* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.77/2012
% 13th February, 2012
BASHIR AHMAD SHAH HAMI & ANR ..... Appellants
Through: Mr. G.M.Chand with Mr. K.Z.Khan, Advs.
versus
SMT SUNITA ARORA & ANR ..... Respondents
Through: Mr. Rohit Singha, Adv. for R-1&2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL) CM No.2566/2012(exemption) Allowed, subject to all just exceptions.
Application stands disposed of.
CM No.2567/2012(condonation of delay) Delay of 2 days in filing of the appeal is condoned. CM stands disposed of.
RFA No.77/2012
1. The challenge by means of this Regular First Appeal (RFA) RFA No.77/2012 Page 1 of 6 filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree of the Trial Court dated 19.10.2011 decreeing the suit of the respondents/plaintiffs/landlords for possession and mesne profits. At the outset itself, I may note that the appellants/defendants were proceeded ex parte repeatedly before the Trial Court, and which ex parte proceedings were set aside, subject to payment of costs, however, no costs were paid and ex parte proceedings thereafter continued. Not only that, the malafides of the appellants/defendants/tenants are apparent on the face because even at the stage of final arguments once again an application was filed seeking the relief for filing of the written statement, which of course was rightly dismissed.
2. The facts of the case are that the appellants/defendants were inducted as tenants in the entire lower ground floor of the property bearing no. 146, Kailash Hills, New Delhi under a registered lease deed dated 20.6.2008 (Ex.PW2/1). The lease was for a period of 11 months at a rent of `17,000/- per month. The premises were let out for residential purposes.
3. The travails of the respondents/plaintiffs/landlords started within 2 months of the letting out inasmuch as the appellants/defendants failed to pay the rents after two months of commencement of tenancy. The RFA No.77/2012 Page 2 of 6 tenancy of the appellants/defendants was therefore terminated by notice dated 11.9.2008. The subject suit thereafter came to be filed claiming arrears of rents, mesne profits and possession.
4. The appellants/defendants were served but since remained absent, therefore, they were proceeded ex parte on 3.12.2010. The ex parte order was set aside by giving a last opportunity to file the written statement by an order dated 25.3.2011 subject to payment of costs, however, the directions were not complied with and the costs were not deposited. Of course, the appellants/defendants cross-examined the witnesses of the respondents/plaintiffs. To further delay the proceedings one application at the stage of final arguments was moved to file the written statement, and which was dismissed by the Trial Court.
5. The trial Court has arrived at the findings that there exists a relationship of landlord and tenant between the parties; the rate of rent being more than `3,500/- per month, i.e. `17,000/- per month; the premises were outside the protection of Delhi Rent Control Act, 1958 the tenancy therefore could be and was terminated by a notice under Section 106 of the Transfer of Property Act, 1882 especially because the appellants/defendants were rank defaulters in making payment of the admitted rate of rent. The Trial Court has granted mesne profits, not at the RFA No.77/2012 Page 3 of 6 rate claimed by the respondents/plaintiffs, but at 30% more than the last paid rate of rent, i.e. at `22,100/- per month.
6. Learned counsel for the appellants/defendants argued two points before this Court. The first was that the respondents/plaintiffs were not the owners of the premises as they had forged and fabricated the power of attorney in their favour. The second argument was that the Trial Court should have exercised discretion to allow the appellants/defendants to file the written statement at the stage of final arguments.
The first argument urged on behalf of the appellants/defendants that the respondents/plaintiffs/landlords were not the owners is an argument of sheer malafides because it is with the respondents/landlords that a registered lease deed was entered into with respect to the suit premises on 20.6.2008. Section 116 of the Indian Evidence Act, 1872 estops a tenant from questioning the title of the landlord. I therefore hold that the appellants/defendants are estopped from questioning the ownership of the appellants/defendants. The second argument that at the stage of final arguments an opportunity should be given to the appellants/defendants to file the written statement, is, without adding anything further, surely a baseless argument. Obviously, there is no inherent right to keep on delaying a suit filed by the landlords for RFA No.77/2012 Page 4 of 6 possession of the tenanted premises, more so when even at the admitted rate, the rent is not paid. As already stated above though the appellants/defendants were proceeded ex parte, they however did get an opportunity to file the written statement by payment of costs but they failed to use the opportunity and did not pay costs. In fact the appellants cross- examined the witnesses of the respondents/plaintiffs.
7. The Hon'ble Supreme Court in the recent judgment of the Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors., 2011 (8) SCC 249 has held that it is high time that a message must be sent that dishonesty in litigation must be compensated by actual costs. A Division Bench of three judges of the Supreme Court in the case of Salem Advocate Bar Association Vs. Union of India, (2005)6 SCC 344 in para 37 had also observed that it is high time that actual costs be imposed. I am also empowered to impose actual costs by virtue of Volume V of the Punjab High Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule 15.
In the stark facts of the present case because of the sheer harassment meted out to the respondents/landlords, I find the present to be a fit case for being dismissed with actual costs, which I quantify at `50,000/-. Costs shall be paid within a period of 2 weeks from today. RFA No.77/2012 Page 5 of 6
8. This case was adjourned to today at the request of counsel for the appellants to take instructions from his clients for taking time to vacate the premises and paying the arrears, but the counsel for the appellants states that he has received instructions that the appellants are not in a good financial position and, therefore, this Court should proceed to hear arguments and pass a judgment. I have therefore heard the parties and disposed of the present appeal on merits.
9. The appeal is dismissed with the aforesaid observations. CM No.2565/2012(stay)
10. Since the appeal has itself been dismissed, no orders are required to be passed in this application for stay and the same is also disposed of having become infructuous.
VALMIKI J. MEHTA, J FEBRUARY 13, 2012 ak RFA No.77/2012 Page 6 of 6