Delhi High Court
Sh. Sanjay Kumar Sharma vs Smt. Santosh & Ors. on 7 January, 2011
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.415/2000
% 7th January, 2011
SH. SANJAY KUMAR SHARMA ...... Appellant
Through: Mr. Harish Malhotra,
Advocate with Mr.
Tanuj Khurana,
Advocate.
VERSUS
SMT. SANTOSH & ORS. ...... Respondents
Through: Mr. Arun Kuamr
Srivastava, Advocate
with Mr. M.S. Panwar,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
C.M. Nos.16438/2010 (condonation of delay) and 16437/2010 (restoration) in RFA No.415/2000 Counsel for the respondents does not oppose the allowing of these applications. Hence, the delay for filing the application for re- admission of the appeal is condoned and appeal is restored to its RFA No.415/2000 Page 1 of 5 original number.
Applications stand disposed of.
RFA No.415/2000
1. The challenge by means of the first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 6.5.2000 whereby the suit of the respondents/plaintiffs for possession and recovery of rent was decreed.
2. The facts of the case are that the respondents/plaintiffs let out to the appellant/defendant the property No.135A measuring 450 sq. yds. in village Dasgaraha, New Delhi. The lease is said to be pursuant to a document exhibited as Ex.P12 before the trial Court. There is also a simultaneous receipt which has been exhibited as Ex.P13. The document Ex.P12 is not a lease deed in the sense of the term of the document, but, it is only a record of a transaction which is signed by the respondents alone. As per this document, the tenancy commenced from 17.10.1983 and was for five years. This tenancy came to an end therefore on 17.10.1988. On account of the appellant having failed to vacate the suit premises, legal notices dated 10.3.1988, 14.7.1988, 1.10.1988 and 30.11.1988 were served on the appellant asking for payment of rent and terminating the tenancy. On failure of the appellant in paying the rent, the subject suit for possession and recovery of rent was filed.
RFA No.415/2000 Page 2 of 5
3. The trial Court has held that the document Ex.P12 could be looked into because it was merely a record of transaction and not of itself creating a lease because it was a document signed only by the respondents. In any case, even if this document cannot be looked into because it ought to have been registered the appellant at best would have been a monthly tenant and whose tenancy could have been terminated by a legal notice under Section 106 of the Transfer of Property Act. It is not disputed by the learned senior counsel for the appellant that notices were duly sent to the appellant and as per which the tenancy was terminated being the notice dated 1.10.1988 (Ex.PW1/2) and more particularly the notice dated 30.11.1988 (Ex.PW1/7).
4. In view of the above, the facts which emerge are that the appellant is admittedly only a tenant. Either he was a tenant for a fixed term or a tenant from month to month. In case, he was a tenant for a fixed term, the fixed term expired on 17.10.1988. If he was a tenant from month to month basis, his tenancy stands terminated by means of the legal notice.
5. Accordingly, the appellant would be liable to be evicted from the suit premises which is only a plot of land.
6. Learned senior counsel for the appellant very vehemently argued that the premises were covered by Delhi Rent Control Act, RFA No.415/2000 Page 3 of 5 1958 (hereinafter refer to as the 'said Act') and Section 50 of the said Act bars the jurisdiction of the Civil Court. It is contended that the appellant had raised construction and therefore he was entitled to protection under the said Act. I am unable to agree with the contention of the counsel for the appellant because admittedly what was let out was only a plot of land. Delhi Rent Control Act, 1958 applies when what is let out is a constructed premises and not a plot of land. If the appellant has made any construction on a plot of land he is fully entitled to remove any construction made by him which in any case in the present case is just about one room. The other construction is said to be a boiler installed by the appellant in the suit land. Accordingly, in my opinion, the appellant cannot have any protection of the Rent Act and therefore the Civil Court's jurisdiction is not barred by Section 50 of the said Act. I may also note that no such plea was raised before the trial Court and nor has any issue been framed thereon. The impugned judgment also does not show that this case was argued on behalf of the appellant on this basis. Thus this issue, a mixed question of law and fact, cannot be raised for the first time in this Court. I have therefore dealt with the arguments of bar of jurisdiction of Civil Court only in deference to the arguments of the learned senior counsel for the appellant.
RFA No.415/2000 Page 4 of 5
7. In view of the above, I do not find any reason to interfere with the impugned judgment and decree. Appeal is therefore dismissed, leaving the parties to bear their own costs. Interim orders stand vacated.
JANUARY 07, 2011 VALMIKI J. MEHTA,J
Ne
RFA No.415/2000 Page 5 of 5