Delhi District Court
Sh. Sunil Kumar vs Dr. Krishan Lal Bhatla on 19 November, 2012
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE01(WEST) : DELHI
RCA No. 32/12
Sh. Sunil Kumar,
S/o Sh. Pritam Dass,
R/o B3/52, First Floor,
Paschim Vihar,
New Delhi. .....Appellant
Versus
Dr. Krishan Lal Bhatla,
S/o Sh. S.C. Bhatla,
R/o B3/52, Ground Floor,
Paschim Vihar,
New Delhi. .....Respondent
Date of Institution : 30.05.2012
Date of Decision : 19.11.2012
J U D G M E N T
By this judgment I shall dispose of an appeal under Section 96 read with Order 41 Rule 1 of CPC against the order and decree dated 28.04.2012 passed by Sh. Rohit Gulia, ld. Civil Judge, Delhi, in Civil Suit No.83/12 entitled as Dr. Krishan Lal Bhatla Vs. Sh. Sunil Kumar.
Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 1 of 10
2. Ld. Counsel for the appellant has preferred this appeal with the submissions that the ld. Trial Court has passed this judgment and decree of possession of the suit property on the very first date of hearing when only Vakalatnama was filed by the counsel for defendant/appellant after receiving the notice on 18.04.2012. The respondent/plaintiff has filed a suit for possession and damages in respect of the suit premises No. B3/52, First Floor, Paschim Vihar, New Delhi, claiming himself to be the sole and absolute owner of the suit property and the suit was partially decreed for possession. The respondent/plaintiff had rented the suit property to the defendant/appellant in the month of September, 2009 for a monthly rent of Rs.3,500/ per month in the presence of property dealer and the two eye witnesses brought by the plaintiff. At the time of inception of tenancy Rs.25,000/ were given to the respondent/plaintiff as Security amount. It was agreed between the parties that the appellant/ defendant can reside in the suit premises as long as he wants. The tenancy was oral and no documents were executed by the parties. The notice of the suit for possession and damages etc. of the ld. Trial Court was received on 18.04.2012 and the date fixed for hearing was 28.04.2012. Ld. Counsel for the defendant alongwith the defendant appeared before the ld. Trial Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 2 of 10 Court and only Vakalatnama was filed by the ld. Counsel for the defendant. Neither any Written Statement was filed nor any statement was recorded by the ld. Trial Court and the ld. Trial Court has passed the decree for possession on the very same date. The plaintiff has alleged in the suit that the monthly rent was Rs.8,000/ per month, though the monthly rent is Rs.3,500/ per month. Aggrieved by this impugned order and decree dated 28.04.2012, the appellant/defendant has filed this for setting aside the same.
Ld. Counsel for the appellant/defendant has further submitted that the impugned order and decree is wrong in law and on facts as only Vakalatnama was filed by the ld. Counsel for the defendant/ appellant, neither any Written Statement was filed nor any statement was recorded by the ld. Trial Court and the ld. Trial Court has passed the decree for possession in haste on the very first date of the appearance of the defendant and his counsel. The Rent Agreement was oral and not written, which was yet to be proved and without evidence the same cannot be proved by either of the parties. The suit of the respondent/plaintiff is not maintainable in view of Section 50 of the Delhi Rent Control Act which bars the suit of the respondent/ plaintiff as the ld. Civil Judge has no jurisdiction to try and adjudicate the ejectment proceedings as the rate of rent is Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 3 of 10 Rs.3,500/ per month and only the ld. Rent Controller has jurisdiction to adjudicate the eviction petition. There are number of triable issues which were to be tried by the ld. Trial Court and the ld. Trial Court has decided the suit in haste on the very first date of hearing. There is no admission of any material facts justifying the ld. Trial Court to make impugned order and decree. The ld. Trial Court has passed the impugned order and decree dated 28.04.2012 without adopting due procedure and provision of law and the same is liable to be setaside.
It is, therefore, prayed that this court may setaside the impugned order and decree dated 28.04.2012 passed by the Sh. Rohit Gulia, ld. Civil Judge, Delhi, or pass any other order which this court may deem fit in the facts and circumstances of the case.
3. On the contrary, the ld. Counsel for the respondent/ plaintiff has submitted that the present appeal is not maintainable for want of proper court fee. The order and decree dated 28.04.2012 for possession passed by Sh. Rohit Gulia, ld. Civil Judge, Delhi, is legal and as per the provisions of law. To succeed in a suit for possession, the landlord/respondent herein is supposed to have prove the following things i.e. Relationship of landlord and tenant; Service of Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 4 of 10 termination notice and rent exceeding Rs.3,500/ per month. Ld. Trial Court has inquired in the open court in the presence of the ld. counsel Sh. A.K. Sharma for the appellant/defendant in original suit about the relationship with the plaintiff/respondent, service of notice and the rate of rent. The appellant herein i.e. defendant in the original suit, admitted the respondent/plaintiff as his landlord and himself as tenant. He also admitted the receipt of notice and even on the point of rent, he has stated that the rate of rent is Rs.3,500/ per month exclusive of water and electricity charges. The case of the respondent/ landlord is that the rent is Rs.8,000/ per month plus Rs.250/ per month for chowkidar and electricity and water charges etc. as per the actual consumption. The protection of Delhi Rent Control Act is not available to the appellant. In the present case, the appellant/defendant has admitted and on the admission of the appellant/defendant, the ld. Trial Court has passed the order under Order 12 Rule 6 CPC.
