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Case Number

RSA No. 386-87/2006

Attorney(S)

Mr. K.K Sharma, Advocate.
Mr. Sudhir Kumar Sharma, Advocate.

Judges

Indermeet Kaur, J.

Acts

Delhi Municipal Corporation Act, 1957 (66 of 9157):2. the Municipal Committee, Delhi;3. the Notified Area Committee, Civil Station, Delhi;4.
DELHI RENT CONTROL ACT 1958
SECTION 1 DELHI RENT CONTROL ACT
SECTION 507 DELHI MUNICIPAL CORPORATION ACT 1957
Section 1(20 of the Delhi Rent Control Act,
subsection(2) and Section 1 of the DRC Act,
section 1(2) of the Delhi Rent Control Act,
subsection(2) of section 1 of the DRC Act
provisions of Section 1(2) of the DRC Act
Section 57 of the Indian Evidence Act
Order 41 Rule 27 of the Code

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Smart Summary

Summary of the Opinion — Indermeet Kaur, J. (Oral)

Factual and Procedural Background

The plaintiff, Rattan Lal, sued for possession of the suit property bearing No. 262-C, Subhash Marg, Chhajjapur, Babarpur, Babarpur, Shahdara. The plaintiff claimed ownership and alleged that the property had been let out to defendant no.1 at a monthly rent of Rs. 375 (including electricity), that the defendant defaulted in payment and had been in arrears since 27.5.2001, and that a legal notice dated 16.10.2000 had been served. The plaintiff also contended the property was situated in a rural revenue estate and therefore the Delhi Rent Control Act, 1958 (DRCA) was inapplicable.

The defendant challenged maintainability, contending that the relationship was governed by the DRCA, relied upon Section 50 of the DRCA as a bar to the civil suit, and asserted the property fell within an area governed by the DRCA (claiming tenancy initially at Rs. 375 and later enhanced to Rs. 515).

At trial, four issues (and a further question of misjoinder) were framed, evidence (oral and documentary) was led, and the trial judge decided in favour of the plaintiff, decreeing possession. The first appellate court affirmed that finding. A second appeal was admitted on 14.8.2008 raising the substantial question of law whether the property is situated in an area covered by the DRCA.

Legal Issues Presented

Whether the property in question is situated in an area covered by the Delhi Rent Control Act (DRCA), and consequently whether Section 50 of the DRCA bars the civil suit for eviction.
Procedural issue on whether the appellant may adduce an additional public document (a subsequent notification dated 27.3.1979) at the second appeal stage without an application under Order 41 Rule 27 of the Code of Civil Procedure.

Arguments of the Parties

Plaintiff's / Respondent's Arguments

The plaintiff asserted ownership of the suit property and that the property was in a rural revenue estate, so the DRCA did not apply.
Plaintiff relied on absence of any notification under the proviso to Section 1(2) of the DRCA specifying Babarpur in the schedule, and relied upon precedent (including Mitter Sen Jain v. Shakuntla Devi and Brahma Devi v. Krishna Devi) establishing that a further notification is required to make DRCA applicable to newly urbanised areas.
That the defendant had failed to hand over possession and was in rent arrears despite notice.

