Om Parkash vs Brij Bhushan And Anr.
1997 Latest Caselaw 8 Del

JUDGMENT

K.S. Gupta, J.

(1) This appeal by Om Parkash appellant-plaintiff is directed against the order dated October 10,1995 of a learned Single Judge dismissing I.A. No. 4451/93.

(2) Suit has been filed, inter alia, on the allegations that Manohar Lal, father of the appellant and respondents-defendants Nos. 1 and 2 was the owner of property No. 18-A, New Colony, Jhabumal Colony, Model Basti, behind Filmistan Cinema, New Delhi and he expired on June 27,1994. During his life time Manohar Lal made a Will dated April 4, 1972. Under the Will Smt. Pushpa Wanti, wife of Manohar Lal got life estate in the said property No. 18-A. It was noted in the Will that after the demise of Smt. Pushpa Wanti the said property would devolve in favour of four sons namely, Banarsi Lal, Surinder Kumar, Brij Bhushan and 0m Prakash in equal shares. Another property Bearing No. 19, New Colony, Jhabumal Colony, behind Filmistan Cinema is the self-acquired property of Smt. Pushpa Wanti purchased under a sale deed dated February26,1979. On November20,1992 Smt. Pushpa Wanti let out the basement and the ground floor of above property No. 18-A, New Colony to the appellant on a monthly rental of Rs. 750.00 for commercial purpose and possession thereof was handed over to him on November 25, 1992. Rent stands paid through crossed cheques upto June, 1993 to Smt. Pushpa Wanti. On the same day Smt. Pushpa Wanti further let out basement, first floor, second floor, terrace and the open space 45 ft. x 12 ft. on the ground floor (rear set back) of said property No. 19, New Colony on a monthly rental of Rs. 2700.00 to the appellant. and the possession of that accommodation was handed over to him on November 25, 1992. Rent upto June, 1993 in respect of this accommodation also stands paid through crossed cheques to Smt. Pushpa Wanti. It is alleged that dispute has arisen between the appellant and respondents No. 1 and 2 in relation to certain business in which they are partners. Both the said tenanted accommodations are being used by the appellant for running business in the name of Raja Textiles whereof he is the sole proprietor. Respondents Nos. 1 and 2 are threatening to dispossess the appellant from the tenanted accommodations. It is prayed that by means of a decree for permanent injunction respondents, their agents and employees be restrained from interfering in the appellant's peaceful use of the said accommodations and dispossessing him therefrom.

(3) In the suit, I.A.No. 4451/93 under Order 39 Rules I and 2 read with Section 151 Civil Procedure Code was also filed for issue of ad interim injunction and vide order dated May 5,1993 both the parties were directed to maintain status quo in respect of both the tenanted accommodations.

(4) Both the respondents have contested the suit and also the application by filing written statement and reply on July 21,1993. On July 21, 1993 respondents also filed an application being I .A. 6678 / 93 under Order 39 Rules 3 A and 4 read with Section 151, Civil Procedure Code for vacating the ex parte ad interim injunction granted on May 5, 1993. In the joint written statement respondents admit that Manohar Lal died on June 27,1994 leaving behind a Will dated April 3,1972 (registered on April 4,1972). However, it is alleged that under the Will Manohar Lal devised his I /5 share in property No. 18-A, New Colony as a life estate in favour of Smt. Pushpa Wanti and rest of 4/5 share belongs to his four sons namely, Banarsi Lal, Surinder Kumar, Brij Bhushan and Om Parkash in equal shares. It is not denied that property No. 19, New Colony is self-acquired property of Smt. Pushpa Wanti. It is stated that M/s.Raja Steel Traders came into existence on April 1,1988 with Usha Rani, respondent No. 2, Veena Makkar, widow of Surinder Kumar and Veena Rani, wife of Brij Bhushan, respondent No. 1 as partners. This firm was dissolved on March 31, 1989 and revived on April 1, 1989 with Usha Rani, respondent No. 2, Brij Bhushan, respondent No. 1 and Om Parkash, appellant as partners. A deed of partnership was executed by all of them on April 6,1989. This partnership firm is carrying on business with its head office at said property No. 19.It is stated that Smt. Pushpa Wanti let out basement, ground and mezzanine floor of property No. 19 and basement, ground and mezzanine floor of property No. 18-A on a monthly rental of Rs. 2000.00 and Rs. 1500.00 respectively under two lease deeds dated May 19,1988 to M/s. Raja Steel Traders and the rent is being paid regularly to Smt. Pushpa Wanti against receipts. However, suppressing that fact, appellant wants the Court to believe that Smt. Pushpa Wati executed two lease deeds on November 20, 1992 and let out the portions also included in the tenancy of M/s. Raja Steel Traders in the said properties Nos. 18-A and 19.

