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2016 Supreme(Del) 2430
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
VIJAY KUMAR SHARMA – Appellant
Versus
MANOJ KUMAR GARG – Respondent
RSA No.179/2016
Decided On : 20-07-2016
For the Appellant :Mr. A. Maitri, Advocate.
The main legal point established in the judgment is the requirement of permission from the slum authority for eviction under the Slum Act and the distinction between a tenant and a trespasser in this context.
Headnote:
CPC - Landlord-Tenant Dispute - Slum Areas (Improvement and Clearance) Act, 1956 - Section 19 - Summary: The court discussed the requirement of permission from the slum authority for eviction under the Slum Act. It highlighted the distinction between a tenant and a trespasser and emphasized that permission is required for eviction of a tenant, not a trespasser. The court also addressed the applicability of Order II Rule 2 CPC and the adequacy of property description in a rent agreement.
Fact of the Case:
The respondent filed a suit for possession, mesne profits, and arrears of rent against the appellant/defendant, a tenant of a shop. The trial court decreed the suit for arrears of rent and recovery of mesne profits. The first appellate court partly allowed the appeal, setting aside the mesne profits but upholding the arrears of rent.
Finding of the Court:
The court found that the appellant's arguments lacked merit and the appeal was frivolous. It rejected the appellant's contentions regarding the legality of the trial court's order, the adequacy of property description in the rent agreement, and the re-appreciation of evidence by the first appellate court. The court also dismissed the appellant's argument against the findings operating as res judicata in further proceedings.
Issues: The issues included the legality of the trial court's order, the adequacy of property description in the rent agreement, the re-appreciation of evidence by the first appellate court, and the applicability of findings as res judicata in further proceedings.
Ratio Decidendi: The court held that permission under Section 19 of the Slum Act is required for eviction of a tenant, not a trespasser. It also clarified the scope of Order II Rule 2 CPC and emphasized the adequacy of property description in a rent agreement. The court further ruled that the findings in the judgments would operate as res judicata in subsequent proceedings.
Final Decision: The court dismissed the second appeal under Section 100 CPC.
VALMIKI J. MEHTA, J.
RSA No.179/2016 and C.M. No.25477/2016 (stay)
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed against the Judgment of the First Appellate Court dated 4.5.2016 whereby the first appellate court on the appeal of the present appellant/tenant partly allowed the appeal by setting aside the money decree passed with respect to mesne profits but sustained the Judgment of the Trial Court dated 3.9.2015 decreeing the suit for arrears of rent. The original suit filed by the respondent/landlord/plaintiff was for possession, mesne profits and arrears of rent for the period from 1.5.2011 till 30.8.2011 when the tenancy was terminated. The suit was for possession with respect to the shop bearing private no.33-34, in property no. 1/1300 to 1318, Balaji Motor Market, Sultan Singh Building, Kashmere Gate, Delhi-110006.
2. The case of the respondent/plaintiff/landlord was that the suit shop/premises were taken initially at a monthly rent of Rs.11,000/- per month but since the appellant/defendant/ tenant vacated half portion of the shop on 1.1.2011, a fresh Agreement was executed between the parties on 2.5.2011 whereby a new tenancy w.e.f 1.5.2011 was entered into at a rent of Rs.8,000/- per month. This fresh agreement was only for four months and therefore tenancy expired by efflux of time on 30.8.2011. The subject suit came to be filed after the appellant/defendant was served with a Legal Notice dated 14.2.2012. During the pendency of the suit, it was found that though the suit property was outside the protection of the Delhi Rent Control Act, 1958 inasmuch as the rent was more than Rs.3,500/- per month, but the premises were found to be admittedly situated in a slum area covered by the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as ‘the Slum Act’). As per Section 19 of the Slum Act, before filing proceedings for eviction against a tenant, permission of the competent authority had to be taken. Accordingly, the respondent/plaintiff filed an application under Order II Rule 2 CPC seeking permission to file fresh proceedings with respect to the suit for possession after obtaining permission of the slum authority. This application under Order II Rule 2 CPC of the respondent/plaintiff/ landlord was allowed by the Trial Court vide Order dated 2.4.2013 and therefore the suit continued so far as recovery of mesne profits and arrears of rent are concerned.
3. Trial Court by its Judgment dated 3.9.2015 decreed the suit of the respondent/plaintiff/ landlord for arrears of rent and recovery of mesne profits in the following terms:-
“Relief.
As a sequel to the discussion and decision of the issues, the suit of the plaintiff is decreed. The plaintiff is held entitled to the recovery of Rs.32,000/- towards arrears of rent for the period 01/05/2011 till 30/08/2011 and for future sum of Rs.8,000/- per month towards occupation charges for the defendant occupying the property even after the lapse of the tenancy period. The plaintiff is held entitled to the costs of the suit. Decree Sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Jitender Pratap Singh)
on 03.09.2015 Civil Judge, Central (09)
Tis Hazari Courts, Delhi
03.09.2015”
4. The first appellate court held that since prior permission was required before eviction of the appellant/defendant/tenant under Section 19 of the Slum Act, therefore, only arrears of rent could be granted and not mesne profits which are granted when a person is an unauthorized occupant of the property. The operative portion of the Judgment of the First Appellate Court dated 4.5.2016 is contained in para 10 of the judgment and which reads as under:-
“10. I have perused the record and heard the arguments and I may observe that the appellant has not brought on record any proof whatsoever as regards the payment of rent amount which is due to the respondent. The i