Under these circumstances, it is prayed that the appeal is liable to be dismissed as the same is merit less.
4. I have heard ld. Counsel for the parties and perused the material on record including the ld. Trial Court record carefully. Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 5 of 10
5. Ld. Counsel for the appellant has relied upon the following case laws :
i) 1971(1) Supreme Court Cases, 623 titled as Sh.
Chhote Lal Vs. Sh. Kewal Krishan Mehta;
ii) 2006(1) RCJ 285 titled as Prof. Ram Prakash Vs. D.N. Srivastava;
iii) AIR 2010 Supreme Court, 1890 titled as M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr.;
iv) 2004(1) RCR titled as Vishwant Kumar Vs.
Madan Lal Sharma & Anr.;
v) AIR 2001 Supreme Court, 3580 titled as M/s
Ambalal Sarabhai Enterprises Ltd. Vs. M/s Amrit Lal & Co. & Anr.
6. Ld. Counsel for the respondent has also relied upon the following case laws :
i) 2010 RLR, 18 (Note) titled as Rohini Varshenai Vs. R.B. Singh;
ii) 2002 RLR, 317 titled as Standard Pharma Vs. Gyan Chand;
iii) AIR 2000 Delhi, 69 titled as Sewa International Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 6 of 10 Fashions Vs. Smt. Suman Kathpalia & ors. and I have perused the same also.
7. After hearing arguments and on the perusal of the material on record including the ld. Trial Court record, it is revealed that the appellant/defendant has appeared alongwith his counsel Sh. Arun Kumar Sharma on 28.04.2012 i.e. the very first date when the defendant/appellant and his counsel has appeared and the second date so far as the respondent/plaintiff is concerned. On 28.04.2012, only Vakalatnama was filed on behalf of the defendant/appellant and no Written Statement was filed. The ld. Trial Court has partly decreed the suit on the very same date i.e. on 28.04.2012 by ruling :
"The defendant states that the rent of the tenanted premises is Rs.3,500/ per month. The case of the plaintiff is that the tenant should vacate the premises as he was served the notice upon the defendant to vacate the same. The defendant states that the rent of the premises is Rs.3,500/ per month and he has also received the notice to vacate the premises.
Accordingly, in view of the submissions made by the defendant and the notice served by the plaintiff upon the defendant, the plaintiff is entitled to a decree Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 7 of 10 of possession. Accordingly, a decree of possession is hereby passed......"
Perusal of the order dated 28.04.2012 reveals that the defendant/appellant states that the rent of the tenanted premises is Rs.3,500/ per month and there is no even whisper in the order whether the electricity or water charges are included in Rs.3,500/ per month or is excluding the electricity or water charges. Since there is no mentioning whether the rent of the tenanted premises i.e. Rs.3,500/ per month is inclusive or exclusive of the electricity or water charges, the same is not clear and unambiguous admission by the defendant in which the suit can be decreed under Order 12 Rule 6 CPC. The question whether the suit is barred under Section 50 of D.R.C. Act has also remained unanswered.
8. Even otherwise, the ld. Trial Court has passed a decree of possession on the very first date when the defendant/appellant and his counsel has appeared and only Vakalatnama was filed. The ld. Trial Court should have afforded a reasonable, fair and proper opportunity to the appellant/defendant to put forth his case. No one should be condemned unheard, is the basic principle of our Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 8 of 10 justice delivery system. Since the aspect whether the present suit is barred by Section 50 of the Delhi Rent Control Act and the reasonable, proper and fair opportunity has not been afforded to the defendant/appellant to put forth his case, the order and decree passed by Sh. Rohit Gulia, ld. Civil Judge, Delhi, is liable to be set aside. I have highest regard for the case laws filed on behalf of the respondent/plaintiff but the same has been pronounced in different facts and circumstances.
9. Consequently, this appeal is allowed and the order and decree passed by Sh. Rohit Gulia, ld. Civil Judge, Delhi, is setaside with a direction to decide the matter afresh by giving reasonable, proper and fare hearing to the defendant/appellant and by passing speaking order/judgment. A copy of this judgment alongwith ld. Trial Court Record be sent to the ld. Trial Court for necessary information, record and compliance.
10. The parties alongwith their counsel are directed to appear before the ld. Trial Court on 27.11.2012 at 2.00 PM for further necessary action at his end. Ahlmad of this court is directed to send the ld. Trial Court Record alongwith a copy of this judgment to the Sh. Sunil Kumar V/s Dr. Krishan Lal Bhatla Page 9 of 10 ld. Trial Court.
11. The appeal file be consigned to Record Room.
Announced in Open Court
on 19th September, 2012 ( R. B SINGH )
Additional District Judge01(West)
Delhi
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