(5) Joint written statement filed by respondents Nos. 1 and 2 has been made a part of the reply filed to I.A. No. 4451/93 and also I.A. No. 6678/93.

(6) Smt. Pushpa Wanti (since dead) who was allowed to be imp leaded as defendant No. 3 vide order dated August 8, 1994, in her written statement while supporting the case of respondents I and 2 has emphatically denied that any portion of the properties bearing No. 18A and 19 was let out by her to the appellant on November 20, 1992, as alleged.

(7) In the replication filed to the joint written statement of respondents No. 1 and 2, appellant has stated that M/s. Raja Steel Traders was formed on April 1,1989 with Mrs. Usha Rani, Brij Bhushan, respondents and the appellant as its partners. Business of this partnership firm was closed on March 15, 1993. Sales Tax registration certificate too was surrendered. It is stated that M/s. Raja Steel Traders had tenancy rights only in respect of ground floor of property No. 19, New Colony and the tenancy was surrendered by the partnership firm to Smt. Pushpa Wanti on November23,1992. It is further alleged that the partnership firm was also the tenant in respect of basement, ground floor, stand of the said property No. 18-A and that accommodation too was surrendered by the firm on November 23, 1992 to Smt. Pushpa Wanti.

(8) Vide impugned order I.A. No. 4451 /93was dismissed with out to aching the merits only on the ground that in the plaint appellant has suppressed the fact that the tenancy in favour of M/s. Raja Steel Traders, came to an end and thereafter appellant became tenant of two different portions in said properties No. 18-A and 19. It was held that due to this suppression of fact the plaintiff is not entitled to the discretionary relief.

(9) Contention advanced by Sh.Vijay Makhija appearing for the appellant was that for the reliefs claimed in the suit and also I.A. No. 4451/93 it was not at all necessary for the appellant to have pleaded in the plaint about the surrender of tenancies in respect of both the accommodations in the properties No. 18-A and 19 by M/s. Raja Steel Traders to Smt. Pushpa Wanti on November 23.1992. According to him, suit is based on two rent notes dated November 20, 1992 under which basement and ground floor of property No. 18-A and basement, first floor, second floor, terrace and the open space on the ground floor (rear set back) of property No. 19 were let out to the appellant by Smt. Pushpa Wanti. It may be noticed that in the replication filed to the joint written statement of the respondents, appellant has specifically averred in regard to surrender of both the tenancies by M/s. Raja Steel Traders on November 23,1992 to Smt. Pushpa Wanti. However, that fact was not pleaded in the plaint. Be that as it may, for the grant of reliefs sought by the plaintiff even without making reference to the surrender of tenancies it was sufficient to plead in the plaint that two tenancies in question were created in favour of the appellant under the rent notes dated November 20, 1992. Plaintiff was required to plead all material facts for the cause of action pleaded. Surrender of tenancy was not a material fact and the same was not required to be pleaded. I.A.No-4451 /93, therefore, ought not to have been dismissed in terms of the impugned order only on the ground of non-disclosure of surrender of tenancies by M/s. Raja Steel Traders to Smt. Pushpa Wanti on November 23, 1992. Appeal is, therefore, accepted and the order dated October 10,1995 is set aside. Since the application was not decided on merits, the same (I.A.Nos-4451/93 and 6678/93) Will now be decided on merits by the learned Single Judge after hearing the parties. Both the parties are directed to appear before the learned Single Judge on January 29,1997.