Pankaj vs Vijay Kumar Sahdev
2001 Latest Caselaw 1698 Del

JUDGMENT

R.C. Jain, J.

1. Having heard the learned counsel for the parties this appeal is being finally disposed of at this stage. The appeal raises a question as to the scope of the provisions of Rule 10 of Order XXXIX Civil Procedure Code (hereinafter referred to as 'the Code').

2. Briefly the facts leading to the present appeal are that the appellant herein is facing a suit for recovery of Rs. 1,69,920/- filed by the respondent herein. The suit has been filed with the averments that the plaintiff is the owner of property No. A/-4, Mohan Garden, Uttam Nagar, New Delhi and defendant was inducted as a tenant therein on a monthly rent of Rs. 12000/- as per agreement dated 15-7-1998, rent being payable in advance in the first week of each calendar month. Defendant having failed to pay the rent with effect from June 1999, the plaintiff filed a suit for recovery of arrears to the tune of Rs. 1,44,000/- and a sum of Rs. 25,920/- towards interest calculated at the rate of 18% per annum. The defendant is stated to have filed a false and frivolous suit against the plaintiff. The prayer clause in the pliant reads as under:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:-

(i) Pass a decree for recovery of Rs. 1,69,920/- in favor of the plaintiffs and against the defendants under the provisions of Order xxxvII of Civil Procedure Code.

(ii) Award pendente-lite and future interest on the suit amount at the rate of 18% per annum from the date of filing of the suit till its realisation.

(iii) Award costs of the present suit in favor of the plaintiffs and

(iv) Pass any other or further orders as this Hob'ble Court may deem fit and proper in the facts and circumstances of the case in favor of the plaintiffs and against the defendants."

3. The defendant is contesting the suit on a variety of grounds and the plea that the plaintiff while issuing the receipt dated 7-5-1999 had agreed to relinquish the rent till the electric supply was restored to the tenanted premises.

4. During the pendency of the suit, an application under Order XXXIX Rule 10 of the Code was filed on behalf of the plaintiff praying for a direction on the defendant to pay the rent for the months of June and July 1999 amounting to Rs. 24000/- and also to pay future rent at the rate of Rs. 12000/- per month to the plaintiff till the disposal of the suit. The application was contested by the defendant thereby disputing his liability to pay the suit amount or the rent for the months of June and July 1999 or future rent on the premise that the plaintiff had neglected to comply with his obligation with regard to restoration of electric supply to the tenanted premises. Vide the impugned order the learned trail court has allowed the application of the plaintiff and directed the defendant to pay monthly rent at thee rete of Rs. 12000/- by 10th of each calendar month till the disposal of the suit. Aggrieved by the said order the appellant-defendant has filed the present appeal.

5. Learned counsel for the appellant has assailed the impugned order mainly on the ground that on the facts and circumstances of this case provisions of Rule 10 of Order XXXIX of the Code cannot be invoked. The basis of his contention is that the relief granted to the plaintiff-respondent by means of this interlocutory order far exceeds the relief claimed by the plaintiff in the main suit which is only for the recovery of a sum of Rs. 1,69,920/- towards arrears of rent for a fixed period along with some interest. Without claiming any relief either for possession of the tenanted premises or for recovery of mesne profits/damages for use and occupation of the premises.

6. In support of his said contention, learned counsel for the appellant placed reliance upon a decision of this Court in the case on Brig. S.S. Puri (AVSM) (Retd.) v. R. Chander Shekhar, 1994 (1) RCR 375 where this Court had the occasion to deal with the scope of the provisions contained under Order XXXIX Rule 10 of the Code and on analysing the said provision the Court held that an interlocutory order can be passed in respect of the "subject matter of suit" provided the following conditions are fulfillled:-

(i) the subject matter of a suit is money or some other thing capable of delivery;

(ii) the party thereto admits that he holds such money or other thing for another party, or that it belongs or is due to another party.

7. As against this, the learned counsel for the respondent as also the learned trial court has placed reliance on a later decision of this Court in the case of Delhi Tourism & Transportation Development Corporation Ltd. v. Leman International (P) Ltd., 2000 IV AD (Delhi) 271 wherein this Court while dealing with an application under Order XXXIX Rule 10 of the Code in a suit filed by the plaintiff for possession and recovery of sundry dues/damages and on the admitted position held that the plaintiff was entitled to a direction on the defendant with regard to payment of license fee for the unpaid period and for the future period. The facts and the circumstances of the case in hand are entirely different inasmuch as here the plaintiff's suit is confined only to a single relief of recovery of a specific sum of money towards the arrears of rent for a specified period and interest thereon and no other relief for recovery of mesne profits/damages for use and occupation or for possession have been claimed. The opinion rendered by this Court in the case of Delhi Tourism & Transportation Corporation Ltd. (supra) cannot be squarely applied to the facts of the present case. Apart from this the defendant has disputed his liability to pay the suit amount on the plea that the plaintiff had failed to provide him electric supply in the tenanted premises and had relinquished rent or portion of the rent on that score. As per the plaintiff's own showing, the defendant has also filed a suit against the plaintiff with regard to his said grievance. In view of this position obtaining on record, I am of the considered view that the plaintiff was not entitled to invoke the provisions of Order XXXIX Rule 10 of the Code and the Court ought not to have passed andy order/direction on the defendant fro payment of future rent as granting of such a relief is beyond the very scope of the main suit and in any case there was no admission on the part of the defendant that he held the property or other thing as envisaged in the said rule. The contention of the learned counsel for the plaintiff that the defendant is occupying and enjoying the tenanted premises i.e. by running a nursing home and making huge income holds no water. The plaintiff may perhaps be within his right to seek remedy by way of other appropriate proceedings.

8. In the result this appeal succeeds and is hereby allowed and the impugned order dated 23rd September, 2000 passed by the learned Additional District Judge, Delhi is hereby set aside. The parties are left to bear their own costs.