Mrs. Asha Dhingra And Ors. vs Mrs. Sushma Jatoga And Ors.
2002 Latest Caselaw 1159 Del

JUDGMENT

S. Mukerjee, J.

1. The grievance of the appellant who was the plaintiff before the learned Single Judge is that the respondent/ defendant allegedly misused the interim orders by inducting a tenant (Embassy of Zimbabwe) into the suit premises at a rate, which according to the appellant was much lower than the market rate. The learned Single Judge has held that the tenant being already in occupation of the premises and as such no relief could be granted to the appellant/ plaintiff.

2. Further grievance of the appellant is that the respondent/ defendant has been allowed to withdraw 25% of the amount lying in the Court being rental amounts paid by the said Embassy, whereas the said respondent, according to appellant, has been earlier exclusively appropriating the amounts for the previous so many years and therefore, should not have been allowed to take away any further amount until she first renders accounts in the pending suit filed by the appellant/ plaintiff also for rendition of accounts.

3. On 21.11.2001, we issued notice to show cause and also granted interim stay in relation to that part of the impugned order, which directed the respondent to withdraw 25% of the rent. Thereafter on 29.4.2002 we directed that the suit record be made available to us on the next date of hearing.

4. Considering the nature of the matter and with the consent of both the parties, we heard them on 9.5.2002 on the main appeal itself.

5. The facts necessary for dealing with the present appeal fall in a very narrow compass. The appellant, as the plaintiff, filed a suit on the original side of this Court for declaration, partition and rendition of accounts in relation to the estate of Mrs. Vidya Devi Jagota claiming that the appellant, respondent No. 1 and other legal heirs of late Mrs. Vidya Devi Jagota, are entitled to 25% share each in the estate left by her.

6. The respondent No. 1, on the other hand, contended that she was the sole beneficiary under the last Will and Testament left by her husband Sh. Sushil Jagota, and that the said Will had been also duly acted upon and the property stand mutated in her name in the records of DDA.

7. Along with the suit filed by the appellant/ plaintiff prayed for an interim injunction restraining respondent from selling or alienating property. It was granted in favor of the appellant/ plaintiff and on 20.11.2000, the said interim order of injunction was confirmed. While confirming the interim order it was directed that both parties will be free to locate a tenant for the premises No. B-58, Paschimi Marg, Vasant Vihar (which was a part of the suit property) on or before 31st December, 2000. It was further directed that details of the prospective tenant, as well as rent, be filed in Court by way of an application and that prior permission would be obtained for letting out the said property. The rent was to be deposited in the Court and disbursement could be prayed for by either of the parties, and would be decided by the Court. Thus the injunction application (IA No. 11715/2000) was disposed of on the above terms.

8. On 1.12.2000, the respondent/ defendant filed an application (IA No. 124/2000) seeking permission of the learned Single Judge to let out the premises to the Zimbawian Embassy. It was informed to the learned Single Judge before whom the IA was listed, and same was not disputed before us at the time of hearing of the appeal, that advance copy of this application, had been duly served upon the counsel for the appellant/ plaintiff. Keeping in view the service of the advance copy upon the opposite party (i.e. appellant/ plaintiff) and the fact that the proposed tenant (Zimbabwean Embassy) was paying higher rent of Rs. 1,20,000/- as compared to the previous tenant, permission as was sought was granted by the learned Single Judge.

9. On that very day i.e. immediately after permission was granted, the respondent/ defendant let out the premises under a signed document, to the Zimbabwean Embassy. It is not disputed that the terms of the lease were the same as had been placed on the suit record before the learned Single Judge.

10. After the Embassy had been inducted as a tenant in the premises on 1.12.2000, the appellant/ plaintiff filed an application (IA No. 12723/2000) praying for supply of copy of the agreement with the new tenant, and for re-fixation of the rent @ Rs. 1,75,000/-. As a third alternative, prayer was made for direction to the tenant Embassy, to deliver back the possession which had been let out, allegedly in a fraudulent manner by the respondent/ defendant No. 1.