Defendant's / Appellant's Arguments

The defendant contended that Section 50 of the DRCA bars civil court jurisdiction and that the relationship was governed by the DRCA; relied on decisions (Omprakash Jain v. Hansraj and Sarwan Kumar v. Madanlal Aggarwal) to show eviction matters fall within statutory forum.
Before the second appellate court the appellant additionally argued that a subsequent notification dated 27.3.1979 (purportedly bringing Babarpur within the DRCA schedule) had been filed in the present proceedings and that judicial notice could be taken of this public document.
However, this additional notification was not produced in the courts below and no application under Order 41 Rule 27 of the Code of Civil Procedure seeking permission to adduce it at the second appeal was filed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Omprakash Jain v. Hansraj, 1996 (I) All India Rent Control Journal 35 (also cited as 1995 (1) AIRCJ 35)	Authority relied upon to show that where DRCA applies, jurisdiction of civil courts to entertain eviction suits is barred under Section 50 of the DRCA.	The decision was noted as authority relied upon by the defendants. The court recorded that defendants relied on it but found the factual predicate (that Babarpur was within the DRCA area) not proved, so the bar did not apply here.
Sarwan Kumar v. Madanlal Aggarwal, II (2003) SLT 1	Similar authority that civil court jurisdiction is barred in matters covered by the DRCA (Section 50).	Referred to as part of defendants' reliance; court observed the decisions but held defendants failed to prove that DRCA applied to the suit property; hence these precedents did not operate to bar the suit.
Mitter Sen Jain v. Shakuntla Devi, 85 (2000) DLT 658 (SC)	Held that when an area is newly urbanised and becomes part of the Municipal Corporation of Delhi, a further notification under the proviso to Section 1(2) of the DRCA is required before DRCA applies to that area.	Adopted by the court as the governing legal proposition on applicability of DRCA to newly urbanised areas; used to hold that absence of the second notification meant DRCA did not apply to Babarpur.
Brahma Devi v. Krishna Devi, 1996 (39) DRJ	Support for the proposition that a further notification under the proviso to Section 1(2) is required before DRCA can apply to a newly included area.	Relied upon by the plaintiff and treated as consistent with Mitter Sen to require a second notification; the court followed this line in finding DRCA inapplicable without such notification.
Ramjilal v. Ghisa Ram, JT 1996 (2) SC 649	Authority cited by appellant regarding judicial notice or related evidentiary principles (as relied upon by appellant).	The court held this judgment had no application to the present circumstances because the appellant had not followed the procedural route (no application under Order 41 Rule 27 CPC) to place the subsequent notification on record at the second appeal stage.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete legal and procedural steps:

Allocation of Burden: The trial court placed the onus on the defendants to prove that the DRCA applied to the suit property and that Section 50 therefore barred the civil suit. The second appellate court accepted that allocation and the fact-finding below.
Examination of Evidence Relied Upon by Defendant: The defendants relied upon a notification dated 28.5.1966 (issued under Section 507 of the Delhi Municipal Corporation Act, 1957) to show the area had been urbanised. The courts examined that notification and found it did not specifically mention Babarpur, the location of the suit property.
Legal Principle Governing Applicability of DRCA: The court referred to the Supreme Court decision in Mitter Sen Jain v. Shakuntla Devi (and related authority such as Brahma Devi), holding that where an area is newly urbanised, a further notification under the proviso to Section 1(2) of the DRCA is required to bring that area within the statutory schedule and make the DRCA applicable.
Failure to Prove the Second Notification at Trial and First Appeal: Both courts below found that no notification under the proviso to Section 1(2) specifying Babarpur had been proved. On that factual basis, they concluded the DRCA did not apply to the suit property.
Attempt to Introduce Subsequent Notification at Second Appeal: The appellant contested the finding by asserting that a subsequent notification dated 27.3.1979 was available and should be read in evidence; it was said to be a public document. The second appellate court declined to admit or read that notification because no application under Order 41 Rule 27 of the Code of Civil Procedure seeking permission to adduce additional evidence at the appellate stage had been filed, and no oral application had been made either.
Procedural and Evidentiary Limits: The court observed that although Section 57 of the Indian Evidence Act allows judicial notice of laws in force, an appellate court entertaining a second appeal cannot, without following the procedure under Order 41 Rule 27 CPC, take fresh documentary evidence that was not before the courts below. The court also held that the cited authority Ramjilal v. Ghisa Ram did not assist the appellant in the absence of compliance with the procedural requirement.
Conclusion from Application of Law to Facts: Given the absence of the requisite second notification in the record of the courts below and the appellant's failure to follow the procedural route to place the subsequent notification before the second appellate court, the established factual findings that Babarpur was not shown to be covered by the DRCA remained unassailed and operative.

Holding and Implications

Core Ruling: The second appeal is dismissed. The concurrent findings of the trial court and first appellate court that the DRCA is inapplicable to the suit property (for want of the second notification under proviso to Section 1(2)) are upheld.

Implications:

Direct effect: The decree for possession in favour of the plaintiff (Rattan Lal) stands; the defendant's defence that Section 50 of the DRCA barred the civil suit failed because the defendants did not prove that Babarpur was brought within the DRCA schedule by the required second notification.
Procedural consequence: A party cannot at the stage of a second appeal present a fresh public document to alter factual findings of lower courts without first obtaining the court's permission under Order 41 Rule 27 CPC; absent such permission the appellate court will not admit the document even if it is a public document.
Broader precedent: The opinion applies established authority (notably Mitter Sen Jain v. Shakuntla Devi) on the necessity of a second notification for DRCA applicability, but the court did not purport to lay down any new legal principle. The decision affirms existing doctrine and enforces procedural limits on adducing additional evidence at the second appeal stage.

