IN THE COURT OF SH. [ENTITY] ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST) KARKARDOOMA COURTS, DELHI RCA No. 26/14 MOHD.SAALIM Appellant/Defendant Versus SMT.SAYADA BEGUM Respondent/Plaintiff Date of Institution of Appeal : 03.05.2014 Date on which Reserved for Judgment : 14.10.2014 Date of Judgment/Order : 16.10 2014 Case I.D. Number : 02402C0132492014 (APPEAL UNDER SECTION 96 OF [ACT]) J U D G M E N T :
The main legal question in the present appeal involved is whether the provisions of [ACT] are applicable to the suit property or not and whether jurisdiction of Civil Court is barred or not.
The relationship between the parties as tenant and the landlord respectively is not in dispute. The rate of rent was also admittedly to be Rs.125/- per month qua the suit property. The service of the notice of termination of the tenancy though was denied in written statement by the appellant but was treated with the service of the notice of the suit by the Trial Court after holding that tenancy was from month to month.
Counsel for the appellant argued that the property is situated in Village Chauhan Banger which is an urbanised village being declared under [SECTION] of the [ACT] vide notification dated 13.01.2012 as per 14th schedule of the Act so the provisions of [ACT] are attracted and Civil court has no jurisdiction to deal with the suit for recovery of possession from the tenant. The Ld. Trial Court had not accepted this submission of the appellant and passed the decree of possession in favour of the respondent by allowing her application under [SECTION] [ACT].
If the law laid down by Delhi High Court in [PRECEDENT] decided on 03.01.2014 and [PRECEDENT] is taken into consideration, then the simple issuing of the notification u/[SECTION] of the [ACT] to declare any particular rural area as urbanised itself is not sufficient and another notification under [SECTION] of [ACT] is also necessary qua that area for enforcing the provisions of [ACT] and to create bar of the jurisdiction of the Civil Court.
Accordingly, the submission raised by the counsel for the appellant is liable to be rejected and mere fact that notification under [ACT] has been issued does not itself make provisions of [ACT] applicable to that area. This fact is not in dispute that no separate notification under [ACT] has been issued qua the Village Chauhan Bangar after the notification under [ACT] dated 13.01.2012. The argument of the counsel for the appellant that the urban area falling under [ACT] as per first schedule automatically cover all the urban areas under [ACT] cannot be accepted in view of the above judgments of our own High court wherein the interpretation of [SECTION] of [ACT] and relevant [SECTION] of [ACT] was discussed. The plea taken by the counsel for the appellant regarding the applicability of the second schedule of the [ACT] is not acceptable because the second schedule was applicable in respect of some particulars provisions of [ACT] and not concerning with the provisions of [ACT].
The question of the jurisdiction of the court is a pure question of law and not mixed question of law and fact as argued by counsel for the appellant. Since, there was a defence taken by the appellant in the Trial Court that no notice under [SECTION] of [ACT] was served then even in that situation the Ld. Trial Court was right in holding while relying upon Supreme Court judgment of [PRECEDENT] that filing of eviction suit itself can be treated as a notice to quit in such circumstances.
The arguments advanced by the counsel for the appellant that Trial Court was required to deal with the question of absence of cause of action and to reject the plaint under [SECTION] [ACT] first before dealing with application of the respondent under [SECTION] [ACT] is also without any force because appellant had not filed any separate application under [SECTION] [ACT] before the Trial Court but simply took vague and general preliminary objection in this regard and that is also without disclosing how and in which manner cause of action is not made out.
If the order of the Trial Court is read in totality then it can be certainly said that the impugned order was passed on merits and not simply on basis of consent as pleaded in the present appeal. Mere fact that respondent had purchased the property about three months prior to filing of the suit does not debar her to file it or appellant can be given any protection only on this ground.
The Trial Court was fully justified in holding that [SECTION] of [ACT] is not applicable as the property does not fall in the slum area. It is important to mention here that in respect of the same property, 5 other appeals of different tenants have already been dismissed on 27.09.2014 by this court in which not only the above issues but other arguments relating to identity of the village and distinguishing the same with other villages namely Village Ghonda, Ghonda Chauhan Bangar, Ghonda Chauhan Khadar, Ghonda Gujran Banger and Ghonda Neemka etc. besides the bar of jurisdiction of the Civil Court under [ACT] provisions were discussed in detail.
Hence in view of above discussions, the impugned order of the Trial Court dated 19.03.2014 in respect of the passing of the decree of possession on the basis of application under [SECTION] [ACT] of the respondent is upheld. The present appeal is dismissed by leaving both the parties to bear their own costs. However, the appellant is given two months time to vacate the suit property himself failing which the possession can be recovered by the respondent through execution proceedings thereafter. Copy of the order be sent to the Trial Court with TCR and appeal file be consigned to record room.
Date : 16.10.2014 ([ENTITY]) Additional District Judge (NE)-01