiff is entitled to permanent injunction as prayed for ?
12. Both these issues are taken up together as the findings upon these issues are based on common facts and evidences.
The onus to prove both these issues were upon the plaintiff.
13. The case of the plaintiff is based on the premise that the plaintiff is the landlord of the suit property and the defendant was a tenant in the said suit property. It is further the case of the plaintiff that the defendant was paying rent @ Rs. 5,000/- p.m. exclusive of other charges and that the tenancy of the plaintiff was on month to month basis. It is further the case of the plaintiff that since July, 2013, the defendant has failed to pay the rent of the suit property and as such on 24.12.2013, the tenancy of the defendant was terminated by virtue of legal notice which was sent through speed post and courier. It is further the case of the plaintiff that despite serving the said notice upon the defendant, the defendant has failed to vacate the suit property and to hand over the possession to the plaintiff.
14. Per contra, it is the case of the defendant that the defendant was never a tenant of the plaintiff and as such the plaintiff is not entitled to seek possession from him. It is further argued on behalf of defendant that the plaintiff was not the owner of the suit property and that the defendant has been in possession of the suit property since last 15 years.
15. As the onus to prove this issue was upon the plaintiff, therefore it has to be seen from the evidence led on behalf of plaintiff as to whether the plaintiff has been successful in discharging the onus placed upon her. To establish her case the plaintiff has examined herself as PW-1 and her son as PW-3.
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16. It is pertinent to note that in her examination in chief, PW-1/plaintiff reasserted the fact that she is the landlord and the defendant was the tenant in the suit premises for a monthly rent of Rs. 5,000/- p.m. However interestingly in her cross-examination conducted on 15.07.2015, PW-1/plaintiff stated as under :-
"I do not have any documentary proof to show that the defendant had been tenant in the suit property at any point of time. I do not have any document pertaining to payment of rent by defendant. I do not have any document to prove that I or my ancestor had made construction in the suit property."
17. PW-3 i.e Sh. Tushar Suri stated in his examination in chief that the suit property was given on rent to the defendant in the year 1995 and that the rent of the suit property was being collected by his father till his expiry and thereafter his mother till November, 2010 and thereafter since December, 2010 PW-3 used to collect the rent. However, in his cross-examination PW-3 stated as under :
"I have never seen any rent agreement. No receipt was ever issued to the defendant. I do not know whether my father had given any rent receipt to him. My mother had also not given any rent receipt to the defendant. It is correct that I have not issued the rent receipt to defendant ( Vol: I tried to hand over the rent receipt to defendant but he refused to accept it at the time of collection of rent). It is correct that I do not maintain any counter foil of rent receipt . I have not brought the rent receipts which were refused by defendant at the time of collection of rent. I have not mentioned in my affidavit regarding the refusal of rent receipts by the defendant at the time of CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 8/18 collection of rent. Neither I nor my mother is in possession of any record that the defendant has been our tenant at any point of time. "
18. The concomitant of the aforesaid is that the plaintiff has failed to establish the relationship of landlord and tenant between herself and the defendant.
19. During the course of final argument, it was fairly conceded by the ld counsel for the plaintiff that the plaintiff could not prove the relationship of landlord and tenant. However, it is argued on behalf of plaintiff that though the plaintiff has not been able to establish the relationship of landlord-tenant between the plaintiff and defendant, yet the plaintiff is entitled to recover possession from the defendant as the plaintiff is the owner of the suit property. It is further argued on behalf of plaintiff that PW-2 who was a summoned witness has brought on record the certified copy of sale deed dated 03.02.1995 i.e. Ex PW 2/1 which shows the ownership of property bearing no.A-1 forming part of Khasra No. 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd in favour of plaintiff.
20. At the outset, it is pertinent to note that the plaintiff filed the present suit on the basis that the plaintiff is a landlord and defendant is her tenant. The present suit was not filed to recover possession on the basis of title claiming defendant to be trespasser. The substance of the relief claimed is based upon the tenancy of the defendant and its termination by virtue of legal notice as prescribed u/s 106 of Transfer of Property Act. Further, there is no mention of any sale deed/sale documents in the plaint to substantiate the factum of ownership. The plaintiff for the first time in her examination in chief has stated that she is the owner of upper ground floor and first floor of property bearing no. A-1 forming part of Khasra No. CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 9/18 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd, Delhi which was purchased from one Sh. R.N. Bhalla and the copy of the sale deed dated 03.2.1995, is Mark A.
