Vijay Kumar Gupta vs Kewal Krishan Kohli
1996 Latest Caselaw 899 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The fact that the plaintiff is the landlord and the defendant is the tenant is not disputed. The defendant was let into the possession as a tenant on 1.12.1975, the whole of the first floor except one later in and a small terrace in front of it at the back of the house of the first floor of the building bearing Municipal No. 7608-9, situated at No. 1I, Ram Nagar, New Delhi-110 055. According to the plaintiff there was a lease deed drawn out and executed between the parties. The rent fixed was Rs. 1200.00 per month. In 1981 the plaintiff has filed the eviction petition against the defendant bearing No. E-226/81 now pending in the Court of Shri R.K. Yadav, Additional Rent Controller, Delhi.

(2) The main case of the plaintiff is that the tenanted premises is residential and it was let out for the personal residence-cum-office of the defendant. The defendant is doing manufacturing activity and storing inflammable materials. Therefore, according to the plaintiff, the defendant must be injuncted from carrying on from any .activity in the premises and from keeping or storing any inflammable or explosive materials. The defendant filed the written statement on 25.3.1996 stating that the suit has been filed with the ulterior object of harassing and pressurising. The case of the plaintiff that the defendant is storing inflammable or explosive materials is incorrect.

(3) The further case of the plaintiff is that a Local Commissioner was appointed by this Court at the instance of the plaintiff and the report filed by the Local Commissioner would show that there is no manufacturing activities. The defendant has been in actual physical possession and the materials therein are hypothecated with the bank for the last several years and the plaintiff is well aware of it. In answer to paras 6 and 7 of the plaint the defendant states: Paras 6 and 7 are denied. It is denied that the premises in suit are residential. The answering defendant submit in this respect as under:

(I)That the area in which the tenanted premises is situated, has got offices, printing press, shops, godown and is being used for manufacturing activity by some people and also a hotel by the name of Anand Niwas which is situated right opposite to the tenanted premises.

(II)That even on the ground floor of the tenanted premises, which building is owned by the plaintiff; the plaintiff has given a portion of the same building on the ground floor to some M/s. New Delhi Stationery Mart wherein huge quantities of paper are stocked. This fact will also be supported by the report of the learned Local Commissioner.

(III)That another portion on the ground floor of the same building in which the tenanted premises is situated, has been let out by the plaintiff i.e. on the front portion of the building to one Shri Raghbir who is running a printing press/book binding shop in the tenanted premises and is installed heavy machinery therein to the knowledge and consent of the plaintiff.

(IV)That the plaintiff himself is using a back portion of the ground floor of the same building, in which the tenanted premises is situated, for selling commercial paper and stocking commercial paper in the said portion. The plaintiff lives with his family at Ghaziabad U.P.

(4) It is stated by the defendant that he has not stocked any combustible materials and the defendant also disputed the photographs filed by the plaintiff. The plaintiff has not come forward with clean hands and suppressed material facts, namely, that the ground floor is used by him and other tenants are engaged in manufacturing activities by installing printing/cutting press and by stocking of paper which is inflammable and the plaintiff is complaining against the defendant without any justification. The report of the Local Commissioner itself shows that the ground floor of the premises is being used for press/cutting machine storage of huge pager by the plaintiff and by M/s New Delhi Stationery Mart.

(5) The plaintiff has filed lA No. 12410/95 under Order 39Rulesl and2praying for the following reliefs:

(A)An order restraining die defendant, his servants, agents and/or employees or anyone acting on his behalf from undertaking and/or carrying on any manufacturing activity and from storing and/or keeping any explosive or inflammable articles, materials or things or from using the tenanted premises as Godown.

(B)An order directing the defendant to remove from the tenanted premises mentioned in the plaint i.e. at first floor of premises bearing Municipal No. 7608-9 situated at No. 1I, Ram Nagar, New Delhi, the inflammable raw material and /or stocks and /or articles and / or things.

(6) The plaintiff has filed Ia No. 3508/96 for a decree under Order 12 Rule 6, Civil Procedure Code on the ground that there has been admission by the defendant of the case set up by the plaintiff.

(7) 7.1 do not want to refer to the averments made in the applications and reply and replications therein because I am not inclined to accept the case of the plaintiff and whatever view I expressed is only a prima facie and without prejudice to the rights and contentions of the parties not only at the time of trial of the case but the trial of the eviction petition pending before the learned Additional Rent Controller, Delhi. If I am disposed to uphold the case of the plaintiff I would certainly give specific finding on the points raised by the plaintiff.

