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xxxxx xxxxx ISSUE NO.2: Whether the suit of the plaintiff is barred under Section 50 of the DRC Act? OPD.

33. Onus to prove the aforesaid issue was upon the defendant. Defendant has failed to lead any evidence in support of his plea that suit of the plaintiff is barred Under Section 50 of DRC Act. According to counsel for the defendant, the area where suit of property is situated has already been notified by Central Government as Urban area vide notification No.F33/Engg/TP(DP)/11424/94 dated 24.10.1994 under Section 507 of DMC Act, 1957 and since rent of suit property is less than Rs.3500/- the tenancy of the defendant is a protected tenancy under Delhi Rent Control Act and hence this court has no jurisdiction to try and entertain the present suit for recovery of possession against defendant. In view of the aforesaid pleadings, admittedly, the area where the suit property is situated was not mentioned in Schedule-I of the Delhi Rent Control Act as on the date of commencement of the aforesaid Act and has been subsequently urbanized under Section 507 of the DMC Act. As such in view of the judgment of Hon'ble Supreme Court in Mitter Sen Jain Vs Shakuntala Devi (2000) 9 Supreme Court cases 720, a further notification under proviso of Section 1 (2) of Delhi Rent Control Act was required so as to make provisions of Delhi Rent Control Act applicable to aforesaid area. It has nowhere been pleaded by the defendant in entire Written Statement that any notification under Section 1 (2) Delhi Rent Control Act has ever been issued by the Central Government with respect to area where suit property is situated. In fact, DW3 Assistant from Ministry of Urban Development i.e defendant's own witness has deposed that no notification with respect to Palam Village has been issued by the Central Government in terms of priviso to Section 1 (2) of Delhi Rent Control Act 1958 till date. Besides, according to him, no notification under proviso of Section 1 (2) of the Delhi Rent Control Act has been issued by Central Government after 26.02.1986. Admittedly, the notification under Section 507 of DMC Act with respect to Palam Village has been issued by the Central Government on 24.10.1994 and the notification under priviso to Section 1 (2) of DRC Act can be issued only after an area is urbanized. Thus, in view of testimony of DW3 it has been established beyond doubt that no notification in terms of proviso of Section 1 (2) of DRC Act has been issued with respect to Palam Village till date. In fact no such notification has been produced by the defendant during trial.

(underlining added)

(iii) The first appellate court has in this regard similarly observed in para 19 of its judgment and which para 19 reads as under:-

"19. Learned counsel for the defendant has also argued that the suit filed by the plaintiff was barred under Section 50 of the Delhi Rent Control Act, as the suit property falls in the area of Palam, being part of Najafgarh Estate where the provisions of Delhi Rent Control Act are applicable. Learned Trial Court has rightly held that defendant has failed to lead any evidence in support of his plea that suit of the plaintiff is barred under Section 50 of the Delhi Rent Control Act. As per the defendant, the area where suit property is situated has already been notified by Central Government as Urban area vide notification No.F33/Engg/TP(DP)/11424/94 dated 24.10.1994 under Section 507 of Delhi Municipal Corporation Act, 1957 and since rent of suit property is less than Rs.3,500/- the tenancy of the defendant is a protected tenancy under Delhi Rent Control Act and hence the learned trial court has no jurisdiction to try and entertain the present suit for recovery of possession against the defendant. The aforesaid pleadings, admittedly, the area where the suit property is situated was not mentioned in Schedule-I of the Delhi Rent Control Act as on the date of commencement of the aforesaid Act and has been subsequently urbanized under Section 507 of the Delhi Municipal Corporation Act, 1957. As such in view of the judgment of Hon‟ble Supreme Court in Mitter Sen Jain Vs Shakuntala Devi (2000) 9 Supreme Court Cases 720, a further notification under proviso of Section 1(2) of Delhi Rent Control Act was required so as to make provisions of Delhi Rent Control Act applicable to aforesaid area. It has nowhere been pleaded by the defendant in entire written statement that any notification under Section 1(2) of the Delhi Rent Control Act has ever been issued by the Central Government with respect to area where suit property is situated. DW3 Assistant from Ministry of Urban Development i.e defendant‟s own witness has deposed that no notification with respect to Palam Village has been issued by the Central Government in terms of proviso to Section 1(2) of the Delhi Rent Control Act 1958 till date. Besides, according to him, no notification under proviso of Section 1(2) of the Delhi Rent Control Act has been issued by the Central Government after 26.02.1986. Admittedly, the notification under Section 507 of Delhi Municipal Corporation Act, 1957 with respect to Palam Village has been issued by the Central Government on 24.10.1994 and the notification under proviso to Section 1(2) of Delhi Rent Control Act can be issued only after an area is urbanized. The learned Trial Court has rightly held that in view of testimony of DW3 it has been established beyond doubt that no notification in terms of proviso of Section 1(2) of Delhi Rent Control Act has been issued with respect to Palam Village till date. No such notification has been produced by the defendant during trial."