Urmila and Anr. v. Ram Wati and Anr.

1. Delay of 305 days in filing the appeal is condoned as there is no representation on behalf of the respondents. C.M. stands disposed of. + RSA No.68/2012 and C.M. No.7261/2012 (stay)

2. This Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 24.1.2011. The first appellate court by its impugned judgment set aside the judgment of the trial court dated 30.9.2005 by which the suit of the 2014:DHC:1506 respondents herein for declaration and permanent injunction was dismissed. The first appellate court accordingly granted the decree for declaration and permanent injunction as sought for by the plaintiffs/respondents.

3. The dispute in the present case pertains to one room in the property bearing no.N-175, Gali no.7, Sadatpur Extension, Delhi-94. As per the case of the respondents/plaintiffs, the defendant no.1/appellant no.1 was the sister-in-law and defendant no.2/appellant no.2 is the brother of plaintiff no.2/respondent no.2. Plaintiff no.1/respondent no.1 is the wife of plaintiff no.2/respondent no.2. The tenanted room was let out to the defendant no.2 at Rs.200/- per month w.e.f 1.12.1992 and which is shown in red colour in the site plan Ex.PW1/A. Since the appellants/defendants started creating hurdles after April, 1993 by claiming ownership of the suit property, the subject suit for declaration and injunction was filed. The case of the appellants/defendants as per their joint written statement was that the suit property was jointly purchased by plaintiff no.2/respondent no.2 and defendant no.2/appellant no.2 in the year 1982 from their joint funds. It was accordingly contended by the appellants/defendants that they are co-owners of the suit property. The tenancy in favour of the defendant no.2 was also denied with respect to one room in the property at Rs.200/- per month. The case of arrears of rent as put forth by the respondents/plaintiffs was also denied.

4. The first appellate court has held that appellants are not the owners of the suit property by virtue of the documents Ex.DW1/A to Ex.DW1/C dated 16.12.1982 and that the respondents/plaintiffs are owners of the suit property by virtue of the documents Ex.PW1/B (Colly). The first appellate court notes that the documents filed by the appellants/defendants as Ex.DW1/A to Ex.DW1/C dated 16.12.1982 could not be referred to inasmuch as the said documents were sought to be brought in by means of an application under Order 6 Rule 17 of CPC to amend the written statement and which application was dismissed by the trial court vide order dated 13.4.2004. The appellants/defendants challenged the order in this Hon’ble Court by filing of C.M.(M) No.1196/2004 but the same was also dismissed on 23.11.2004. Therefore, there was finality to the order of the trial court dated 13.4.2004 by which the documents relied upon by the appellants/defendants could not be referred to.

5. In my opinion, once the appellants/defendants were denied permission to place on record the documents Ex.DW1/A to Ex.DW1/C by the order dated 13.4.2004 of the trial court, and which achieved finality as it merged with the order dated 23.11.2004 passed in C.M.(M) No.1196/2004 dismissing the challenge to the order dated 13.4.2004, therefore the first appellate court was justified in discarding such documents Ex.DW1/A to Ex.DW1/C and holding that the respondents/plaintiffs were the owners of the property by means of the documents Ex.PW1/B (Colly).

6. On behalf of the appellants/defendants, it was argued before this Court that the suit for declaration and injunction was not maintainable without the respondents/plaintiffs seeking the consequent relief of possession. This aspect has been considered by the first appellate court and held that there is no defect in the suit because the tenancy was covered under the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) and consequentially possession could only have been asked for by the respondents/plaintiffs before the Rent Controller under the Act. Therefore, the suit for declaration seeking declaration as to ownership of the rights of the respondents/plaintiffs was maintainable in the civil court and Section 34 of the Specific Relief Act, 1963 did not bar such a suit. The first appellate court notes in para 9 of the impugned judgment that in fact there is already an eviction order passed against the appellants/defendants in the proceedings initiated before the Rent Controller under the Act. I am also informed by the counsel for the appellants that possession has already been taken from the appellants/defendants of the suit property, however, the appellants/defendants are stated to have filed an appeal against the eviction decree passed under the Act. I therefore reject the argument that suit for declaration was not maintainable on the ground that the possession was not claimed in the civil suit.

7. I am also of the opinion that there is a ring of truth in the case pleaded by respondents/plaintiffs inasmuch as, if they wanted to set up a false case of tenancy of defendant no.2, then, the rent would not have been stated at below Rs.3500/- pm for giving defendant no.2 protection under the Delhi Rent Control Act. Plaintiffs would well have stated rent to be just above Rs.3500/- pm so that appellants/defendants could be easily evicted by filing a suit for possession before the civil court.

8. In view of the above, I do not find any error or illegality in the judgment of the first appellate court, much less a substantial question of law arising under Section 100 CPC, and therefore this second appeal is dismissed, leaving the parties to bear their own costs.

MARCH 19, 2014/Ne VALMIKI J. MEHTA, J.