R.S. Sodhi, J.
1. This petition is directed against the order of the Additional District Judge, Delhi in Suit No. 197/2003 whereby the learned Judge vide order dated 20.1.2004 has disposed of Issues No. 4 and 5 holding that the premises in question does not fall within the definition of 'premises ' as defined under Section 2(i) of the Delhi Rent Control Act, 1958 and, thereforee, the Court has jurisdiction to try the suit.
CM(M) 317/2004 (page 1 of 5)
2. It is contended by learned counsel for the petitioner that both the issues (i) whether the suit premises falls within the definition of premises as defined under Section 2(i) of the Delhi Rent Control Act, 1958. ii) whether the suit is barred by Section 50 of the said Act as alleged are issues that can be decided only after evidence has been led. These issues cannot be adjudicated without adducing evidence as these are questions of fact.
3. Learned counsel for the respondent submits that in view of the lease deed no other evidence be considered and the trial Court was right in concluding that no evidence is needed in the matter.
4. Facts of the case as has been noted by the trial Court are as follows:-
The predecessors in interest of the plaintiffs, viz Mrs. Shamim Akthar and Mrs. Qumar Sultan had granted lease of a plot of land measuring 2500 sq. yards bearing No. 313-A, Badar Pur, Petrol Pump, Mauza Tajpur Tehsil, Mehrauli, New Delhi. The lease was granted vide a registered instrument dated 25.2.66. As per the terms of the said agreement, the lease was for a period of ten years with the option of continuing and renewing it twice, each time for a further period of 10 years and subject to a 25% increase on the last paid rent.
CM(M) 317/2004 (page 2 of 5)
The plaintiffs are equal shareholders in the said plot as Lessers, having purchased the same from Mrs. Shamim Akthar and Mrs. Qumar Sultan. After expiry of the lease and its extended periods, the plaintiffs did not extend the lease any further. A notice terminating the tenancy was also served on the defendants and they were duly asked to hand-over the vacant peaceful possession of the same.
It is contended on behalf of the defendants that no civil suit in respect of the said property can lie as the said area is duly notified within the territory to which the Delhi Rent Control Act is applicable. It is also contended that the lease deed very categorically states that the said premises was given with constructions and tanks and, thereforee, the premises falls within the definition of 'Premises'of Section 2(i) of the Delhi Rent Control Act. In terms of the present form, the suit is, thereforee, barred under Section 50 of the Act.
7. Having heard learned counsel for the parties and with their assistance I have gone through the record of the case. Learned counsel draws my attention to a notice dated 24.1.72 on behalf of the respondents terminating the tenancy. It is clearly mentioned in the notice in paragraph 1 as under :-
That you were the tenant of my aforesaid clientless along with other heirs left by Sheikh Adbul Hakim in respect of a building bearing No. 313-A, Badar Pur, Mauza Tajpur, Tehsil Mehrauli, Delhi which premises consist of a building for Petrol Pump and an open compound in front thereof, on payment of Rs. 600/- per month as rent. The tenancy is monthly in accordance with English calendar month starting with 1st day of each such month and ending with the last day of each such month.
CM (M) 317/2004 (page 3 of 5)
8. Further in paragraph 4 :-
That I further under instructions from aforesaid clientless hereby intimate to you that my clientless do not want to retain you contractual tenant any longer and your contractual tenancy shall stand determined and terminated by the mid night of 29th February, 1972 from which date you will become their statutory tenant. Place take notice accordingly.
9. From the forgoing it is clear that what was let out was a premises consisting of a building for Petrol pump and an open compound in front thereof, on payment of Rs. 600/- per month as rent and also on termination of tenancy the petitioners become statutory tenants thereafter. Learned counsel has also drawn my attention to a decree of partition wherein the premises that fell to the share of the respondent has been described in assets 'D'to be 'which land is in possession of the parties to the present suit and in which land a petrol pump with a building is located in two Bighas and 10 bids was in parts of Khasra No. 73, 81 and 82 and which Petrol Pump along with building has been let out to a tenant of the parties and the building of the petrol pump bears Municipal No. 313-A, BP, New Delhi.
From the aforesaid documents, it appears that what has been let out is a building along with the land. Surely it cannot be said
CM(M) 317/2004 (page 4 of 5) that the issues 4 and 5 can be decided without adducing evidence.
10. Learned counsel for the respondent though considers that evidence is necessary for deciding issues 3 and 4, contends that this Court under Article 227 of the Constitution would not interfere where questions of fact have been adjudicated upon by the trial Court.
11. Having heard parties I am of the view that in the totality of circumstances narrated above, Issues No. 4 and 5 need to be disposed of after receiving evidence.
12. In that view of the matter, order dated 20.1.2004 is set aside, the trial Court is directed to proceed with the matter and decide Issue Nos.4 and 5 after recording evidence. It is made clear that any observation made in this order shall not be treated as that made on the merits of the case and the trial Court to decide the issues in accordance with law.
13. The petition is allowed and disposed of.