Delhi District Court
Additional District Judge-01 (South ... vs All India Blind Relief Society on 26 October, 2018
IN THE COURT OF MS. SURYA MALIK GROVER
ADDITIONAL DISTRICT JUDGE-01 (SOUTH EAST)
SAKET COURTS, NEW DELHI
RCA - 25/18 Digitally
signed by
SURYA SURYA MALIK
GROVER
Jasmeet Singh MALIK Date:
S/o. Late Sh. Trilok Singh GROVER 2018.10.31
03:28:32
R/o. B-61, Amar Colony, Lajpat Nagar +0530
New Delhi.
......Appellant
Versus
All India Blind Relief Society
II-F, Lajpat Nagar, New Delhi.
......Respondent
Date of Institution of suit : 17.02.2018
Date of Reserving of judgment : 05.10.2018
Date of Judgment : 26.10.2018
JUDGMENT
1. By virtue of this judgment appeal filed against judgment dated 27.07.2017 passed by Court of Ld. Civil Judge-03, Tis Hazari Courts. Delhi is being disposed of.
RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 1 of 13 Factual Matrix of the Case
2. Before embarking upon the grounds of appeal, in a nutshell, it is the case of the plaintiff/ respondent society that it is owner/ landlord of premises no. II-F, Lajpat Nagar, New Delhi consisting of Open area of about 800 sq. feet (in short 'suit premises') was let out to Sh.Trilok Singh, father of appellant/ defendant no. 2 , who was tenant @ Rs. 150 per month let out to him for go-down purposes as shown in red colour in the site plan. Sh. Trilok Singh expired and subsequent to his death, defendant no. 2 and his brother, who was impleaded as defendant no. 1 in the main suit came into possession of the said land over which some unauthorized constructions have been allegedly raised without the permission of the plaintiff, as shown in yellow color in the site plan. Legal Notice was served upon the defendant for terminating the tenancy, to no avail. Hence, the present suit has been filed seeking possession of the suit premises along with all or any constructions raised on the said land as also damages.
3. Defendants resisted the suit taking several preliminary objections inter-alia that suit is barred under Section 50 Delhi RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 2 of 13 Rent Control Act( in short 'DRC Act' ), plaintiff has concealed material facts and suit is barred for non-joinder of parties. On merits, it was stated that father of defendant was let out an open land and that he had constructed two rooms prior to 11.11.1972 at his own cost and later was permitted to construct four rooms on the condition that the said rooms would be the property of plaintiff, which fact has been admitted by plaintiff in his replication dated 27.08.1973 in EP No. 105/85. Similar admissions are stated to have been made by the plaintiff society in EP No. 14/90.
4. After trial, Ld. Civil Judge by virtue of a comprehensive and well reasoned judgment gave his findings in favour of the plaintiff and decreed the suit for relief of possession and partly for relief of damages. Aggrieved by the aforesaid judgment passed by the Ld. Civil Judge, defendant no. 2/ appellant has instituted the present appeal alongwith application under section 5 of Limitation Act seeking condonation of delay in filing appeal.
RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 3 of 13 S.5 Limitation Act
5. So far as application under Section 5 of Limitation Act is concerned, there is delay of 160 days in filing the appeal, which has been cogently explained on the grounds that the son of the appellant is suffering from moderate mental retardation and has been declared 75% permanently disabled and also that appellant is himself suffering from various illnesses. The averments are supported by copies of medical records of the son of the appellant issued by National Institute of Mental Health Centre as well as his medical record issued by AIIMS Hospital. Law is settled that Court should be liberal in granting condonation of delay in filing appeal if sufficient and bonafide reasons to the satisfaction of the Court are advanced. It has been held by the Apex Court in para 11 in the case of Basawaraj and another v. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 :
"11. The expression "sufficient cause"
should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 4 of 13 Madanlal v. Shyamlal - (2002) 1 SCC 535 : AIR 2002 SC 100 and Ram Nath Sao v. Gobardhan Sao - (2002) 3 SCC 195 :
AIR 2002 SC 1201.)."
