Rajender Kumar and Ors. v. Nitin Kumar Goyal and Anr.

30 And + RSA 78/2021 & CM APPL. 39885/2021 RAJENDER KUMAR AND SONS..... Appellant Through: Mr. Gurmehar Sistani, Mr. Samit Khosla & Mr. Kapil Goyal, Advocates.

VERSUS

NITIN KUMAR GOYAL..... Respondent Through: Mr. Ashok Mahipal, Advocate. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)

1. This hearing has been done through video conferencing.

2. The present appeals challenge the impugned orders dated 25th October, 2021 in RCA DJ 12/21 and in RCA DJ 13/21, both titled Rajinder Kumar & Ors. v. Nitin Kumar Goyal, and by which the appeals against the Trial Court’s order dated 12th February, 2021 in CS No. 684/2019 titled Nitin Kumar Goyal v. Rajender Kumar & Ors., have been dismissed by the 2021:DHC:3670 Appellate Court.

3. The brief background is that the Respondent/Plaintiff/landlord (hereinafter “Plaintiff”) filed a suit for ejectment/possession, of the Appellants/Defendants/tenants (hereinafter “Defendants”) as well as for recovery of rent, mesne profits/damages and permanent injunction, in respect of two shops bearing Shop Nos.[1] and 2 located in Village Ghonda Chauhan Bangar, in the abadi of Gali No.11, Main Road Brahampuri, Delhi- 110053 (hereinafter “suit property”).

4. In the said suit, an application under Order XII Rule 6 CPC was filed by the Plaintiff. The Trial Court passed a detailed judgment on 12th February, 2021, by which the suit was decreed in respect of the relief of possession and Defendants were directed to hand over vacant and peaceful possession of the suit property. The operative portion of the Trial Court’s order is set out below: “In view of the judgment discussed above, no ambiguity exits with respect to non applicability of Delhi Control Act in the area of Village Ghonda Chouhan Bangar, hence the present suit is not barred by section 50 of DRC Act. The objection raised by the defendant is without any force or merits, accordingly same stands rejected. In view of the discussion above, the application moved by the defendant under Order VII Rule 11 CPC stands dismissed and as a consequence of the same the application moved by the plaintiff under Order XII Rule 6 stands allowed on the basis of categorical admission made by the defendant. A decree of possession is passed in favour of the plaintiff and against the defendant qua the suit property i.e., Shop No.2 in property no. K-1/144/1, out of Khasra No.1etc./60, situated at Village Ghonda Chouhan Bangar, in the abadi of Gali No.11, Main Road, Brahmpuri, Delhi-53. Defendant is directed to handover the vacant physical possession of the suit property to the plaintiff immediately.”

5. Insofar as question of mesne profits, etc., were concerned, issues have been framed and the matter is now pending for evidence before the Trial Court.

6. This order of the Trial Court was challenged and vide the impugned orders dated 25th October, 2021 the appeal has been dismissed.

7. Mr. Gurmehar Sistani, ld. Counsel appearing for the Defendants, has submitted that the issue of law raised by him, is that the area known as Ghonda Chauhan Bangar forms a part of urbanised areas and has been notified as an area covered under Section 1 of the Delhi Rent Control Act, 1958 (hereinafter “DRC Act”). Thus, the appropriate remedy for the Plaintiff was to seek relief under Section 14 of the DRC Act and not ejectment by a simple civil suit of possession and other reliefs. He submits that the suit itself was not maintainable in view of the notifications which have been issued wherein Ghonda Chauhan Bangar has been notified both under Section 507 of the Delhi Municipal Corporation Act, 1957, (hereinafter “DMC Act”) as also under Section 1 of the DRC Act. He has placed the said notifications before the Court.

8. Reliance is also placed upon the order passed by a ld. Single Judge of the Court in Sayada Begum v. Qaisar Dad Khan [RSA 56/2017, decided on 5th March, 2018], to argue that the reliance by the Trial Court on this judgment would not be correct inasmuch as though the said order related to the same area, in the said case, proper notifications etc., were not placed on record as is evident from the reading of the judgment itself. Thus, he submits that the Defendants ought to be permitted to lead evidence in the matter and the order under Order XII Rule 6 CPC would not be tenable.

