Yadu India Limited vs Maya Sharma And Anr.
2004 Latest Caselaw 147 Del

JUDGMENT

Vikramajit Sen, J.

1. The Respondent had filed a suit for possession against Maiden Circuit Ltd., being Suit No.298/1995. In the course of those proceedings an application under Order XII Rule 6 of the Code of Civil Procedure came to be filed by the Plaintiff. While that application was being adjudicated upon, Nova India Ltd. filed an application under Order I Rule 10 of the CPC seeking impleadment in the said suit. It was alleged that payments were made by Demand Drafts but because of the intrinsic nature of this mode of tender, it cannot be implied that the landlady was aware, or should be held to be aware, that the rent was being paid by Nova India Limited. It is also well established that payment of rent, per se, does not evidence the existence of a tenant/landlord relationship. There is no legal embargo in a person paying rent on behalf of the tenant.

2. However, in the very first paragraph it had been pleaded that "the applicant is the assignee of Maiden Circuit Ltd. and has come to know about the present proceedings very recently." It appears that Maiden Circuit Ltd. was liquidated by the Orders dated 11.8.1999 passed by the Company Judge of this Court. The application under Order I Rule 10 of the CPC was rejected by the Trial Court by Order dated 18.7.2000 with the following observations :

"From the perusal of the Order sheet of dt. 22.2.1999 vide which the counsel for the Defendant handed over three cheques which were accepted by the counsel for the Plaintiff without prejudice to his right in the present suit. Similarly on 15.3.1999 the counsel for at the Defendant has handed over three cheques which were accepted by the counsel for the Plaintiff without prejudice to his right in the present suit. On 27.8.1999 the counsel for the Defendant had given eight cheques on behalf of the Defendant M/s Maiden Circuit Ltd. On 5.7.2000 the proxy counsel for the Defendant paid six pay orders to the Plaintiff on behalf of the Defendant M/s Maiden Circuit Ltd. which were accepted by the counsel for the Plaintiff without counsel gave one draft to the counsel for the Plaintiff. All these Order sheet show that the draft for the arrears of rent were tendered by the Defendant company through its counsel to the counsel for the Plaintiff and the applicant M/s Nova India Ltd. never come into picture and therefore, the applicant has no right independently. The applicant M/s Nova India Ltd. has filed the present frivolous application at the behest of the Defendant with the sole purpose of delay the application of the Plaintiff under Order 12 Rule 6 CPC. Therefore, the application of the applicant M/s Nova India Ltd. under Order 1 Rule 10 CPC is dismissed with cost of Rs.500/-."

3. By that very Order the Plaintiff's application under Order XII Rule 6 of the CPC was allowed and the suit for possession was decreed. The applicant namely Nova India Ltd., which appears now to have changed its name to M/s Yadu India Ltd., has not assailed the Order rejecting its impleadment in the suit for possession, and this view/finding has attained finality.

4. Upon the passing of the decree for possession the Respondent/Plaintiff has initiated execution proceedings, wherein M/s Yadu India Ltd. has filed Objections and the application under Section 47 of the CPC. The gravamen of the Objection is that the decree of possession is not binding on the Objector on the grounds that it is in the possession of the premises in question since March, 1998. Contrary to the allegations in the application under Order 1 Rule 10 CPC, where the Objector had mentioned that it was an assignee of the tenant/Defendant/judgment Debtor, it has now been asserted that it is the lawful tenant under the decree holder. Admittedly, no lease deed or rent note is available. It was in these circumstances that the Trial Court rejected the objections on the grounds that it could not go behind the Decree. Before arriving at this conclusion the Trial Court had also specifically observed the circumstances in which the application for impleadment under Order 1 Rule 10 of the CPC had been dismissed.

5. In these circumstances I find that no jurisdictional error had been committed by the Trial Court. It cannot be ignored that the finding under Order 1 Rule 10 CPC had attained finality as far back as in the year 2000. Having failed to establish that it had any right in the property, even without applying the doctrine of the executing Court being precluded from going behind the Decree, the Objector could not yet again assert facts and allegations which had already been held against it. The fact that it had assumed the status of a tenant, contrary to that of an assignee also discloses its mala fides.

The Petition is without merit and is dismissed.