Full Text
% 02.08.2011
Present: Mr. P.S. Vats, Advocate for the petitioner.
Mr. N.S. Negi, Advocate for the respondent.
+ CM (M) No. 1354/2010 and CM No. 19 196/2010 &
CM (M) No. 1321/2010 and CM No. 18849/2010
*
The order impugned before this court is the order dated
02.08.2010 which had dismissed the application filed by the defendant under Section 151 of the Code of Civil Procedure
(hereinafter referred to as 'the Code') wherein he had sought setting aside of the order dated 09.02.2010. Record shows that the present suit is a suit for possession and recovery of rent of the disputed premises i.e. the premises bearing No. 114, Kavita
Colony, Opposite Masjid, Kirari Road, Nangloi, Delhi. In the writtn statement, the defendant has admitted that he was a tenant of the erstwhile landlord that is the person from whom the plaintiff is claiming. The issues in this case had been framed on 09.11.2009.
Issues relevant for the controversy before this court are the issue
Nos. 1, 2 & 6. They read as under:-
"1. Whether the suit of plaintiff is not maintainable in view of
Section 50 of Delhi Rent Control Act? OPD
JUDGMENT
2. Whether the suit of plaintiff is not maintainable in view of Section 185 of the Delhi Land Reforms Act? OPD
6. Whether sale transaction in favour of plaintiff is void under Section 3 3/42 of Delhi Land Reforms Act? OPD" 2011:DHC:8835 Vide order dated 09.02.2010, issue No. 1 had been decided in favour of the plaintiff; issue No. 2 had also been decided in favour of the plaintiff; issue No. 6 had been deleted. Admittedly, on that date the defendant was present in person. The contention of the petitioner/defendant before this court is that the defendant had not been granted any hearing; this is not borne out from the record. Record shows that the defendant was present in person. Be that as it may, the order dated 09.02.2010 has not been challenged before the Appellate Forum. However, an application under Section 151 of the Code had been filed seeking a variation in this order. This application is dated 27.07.2010. By way of this application, it is prayed that the order dated 09.02.2010 be reconsidered. The gist of this application shows that what the applicant sought was a review of the order dated 09.02.2010; the application had not been • filed under Order 47 of the Code; admittedly, the period for filing a review against the order dated 09.02.2010 has long since lapsed. This application was dismissed vide the impugned order dated 02.08.2010. The issue No. 1 & 2 had been treated as preliminary issues; issue Nos. 1 & 2 had been decided in favour of the plaintiff; issue No. 6 had ordered to be deleted. The petitioner not having availed of his remedy either by way of appeal or by review within the statutory period prescribed, had lost the right to challenge this order. There is no patent illegality in the order now impugned before this court which calls for no interference by this court. At this stage, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court reported in (2008) 4 5CC 36 titled as Ra/ender Singh vs. Vilay Pal & Ors. to substantiate his submissions that where the jurisdiction of the Civil Court is barred in view of Section 185 of the Delhi Land Reforms Act (hereinafter referred to as the 'DLR Act'); this should have been taken up as a preliminary issue; it is submitted that in this case also the Apex Court has remanded the matter back to the Trial Court to deal with the question of jurisdiction under Section 185 of the DLR Act alongwith the issues on the merits of the case. The facts of that case were distinct; in this case issue Nos. 1 and: 2 had been decided in favour of the plaintiff way back on 09.02.2010. As also noted supra, the defendant had not agitated this finding of 09.02.2010 by seeking appropriate legal remedy within the time span which was permitted to him. The impugned order does warrant any int?rference at this stage. There is no patent illegality. Petition is dismissed.
INDERMEET KAUR, J. AUGUST 02, 2011 •