(8) The learned Counsel for the plaintiff Mr. Rajiv Nayar, and learned Counsel for the defendant Mr. P.R. Aggarwal argued the matter at length and took me through the pleadings and all the documents and Mr. Aggarwal relied upon certain decisions in support of his contentions.

(9) Mr. Rajiv Nayar, learned Counsel for the plaintiff, contended that the lease deed produced by the plaintiff would show the purpose of lease. In the preamble portion it is stated thus :

WHEREAS the Lessee wishes to take on rent the portion of the first floor i.e. whole of the first floor except one latrine and a small terrace in front of it at the back of the house on the first floor (near the door adjoining stair case) bearing Municipal No. 7608-9, situated at No. 1I, Ram Nagar, New Delhi, including ail fixtures and fittings and the electric, light and domestic power connections, fitted in the said premises for his personal residence-cum-office and the lessor hereby agrees to let out the same for a period of 5 years beginning from the first day of December, 1975 at a monthly rent of Rs. 1200.00 (Rupees twelve hundred only) with furniture and fixtures on the terms and conditions hereafter contained.

ACCORDING to him, the defendant is using the premises for a different purpose, therefore, he is entitled to injunction. Mr. Aggarwal learned Counsel for the defendant, submitted that the lease deed is not registered because it purports to be a lease for five years and, therefore, under law it requires to be registered and inasmuch as it is not registered, it is not admissible in evidence.

(10) From the facts stated I gather that the defendant is having its factory outside Delhi. He is using the premises only for his office and personal occupation for the purpose of his business and there is no clause in the lease deed specifically mentioning that the terms is only for the residential purpose. It has to be seen at the time of trial as to why the document mentioned at the preamble portion about the user and the other clauses which are operative would not refer to the purpose of lease. In the absence of any specific clause in the lease deed, assuming IT is admissible in evidence, prohibiting the user of the premises for a purpose other than what is mentioned in the documents cannot seek to interdict the defendant from using it, which he has been using for several years to the knowledge of the plaintiff.Mr.Rajiv Nayar relying upon the Commissioner's report sought to establish the case of subletting. I do not think any such inference even prima fade could be made from the materials produced by the plaintiff. Under the circumstances, having regard to the totality of the evidence produced including photographs, I am unable to agree with Mr. Rajiv Nayar and I am notable to hold that the plaintiff has made out a prima fade strong case for injunction.

(11) Therefore, Ia No. No. 12410/95 filed by the plaintiff under Order 39 Rules I and 2 is dismiseed.

(12) In the application being Ia No. 3508/96 filed by the plaintiff under Order Xii Rule 6, the plaintiff sought to make out a case of admission by the defendant in the eviction petition filed in the year 1981 as I mentioned earlier, almost the same case is set up by the plaintiff. The reply filed by the defendant in the eviction petition, has also been produced by the plaintiff. A perusal of the reply would show that the defendant has set up the same case. There is no admission of any kind of the case of the plaintiff by the defendant as put forth by the plaintiff.

(13) The report of the local Commissioner would not in any way come to the aid of the plaintiff in support of his case under Order Xii Rule 6. The scope of Order Xii Rule 6 is that in case of any admission by the defendant, the Court can pass a decree so that the litigation is terminated as earlier as possible but that cannot be used by the person like the plain tiffin this case for an oblique purpose. As I am alive to the fact that I am dealing with the interlocutory application, I do not want to say anything which will prejudice the rights of the plaintiff in the Rent Control Petition and also in the suit. Therefore, I am expressing my prima facie view that no case has been made out by the plaintiff under order Xii Rule 6, CPC. It is not necessary to refer to the authorities cited by Mr. Aggarwal in this behalf because there can be no doubt that the applicability of Order Xii Rule 6, Civil Procedure Code would depend upon the facts presented before the Court.

(14) Therefore, I do not find any merit in the application filed by the plaintiff under Order Xii Rule 6, Civil Procedure Code and accordingly, it is dismissed.

(15) Ia No. 12410/95 filed by the plaintiff under Order 39 Rules I and 2 is dismissed.

(16) IANo. 3508/96 filed by the plaintiff under Order Xii Rule 6, Civil Procedure Code is also dismissed.

POST the matter before the Joint Registrar for admission/denial of documents on 16.12.1996 and thereafter before the Court on 12.3.1997 for framing of issues.