Adverting to the facts of the case, in the light of the case law on the subject, I conclude that not only the delay is nominal but same has been sufficiently explained. Hence, application under S. 5 Limitation Act is allowed.
Merits of Appeal
6. Coming to the merits of appeal, the impugned order has been challenged primarily on the grounds that the Trial Court has grossly erred in deciding Issue no. 1 wherein he has held that the suit was not barred under Section 50 DRC Act, as he has failed to appreciate that the respondent / plaintiff society in EP No. 105/85 filed under Section 14(1) (k) DRC Act r/w Section 22 DRC Act and further in EP No. 14/90 filed by him under Section 41(a), (j) and (k) of DRC Act had described the suit premises as "two godowns alongwith open space". Hence, in view of the aforesaid admissions made in the prior eviction petition filed by the plaintiff society, the latter was barred from taking a contrary/inconsistent plea in the present suit, that only an open space was let out and therefore, the decree has been RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 5 of 13 passed on the basis of material concealment of facts/ fraud/ contrary to prior admissions and therefore liable to be set aside.
7. Per Contra, Ld. Counsel for respondent/ plaintiff society has vehemently argued that the judgment passed by the Ld. Civil Court suffers from no illegality or perversity and entire factual matrix and oral documentary evidence on record has been carefully appreciated and hence, appeal is liable to be dismissed with heavy cost. Further, this is a classic case of pot calling the kettle black as in the prior eviction petitions filed by the plaintiff society against father of defendant no.2 i.e. E.P.No. 105/85 and EP No. 14/90, a clear and unequivocal admission was made that only an open land was let out to him and later godowns/ shops were constructed, thereby admitting that he was not covered under the DRC Act, being a lessee of an open land.
Moreover, as Ld. ARC, Delhi, in his judgment in EP no. 105/ 85 had held that the premises in question was not covered under DRC Act being an open land, the said finding on facts as regards description of the tenanted premises had become final and binding upon the parties in view of rule of res judicata recognized under S.11 CPC and could not have been reversed RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 6 of 13 by the Civil Court. Even otherwise, on perusal of pleadings of the present case in the light of evidence on record, it is crystal clear that appellant has admitted that only an open land was rented out to his father and he constructed the rooms/ godown thereupon after taking permission from the plaintiff society, however, he has miserably failed to prove any such permission given by the society to him on account of which the suit is liable to be decreed. Hence, appeal deserves to be dismissed.
8. I have given careful consideration to the submissions advanced by the Ld. Counsels for the parties in the light of the judicial record and the case law on the subject.
9. The moot question for consideration before this court is whether respondent/ plaintiff society is estopped from raising inconsistent averments as regards the description of the tenanted premises in the present suit vis-a-vis those made by them in prior eviction petition between the same parties and effect of the findings in judgement in EP No. 105/85 upon the case?
RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 7 of 13
10. In order to appreciate the case set up by the plaintiff/respondent society in the prior eviction petition and defence of the appellant/ defendant no.2, it is necessary to reproduce the averments made in this context in the previous eviction petitions filed by the plaintiff society against father of the defendant no.2 as under:
Para 8 of EP No. 105/85 --- Details of accommodation available together with particulars as regards ground area, garden and out houses if any (plan to be attached )- Two go-downs and open area measuring about 800 sq feet for purpose of go-down shown red in the attached plan.
Reply to EP No. 105/85 --- Para 8 is wrong and denied. Open land was let out to the respondent. The respondent has constructed two rooms at his own costs. The total area is less than 8.00 sq. feet and Kumar Paul has taken land 10 ft X 14 Ft and 10 Ft X 14 Ft from the land given to the respondent.
Replication to EP no. 105/85 --- Para 8 of the Written Statement is wrong and denied that of the eviction petition is reaffirmed. It is denied that open land was let out to the respondent. It is also denied that the respondent has constructed two rooms at his own cost.