21. It is further pertinent to mention that the plaintiff in her additional affidavit of examination in chief only has relied upon sale deed dated 11.09.1995, i.e Ex. PW 1/7 and partition deed dated 09.09.1999 i.e Ex. PW 1/8. The plaintiff has asserted that vide sale deed dated 11.09.1995 i.e Ex. PW 1/7, the plaintiff had sold one half of her undivided share of property bearing no. A-1 forming part of Khasra No. 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd, Delhi to Smt. Meena Suri and that vide partition deed Ex. PW 1/8, upper ground floor and the first floor of the property bearing no. A-1 forming part of Khasra No. 1017/342 situated at Gali no.4, Anand parbat, in the area Village Sadhora Khurd, Delhi fell into her share.
22. It is relevant to mention here that none of the aforesaid facts were stated by the plaintiff in her plaint and therefore, no reply on the said facts were given by the defendant in the written statement.
23. At this point, it is relevant to refer to National Textile Corporation Limited v.Naresh Kumar Badrikumar Jagad, (2011) 12 SCC 695, wherein the Hon'ble Supreme Court held as hereunder:
"12. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 10/18 to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide Trojan &. Co.v.Nagappa Chettiar [AIR 1953 SC 235], State of Maharashtrav.Hindustan Construction Co. Ltd. [(2010) 4 SCC 518: (2010) 2 SCC (Civ) 207:AIR 2010 SC 1299]and Kalyan Singh Chouhanv.C.P. Joshi [(2011) 11 SCC 786: (2011) 4 SCC (Civ) 656:AIR 2011 SC 1127].)
13. In Ram Sarup Guptav. Bishun Narain Inter College [(1987) 2 SCC 555:AIR 1987 SC 1242] this Court held as under: (SCC p.
562, para 6) "6. ... in the absence of pleading, evidence, if any, produced by the parties cannot be considered. ... no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it."
Similar view has been reiterated in Bachhaj Nahar v. Nilima Mandal [(2008) 17 SCC 491: (2009) 5 SCC (Civ) 927: AIR 2009 SC 1103].
14. In Kashi Nath v. Jaganath [(2003) 8 SCC 740] (SCC p. 745, para 17) this Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. Same remains the object for framing the issues under Order 14 CPC and the court should not decide a suit on a matter/point on which no issue has been framed. (Vide Biswanath Agarwalla v. Sabitri Bera [(2009) 15 SCC 693: (2009) 5 SCC (Civ) 695]and Kalyan Singh Chouhan [(2011) 11 SCC 786: (2011) 4 SCC (Civ) 656:AIR 2011 SC 1127].)
15. In Syed and Co.v. State of J&K [1995 Supp (4) SCC 422] this Court held as under: (SCC pp. 423-24, paras 7-8) "7. ... Without specific pleadings in that regard, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading.
8. Therefore, without amendment of the pleadings merely trying to lead evidence is not permissible."
CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 11/18
16. In Chinta Lingam v Govt. of India [(1970) 3 SCC 768: AIR 1971 SC 474] this Court held that unless factual foundation has been laid in the pleadings no argument is permissible to be raised on that particular point.
17. In J. Jermons v. Aliammal [(1999) 7 SCC 382] while dealing with a similar issue, this Court held as under: (SCC p. 398, paras 31-32) "31. ... there is a fundamental difference between a case of raising additional ground based on the pleadings and the material available on record and a case of taking a new plea not borne out by the pleadings. In the former case no amendment of pleadings is required whereas in the latter it is necessary to amend the pleadings. ...
32. ... The respondents cannot be permitted to make out a new case by seeking permission to raise additional grounds in revision."
18. In view of the above, the law on the issue stands crystallized to the effect that a party has to take proper pleadings and prove the same by adducing sufficient evidence. No evidence can be permitted to be adduced on a issue unless factual foundation has been laid down in respect of the same.