End of summary based exclusively on the text of the provided opinion.

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Shri Sarvesh Kumar & Anr. v. Shri Ratan Lal (Since Deceased) Through His Lrs.

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated 17.2.2006 which had endorsed the finding of the trial judge dated 29.10.2005 whereby the suit filed by the plaintiff Rattan Lal seeking possession of the suit property bearing No. 262-C, Subhash Marg, Chhajjapur, Babarpur, Shahdara had been decreed in his favour.

2. The case of the plaintiff as is evident from the averments in the plaint is that he is the owner of the suit property. The suit property had been let out to defendant no. 1 at a monthly rent of Rs. 375/- including electricity charges. The defendant did not tender the rent in time; he is in arrears of rent since 27.5.2001; legal notice was served upon the defendant dated 16.10.2000 Contention is that the property situated in a rural area and being in the revenue estate the provisions of Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the DRCA’) are inapplicable. Defendant has failed to hand over the suit property. Suit was accordingly filed.

3. In the written statement, it was contended that there is a bar of Section 50 of the DRCA; defendant no. 1 is a tenant at monthly rental of Rs. 375/- which was later on enhanced to Rs. 515/- per month. The relationship between the parties is governed by provisions of DRCA. Suit is not maintainable.

4. The trial judge had framed the following four issues; they read as follows:

1. Whether plaintiff is entitled for the decree of possession as prayed for? OPP

2. Whether suit is barred under Section 50 of Delhi Rent Control Act? OPD

3. Whether suit is barred under Section 41(h) of the Specific Relief Act? OPD

4. Whether suit is not properly valued for the purpose of court fees and jurisdiction? OPD

5. Whether suit is bad for misjoinder of defendant no. 2? OPD

5. Oral and documentary evidence was led. Issue no. 2 is relevant for the controversy in issue. The contention of the defendant was that the suit is barred under Section 50 of the DRCA. The finding returned by the trial judge is as follows:

10. ISSUE NO. 2:-

“Whether the suit is barred U/S 50 of Delhi Rent Control Act? OPD”

Onus to prove the issue was upon the defendants. Ld. counsel for the defendants has contended that the suit is barred Under section 50 of drc act as suit property is situated at Babarpur, Shahdara, Delhi where the provisions of DRC Act are applicable. He has relied upon the decisions reported as Omprakash Jain v. Hansraj 1996 (I) All India Rent Control Journal 35 and Sarwan Kumar v. Madanlal Aggarwal II(2003) SLT 1 wherein it was held that the jurisdiction of Civil Court to entertain any suit or proceedings relating to eviction of any tenant from premises covered by the Delhi Rent Control Act is barred under section 50 of the drc act. On the other hand, Ld. Counsel for the plaintiff has argued that Babarpur has not been notified so far as per section 1(2) of the Delhi Rent Control Act, specifying Babarpur area within the schedule of the Act. He has relied upon the decisions reported as Mitter Sen Jain V. Shakuntla Devi 85 (2000) DLT 658 (SC) and Brahma Devi v. Krishna Devi, 1996 (39) DRJ wherein it was held that even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to sub-section(2) of Section 1 of the Delhi Rent Control Act and unless the area is so specified in the schedule by a notification, the provisions of the Delhi Rent Control Act cannot be made applicable to that area. First schedule of DRC Act is as follows:

The first Schedule

[See Section (12)]

The urban areas within the limits of the Municipal Corporation of

Delhi to which the Act extends

The area which, immediately before the 7th April, 1958, were included in---

1. the Municipality of New Delhi excluding the area specified in the First Schedule to the Delhi Municipal Corporation Act, 1957 (66 of 9157):

2. the Municipal Committee, Delhi;

3. the Notified Area Committee, Civil Station, Delhi;

4. the Municipal Committee, Delhi - shahdara;

5. the Notified Area Committee, Red Fort;

6. the Municipal committee, West Delhi:

7. the South Delhi Municipal Committee;

