Nandita Juneja vs Neelam Malik
1997 Latest Caselaw 693 Del

JUDGMENT

K.S. Gupta, J.

(1) By this order propose to dispose of twol.As.8636/96&8637/ 96 filed by Ms. Neelam Malik defendant No. 1.

(2) I.A. No. 8636/96 has been filed alleging that by an order dated August 9, 1995, Ms. Nandita Juneja, plaintiff, was allowed to deposit in Court the arrears of rent and future rent @ Rs. 8,000.00 per month which the deposited. Defendant No. I is entitled to withdraw the amount deposited by the plaintiff since the suit property had been purchased by her from Mount Packer under an agreement dated May 30, 1994 and the General Power of Attorney of even date in favour of Ashok Malik, defendant No. 2. It is prayed that defendant No. 1 may be allowed to withdraw the amount -deposited towards the rent.

(3) Plaintiff has contested the application by filing reply. It is not denied that pursuant to an order dated August 9, 1995, plaintiff, deposited the arrears of rent and future rent(c) Rs. 8,000.00 per month. However, it is stated that: the suit property lasts in Mount Packers and defendant No. 1 has no right to claim the rent deposited in Court.

(4) Indisputably, two more suits bearing Nos. 1757/95 and 304/96 are pending between the parties. Both these suits were filed by defendant No. 1 against the plaintiff and other. Suit No. 1757/95 is for prohibitory and mandatory inductions and is pending in this Court. Suit No. 304/96 for recovery of possession of suit property No. E-48/5, Okhla Industrial Area Phase-11, arrears of rent amount to Rs. l,68,000.00 for the period June 1,1994 to February 29,1996 and Rs. 20,000.00 towards damages for the period March 1,1996 upto the date of the filing of the suit is pending before Sh. Prithvi Raj, Additional District Judge, Tis Hazari, Delhi. Mount Packers has been imp leaded as one of the defendant in both the aforesaid suits. Defendant No. I has filed copies of the plaints, written statement filed by Mount Packers in both the suits, agreement to sell and the General Power of Attorney both dated May 30, 1994.

(5) In support of the claim for release of the deposited amount of rent in defendant No. l's favour, my attention was drawn by the learned Counsel for defendant No. 1 to paras 2,3 & 8 of the written statement in Suit No. 1757/95 and paras 4, 5, 6, 7, 8 & 9 of the written statement in Suit No. 304/96 filed by Mount Packers. In para 2 of the written statement in aforesaid Suit No. 1757/95 it is alleged that complete rights of ownership of Property No. B-48/5, Okhla Industrial Area Phase-11, had been transferred by Mount Packers in favour of Ms. Neelam Malik and Ms. Nandita Juneja had been duly informed about the transaction by a letter dated June 13, 1994. In para 3 it is further stated that an irrevocable General Power of Attorney dated May 30, 1994 was executed in favour of Ashok Malik, who is real brother of Ms. Neelam Malik, for lawful consideration. In para 8 it is alleged that being owner of the said property Ms. Neelam Malik is entitled to recovery the possession of the property and also licence fee/damages/rent with effect from June 1,1994 from Ms. Nandita Juneja. In paras 4 & 5 of the written statement in Suit No. 304/96 it is admitted that Ms. Nandita Juneja had not paid any amount to Mount Packer since June 1,1994. In paras 6 & 7 it is stated that Ms. Neelam Malik had been authorised to initiate legal action against the occupants of the suit property including recovery of possession and damages since June 1, 1994. In paras 8 & 9 it is also alleged that an irrevocable General Power Attorney dated May 30,1994stand executed in favour of Ashok Malik, brother of Ms. Neelam Malik.

(6) Contention advanced by the learned Counsel for the plaintiff was that in both the aforementioned suits stand taken by the plaintiff is similar to that taken in the reply in the present suit that suit property vests in Mount Packers and defendant No. I is not the owner thereof. According to him, till the dispute of title to the suit property is not decided the deposited amount cannot be released in defendant No. Vs favour. Submission has no force. It is not in dispute that the plaintiff was inducted in the suit property by Mount Packers. Stand taken by Mount Packers in the written statements filed in aforementioned Suit Nos. 1757/95 &: 304/96 is that it had sold the suit property for consideration to defendant No. 1 and she is entitled to recover the licence fee/damages with effect from June 1, 1994 from the plaintiff. That be so, deposited amount has to be released in defendant No. l's favour without touching the issue of title to the suit property. Amounting of rent deposited by the plaintiff pursuant to the aforesaid order dated August 9,1995 is, thus allowed to be withdrawn by defendant No. 1. Application is disposed of accordingly.

(7) I.A. 8637/96 has been filed under Order Vii, Rule 11 read with Section 151 Cpc, inter aha, on the averments that the defendants have instituted Suit No. 304/ 96 against the plaintiff for recovery of possession, etc. which is pending before Shri Prithvi Raj, Additional District Judge, Tis Hazari. Cause of action On which the present suit was filed now does not survive and the suit is, therefore, liable to be dismissed.

(8) Needless to say that the plaintiff has contested the application by filing reply.

(9) Threat allegedly held out to the plaintiff by the defendant in the defendants in the middle of July, 1995 and on July 26,1995 is stated to have furnished the cause of action to file the present suit by the plaintiff. That cause of action will not wipe out by the institution of said Suit No. 304/96 by thedefendants. I.A. 8637/96 is, thus, misconceived and is dismissed as such.