Lalit Dutt Sharma v. Lokesh Jasoria

RAJIV SAHAI ENDLAW, J.

JULY 13, 2018 Bs/pp..

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13th July, 2018. + LALIT DUTT SHARMA ..... Appellant Through: Mr. Chandra Prakash, Adv. Versus LOKESH JASORIA ..... Respondent Through: Mr. Sanjay Kumar, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 12th February, 2018 in RCA No.61971/2016 of the Court of Additional District Judge (ADJ) -9 (Central), Tis Hazari Courts, Delhi] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 13th October, 2016 in Suit No.99591/2016 (Old No.63/2015) of the Court of Civil Judge-11 (Central), Tis Hazari Courts, Delhi], of recovery of possession of property No.1032, Kucha Sharif Beg, Bazar Sita Ram, Delhi-110006 comprising of ground and first floor with arrears of rent, in favour of the respondent/plaintiff and against the appellant/defendant. 2. The appeal came up before this Court first on 16th April, 2018, when on the contention of the counsel for the appellant/defendant that the premises are situated in a slum area within the meaning of the Slum Areas (Improvement and Clearance) Act, 1956 and no permission under Section 19 thereof for recovery of possession from appellant/defendant had been taken, notice of the appeal was ordered to be issued. Vide subsequent ex- parte order dated 18th April, 2018, execution of the decree was stayed. 3. The counsel for the respondent/plaintiff appears. 4. The counsel for the appellant/defendant has been heard and copies of the relevant Trial Court record annexed to the memorandum of appeal have been perused. 5. The following substantial questions of law arise for consideration in this Second Appeal:- (I) Whether a tenant covered by the Delhi Rent Control Act, 1958, by non-payment of rent and/or denial of title of landlord, ceases to be a tenant. (II) Whether the protection from eviction available to a tenant under Section 19 of the Slum Areas (Improvement & Clearance) Act, 1956 is capable of being waived. (III) Whether the plea of jurisdiction of Civil Court to pass a decree of recovery of possession of premises in possession of the defendant at a rent of less than Rs.3,500/- per month, being barred by Section 50 of Delhi Rent Control Act, 1958, if not taken or proved by the defendant, relieves the Court of application thereof. 6. The counsels having been extensively heard, option was given to counsel for the appellant, to either merely have the substantial questions of law framed today and have the appeal listed in the category of 'Regulars', with stay of execution, or to argue the appeal finally today itself. He was also informed that if the appeal is to be ultimately allowed, the respondent/plaintiff, in the interregnum would also not be able to initiate proceedings for eviction of the appellant/defendant under the Rent Act. The counsel for the respondent/plaintiff stated that the appeal may be finally heard and decided today itself. The counsels have also been heard on the aforesaid substantial questions of law. 7. The respondent/plaintiff instituted the suit, from which this appeal arises, pleading that (i) he had become the owner of the property by purchasing the same from the earlier owner thereof vide Sale Deed registered on 10th March, 2014; (ii) the great grandfather namely Pt. Jagan Nath Sharma of the appellant/defendant was a tenant in the property at a monthly rent of Rs.40/-; (iii) after the death of Pt. Jagan Nath Sharma, his son Manohar Lal Sharma inherited the tenancy rights; (iv) Manohar Lal Sharma also expired leaving four sons namely Chetan Sharma, Guru Dutt Sharma, Dinesh Dutt Sharma and the appellant/defendant; (v) Chetan Sharma and Dinesh Dutt Sharma for long were residing elsewhere and the tenancy rights were inherited only by Guru Dutt Sharma; (vi) Guru Dutt Sharma also expired and on his demise, the tenancy rights devolv