8. the Notified Area Committee, Mehrauli

Counsel for the defendants has referred a notification No. F.9(2) 66-Law. Cor. Dated 28.5.1966 issued under Section 507 of the Delhi Municipal Corporation Act, 1957 to show that DRC Act is applicable to the Babarpur Area. By this notification besides other areas, the entire remaining area of revenue estate Shahdara which has not so far been urbanized, has been urbanized. As Hon'ble Supreme Court has held in Mitter Sen case (supra) that even if any new area is included within the urban area of MCD of Delhi a further notification is required to be issued under proviso to subsection(2) and Section 1 of the DRC Act, hence, two notifications, one with regard to inclusion of any area in the urban area and second with regard to under proviso to subsection(2) of section 1 of the DRC Act are required for the applicability of the DRC Act in any new area. By said notification dated 28.5.1966 entire revenue estate of Shahdara has been urbanised. The defendant has not proved any document etc to show that Babarpur comes in the revenue estate of Shahdara. In the schedule of DRC Act, Shahdara Municipal Committee has been mentioned, and Babarpur has not been mentioned in that schedule. Defendant has not proved any document to show that area of Babarpur comes in the area of Shahdara Municipal Committee. No notification under the proviso to subsection (2) of Section 1 of Delhi Rent Control Act specifying the Babarpur area within the schedule of the Act has been referred. In view of the above discussions, I am of the view that the defendant has filed to prove that the Babarpur area in which the suit property is situated falls I the area where the DRC Act is applicable. Hence, this issue is decided in favour of the plaintiff and against the defendant.”

6. This finding was affirmed by the first appellate Court. It inter alia reads as follows:

“After recording the evidence of the parties, the trial court decided this issue against the appellant by holding, that the second notification which is required to have been issued by the Central Government in view of the provisions of Section 1(2) of the DRC Act has not been issued in this case and therefore, even through the area in question has been urbanised. It cannot be said to have been covered the provision of DRC Act which would invite the bar of section 560 of the drc act in filing of a suit for eviction by the respondent in civil suit. The relevant discussion in this regard appears at page 5.6 and 7 of the judgment while deciding issue No. 2 which for the sake of reference is reproduced hereunder:

“Onus to prove the issue was upon the defendants. Ld. counsel for the defendants has contended that the suit is barred u/s 50 of the drc act as suit property is situated at Babarpur, Shahdara, Delhi, where the provisions of DRC Act are applicable. He has relied upon the decisions reported as Om Parkash Jain v. Hansraj 1995 (1) All India Rent Control Journal 35 and Sarwan Kumar v. Madanlal Aggarwal II (2003) SLT 1 wherein it was held that the jurisdiction of Civil Court to entertain any suit or proceedings relating to eviction of any tenant from premises covered by the Delhi Rent Control Act is barred under section 50 of the drc act. On the other hand, Ld. counsel for the plaintiff has argued that Babarpur has not been notified so far as per Section 1(20 of the Delhi Rent Control Act, specifying Babarpur area within the schedule of the Act. He has relied upon the decisions reported as Mitter Sen Jain v. Shakuntla Devi, 85 (2000) DLT 658 (SC) and Brahma Devi V. Krishna Devi, 1996 (39) DRJ wherein it was held that even if any new area is included within the urban area of Municipal Corporation of Delhi, a further notification is required to be issued under proviso to sub-section(2) of Section 1 of the Delhi Rent Control Act and unless the area is so specified in the schedule by a notification, the provisions of the Delhi Rent Control Act cannot be made applicable to that area. First schedule of DRC Act is as follows:

The first Schedule

[See Section 1(2)]

The urban areas within the limits of the Municipal Corporation of Delhi to which the Act extends

The area which, immediately before the 7 April, 1958, were included in---

1. the Municipality of New Delhi excluding the area specified in the First Schedule to the Delhi Municipal Corporation Act, 1957 (66 of 9157):

2. the Municipal Committee, Delhi;

3. the Notified Area Committee, Civil Station, Delhi;

4. the Municipal Committee, Delhi - shahdara;

5. the Notified Area Committee, Red Fort;

6. the Municipal committee, West Delhi:

7. the South Delhi Municipal Committee;