The premises consisting of two rooms and open space in front theirof (sic) were let out to respondent. The respondent is in occupation of the whole of the rented premises from the very date of the RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 8 of 13 inception of the tenancy. The alleged land 10 X 14 Ft and 10 X 14 Ft has never been taken by Dr. Kumar Paul as alleged.
11. On careful perusal of pleadings of EP No. 105/85, I find that though it had been alleged by the plaintiff society that the father of the defendant no.2/appellant had been rented out open land along with two godowns, the said petition had been resisted on the grounds that, in fact, only an open land was rented out. Further, the said petition was heard and finally decided after a full blown trial by Ld. ARC vide judgment dated 17.02.1986 wherein para no. 20, it was observed as under :
" what is let out to the respondents is a vacant piece of land only. It may also pointed out that in the present case, the provisions of DRC Act are not applicable as the alleged tenanted premises is not 'premises' within the meaning of Section 2(1) of DRC Act. What is let out to the respondent is a vacant piece of land in para 8 of the petition, it is nowhere stated that what was let out to the respondent was anything else than the vacant land.
Respondent as AW8 has clearly stated that he was let out the open land only. There is no suggestion to him in his cross-
examination that any built in portion was let out to him."
12. Before appreciating the arguments advanced by the RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 9 of 13 parties, the law on the subject as has been discussed and settled in the case of Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy 1970SCR(3)830, Isabella Johnson v. M.A. Susai 1991 AIR 993, Union of India v. Pramod Gupta AIR 2005 SCW 4645 and most recently in Satyendra Kumar & Ors. Vs Raj Nath Dubey & Ors.{ Civil Appeal Nos.4083-4084 of 2016 arising out of S.L.P. (C) Nos.12915-12916 of 2014}. Para 10 of judgement of Mathura Prasad Vs Sarjoo Jaiswal is being reproduced as under for sake of clarity:
"10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11 of the Code of Civil Procedure means the right litigated RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 10 of 13 between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."
13. Adverting to the merits of appeal in the light of the case law, I am of the mind that so far as the argument that plaintiff/respondent society was estopped from raising inconsistent pleadings qua the description of the tenanted premises, the same bears no merits. At the outset, the averments in the eviction petition were merely claims and counter-claims of parties which had been adjudicated in the judgement passed by the Ld. ARC. Therefore, once the Ld. ARC had passed a judgment on merits, after weighing the evidence on record, there was adjudication on facts, which became final and binding on both the parties. In other words, the issue of actual description of the tenanted premises at the time of renting out of the same had been settled by the RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 11 of 13 Ld. ARC and as the said decision was not challenged by either of the parties, the same had become final and binding upon them. Thus, the plaintiff/respondent society was left with no alternative, but, to approach the Civil Court for vacation of the tenanted premises and therefore, the decision of the said factual issue, even if decided erroneously was not open for adjudication to the Civil Court in view of bar of res judicata.
14. Apart from bar of res judicata which precludes the Civil Court from giving any finding on facts in the present suit, even on merits, in the instant suit, it was conceded by the defendant no.2/ appellant that in fact, an open land had been let out to them, however, construction thereupon was done with the permission of plaintiff society. The fact of any permission being granted to the defendants being denied by the plaintiff/respondent society, burden of proof was upon the defendant no.2/appellant to establish that such construction was done with permission of the society. No evidence whatsoever has been led in this regard either in oral or in documentary form by the appellant/defendant no.2. Hence, the Ld. Civil Judge RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 12 of 13 has correctly opined that appellant had miserably failed to establish his defence and hence, was not entitled to protection under the DRC Act.
15. In view of my aforesaid discussion, the present appeal stands dismissed as meritless. No order as to costs.
16. Appeal file be consigned to Record-Room.
17. Trial Court record be sent back with copy of this order.
Announced in the open (SURYA MALIK GROVER) Court on 26.10.2018. Additional District Judge 01(SE), Saket Courts, New Delhi. (sm) RCA - 25/18 Jasmeet Singh Vs. All India Blind Relief Society Pg. 13 of 13