24. In the instant case, the case set up by plaintiff pertains to the tenancy of defendant and its termination by the plaintiff u/s 106 of Transfer of Property Act. The entire pleadings refers the plaintiff as landlord and defendant as tenant and there is no plea in the entire plaint that the defendant is a trespasser or that the possession is being sought on the basis of title. The cause of action as stated in plaint refers to non-payment of rent by the defendant and prayer clause seeks possession on the ground that tenancy stood terminated. No issue has been framed as to whether the defendant is a trespasser in the suit property as the plaintiff has through out asserted till her CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 12/18 examination in chief that the plaintiff is a landlord and that the defendant is a tenant.
25. Furthermore, the valuation for the purpose of court fees and jurisdiction as has been mentioned by the plaintiff qua the relief of possession is in accordance with Section 7 (xi) (cc) of the Court Fees Act which pertains to landlord tenant dispute. However in a suit for possession against a trespasser the valuation for the purpose of court fees and jurisdiction has to be done as per the market value of the property involved in accordance with Section 7 (v) of Court Fees Act. No valuation has been provided by the plaintiff with respect to this. In the considered opinion of this court, the area of the suit property being 65 sq yds, if the suit is valued correctly for the relief of possession on the basis of title, it would be beyond the pecuniary jurisdiction of this court.
26. To sum up, the contention of the counsel for the plaintiff that the plaintiff is entitled to recover possession as she has proved her title has to be rejected as the plaintiff has never pleaded and sought possession on the basis of title in the plaint. The suit of the plaintiff being based on the landlord-tenant relationship, it was not required for the court to delve into the issue of title of the plaintiff. No issue was framed to the effect as to whether the defendant was a trespasser in the suit property. The evidence whatsoever led on behalf of plaintiff to prove the title can be said to be beyond pleadings and for the same reason can not be looked into. The plaint as well as the affidavit of examination in chief of the plaintiff stated that the plaintiff was landlord and that the defendant was the tenant. It is settled that the court can not decide a suit on a matter/point on which no issue has been framed. In Biswanath Agarwalla v. Sabitri Bera [(2009) 15 SCC 693: (2009) 5 SCC (Civ) 695 while dealing with the similar argument i.e whether a civil court can pass a decree on the CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 13/18 ground that the defendant is a trespasser in a simple suit for eviction. The Hon'ble Supreme Court held "When, however, a defendant is a trespasser and is sued as such, the situation would be totally different. Plaintiff must file a suit having regard to the cause of action thereof. The Court, in a given case, can mould the relief having regard to the provisions of Order VII Rule 7 of the Code of Civil Procedure, but the said provision cannot be applied in a situation of this nature."
However, considering the fact that suit was filed in the year 1990, the Hon'ble Supreme Court deemed it fit to exercise powers under Article 142 of the Constitution of India and issued the directions
(i) The plaintiff may file leave to amend their plaint to seek eviction of defendant on the ground that he is a trespasser.
(ii) Alongwith such application, requisite court fees in terms of provisions of Cout Fees Act be tendered within four weeks.
(iii) The defendant would then be entitled to file additional written statement.
(iv) Thereafter appropriate issues shall be framed and evidence be led.
27. The said argument of plaintiff, thus can't be accepted. In the present suit, the plaintiff has asserted herself to be landlord and the defendant to be tenant. The plaintiff claimed that rent was not being paid by the defendant and thus, the tenancy was terminated by serving a notice upon the defendants. These being the assertions of the plaintiff, it was incumbent upon her to establish firstly the relationship of landlord and tenant between herself and defendant.
CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 14/18 The plaintiff has miserably failed to prove the said relationship. Therefore, it has to be held that the plaintiff has failed to discharge her onus with respect to issue no. 1. Accordingly, issue no.1 stands decided against the plaintiff and in favour of defendant.
28. The issue no.5 i.e relief of permanent injunction is incidental relief to the relief of possession and in light of issue no.1 being decided against the plaintiff, the issue no. 5 has to be necessarily decided against the plaintiff.
29. ISSUE NO. 2,3 and 42. Whether the plaintiff is entitled to the decree of arrears of rent as prayed for ?
3. Whether the plaintiff is entitled to mesne profits, if any at what rate and for what period ?
4. Whether the plaintiff is entitled to interest if any, at what rate and for what period?
All the issues are taken up together.
30. In light of findings on issue no.1, it has to be held that the plaintiff has vehemently failed to prove the landlord tenant relationship between the plaintiff and defendant and as such cannot be held entitled to the decree of arrears of rent or mesne profit or interest.
