Suresh Kumar Mallik vs M.S. Lakhani & Anr.
1999 Latest Caselaw 1154 Del

ORDER

Arun Kumar, J.

1. One S.F. Lakhani claiming to be the owner of entire property No. E- 14/2, Vasant Vihar, New Delhi, filed a suit for possession against the appellant with respect to one garage situated in the said property besides some other reliefs. Lakhani made his wife Lakshmi as a co-plaintiff in the said suit. The suit was filed some time in March, 1992 when S.F. Lakhani claimed to be 88 years old. He died during the pendency of the suit. His son M.S. Lakhani was substituted in his place. The case of the plaintiffs was that the defendant was inducted as a tenant in two rooms along with a covered Verandah and W.C. on the first floor above the two garages in the annexe block of the property bearing No. E.14/2, Vasant Vihar, New Delhi at a monthly rent of Rs.550/- which was later on enhanced to Rs. 650/- per month exclusive of water and electricity charges . The present proceedings are with respect to a garage on the ground floor of the said premises. According to the plaintiffs the defendant unauthorisedly took possession of the garage in question which is just below the tenanted premises of the defendant. In the written statement the defendant/appellant took a plea that the garage in question alongwith an attached bathroom was let out to him by the plaintiff in the year 1981 as per an oral agreement at a monthly rent of Rs.150/-. Thus the defendant/appellant set up the plea of tenancy with respect to the premised in question. The plaintiff denied having let out the said portion to the appellant. The plaintiff relied upon the writ- ten statement filed by the defendant in another proceedings between the parties with respect to eviction of the defendant from the premised which was admittedly under the tenancy of the defendant. With respect to the said premises, the landlord, i.e. plaintiff instituted an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act. The landlord stated in the said eviction petition that the tenanted premises comprised of "two rooms measuring 13'8" X 9'3" each along with covered varandah in front and W.C. on the first floor". In reply to the said averment in the eviction petition, the tenant stated in his written statement as under :- "that para No. 8 is denied. The accommodation in occupation of the respondent comprises of suit premises and bathroom, courtyard with right to use roof and not as alleged."

2. It is significant to note that the written statement is dated 30th November, 1988, i.e. much after the alleged tenancy with respect to the garage which is the subject matter of present litigation which according to the tenant was created in the year 1981. According to the plaintiffs/respondents if the appellant had become a tenant with respect to the garage in the year 1982 he would have surely stated so in the written statement which he filed in the year 1988 in the aforementioned eviction.

3. The following issues were framed in the suit on 12th August, 1997:-

1. Whether there was no privity of contract between defendant and plaintiff No.2? OPD.

2. Whether the defendant is tenant and not a trespasser in the premises consequently the suit is barred under D.R.C. Act? OPD

3. Whether the plaintiff is entitled for possession of the garage at E-14/2 Vasant Vihar, New Delhi? OPD

4. Whether the plaintiff is entitled for permanent injunction against the defendant for removal of obstructions and use of rear lawn ?

5. Relief.

4. For the plaintiffs M.S. Lakhani, the son of the original owner appeared as PW-1. The defendant did not lead any evidence nor he filed any documents in support of his case. He was proceeded ex parte for failure to appear in Court in person or through counsel on 6th October, 1988.

5. The learned counsel has first made a grievance about the defendant/appellant having been proceeded ex parte and for that reason being denied opportunity to lead evidence. In this connection it is to be noted that on 7th September 1988 the case was adjourned for evidence of the plaintiff to 6th October, 1998. None appeared for the defendant on 6th October 1998. The Court waited for the defendant or his counsel to turn up upto 12.35 p.m. Thereafter the defendant was proceeded ex parte. The evi- dence of plaintiff was recorded on that date. The plaintiff closed his evidence. Arguments were heard and the case was adjourned for orders to 28th October, 1998. On 28th October 1998 the defendant filed an application under Order IX, Rule 13 Code of Civil Procedure. The case was adjourned to 9th November, 1998. On that date reply to the application under Order IX, Rule 13, C.P.C. was filed by the plaintiff. The case was fixed for orders for 16th November, 1998. On 16th November, 1998 the Court passed the fol- lowing order :-

16-11-98

Present Counsel from both sides.

This application has been made under Order IX, Rule 13 CPC for setting aside ex-parte order dated 6.10.98. On 6-10-98 the de- fendant was proceeded ex-parte. Plaintiff evidence was recorded and closed and arguments were heard and the case was fixed for order on 28-10-98, and before the order could be announced this application was made. I consider that application under Order IX R 13 CPC lies only after the order is announced. Application shall therefore be decided subsequent to the announcement of the order.

A.D.J. Delhi 16-11-98.

Present Both sides, counsel.

 Vide my separate order dictated and announced the suit of the plaintiff has been decreed with costs. Decree sheet be prepared accordingly. File be consigned to record room.    Announced A.D.J. Delhi  

 16-11-98."  
 

6. On the same day the Court pronounced judgment in the main case whereby the suit of the plaintiff was decreed with costs. It will be seen from the order dated 16th November, 1998 that the Court had expressed the view that an application under Order IX Rule 13, CPC would lie only after the decree is passed. The defendant applied of amendment of the application under Order IX, Rule 13, C.P.C., and prayed that it be treated as an application under Order IX, Rule 7, C.P.C. In the meanwhile the defendant filed the present appeal and, therefore, on 12th April 1999 he withdraw the amendment application as well as the application under Order IX, Rule 13, C.P.C. Both the applications were accordingly dismissed by the trial Court.