9. Mr. Ashok Mahipal, ld. Counsel appearing for the Plaintiff, on the other hand, has placed reliance on the order passed by the Trial Court wherein the Trial Court has clearly discussed the various notifications relied upon by the Defendants and has held that there is no notification qua village Ghonda Chauhan Bangar and thus rightly relied upon the judgment in Sayada Begum (supra). The relevant extract of the Trial Court’s order is as below: “It is settled position of law that simple issuing of notification u/s 507(a) of the Delhi Municipal Corporation Act to declare any particular rural area as urbanized, it is not sufficient and another notification u/s 1 (2) of Delhi Rent Control Act is also necessary qua any particular area for enforcing the provisions of the DRC Act and to create bar of jurisdiction of Civil Court. It is not disputed that Village Ghonda Chouhan Bangar is a different revenue division and have separate identity and jurisdiction from Village Ghonda or for that matter different from Village Ghonda Chouhan Khadar, Ghonda Gujran Bangar and Ghonda Neemka. The notifications referred by the defendant pertains to Village Ghonda and not to Village Ghonda Chouhan Bangar. Further the notifications referred by the Ld. Counsel for the defendant only reflects the area of village Ghonda to have been urbanized and there is no notification issued by the competent authority with respect to applicability of Delhi Rent Control Act to the area of Village Ghonda Chouhan Bangar. The judgment relied upon by the ld. Counsel for the Plaintiff in Sayada Begum Vs. Qaisar Dad Khan (supra) categorically deals with the issue in hand and especially with respect to applicability of DRC on the are forming part of Village Ghonda Chouhan Bangar, North East Delhi. It has been held therein that no notification for applicability of DRC Act qua the area village Ghonda Chouhan Bangar has been issued, therefore the jurisdiction of Civil Court is not barred. The said order of Hon’ble High Court when challenged before the Hon’ble Supreme Court was upheld. Copy of the said order filed on record today by the ld. Counsel for the plaintiff can be referred.”

10. He also relies upon the judgment of the Supreme Court in Mitter Sen v. Shakuntala Devi 85, (2000) 9 SCC 720, which clearly lays down that a mere notification under Section 507 of the DMC Act is not enough and there has to be a specific notification under Section 1 (2) of the DRC Act.

11. The Court has perused the notifications which have been placed on record. A perusal of the said notifications shows that the Defendants are relying upon the first notification No. F. 9(20)/66-Law-Corp dated 13th June, 1963, notification No. F.2(49)/65-LSG dated 28th May, 1966, and a subsequent notification No. S.O. 1236 dated 27th March, 1979, issued by the Central Government. The said notifications do not show clearly that village Ghonda Chouhan Bangar has been specifically notified both under Section 507 of the DMC Act and under Section 1 of the DRC Act. The village Ghonda appears to have various portions and unless and until there are specific notifications qua each of the portions, under each of the enactments, it cannot be said that the area is covered by the DRC Act. The judgment in Mitter Sen Jain (supra) is clear to this effect that notifications would be required under both legislations. The relevant portion of the said judgment is set out below: “1. The appellant herein is a tenant of the premises situated at Sagarpur in Delhi, whereas the respondent is the landlord. The landlord let out the premises to the appellant on a monthly rent of Rs. 400/- per month. Subsequently, the landlord terminated the tenancy by giving notice under Section 106 of the Transfer of Property Act. The landlord thereafter brought a suit for ejectment of the tenant as well as for recovery of arrears of rent and mesne profit. Before the Trial Court the tenant filed a written statement wherein one of the pleas taken was that the premises which was let out to him was covered by Delhi Rent Control Act, 1958 and as such the suit is not maintainable. The Trial Court held that the premises was not covered by the Delhi Rent Control Act, 1958. Consequently, the suit was decreed. First Appeal was preferred to the learned District Judge, which was dismissed. Thereafter the appellant filed a Second Appeal before the High Court and the same was also dismissed. It is in this way the appellant is before us in appeal.

2. The only argument raised on behalf of the appellant is that since the premises of which the appellant is a tenant is covered by Delhi Rent Control Act and therefore, the suit filed by the landlord in Civil Court was not maintainable and decree passed therein is void ab initio. In order to appreciate the argument, it is worthwhile to extract the relevant provisions of Delhi Municipal Corporation Act as well as Delhi Rent Control Act, which are as follows: “Section 507 of Delhi Municipal Corporation Act: (a) the Corporation with the previous approval of the Government, may, by notification in the Official Gazette, declare that any portion of the rural areas shall cease to be included therein and upon the issue of such notification that portion shall be included in and form part of the urban areas; Sub-section (2) of Section 1 of the Delhi Rent Control Act: It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule: Provided that the Central Government may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi or exclude any area from the operation of this Act or any provision thereof.