11. Though a blad averment was made to the effect that the premises ought to carry a rental of Rs. 1,75,000/-, and that the appellant/ plaintiff may be able to locate such a tenant, yet at no stage (not even during the hearing of the present appeal), did the appellant/ plaintiff come forward with any specific identified alternative proposed tenant who might be agreeable to pay Rs. 1,75,000/-, on the same terms and conditions as that applicable to the lease in favor of Zimbabwian Embassy.

12. On the application being listed before the learned Single Judge on 8.12.2000, the learned Single Judge granted stay of this order dated 1.12.2000 by which he had granted permission to let out in favor of Zimbabwian Embassy to the defendant/ respondent. Thereafter reply was filed by the respondent to this application (IA No. 12723/2000), and after hearing both the parties, the learned Single Judge held that since the tenant Embassy is already in occupation of the premises and legal rights have accrued in its favor, as such the relief of recalling the order dated 1.12.2000 cannot be granted.

13. By way of orders passed on another application IA No. 1297/2000, the respondent/ defendant No. 1 was directed to withdraw the amounts payable towards statutory obligations but restricted to only 25% of the amount. It was further observed that in case so required, the plaintiff would also be at liberty to discharge the proportionate liability from the remaining 75% amount.

14. We have given our careful consideration to the submissions of both the parties on the essentially discretionary order passed by the learned Single Judge.

15. The original order dated 20.11.2000 was passed in the presence of both the parties, and obviously with their consent, having stipulated that liberty is granted to both the parties to locate a tenant on or before 31.12.2000. The respondent/ defendant No. 1 had duly served an advance copy upon the counsel for the appellant/ plaintiff (before moving the IA No. 1242/2000), and obtained the permission of the learned Single Judge. The tenant has been actually inducted into the premises, thereby the tenant has come to acquire right to continue for the remaining stipulated period. In these circumstances the exercise of discretion by the learned Single Judge holding that the relief claimed in the application (IA No. 65/2001) praying for recall of the order dated 1.12.2000, could not be granted, cannot be said to be arbitrary or perverse. We are strengthened in this view by the fact that even up to the stage of hearing and reserving of orders on this appeal, the appellant/ plaintiff did not come out with the specific alternative tenant who might offer to pay Rs. 1,75,000/- per month or even higher rent than the Embassy of Zimbabwe. The sequence of prayer made in the stay application (IA No. 65/2001), also indicates that in the first instance the appellant/ plaintiff only wanted a higher rent from the same tenant (Embassy of Zimbabwe), and only the third alternative prayer was for directions to the said tenant to deliver back vacant possession.

16. With such discretionary orders, which are passed by a Single Judge of a High Court, in the interests of safeguarding the rights of all the parties in an equitable manner, are not to be interferred with in appeal by the Division Bench except in exceptional circumstances which are not at all made out in the present case.

17. As regards the grievances of the appellant/ plaintiff on the aspect that respondent No. 1 had received the entire rent for so many years totalling almost to one crore of rupees, and therefore should not have been allowed to get any further amount even to the extent of 25%, it may be noted that the appellant/ plaintiff has not filed any suit for recovery of any quantified amount, and rather has only preferred a suit for rendition of accounts. Respondent No. 1 as on date is the recorded owner with a registered will in her favor. In the circumstances, the direction to release 25% of the rental amount, as stands deposited in the Court, cannot warrant any interference by way of appellate remedy against the impugned inter in order.

18. Moreover as regards the amount of 25% of deposited amount to be allowed to be withdrawn by the respondent/ defendant to meet statutory liabilities is concerned, it may be noted that the learned Single Judge went on the basis that even on the basis of case of appellant/ plaintiff, the said respondent/ defendant No. 1 is clearly entitled to atleast 25% share in the estate and properties of the deceased.

19. On the other hand, respondent/ defendant No. 1 does not accept any share or interest whatsoever of the appellant/ plaintiff in the property. Rather she relies upon the Will dated 6.8.1987 as bequeathing the entire property to her predecessor-in-interest viz her husband, from whom she had acquired the property as the sole owner thereof. In any case, the rental income is to be enjoyed only after meeting the statutory liabilities and expenses specifically involved in relation to the premises. Due to this aspect, as well as the admitted share of 25% of the respondent/ defendant No. 1, we find no reason for interfering with the said direction/ order of the learned Single Judge.

20. In view of the above, the appeal fails and is accordingly dismissed with no order as to costs.