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IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI
HARISH CHANDER MALIK ..... Petitioner
versus
VIVEK KUMAR GUPTA & OTHERS ..... Respondent
RFA NO. 480/2008
Decided on : 23.5.2011
Suit for possession and mesne profits was dismissed by the trial court as barred by law under Order VII Rule 11 CPC. Plaintiff/Appellant challenged the order of dismissal. The main issue was whether the suit property was situated in a notified slum area within the meaning of Slum Areas (Improvement and Clearance) Act, 1956 (Slums Act).
Fact of the Case:
Plaintiff/Appellant filed a suit for possession and mesne profits against the defendants/respondents. The suit property was a shop. The tenancy of the mother of defendants/respondents was terminated during her life time. Thereafter, defendants/respondents continued to remain in possession of the shop. Plaintiff/Appellant served a notice to defendants/respondents to hand over vacant physical possession of the shop. Since defendants/respondents failed to hand over vacant physical possession of the shop, the plaintiff/appellant filed a suit for possession and mesne profits. The trial court dismissed the suit as barred by law under Order VII Rule 11 CPC.
Finding of the Court:
The High Court held that the suit was not barred by law under Order VII Rule 11 CPC. The High Court held that the trial court erred in rejecting the plaint under Order VII Rule 11 CPC. The High Court held that the defendants/respondents were tenants and not unauthorized occupants. The High Court held that the Slums Act was applicable to the suit property. The High Court held that the plaintiff/appellant was entitled to file a suit for possession and mesne profits.
Issues: 1. Whether the suit was barred by law under Order VII Rule 11 CPC? 2. Whether the defendants/respondents were tenants or unauthorized occupants? 3. Whether the Slums Act was applicable to the suit property? 4. Whether the plaintiff/appellant was entitled to file a suit for possession and mesne profits?
Ratio Decidendi: 1. The High Court held that the suit was not barred by law under Order VII Rule 11 CPC. The High Court held that the trial court erred in rejecting the plaint under Order VII Rule 11 CPC. The High Court held that the defendants/respondents were tenants and not unauthorized occupants. The High Court held that the Slums Act was applicable to the suit property. The High Court held that the plaintiff/appellant was entitled to file a suit for possession and mesne profits. 2. The High Court held that the defendants/respondents were tenants and not unauthorized occupants. The High Court held that a mere service of notice under Section 106 of the Transfer of Property Act does not change the status of tenant to that of an unauthorized occupant. The High Court held that the defendants/respondents had inherited the tenancy from their mother, Smt. Bimla Kumari and a mere service of notice under section 106 of the TP Act does not change their status to unauthorized occupants. 3. The High Court held that the Slums Act was applicable to the suit property. The High Court held that the Slums Act makes no distinction between the premises fetching rent above Rs.3500/-and those fetching rent below Rs.3500/-. The High Court held that the absence of any such distinction in the Slums Act makes it clear that the Slums Act does not exclude premises fetching a rent of Rs 3500/-and above from within its purview. 4. The High Court held that the plaintiff/appellant was entitled to file a suit for possession and mesne profits. The High Court held that the plaintiff/appellant had a cause of action to file a suit for possession and mesne profits.
Final Decision: The High Court dismissed the appeal filed by the plaintiff/appellant.
G.S. SISTANI, J.
1. The present appeal is directed against the judgment and decree dated 01.09.2008 passed by the learned trial court rejecting the plaint of the appellant under order VII Rule 11 CPC as being barred by law.
2. The facts necessary to be noticed for disposal of the present appeal are that plaintiff (appellant herein) claims himself to be the owner of shop bearing no.12, Esplanade Road, Chandni Chowk, Delhi, measuring 30 sq. yards (hereinafter referred to as ?the shop?), having purchased the same from its erstwhile owner, Sh. Preet Kumar Gupta, on 15.9.2003 by means of a Registered Sale Deed. Smt. Bimla Kumari Gupta, the mother of
RFANO.480/2008 Page 1of 43 respondents no. 1-3, was inducted as a tenant in the said shop. The tenancy of the mother of respondents no. 1-3 was terminated by the erstwhile owner Sh. Preet Kumar Gupta in the month of January, 2000. The mother of respondents no.1-3 died in the month of February, 2000, and thereafter respondents no.1-3 continued to remain in possession of the said shop. As per the plaint, after the death of the mother of respondents no.1-3, respondents no.1-3 sublet a portion of the shop to one Sh. Raj Kumar Singh (respondent no. 4 herein), who was carrying on the business of sale of readymade garments from the said shop at a monthly rent of Rs. 15000/-, per month. The sub-tenant was, however, forcibly evicted by respondents no.1-3 on 15.07.2003. On 17.07.2003, appellant received a notice from respondents no.1-3, stating themselves to be the lawful tenants of the shop, enclosed with a cheque in the sum of Rs. 2500/-towards rent for the period from March, 2003, to July, 2003, @ Rs. 500/-, per month. The appellant replied to the aforesaid notice disputing all the contentions raised by respondents no.1-3. It was also stated in the reply that the mother of respondents no.1-3 was in an unauthorized occupation of the shop at the time of her death and therefore, no better title can be derived by the respondents no. 1 to 3 therefrom. Subsequently, vide notice dated 8.8.2003 the respondents no. 1-3 were called upon to hand over vacant physical possession of the said shop before 30.8.2003. The cheque in the sum of Rs. 2500/-, which was enclosed with the legal notice, was also returned vide letter dated 9.8.2003. Since the respondents no.1-3 failed to hand over vacant physical possession of the said shop, the appellant filed a suit for possession and mesne profits.
3. As the respondents had not filed the written statement within the time allowed, the right to file written statement of respondents no. 1-3 was closed by the learned Additional District Judge vide order dated 25.07.2005 against which the respondents no. 1-3 preferred Civil Misc (Main) Petition which was dismissed by this court. A Special Leave petition was also filed by respondents no. 1 -3 which was also dismissed vide order dated 25.08.2006 and the order of the trial court by which right to file written statement was closed attained finality.
4. The respondents no. 1 – 3 thereafter filed an application under Order VII Rule 11 CPC praying for rejection of plaint on the ground that the suit property is situated in a notified slum area within the meaning of Slum Areas (Improvement and Clearance) Act, 1956 (herein referred to as =Slums Act‘) and no permission has been sought by the appellant from the concerned authority to initiate proceedings under section 19 of the Slums Act. The learned trial court while allowing the application under Order VII Rule 11 CPC rejected the plaint of the appellant being barred by law. This has led to the filing of the present appeal.
5. Learned Senior counsel for appellant submits that the impugned judgment is bad in law as the learned trial court has failed to appreciate the fact that the present case is not covered by Delhi Rent Control Act since respondents no. 1 to 3 had sublet the premises to respondent no. 4 at a monthly rent of Rs. 15,000/-per month and therefore the parties w
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