Delhi District Court
Sh.Nand Kishore vs Smt.Kusum on 7 September, 2017
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IN THE COURT OF MS.KAVERI BAWEJA:ADDL. DISTT. JUDGE03 (W)
TIS HAZARI COURTS : DELHI
RCA New No.104/2017
In the matter of:
Sh.Nand Kishore
S/o Sh.Kishori Lal
R/o 487/38, National Market,
Peeragarhi, Delhi110087 .... Appellant
Versus
Smt.Kusum
W/o Late Sh.Khem Chand
R/o S.R.91/633, Peeragarhi,
Delhi110087 .... Respondent.
Date of institution of Appeal : 31.05.2017
Judgment reserved on : 05.09.2017
Judgment delivered on : 07.09.2017
JUDGMENT
1. The present Appeal assails judgment dated 31.03.2017 passed by the learned Trial Court, whereby the suit filed by the Respondent/Plaintiff herein for possession and mesne profits/damages was decreed by the learned Trial Court.
2. In brief, it is the case of the Plaintiff/Respondent herein that property No.487/38, National Market, Peera Garhi, Delhi was owned by her deceased husband namely late Sh.Khem Chand and after his demise the RCA New No. 104/17 Nand Kishore vs. Kusum 2 same has been inherited by her and the other legal heirs. Accordingly, the Plaintiff/Respondent claims to be the coowner/landlord of the suit property. It is her case that the Appellant had taken residential portion of the said property on rent from her late husband. However, in January, 2004 the Appellant along with another tenant namely Sh.Satish Kumar illegally and unauthorizedly occupied one shop, which is in the front portion of the aforesaid property. (hereinafter to be referred as the disputed premises).
3. It is stated that he refused to vacate the said portion which is under his illegal and unauthorized occupation and thus the Plaintiff/Respondent filed a suit for possession and mesne profits/damages claiming mesne profit @ Rs.3000/ per month for three years preceding the date of filing of the suit.
4. The Appellant/Defendant contested the said suit claiming that the Plaintiff is not the owner of the suit property and is only acting as a landlord. He also stated that he is in fact a tenant in respect of the suit property to the husband of the Plaintiff @ Rs.150/ per month which was later increased to Rs.400/ per month including electricity and water charges. He also submitted that the suit is barred under the provisions of Section 50 of DRC Act.
5. Following issues were framed by the learned Trial Court vide RCA New No. 104/17 Nand Kishore vs. Kusum 3 order dated 25.09.2013:
i) Whether the Plaintiff is entitled to decree for suit? OPD
ii) Whether the Plaintiff is entitled to a decree for damages? If yes, at what rate and for which period? OPP
iii) Whether the Plaintiff has suppressed material facts? OPD
iv) Whether the suit is barred by Section 50 of DRT Act? OPD
v) Whether the suit is bad for nonjoinder of necessary parties? OPD
6. The Plaintiff/Respondent herein examined herself as PW1. She also examined another witness namely Sh.Balbir Singh and summoned witness from the office of SDM, Punjabi Bagh, who produced original Kathoni of the year 198586 in respect to Khasra No.487/38 min and 487/43 min and exhibited the same as Ex.PW3/1.
7. The Defendant, on the other hand, examined himself as the only witness and deposed by way of his affidavit Ex.DW1/A.
8. After appreciating the evidence and considering the submissions made, the learned Trial Court held that the Plaintiff/Respondent is entitled to a decree of possession in respect of the disputed premises and also directed payment of mesne profits/damages @Rs.1000/ per month from three years preceding the date of filing of the suit and as such the Plaintiff /Respondent was liable to pay court fees on the said sum of Rs.1,08,000/ and the total value of the suit for the purpose of court fee and jurisdiction RCA New No. 104/17 Nand Kishore vs. Kusum 4 was thus Rs.3,08,000/, which is beyond the pecuniary jurisdiction of the learned Trial Court.
9. It is further contended that the learned Trial Court erred in holding that the Plaintiff has failed to prove that she is the owner of the suit property and that the Defendant/Appellant herein has failed to prove his tenancy in respect of the disputed premises. It is thus prayed that the impugned judgment be setaside and the Appeal be allowed.
10. On the other hand, learned counsel for the Respondent submitted that the Appeal is devoid of merits and the learned Trial Court rightly arrived at the conclusions as recorded in the impugned judgment after appreciating the evidence and the relevant case law on the subject.
11. Learned counsel for Respondent contended that as per Section 21 of the Code of Civil Procedure, No objection as to the place of suing may be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. He relied upon the following judgments in support of his argumnets:
a) Pradeep Chand Sharma & Ors. vs. Budhi Devi & Ors., AIR 2017, Himachal Pradesh 73;
RCA New No. 104/17 Nand Kishore vs. Kusum 5
b) Gosto Behari Pramanik vs. Smt. Malati Sen & Ors., AIR 1985 Calcutta 379;
c) Manik Bhowmick vs. Smt.Sarita Bhowmick, AIR 2017 Jharkhand 77;
d) M/s Savani Transport (Pvt.) Ltd. vs. Gangadhar Ghosh, AIR 1986 Calcutta 330 &
e) A.D.Koshal vs. Balakrishna, AIR 1981 SC 1683.
