JUSTICE SHIV NARAYAN DHINGRA

1. The petitioner is aggrieved by an order dated 1st September, 2005 passed by the learned Civil Judge dismissing an application of the petitioner under Order VII Rule 11 for rejection of the suit.

2. The respondent/plaintiff filed a suit for delivery of possession of premises No. 40-42, Janpath, New Delhi comprising of a Service Station, Store Office, Workshop Shed, Two open Areas, Two WCs on the ground floor which petitioner had taken on monthly rent of Rs.400/- some time in year 1956 and used as a vehicle service and repair workshop. The respondent in the suit contended that by effect/action/implication of law, the defendant lost the protection of provision of Delhi Rent Control Act, 1958 with regard to the suit premises because of rent recoverable and by virtue of the value of the consideration being received by the defendant in the suit premises.

Defendant had become ?tenant at sufferance?. The plaintiff served a notice dated 21st December, 2001 on the defendant asking the defendant to deliver the vacant peaceful possession of the premises. Since the peaceful possession of the premises had not been handed over despite notice, the plaintiff filed a suit for recovery of possession. The plaintiff valued the suit for the purpose of Court Fee at Rs. 4800/-. The plaintiff also claimed mesne profit and undertook to pay Court Fee on the mesne profit the Court may determine after evidence.

3. In the application under Order VII Rule 11 CPC petitioner/defendant took a stand that the agreed monthly rent payable by the petitioner was Rs. 400/-and provisions of Delhi Rent Control Act would, therefore, be applicable to the suit premises. The civil suit for recovery of possession filed by the respondent before the Civil Judge was not maintainable in view of Section 50 of the Delhi Rent Control Act. It was stated that the plaintiff/respondent earlier also filed eviction petitions which were dismissed right upto Supreme Court.

4. In view of the objection taken by the petitioner regarding maintainability of the suit, trial court framed a preliminary issue and passed the impugned order. The order is challenged on the ground that the trial court failed to exercise jurisdiction vested in it by not dismissing the suit though the rent payable by the petitioner was Rs. 400/-per month. It is submitted that the Civil Court has jurisdiction only if the rent was more than Rs. 3500/-. The petitioner continues to be a protected tenant under Delhi Rent Control Act and only eviction petition under Delhi Rent Control Act would lie. It is also submitted that the respondent plaintiff had not pleaded material facts in the plaint and the trial court did mention about it but still not dismissed the suit on this ground. There was no cause of action disclosed in the plaint and the order of the trial court was bad in law.

5. During arguments, it was contended by the counsel for the petitioner that in case the petitioner was not considered as a tenant and was considered as a trespasser and recovery of the premises was sought from the petitioner as a trespasser, the respondent/plaintiff was supposed to value the suit at the market value of the premises. However, the respondent had valued the suit at value of Rs. 4800/- which only shows that the property has been valued at annual rent being paid by petitioner. The suit was therefore, liable to be dismissed since it was covered under the Delhi Rent Control Act.

6. It is evident that the premises was let out to the petitioner at monthly rent of Rs. 400/-sometime in year 1956. The respondent herein had earlier challenged the virus of the provisions of Delhi Rent Control Act regarding fixing of standard rent. This court in Raghunandan Saran Ashok Saran vs. UOI 2002 RLR 149 allowed the petition and Section 4,6 and 9 of the Delhi Rent Control Act were struck down being violative of Articles 14, 19(1) g and 21 of the Constitution of India. The question which arises is whether a suit