Delhi High Court

Mr. Panna Lal vs Mrs. Neelam Chopra on 2 September, 2009

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+ I.A. No.8748 /2008 & IA No.8750/2008 in C.S. [OS] No. 574/2007

                                 Reserved on:     28th July, 2009

%                                Decided on:        2nd September, 2009

Mr. Panna Lal                                       ...Plaintiff
                      Through : Mr. Rakesh Tiku, Adv. with Mr. P.
                                Gautam, Adv.

                      Versus

Mrs. Neelam Chopra                                  ....Defendant
                      Through : Mr. Shiv Charan Garg, Adv.


Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    Yes

2. To be referred to Reporter or not?                                 Yes

3. Whether the judgment should be reported                            Yes
   in the Digest?

MANMOHAN SINGH, J.

1. This order shall dispose of two applications being IA

Nos.8750/2008 under Section 151 CPC filed by the defendant to direct

the plaintiff to pay use and occupation charges to the former in respect

of the premises bearing Shop no.58-B, Khan Market, New Delhi till the

pendency of the counter claim and IA No.8748/2008 filed by the

plaintiff under Order 7 Rule 11 CPC seeking dismissal of counter claim

of the defendant.

2. The brief facts of this case are that the plaintiff, Shri Panna

Lal, filed the present suit for permanent injunction against Smt. Neelam

Chopra, praying therein to pass a decree for permanent injunction

thereby restraining the defendant from forcibly dispossessing the

plaintiff and his sons from the premises in dispute i.e. Shop no.58-B,

Khan Market, New Delhi. During the pendency of the suit, in IA

No.6884/2007 and IA No.6865/2007 the learned counsel for the plaintiff

on 11th February, 2008 offered to pay a sum of Rs.50,000/- towards the

use and occupation charges of the suit premises on monthly basis w.e.f.

10.05.2007 till the date of the passing of the order i.e. 11.02.2008. It

was also observed in the said order that the said payment of the amount

made by the plaintiff and received by the defendant would be without

prejudice to the rights and contentions of the parties.

3. The defendant, in the suit, filed the written statement as well

as counter claim no.17/2008 praying therein to pass a decree for

declaration in favour of the defendant and against the plaintiff declaring

that the plaintiff, his sons, nominees, employees, agents or any company

formed by the plaintiff are unauthorised occupants of the suit premises

and have no right or interest in the suit premises as well as a preliminary

decree for rendition of accounts for rendering the accounts and

mandatory injunction against the plaintiff to vacate and remove himself

from the suit premises and a decree for damages for use and occupation

charges/mesne profits against the plaintiff for a sum of Rs.5 lacs per

month from the date of the filing of the counter claim till the plaintiff

vacates and removes himself from the suit premises along with interest

@ 18% p.a. till the realisation of the said amount.

4. The case of the defendant in the written statement is that she

is the owner of shop bearing No.58-B, Khan Market, New Delhi and

that she has always been in possession of the shop and has been running

a business from the said shop under the name and style of "M/s. Allied

Fruit and Florists". The defendant has always been in control of the

business being conducted from the shop. The said shop was purchased

by the defendant vide a duly registered Sale Deed dated 19 th November,

1969. The plaintiff and his sons were employees of defendant. Over a

period of time, the plaintiff established faith and confidence with the

defendant and performed various responsibilities of the defendant‟s

business. The plaintiff impersonated himself as a proprietor of the

proprietary concern of the defendant and with connivance of his three

sons lodged a false complaint at police station Tuglak Road for the theft

of Rs.4.5 lakhs from the said shop. Thus, the plaintiff committed fraud

and criminal breach of trust for which he is liable to be prosecuted.

5. A statement was made by the defendant that she has no

objection to the suit being decreed in favour of the plaintiff in terms of

the prayer made by the plaintiff in the plaint to the effect that the

defendant be restrained from forcibly dispossessing the plaintiff and his

sons from the suit premises by any illegal or unfair means except by due

process of law. As a result, by order dated 27th May, 2008 this court

disposed of the suit as well as pending applications i.e. IA no.3632/2007

under Order 39 Rules 1 and 2 CPC, IA no.6884/2007 under Section 151

CPC and IA no.2082/2008 under Section 151 CPC.

6. As far as the Counter claim no.17/2008 was concerned, it

was ordered to be continued and the plaintiff was granted time to file

written statement to the counter claim. During the pendency of the

counter claim, the above-mentioned two applications i.e. IA

no.8748/2008 under Order 7 Rule 11 CPC was filed by the plaintiff for

rejection of the counter claim of the defendant and IA no.8750/2008

under Section 151 CPC was filed by the defendant thereby seeking a

direction to the plaintiff to continue paying use and occupation charges

to the defendant according to the current market value of the premises.

7. Learned counsel for the defendant has contended, while

arguing the matter, that till the disposal of the suit or till the plaintiff

hands over the vacant and peaceful possession of the premises in

question to the applicant/defendant, he should pay use and occupation

charges to the tune of Rs.5 lacs p.m. In reply to the application being IA

no.8750/2008 filed by the plaintiff, it is submitted that the defendant is

creating problem in the smooth running of the business of the plaintiff

from the shop in suit premises. It is contended by the plaintiff that the

defendant has disconnected the electricity of the suit premises since

March 2007 and also filed four FIRs against the plaintiff in connivance

with the officials of NDMC. Learned counsel for plaintiff has stated

that the plaintiff is ready and willing to pay a sum of Rs.50,000/- to the

defendant as use and occupation charges as per the earlier order dated

11.02.2005 provided the defendant should supply the electricity and also

issue „no objection certificate‟ in favour of NDMC.

