Om Prakash Malik v. Pawan Kumar Malik

RAJIV SAHAI ENDLAW, J OCTOBER 05, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI [ % Date of decision: 5th October, 2018. + RSA 146/2018 & CM No.41229/2018 (for stay). OM PRAKASH MALIK ..... Appellant Through: Mr. Surendra Mishra and Ms. Sonal Mishra, Advs. versus PAWAN KUMAR MALIK ..... Respondent Through: Mr. Bhavneet Singh, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW Caveat No.928/2018. 1. The counsel for the caveator appears. 2. The caveat stands discharged. RSA 146/2018 & CM No.41229/2018 (for stay). 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 19th May, 2018 in MCA/DJ/31/2017 of the Court of the Additional District Judge-05 (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 12th April, 2017 of the Court of Civil Judge (West)] on admissions, under Order XII Rule 6 of the CPC, of ejectment of the appellant/defendant from Shop No.WZ-6/1, Jawalaheri Market, Paschim Vihar, New Delhi. 4. The counsel for the appellant/defendant has argued that the appellant/defendant, on 1st October, 2018, has already been ejected from the subject shop. He states that no notice was given to him of execution. The counsel for the appellant/defendant further states that he personally asked the bailiff the date when the bailiff was coming, but the bailiff did not inform him and suddenly came to the shop and removed all the goods of the appellant/defendant therefrom and took possession. 5. I have enquired from the counsel for the appellant/defendant, under which law was the appellant/defendant/judgment debtor expecting to be informed. 6. No answer is forthcoming. 7. Under Order XXI Rule 22 of the CPC, when an application for execution is filed within two years of the date of the decree, no notice is required to be sent to the judgment debtor. The grievance of the appellant/defendant in this context is without any basis in law. 8. The counsel for the appellant/defendant has next drawn attention to the questions of law proposed in para 17 of the memorandum of appeal as under:- "a) Whether the 1st Appellate Court is correct in passing the impugned judgment without considering the objection of the appellant with regard to cause of action, valuation of suit, jurisdiction, court fee and non termination of tenancy? b) Whether the 1st Appellate Court is correct in passing the impugned judgment without considering the provision of Order 12 Rule 6 CPC and judgment relied upon by the appellant? c) Whether the 1st Appellate Court is correct in passing the impugned judgment without considering the issue wrong site plan filed by the respondent? d) Whether the Decree dated 19.05.2018 is non executable due to under valuation of suit and deficient payment of court fee and wrong site plant of the suit property?" and has also drawn attention to page 73 of the paper book, being para 17 as under:- "17. That the value of the suit for the purpose of Court fees for Arrear of Rent, possession and mesne profit and damages at Rs.95,000/- for which court fee of Rs.1,950/- is been paid and Court fee. The plaintiff undertake to pay the deficient court fee if any." of the plaint in the suit from which this Second appeal arises and has contended that the appellant/defendant raised objection that the suit had not been properly valued for the purposes of court fees and jurisdiction; that no separate valuation for each of the reliefs claimed in the suit had been given and that there was no valuation for the purposes of jurisdiction, but neither the Suit Court nor the First Appellate Court have dealt with the said aspects. 9. I have enquired from the counsel for the appellant/defendant that as per which law, according to him, the valuation as done is wrong. 10. Again no answer is forthcoming. 11. Section 7 (xi) of the Court Fees Act, 1870 provides for valuation of a suit, between landlord and tenant, for the purposes of court fees, to be of annual rent p