The maintainability of a suit is distinct from the entitlement of the plaintiff to the relief prayed for, and the allegations made in the plaint decide the forum's jurisdiction.

P.K.BHASIN, J:

The appellant has challenged the correctness of the order dated 28th April,2007 passed by the Court of Additional District Judge whereby the plaint of his suit for possession against respondents 1 & 2 herein in respect of one shop in Gopi Nath Bazaar, Delhi Cantt has been rejected under Order VII Rule 11 of the Code of Civil Procedure,1908( „CPC? in short).

2. The relevant facts necessary to be noticed for the disposal of this appeal may first be noticed. The appellant, who shall hereinafter be referred to as „the plaintiff?, filed a suit for possession and damages/mesne profits in respect of the suit property against respondents 1 and 2 herein, who are real brothers and were arrayed in the suit as defendants no. 1 & 2 and in this judgmemt also shall be referred to as the defendants 1 & 2, on the allegations that they were tenants in the suit premises of respondent no.3 Ajay Gupta, who was defendant no.3 in the suit. The plaintiff purchased the suit premises from the said Ajay Gupta vide sale deed dated 15th September,1995 and then called upon defendants 1 & 2 to start paying rent to him but they did not accede to his request. Thereafter he filed a petition for their eviction in the Court of Rent Controller in which defendants 1 and 2 took the plea that the petition for their eviction before the Rent Controller was not maintainable since there was no relationship of landlord and tenant between the parties and they also denied the title of the plaintiff in respect of the premises under their tenancy. They also took the plea that since defendant no.3 himself was not the owner of the suit premises he could not pass any title to the plaintiff. That eviction petition was then withdrawn by the plaintiff and thereafter he filed the suit for possession in the Civil Court pleading therein the aforesaid facts and claiming the defendants 1 & 2 to be unauthorized occupants of the suit premises. Damages/mesne profits were also claimed in the suit.

3. Defendants 1 & 2 resisted the suit claim by filing an application under Order VII Rule 11 CPC and it was claimed by them that the plaint should be rejected since as per the averments in the plaint and the documents accompanying the plaint the Civil Court did not possess the jurisdiction to entertain the suit for, possession in respect of the premises in suit since it was admittedly with them on a monthly rent of Rs.100/- only and the Delhi Rent Control Act applied to the premises and only the Rent Controller?s Court had the jurisdiction to try the eviction petition in respect of the premises under their tenancy.

4. The learned trial Court allowed the application of the defendants vide order under challenge on the ground that since admittedly the plaintiff had approached the Rent Controller?s Court before filing the present suit for possession and damages for the eviction of defendants 1 and 2 from the suit premises treating them as his tenants and admitting the rent to be Rs.100/-p.m. the Civil Court?s jurisdiction to entertain the suit for possession was barred under Section 50 of the Delhi Rent Control Act.

This is how the trial Court dealt with the objection of the defendants 1 and 2 in the impugned order: “15. Falling back to the present case, admittedly what was challenged before the ld. ARC by the present defendants was not their status as tenants but status of the present plaintiff as their landlord. The issue of relationship of landlord and tenant between the parties could have been looked into by the ld. ARC in eviction proceedings itself. Merely by denying title of the plaintiff and that too with the specifically pleaded reason that they were never furnished any documentary evidence of sale of the suit property to the plaintiff, defendants no. 1 & 2 did not cease to be tenants. Even in his application of withdrawal of eviction proceedings the plaintiff did not contemplate approaching the civil court for eviction. Rather, the eviction petition was withdrawn cle