8. the Notified Area Committee, Mehrauli

Counsel for the defendants has referred a notification No. F.9(2) 66-Law. Cor. Dated 28.5.1966 issued under Section 507 of the Delhi Municipal Corporation Act, 1957 to show that DRC Act is applicable to the Babarpur Area. By this notification besides other areas, the entire remaining area of revenue estate Shahdara which has not so far been urbanized, has been urbanized. As Hon'ble Supreme Court has held in Mitter Sen case (supra) that even if any new area is included within the urban area of MCD of Delhi a further notification is required to be issued under proviso to subsection (2) and Section 1 of the DRC Act, hence, two notifications, one with regard to inclusion of any area in the urban area and second with regard to under proviso to subsection(2) of section 1 of the DRC Act are required for the applicability of the DRC Act in any new area. By said notification dated 28.5.1966 entire revenue estate of Shahdara has been urbanised. The defendant has not proved any document etc to show that Babarpur comes in the revenue estate of Shahdara. In the schedule of DRC Act, Shahdara Municipal Committee has been mentioned, and Babarpur has not been mentioned in that schedule. Defendant has not proved any document to show that area of Babarpur comes in the area of Shahdara Municipal Committee. No notification under the proviso to subsection (2) of Section 1 of Delhi Rent Control Act specifying the Babarpur area within the schedule of the Act has been referred. In view of the above discussions, I am of the view that the defendant has filed to prove that the Babarpur area in which the suit property is situated falls I the area where the DRC Act is applicable. Hence, this issue is decided in favour of the plaintiff and against the defendant.”

5. Ld. counsel for the appellant despite given an opportunity has not been able to produce to second notification, if any, which would bring the property under the purview of DRC Act even before this tribunal. Hence no infirmity can be found in the observation made by the trial court about the applicability of the DRC Act to the present proceedings.”

7. This is a second appeal. On 14.8.2008 it has been admitted and the following substantial question of law was formulated:

“Whether the property in question is situated in an area which is covered by Delhi Rent Control Act?

8. On behalf of the appellant, it has been urged that both the concurrent findings of fact had refuted the defence of the defendant only for the reason that the second notification which was contemplated after the first notification of 28.5.1966 had not been proved. It is submitted that this second notification dated 27.3.1979 had since been filed in the present proceedings and judicial notice can be taken of this document as it is a public document.

9. Arguments have been countered. It is pointed out that in the absence of an application seeking permission of this Court to adduce additional evidence this subsequent notification dated 27.3.1979 cannot be read by the second appellate Court. Even otherwise the first notification dated 28.5.1966 which has been proved in the courts below did not make any mention of the suit property; there was no reference to Babarpur where the suit property is situated. The impugned judgment calls for no interference on any count.

10. The findings as returned by the two fact finding courts below has been noted hereinabove. The defence of the defendant was that the provisions of the DRCA are applicable and for this proposition reliance has been placed upon the notification dated 28.5.1966 The said notification has been perused. In this notification admittedly there is no mention of Babarpur which is the place where the suit property is located. This had been noted by both the courts below. The subsequent notification which is sought to be relied upon by the learned counsel for the appellant cannot be read in evidence as admittedly till date no application has been filed by the appellant seeking permission of this Court to adduce additional evidence. Submission of the learned counsel for the respondent that in the absence of an application under Order 41 Rule 27 of the Code granting this prayer of the appellant, this document cannot be read, carries forces. The judgment relied upon by the learned counsel for the appellant reported in JT 1996 (2) SC 649 Ramjilal v. Ghisa Ram has no application. There is no doubt that under Section 57 of the Indian Evidence Act judicial notice can be taken of the laws which are in force in the country. It is also an undisputed proposition that an appeal is a continuation of the original proceedings. However, before the appellate court admits additional evidence, at the stage of a second appeal, and reads a fresh document, the appellant must cross the hurdle of Order 41 Rule 27 of the Code. Besides the fact that no written application to the said effect has been filed till date; even no oral prayer for taking this document on record was made before this Court. This document cannnot suo moto be read by the Court.

11. The Supreme Court in 85(2000) DLT 658 (SC) Mitter Sen Jain v. Shakuntla Devi had held that even when an area has been urbanized and becomes a part of the Municipal Corporation of Delhi a further notification is required to be issued under Section 1(2) of the DRCA and unless the area is so specified in the schedule by a second notification, the provisions of DRCA Act cannot be applicable. Admittedly the second notification has not seen the light of the day. The two concurrent findings of fact do not call for any interference. The impugned judgment had rightly held that the DRCA is inapplicable to the suit property. No other argument has been addressed before this Court. Substantial question of law is answered accordingly. Appeal is dismissed.

Shri Sarvesh Kumar & Anr. v. Shri Ratan Lal (Since Deceased) Through His Lrs.

Summary of the Opinion — Indermeet Kaur, J. (Oral)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's / Respondent's Arguments

Defendant's / Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Shri Sarvesh Kumar & Anr. v. Shri Ratan Lal (Since Deceased) Through His Lrs.

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