SH. SUBHASH CHANDER Vs. SH. FATHAY SINGH

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff/landlord against the Judgment of the First Appellate Court dated 23.7.2015 whereby the first appellate court set aside the judgment of the trial court decreeing the suit for possession with respect to shop bearing no.1/9255, Plot no.12, West Rohatash Nagar Chowk, Babarpur Road, Shahdara, Delhi -32 under Order XII Rule 6 CPC. The first appellate court by the impugned judgment has held that the trial court has committed an error in not considering the fact that the respondent/defendant has not admitted the jurisdiction of the civil court and in fact claimed application of the Delhi Rent Control Act, 1958 i.e effectively holding and stating, though not clearly saying so, that there was no scope of application of Order XII Rule 6 CPC. Besides the first appellate court not mentioning the fact with respect to Order XII Rule 6 CPC being not applicable, the first appellate court has, very surprisingly, passed no order for remanding the suit to the trial court for decision inasmuch as if the first appellate court by the judgment was of the opinion that the defendant has not admitted the non -applicability of the Delhi Rent Control Act to the area where the suit property is situated, then, the first appellate court ought to have remanded the suit for trial on the disputed question of fact, however, the first appellate court failed to do so. In fact the judgment of the first appellate court flies in the face of the doctrine of res judicata contained in Section 11 CPC, and which aspect will be discussed hereinafter.

(2.) The relevant paras of the impugned Judgment of the First Appellate Court dated 23.7.2015 are paras 18 to 21 and these paras read as under: -

(3.) The following substantial question of law is framed for decision of the present second appeal: -