Accordingly all these issues are decided against the plaintiff.
31. ISSUE NO. 6Whether the plaintiff has no locus standi to file the present suit?
The onus to prove this issue was upon the defendant. Apart from mere allegations, no evidence has been led by the defendant with respect to this issue. It is to be noted that the plaintiff has filed the present suit in the capacity of landlord claiming CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 15/18 the defendant to be her tenant. The mere fact that the plaintiff could not establish the fact that she was the landlord does not per se mean that the plaintiff had no locus to file the suit.
The issue is accordingly decided against the defendant.
32. ISSUE NO. 7,8 & 107. Whether the suit is bad for non-joinder of necessary party?
8. Whether the suit is barred U/s 50 of Delhi Rent Control Act?
10. Whether the suit is hit by section 3 & 4 of Delhi Restriction of Transfer Act?
The onus to prove these issues was upon the defendant. As regards Issue No. 7, it is the contention of the defendant that the suit property belongs to Ramjus Foundation and as such Ramjus Foundation is the necessary party for the present suit. It is pertinent to take note of the fact that the Ramjus Foundation was called by this court without impleading it as a party to file its report. As per report dated 19.02.2019, Ramjas Foundation has stated that the Khasra Number which is mentioned by the plaintiff does not belong to Ramjas Foundation. In view of the said report, the Ramjas Foundation cannot be termed as necessary party for the present dispute. Accordingly, Issue no. 7 stands decided against defendant.
33. As regards Issue No. 8, it has been consistent stand of the defendant that defendant was never a tenant under the plaintiff. As Delhi Rent Control Act, is a specific enactment which deals with the landlord tenant dispute, cannot be said to be applicable in the present dispute and as such the Issue No. 8 has to be decided against the defendant.
34. As regards Issue No.10, it is the contention of defendant that as the land beneath the suit property has been acquired, no sale CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 16/18 of the said land could have been done. However, it has been stated on behalf of Ramjas Foundation that Khasra No. 1017/342 does not belong to it and the said Khasra was never acquired. No other cogent evidence has been led on behalf of defendant. Accordingly, this issue is also decided against the defendant.
35. ISSUE NO. 99. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction?
The onus to prove this issue was upon the defendant.
36. However no evidence has been led on behalf of defendant regarding this issue. The plaintiff has claimed herself to be the landlord and stated that the rent amount for the said premises was Rs. 5,000/- the valuation for the purpose of court fees and jurisdiction with respect to the relief of possession of the suit property has been valued at Rs. 60,000/- i.e yearly rent in accordance with Section 7
(xi) of Court Fees Act. The said valuation is proper as per law. As regards the other reliefs also, the valuation has been correctly made.
The issue is accordingly decided against the defendant.
37. ISSUE NO. 1111. Whether the suit is not maintainable in view of preliminary objection no.2?
The onus to prove this issue was upon the defendant. It is contended by the defendant that the suit property comes in slum notified area and no requisite permission has been taken from competent authority before filing of present suit.
38. In this regard it is beneficial to refer to the Judgment of Hon'ble High Court of Delhi in Giri Raj (deceased) through LRs Vs. Deepak Gupta and Ors. wherein it was observed that the Delhi Slum Act is not applicable where tenancy has been denied. It was CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 17/18 observed that Section 19 of Delhi Slum Act, 1956 extends protection from eviction only to lawful tenant.
39. In the instant case the defendant has denied the existence of tenancy right from the beginning and as such the present argument is not available to the defendant. Accordingly, the issue no.11 is decided against the defendant.
40. RELIEF In view of findings on issue NO.1,2,3,4 & 5 , the court is of the considered view that the plaintiff could not prove its case on the balance of preponderance of probabilities. Accordingly, the suit of the plaintiff stands dismissed. The parties shall bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
NITISH Digitally signed
by NITISH
KUMAR KUMAR SHARMA
Date: 2020.10.23
SHARMA 16:19:20 +0530
Pronounced in the open court (Nitish Kumar Sharma)
Today i.e on 23.10.2020 Civil Judge-01 (West)/Delhi
CS SCJ No. 610190/16 Sunita Suri vs. Raman Jain 18/18