Lajpat Rai Madan vs Mcd & Ors.

% 15th November, 2011

LAJPAT RAI MADAN ..... Appellant Through: Mr. Surendra Mishra, Advocate.

versus

MCD & ORS. ..... Respondents Through: Ms. Madhu Tewatia, Advocate with Ms. Sidhi Arora, Advocate.

CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal under

Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 10.2.2010 whereby the suit of the

appellant/plaintiff for recovery of possession, injunction etc. was

dismissed. By the impugned judgment the suit has been dismissed

because as per the admitted stand of the appellant, the respondent

RFA No.346/2010 Page 1 of 5 No.1 is a tenant of the appellant with respect to the suit premises. The

suit has been held to be barred by Section 19 of the Slums Areas

(Improvement and Clearance) Act, 1956 as no prior permission was

taken from the designated authority under this Act prior to filing of the

suit.

2. The case as set up in the plaint was that the respondent

No.1/MCD/tenant has demolished the tenanted premises and therefore

by demolition of the premises, the relationship of landlord and tenant

between the parties has come to an end and thereby the Civil Court

was claimed to have jurisdiction to determine the suit. I may note that

the respondent No.1/MCD in the written statement had also taken up a

plea that the Civil Court has no jurisdiction by virtue of Section 50 of

the Delhi Rent Control Act, 1958 and which is an aspect which is duly

mentioned in the beginning of the impugned judgment.

3. Learned counsel for the appellant argues that there is no

provision in the Delhi Rent Control Act whereby eviction can be allowed

on a tenant demolishing the tenanted premises. It is also argued that

suit could not have been dismissed by applying the provision of Order

7 Rule 11 CPC.

4. In my opinion, the appeal is liable to fail not only on the

ground which is given in the impugned judgment, of the suit being

RFA No.346/2010 Page 2 of 5 barred by Section 19 of the Slums Areas (Improvement and Clearance)

Act, 1956 but also because of the bar of a Civil Court to deal with the

suit with respect to termination of tenancy and eviction of the tenant

from a suit premises which is within the purview of the Delhi Rent

Control Act.

5. The contention of the learned counsel for the appellant

that there is no provision in the Delhi Rent Control Act to cause

eviction of a tenant where the tenant has demolished the premises is

incorrect because Section 14(1)(j) of the Act specifically gives a ground

for eviction whether tenant causes substantial damage to the tenanted

premises. The Supreme Court in the case of T. Lakshmipathi and

Others Vs. P. Nithyananda Reddy and Others (2003) 5 SCC 150

has laid down that even if a building is destroyed or demolished, the

lease is not determined when the land beneath it continues to exist.

6. Accordingly, the suit so far as the relief of

possession/eviction is concerned was not maintainable as the same

was barred by Section 50 of the Delhi Rent Control Act because

eviction of a tenant in the circumstances as mentioned by the

appellant/plaintiff can only take place by means of filing of a petition

before the Rent Controller under the Delhi Rent Control Act by making

and proving the necessary averments as required under Section

RFA No.346/2010 Page 3 of 5 14(1)(j) of the Act.

7. So far as the applicability of Section 19 of the Slum Areas

(Improvement & Clearance) Act, 1956 is concerned there cannot be

any doubt because the premises are clearly situated in a slum area.

Therefore prior to filing an eviction petition under Section 14(1)(j) of

the Delhi Rent Control Act, the permission of the designated authority

will have to be taken, in addition to the fact that the Civil Court has no

jurisdiction to pass an eviction decree against a respondent/tenant

which is a tenant under the Delhi Rent Control Act.

8. There is one aspect which however will have to be

considered, though the same has not been argued on behalf of the

appellant. This aspect is that besides claiming possession and

ejectment of the tenanted premises the suit also prays for arrears of

rent, damages for demolishing the building and injunction. These are

aspects which a Rent Controller under the Delhi Rent Control Act has

no jurisdiction to deal with and therefore the Civil Court will continue to

have jurisdiction so far as these aspects are concerned. It is however

clarified that this Court is not making any observation on merits of the

case inasmuch as the respondent No.1/MCD has denied all the

contentions as raised by the appellant/plaintiff in the plaint.

9. The impugned judgment therefore is sustained however

RFA No.346/2010 Page 4 of 5 not by applying the provision of Order 7 Rule 11 CPC but on admitted

facts by applying the provisions of Order 12 Rule 6 read with Section

2(2) CPC so as to pass a decree for dismissal of the suit so far as the

reliefs claimed for possession and ejectment are concerned. Section

2(2) CPC envisages a decree for part of the disputes in a suit. So far as

the other causes of action and the reliefs are concerned, the suit will

however continue.

10. Parties to appear before the District & Sessions Judge, Tis

Hazari, Delhi on 14th December, 2011 and on which date the District &

Sessions Judge will mark the suit to a competent Court for disposal in

accordance with law so far as the reliefs claimed for injunction,

recovery, arrears of rent and damages are concerned.

11. Appeal is disposed of accordingly, leaving the parties to

bear their own costs.

VALMIKI J. MEHTA,J NOVEMBER 15, 2011 Ne

RFA No.346/2010 Page 5 of 5