7. The learned counsel for the appellant has argued that the trial court should not have taken a technical view of the matter inasmuch as the appli- cation under Order IX, Rule 13, C.P.C. was not at all entertained. Accord- ing to the learned counsel the said application should have been treated as an application under Order IX, Rule 7, C.P.C. and should have been heard and decided on merits. On the other hand the learned counsel for the respondent submits that since on 6th October, 1998 when the defendant was proceeded ex parte, the evidence of the plaintiff was recorded and argu- ments were heard and the case was adjourned for judgment, neither Order IX, Rule 7, C.P.C. nor Order IX Rule 13 were applicable. Admittedly Order IX, Rule 13 comes into play after ex parte decree is passed against the defend- ant. About non-applicability of Order IX Rule 7, C.P.C. Our attention has been drawn to the said provision itself. Rule 7 of Order IX runs as under :-

"Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.

7. Where the Court has adjourned the hearing of the suit ex parte, and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."

8. It is submitted on behalf of the respondents that Rule 7 envisages a situation when the Court after proceeding ex parte against the defendant adjourned the suit for further hearing. In the present case it is submitted that on 6th October 1998 the case was not adjourned for further hearing. Whatever hearing had to take place in the matter was concluded on that day itself and the case was simply adjourned for orders, i.e. for pronouncement of judgment. Nothing remained to be heard and, therefore, Order IX, Rule 7, C.P.C. had no application in the facts and circumstances of the case. We find force in this submission made on behalf of the respondents. When the "hearing" of a suit is completed and nothing remains to be heard further, Rule 7 will have no application. What remains to be done in the suit is only pronouncement of the judgment which is the function of the Court. This is precisely what has happened in the present case. On 6th October 1998 the case was never adjourned for hearing. Rule 7 would have been attracted if the Court had adjourned the case for instance, for recording evidence or for hearing arguments to another date. This view finds support from the judgments of this Court in Arti Sukhdev Vs. Daya Kishore, 1992 RLR 442 and East India C. Manufacturing Vs. S.P. Gupta, 1985 RLR 292.

9. The argument advanced by the learned counsel for the appellant appears to be an after-thought. The appellant made an application under Order IX, Rule 13, C.P.C. Faced with the situation that the said application was not maintainable, he tried to invoke Order IX, Rule 7, CPC. Thus the appellant is trying to ride on two horses. In our view neither of the provisions was attracted or applicable in the facts and circumstances of the present case. Interestingly the appellant withdrew the application under Order IX, Rule 13 CPC as well as amendment application and for this reason also the appellant cannot make an issue of this aspect or raise any grievance about it.

10. We would like to note here that nothing has been said to justify non- appearance of the defendant or his counsel on 6th October, 1998 when the defendant was proceeded ex parte by the trial court. Keeping all aspects in view the plea of the appellant based on Order IX, Rule 7 CPC is, therefore, rejected.

11. On merits the learned counsel for the appellant has argued that there is a variance between pleadings and evidence on the question as to how the defendant came in possession of the suit premises and, therefore, the suit ought to have been dismissed. Secondly, it was argued that the plaintiff never made any police complaint or serve any notice on the defendant with respect to the alleged trespass in his property by the defendant. This fact coupled with the further fact that present suit was filed about ten years after the defendant came in possession of the suit premises showed that the defendant was in legal/authorized possession of the suit premises as a tenant.

12. We have carefully considered these points raised by the learned coun- sel for the appellant. So far as the point regarding variance between the pleadings and evidence is concerned, it is to be noted that the defendant cannot take advantage thereof. The defendant had raised the plea of being a tenant in the suit premises. On this plea of the tenant an issue had been framed "as to whether the defendant is a tenant and not a trespasser in the premises xxx". The onus of this issue was on the defendant. The defendant neither filed any documents on record nor led any oral evidence in support of this issue. On the other hand the plaintiff placed on record certified copy of the eviction petition in the previous suit as well as a certified copy of the written statement filed by the defendant/appellant in the said suit. The defendant in his written statement clearly admitted the tenancy premises as averred by the plaintiff in the eviction petition which shows that the defendant was not claiming tenancy with respect to any other portion in the property except the two rooms and varandah and W.C. on the first floor and the garages as per the case of the landlord. This admission on the part of the defendant/appellant completely non-suits him so far as the plea of tenancy with respect to one garage which is the subject matter of the present proceedings is concerned. So far as the aspect of variance between pleadings and evidence is concerned, it appears that the plaintiff was 88 years old at the time of institution of the suit and he was in failing health. He ultimately died and his son was substituted in his place. May be his son was living separately and was not personally aware of all the facts. The fact remains that the original plaintiff as well as his son M.S. Lakhani, PW-1 maintained that the defendant had no right to remain in possession of the suit premises and, therefore, they were entitled to a decree for possession with respect to the same.

13. About the other point regarding delay in filing the suit and non- issuance of notice or not making a police complaint is concerned, the only possible reason which appears to be there is that the plaintiff had reached a very advanced age with failing health and he was possibly not in a posi- tion to manage his own affairs. His wife was equally old and infirm. Be- cause of his old age, the plaintiff could not probably properly instruct his counsel and place before him all the relevant documents before institu- tion of the suit. Be that as it may, such a lapse on the part of the plain- tiffs cannot lead to the plaintiffs being non-suited. The defendant cannot be allowed to take advantage of the plaintiffs disability. The most impor- tant fact is that the defendant has nothing to support his plea of tenancy with respect to the suit premises. Even at this stage Court tried to ascertain from the counsel for the appellant if the appellant had any documentary proof in the shape of rent receipts or any other documents to show that he was a tenant with respect to the suit premises. The appellant failed to produce anydocument.

14. Thus we find no merit in this appeal. The same is dismissed with costs. Counsel fee Rs. 5000/-.