Usha Mehra, J.
1. The appellant is aggrieved by the impugned order of the Additional District Judge whereby the judgment and decree passed by the Sub Judge in his favor in Suit No. 366/80 has been set aside. Against the decree passed by Subjudge the present respondent preferred an appeal before the Additional District judge. The learned Additional District judge after considering the case of the parties held that Issues No. 3 & 4 pertaining to the applicability of Delhi Rent Control Act and question of jurisdiction of Civil Court could not be decided on the basis of oral testimony. For that parties were required to produce notification. He accordingly remanded the case back. He further directed that the Trial Court would record evidence of the parties on these two issues namely Issue No. 3 which read as 'Whether the provisions of Delhi Rent Control Act are not applicable to the premises in suit?' and Issue No. 4 Which read as 'Whether the Court has no jurisdiction to try the suit?' Parties were to produce Notification to prove that Delhi Rent Control Act has infact been extended to the locality where the property was situated. The learned Additional District Judge came to the conclusion that if the Notification was proved then the finding of the lower Court on Issues No. 3 and 4 could not be sustained. He also found that evidence was not sufficient for deciding these two issues, thereforee, additional evidence was required. He, thereforee, applying the provisions of Order 41 Rule 28 of CPC directed the lower Court to take further documentary evidence as the parties may give on these two issues namely Issues No. 3 and 4. The learned Sub Judge, after the case was remanded back, recorded the evidence and submitted the papers back to the Additional. District Judge. When the matter came up before the Additional District judge he instead of appreciating the evidence as produced by the parties took up a totally new point with regard to the applicability of Delhi Land Reform Act and rendered the finding against this appellant. As pointed out above, Shri J.P.Singh, the then Additional District Judge while invoking the power under Order 41 Rule 28 of CPC directed the Subordinate Court to take on record the documentary evidence as the parties may give with regard to the applicability of Delhi Rent Control Act to the area in question. He also made it clear that if appellant i.e. the present respondent could prove through notification that Delhi Rent Control Act applies then the question of jurisdiction would be decided accordingly. The question of jurisdiction was dependent on the applicability of the Delhi Rent Control Act and not on the applicability of the Delhi Land Reform Act.
2. That this respondent had filed an application under Order 6 Rule 17 read with Section 151 of CPC seeking amendment of his written statement. By amendment he wanted to incorporate certain preliminary objections and in particular wanted to challenge the jurisdiction of the Civil Court being barred because of Delhi Land Reforms Act. He had already taken the plea that jurisdiction of the Civil Court was barred under Section 50 of the Delhi Rent Control Act. By amendment he wanted to take additional plea challenging the jurisdiction of Civil Court on account of the applicability of Delhi Land Reforms Act. This amendment sought by the present respondent was not allowed by the Additional District Judge vide his order dated 4th February, 1984. The first Appellate Court vide order dated 4th February, 1984 observed that the amendment was not bonafide. It amounted to opening of trial de flavor and, thereforee, rejected the plea of amendment. That order of Additional District Judge dated 4th February,1984 was not challenged by this respondent. Hence he would remain bound by that. To my mind, the Additional District Judge fell in error in applying the Delhi Land Reform Act which plea was not allowed to be incorporated earlier by the Additional District Judge. In the absence of any pleadings in the appeal this respondent could not be allowed to urge a new point. That the defense of the present respondent before the Trial Court was that Delhi Rent Control Act applied to the property in question and,therefore, Civil Court had no jurisdiction. The jurisdiction of the Civil Court was barred under Section 50 of Delhi Rent Control Act. So far as the applicability of Delhi Land Reforms Act was concerned, the First Appellate Court had already declined him to raise that as a defense vide order dated 4th February,1984. thereforee, the same defense in the absence of any pleadings could not have been allowed.
3. That in the absence of pleadings and also that before the Subjudge this point was not taken nor decided, hence the plea of the applicability of the Delhi Land Reforms Act could not be taken for the first time before the Additional District Judge. Having disallowed the amendment he could not have dealt with that very plea nor could have set aside the judgment and decree. The contention of. Mr. Verma that in the order dismissing the application under Order 6 Rule 17 of CPC Additional District Judge had mentioned that legal plea regarding lack of jurisdiction could be looked into from feasible angle, thereforee, it was not necessary to plead the same. I am afraid this argument has no force. If this plea was feasible without document evidence having been placed on record or of giving opportunity to parties, then the Additional District Judge should have permitted the amendment. The plea of applicability of the Delhi Land Reforms Act to the property in question required evidence. That is why the Additional District Judge dismissed the application seeking amendment because it would have amounted to opening of trial de novo. The first Appellate Court fell in error by permitting this respondent to take up the plea of applicability of Delhi Land Reforms Act without the written plea and without documenter evidence having been placed before him. Plea which was not allowed to be taken in the written statement earlier could not be allowed to be urged orally without the documentary evidence and without there being sufficient material before the Additional District judge. In the absence of there being any pleadings and documentary evidence on record regarding the applicability of the Delhi Land Reforms Act to the property in question, the impugned order cannot be sustained because it amounted to denial of reasonable opportunity to the appellant. He could not have been taken by surprise. The order of remand by Mr. J.P. Singh, the then Additional District judge was very specific that evidence was to be recorded only on the question of the applicability of Delhi Rent Control Act and that too by production of documentary evidence i.e. Notification. The question of jurisdiction was directly connected with the applicability of the Delhi Rent Control Act. If the Delhi Rent Control Act applied, then Civil Court's jurisdiction was barred under Section 50, but by the impugned order, the Additional District Judge completely overlooked that the remand was only to record evidence on Issues No. 3 & 4. After the evidence was recorded and papers were received by the first Appellate Court he was to decide these two issues only namely Issues No. 3 & 4. Decision on the rest of the issues this respondent had conceded as is apparent from para 10 of the impugned judgment. In para 10 it has been clearly mentioned by the learned first Appellate Court that Counsel for the appellant i.e. present respondent conceded all the issues in favor of the respondent i.e. the present appellant. This shows that the present respondent conceded that Delhi Rent Control Act was not applicable to the property in question. The first Appellate Court fell in error when it considered that the issue of jurisdiction i.e. Issue No. 4 was framed because of the applicability of Delhi Land Reforms Act. The challenge to the jurisdiction of the Civil Court was not on account of Delhi Land Reforms Act but because of Section 50 of Delhi Rent Control Act. Once the Court concluded that the Delhi Rent Control Act was not applicable, the question of lack of jurisdiction of Civil Court did not arise. Issue No. 4, thereforee, ought to have been decided in favor of the present appellant. As already observed above, once the plea of lack of jurisdiction of the Civil Court on the ground of Delhi Land Reforms Act was disallowed by way of amendment, the first Appellate Court could not have dealt with it under the garb of deciding Issue No. 4.
For the reasons stated above, the impugned order cannot be sustained. The same is accordingly set aside. The appeal is allowed with costs. The matter is accordingly remanded to the Additional District Judge to decide Issues No. 3 & 4 in accordance with law and on the basis of evidence received.
Appeal allowed with costs.