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Shiv Lal v/s Om Parkash Kashyap


Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

Company & Directors' Information:- SHIV AND CO PVT LTD [Active] CIN = U15499PB1988PTC008267

Company & Directors' Information:- OM PARKASH AND CO PRIVATE LIMITED [Strike Off] CIN = U74899DL1988PTC030989

Company & Directors' Information:- OM ; CHIT FUNDS PRIVATE LIMITED [Strike Off] CIN = U99999MH1967PTC013841

    CM (M) No. 921 of 2018 & CM APPL. No. 32514 of 2018

    Decided On, 02 September 2019

    At, High Court of Delhi

    By, THE HONOURABLE MS. JUSTICE PRATHIBA M. SINGH

    For the Petitioner: Shiv Charan Garg, Imran Khan, Advocates with Petitioner in person. For the Respondent: Manish Tandon, Advocate.



Judgment Text


1. The present petition has been filed challenging the order dated 24th March, 2018 by which the appeal filed by the Respondent/Tenant (hereinafter, “Tenant”) has been allowed and the eviction order dated 28th January, 2017 passed under Section 14(1)(a) of the Delhi Rent Control Act, 1958 has been set aside by the Appellate Court.

2. The brief background is that the Petitioner/Landlord (hereinafter, “landlord”) had filed a petition under Section 14(1)(a) of the Delhi Rent Control Act seeking eviction of the tenant. The said petition came to be allowed vide order dated 27th March, 2017. A perusal of the said order reveals that the tenant never took an objection that the property is a slum and the same falls under the Slum Areas (Improvement and Clearance) Act, 1956. In appeal against the eviction order, an application under Order 41 Rule 27, CPC has been moved and during the course of arguments in the appeal, the said application has been taken on record. The affidavit of one Mr. Manohar Lal, Survey Officer, Delhi Urban Shelter Improvement Board is relied upon to hold that the area falls under a slum area, and since permission under Section 19 of the Slum Areas Act was not sought, the eviction itself was set aside.

3. Learned Counsel appearing for the landlord submits that there is a doubt as to whether the area where the property is located is a slum area. He relies upon the affidavit of Mr. Manohar Lal, as also the reply dated 21st December, 2011 to an RTI application, to state that the notification of 1960 even shows that the colony Aram Nagar was, in fact, excluded from the slum area.

4. The question as to whether the property is located in a slum area or not, could not have been disposed of in a summary manner, especially when the tenant was suffering an eviction decree. The issue in respect of whether or not the property was located in a slum area having been raised for the first time through the application under Order 41 Rule 27, CPC, that too at the appellate stage, both the parties ought to have been given adequate opportunity to lead evidence as to whether the property is located in a slum area or not. The mere statement of the officer from DUSIB, which is also incomplete, could not have been relied upon by the Appellate Court to set aside the order for eviction, which was passed qua the tenant. The order of the appellate Court has the effect of depriving the landlord of his property on the basis of an objection that was not even taken by the tenant in the eviction proceedings.

5. Mr. Manish Tandon, learned Counsel appearing for the tenant relies upon the judgment of this Court M/s. Albein Plywood Ltd. v. Smt. Janak Kapur &Ors., 50 (1993) DLT 228, to state that Section 19 of the Slum Areas mandates seeking permission to initiate eviction proceedings. While this legal position cannot be disputed, what needs to be appreciated is that the tenant never took an objection in the eviction petition that the property is located in a slum area, hence the said question did not even arise in the present case prior to the appeal.

6. It is, accordingly, directed that the matter shall stand remanded back to the Appellate Court. The Appellate Court shall frame an issue as to whether the property is located in a slum area, and the parties shall lead evidence in this regard. The Appellate Court shall also examine as to

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whether such an objection was even taken by the tenant during the eviction proceedings and the effect thereof on the appeal. Accordingly, the judgment of the Appellate Court is set aside in the above terms. 7. Parties to appear the before Appellate Court on 24th September, 2019. 8. The Petition and pending applications are disposed of in the above terms.
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