12. It is submitted by learned counsel for the Respondent that admittedly no averment was made in the written statement by the Appellant herein before the learned Trial Court to the effect that the learned Trial Court did not have the pecuniary jurisdiction to decide the suit nor any issue was framed in this regard nor any submission was made before the learned Trial Court in this regard during the entire length of trial. He argued that the Appellant cannot be permitted to raise this contention for the first time before this court.
13. Learned counsel for the Appellant, on the other hand, submitted that since this is a legal issue, it may be dealt with at any stage of the proceedings.
14. I have considered the rival submissions. However, before proceeding further, it would be relevant to reproduce the relevant statutory provision i.e. Section 21 CPC, which reads as under: "No objection as to the place of suing may be allowed by any RCA New No. 104/17 Nand Kishore vs. Kusum 6 Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice."
15. The Hon'ble Apex Court in Kiran Singh & Ors. vs. Chamar Paswan & Ors.,AIR 1954 SC 340 held as under: "..When a case has been tried by a court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of legislature has been to treat objections of jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits."
16. The position with regard to a decree passed by a court lacking pecuniary jurisdiction has also been summed up by the Hon'ble Apex Court in case titled as Subhash Mahadevasa Habib vs. Nemasa Ambasa Dharmadas (dead) by LRs, & reported as AIR 2007 SC 1828 as follows: "The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied."
RCA New No. 104/17 Nand Kishore vs. Kusum 7
17. This view of the Hon'ble Apex Court has been followed by the Hon'ble High Court of Himachal Pradesh in Pradeep Chand Sharma & Ors. vs. Budhi Devi & Ors., AIR 2017, Himachal Pradesh 73. Similar view has also been taken in Manik Bhowmick vs. Smt.Sarita Bhowmick, AIR 2017 Jharkhand 77. Similarly, in Pathumma vs. Kuntalan Kutty, AIR 1981 SC 1683, it has been laid down as under: "In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfillment of the following three conditions is essential:(1) The objection was taken in the court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (3) There has been a consequent failure of justice. All these three conditions must co exist."
18. In the light of the aforesaid legal proposition, I find myself in agreement with the submissions of learned counsel for the Respondent that the issue of pecuniary jurisdiction thus cannot be raised before this court.
19. Insofar as the contention with regard to findings in respect of ownership of the Plaintiff/Respondent is concerned, I again find myself in agreement with the observations of the learned Trial Court, who, relying upon the testimony of PW3 and the record of the Khatoni Ex.PW3/1 in respect to Khasra No.487/38 min and 487/43 min has decreed the suit of the RCA New No. 104/17 Nand Kishore vs. Kusum 8 Plaintiff/Respondent. The said record of Khatoni Ex.PW3/1 clearly shows the name of the husband Sh.Khem Chand entered in the said revenue record. The Plaintiff has claimed to have become the coowner of the property No.487/38, National Market, Peera Garhi, Delhi after demise of her husband. The Defendant i.e. Appellant herein did not lead any evidence to the contrary. The Plaintiff/Respondent has thus been able to show her better title to the property in question than the Defendant/Appellant herein. The Appellant has also not brought on record any evidence to establish his claim of tenancy in respect of the premises in dispute.
20. Accordingly, I find no ground whatsoever to interfere with the impugned judgment which has been correctly passed by the learned Trial Court after appreciating the evidence on record.
21. Consequently, the Appeal, being devoid of merits is hereby dismissed. TCR be sent back along with a copy of this order. Appeal file be consigned to record room.
Announced in open court on this 07th day of September, 2017 (Kaveri Baweja) Additional District Judge03 (West) Tis Hazari Courts: Delhi.
RCA New No. 104/17 Nand Kishore vs. Kusum
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RCA New No.104/2017
Nand Kishore vs. Kusum
07.09.2017
Present : None
By this order, I shall decide an application filed by the Appellant under Section 5 of the Limitation Act read with Section 151 CPC seeking condonation of delay in filing the present Appeal. The application has been strongly opposed by counsel for the Respondent, who states that the Appellant has failed to explain each day's delay in filing of the Appeal and that there is no ground to allow the application under consideration.
Having considered the rival submissions made and keeping in view the larger interest of justice and with a view to decide the Appeal on merits, the application is allowed, subject to the cost of Rs.5000/ to be paid by the Appellant to the Respondent.
Vide separate order announced today in open court the Appeal being devoid of merits is hereby dismissed. TCR be sent back along with a copy of this order. Appeal file be consigned to record room.
(Kaveri Baweja) Additional District Judge03 (West) Tis Hazari Courts: Delhi.
07.09.2017
RCA New No. 104/17 Nand Kishore vs. Kusum