Rafi Ahmad Khan vs Jalaludin

Indermeet Kaur, J.

CM No. 20425/2010 (for exemption )

Allowed subject to just exceptions.

RSA No. 210/2010, CM No. 20426/2010 (for stay), CM No. 20427/2010 (u/O 41 R.27 CPC) & CM No. 6656/2010

This appeal has impugned the judgment and decree dated 01.10.2010 which has endorsed the finding of the trial judge dated 01.5.2010 whereby the suit filed by the Plaintiff Jalaludin seeking possession of the suit property i.e. the property bearing No. 152/2, Gali No. 536, Gali No. 8, Main Road Jafrabad, Markazi Chowk, Seelampur, Delhi (hereinafter referred to as "the suit property") had been decreed in his favour.

The case of the Plaintiff is that he is the owner/landlord of the suit property. It had been let out to the Defendant vide rent agreement dated 10.02.1970; rent was Rs. 40/- per month. The Defendant had failed to pay the rent w.e.f. 01.10.2005. Legal notice was issued. The Defendant was asked to vacate the suit property but he paid no heed. Suit was accordingly filed.

In the written statement, it was contended that this Court has no jurisdiction to entertain the suit; Defendant was not in arrears of rent.

From the pleadings of the parties five issues were framed. Oral and documentary evidence was led which included PW-2 Halka Patwari, Village Jafrabad who had appeared from the office of the SDM Seelampur. PW-2 had deposed that Village Jafrabad is a separate revenue estate. This was as per the summoned record. Khatoni and Khasra of the aforenoted suit property has been proved as Ex.PW-2/1; on oath it was stated that Village Jafrabad is a rural area and Beroz Village (un-inhabitable area).

Both the two fact findings courts have returned concurrent finding in favour of the Plaintiff thereby decreeing the suit of the Plaintiff. Defence of the Defendant that Village Jafrabad has been notified by the government and has come within the purview of the Delhi Rent Control Act, 1957 (hereinafter referred to as "the DRCA") had been rejected as it was never proved. In defence the Defendant had produced the notification dated 20.2.1986 of the Ministry of Urban Development (Ex.DW-3/9). This notification was issued u/s 1(2) of the DRCA notifying certain revenue estates. Zones and Revenue Estates had been depicted given in a separate column; Shahdara Zone is shown at serial No. IV. The revenue estates falling in the said zone have been separately notified. Admittedly Seelampur forms a part of it. Jafrabad is not a part of this notification. In this context the testimony of PW-2 has attained relevance. He has on oath as per the summoned record stated that Village Jafrabad is a separate revenue estate.

This is a second appeal. On behalf of the Appellant it has been urged that the suit property is located in Village Jafrabad which is a part and parcel of Seelampur and Seelampur having been notified as an urban area the necessary implication is that Jafrabad is also notified as an urban area. This submission of the learned Counsel for the Appellant falls flat in view of the version of PW-2 who was an official witness and has deposed that village Jafrabad is a separate revenue estate. Ex.DW-3/9 which is the notification dated 20.2.1986 does not mention Jafrabad in the list of revenue estates. The contention of the learned Counsel for the Appellant that the suit property is within the purview of the DRCA is thus belied.

Along with this appeal, an application under Order 41 Rule 27 of the CPC (hereinafter referred to as "the CPC") has also been filed wherein permission is sought to place on record three documents.

Body of the application has been perused. The first document is a purported report from the office of the SDM which has been obtained pursuant to an RTI filed which purportedly shows that the Village Jafrabad is in the Revenue Estate, Sub-Divison, Seelampur. The next two documents are two receipts issued by the MCD whereby conversion charges had been taken by the MCD for using this property. Contention in this application is that the said documents are genuine documents and inadvertently they could not be placed on record earlier. In spite of due diligence these documents could not be filed. Permission is sought to place then on record.

Order 41 Rule 27 of the Code reads as follows:

Production of Additional Evidence in Appellate Court-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate court, But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

There is no doubt that this Court has powers to admit additional evidence even at a second appeal stage. Provisions of Order 41 Rule 27 of the Code however have to be complied with. Lack of "due diligence" on the part of the Appellant has neither been detailed nor explained in the application; mere reference to the word "due diligence" does not fulfill the parameters required in order that a prayer under this provision of law is allowed. It is also not the case of Appellant that this information was earlier not available with him for any particular reason; the first document sought to be placed on record is a report of the SDM of the year 2008; how and why it was not available to the Appellant earlier is not even mentioned in the body of the application. This provision of law has not been engrafted to fill in lacuna or to delay the proceedings which the Appellant is purporting to do.

Counsel for the Appellant is pressing his claim mainly on the first document. Even assuming that this first document is taken on record (report of the SDM) it only states that Village Jafrabad is in the revenue estate of the Sub-Division, Seelampur. PW-2 who was the Halka Patwarti of Jafrabad and had produced the summoned record; having come into witness box in his official capacity, had clearly stated on oath that Jafrabad is a separate revenue estate. A Sub-Division is different from a revenue estate. The notification Ex.DW-3/9 has notified the list of revenue states. Jafrabad was not a part of this notification. This application has no merit.

Substantial questions of law have been embodied on page four of the body of the appeal. They are largely bordered on this argument. No such substantial question of law has arisen.

Appeal as also the pending applications are dismissed.