8. On the other hand, learned counsel for the defendant has

stated that the plaintiff has not paid any use and occupation charges

after 11.02.2008 and also argued that in case if a „no objection‟

certificate is issued by the defendant in favour of the NDMC or any

other authority, it would tantamount to admitting the tenancy of the

plaintiff. It is further stated that the electricity might have been

disconnected due to non-payment of electricity bills. Due to peculiar

circumstances of the present case, the defendant is not in a position to

issue „no objection certificate‟ in favour of Government authorities as

the plaintiff will take undue advantage of the same. It is also argued by

the defendant that the current market value of the suit premises for the

purposes of use and occupation charges is about Rs.5 lacs p.m. and is

ready to provide many instances for the same and in case the plaintiff is

not agreeable to pay the said amount as per current market value, the

defendant is even prepared to pay a sum of Rs.75,000/- to Rs.1 lac p.m.

to the plaintiff, who should then allow the defendant to use the said

premises during the pendency of the counter claim. Learned counsel for

the defendant, however, agrees that the plaintiff should pay to the

defendant at least 50% of the current market value of the premises as

use and occupation charges and the appropriate orders in this regard

should be passed.

9. Considering the rival submissions of the parties, it is not in

dispute that the plaintiff has not paid any use and occupation charges

after 11.02.2008 and at the same time it is also not denied by the

defendant that the electricity of the suit premises is disconnected. There

cannot be any dispute to the fact that the current market value of the suit

premises is much more than Rs.50,000/- p.m. which is the amount

suggested by the plaintiff during the hearing of the earlier pending

applications and the order passed on 11.02.2008. Considering the

overall circumstances of the matter, this Court is of the view that during

the pendency of the determination of the counter claim filed by the

defendant, the plaintiff shall pay to the defendant directly a sum of

Rs.50,000/- p.m. from 11.02.2008 till the passing of this order within six

weeks from today and shall also keep on paying the said amount

regularly by 7th of each English calendar month till the disposal of the

counter claim. As regards the dispute of disconnection of electricity is

concerned, the defendant is directed to give „no objection certificate‟ for

the purpose of restoration of the electricity connection which was

allegedly disconnected due to non payment. All the dues in this

respect shall be paid by the plaintiff. The „No Objection Certificate‟

shall be issued by the defendant subject to the payment of outstanding

amount by the plaintiff from the defendant without prejudice to the

rights and contentions of her case on merits. Needless to say that all the

amounts paid pursuant to the orders of this court shall be subject to the

final outcome of the present counter claim.

10. In view of the aforesaid directions, the application being IA

No.8750/2008 is disposed of.

IA No. 8748/2008

11. In the application filed under Order 7 Rule 11 CPC, it was

contended that the defendant has valued the counter claim at Rs.30 lac

for the purposes of court fee and has sought various reliefs namely

decree for declaration, rendition of accounts, mandatory injunction,

eviction, removal, damages for a sum of Rs.5 lac for the month of May,

2007 and a decree for damages @ Rs.5 lac p.m. till the plaintiff vacates

and removes himself from the suit premises along with interest. It is

contended by the learned counsel for the plaintiff that no court fee has

been paid on the reliefs sought for by the defendant in the counter claim

with regard to declaration and for vacation/removal of the plaintiff. As

per Section 7 of the Court Fees Act, the counter claimant is liable to pay

the court fee on the value of the property. It is further contended that

the defendant has not made the sons or the company of the plaintiff as a

party in the counter claim, therefore, the counter claim is bad for mis-

joinder of necessary parties.

12. In the reply filed by the defendant, it is submitted that the

claim of the defendant regarding mesne profits/damages is yet to be

determined and the defendant has already undertaken to pay the

requisite court fee in the counter claim. As far as rendition of accounts

and undetermined accounts are concerned, in the celebrated judgment

of the Apex Court reported as Commercial Aviation Vs. Vimla

Pannalal, AIR 1988 SC 1636, it was observed in para 8 and 9 as

under:-.

"8. In a suit for accounts it is almost impossible for the plaintiff to value the relief correctly. So long as the account is not taken, the plaintiff cannot say what amount, if at all, would be found due to him on such accounting. The plaintiff may think that a huge amount would be found due to him, but upon actual accounting it may be found that nothing is due to the plaintiff. A suit for accounts is filed with the fond hope that on accounting a substantial amount would be found due to the plaintiff. But the relief cannot be valued on such hope, surmise or conjecture.

9. In this connection, we may refer to the provision of Order VII, Rule II(b) of the CPC, which provides, inter alia, that the plaint shall be rejected where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. It is manifestly clear from the provision of Order VII, Rule II(b) that a Court has to come to a finding that the relief claimed has been undervalued, which necessarily means that the Court is able to decide and specify proper and correct valuation of the relief and, after determination of the correct value of the relief, requires the plaintiff to correct his valuation within a time to be fixed by the Court. If the plaintiff does not correct the valuation within the time allowed, the plaint is liable to be rejected. The question is whether in a suit for accounts simpliciter, the Court can come to a finding as to the proper and correct value of the relief until the final determination is made. In our opinion, ordinarily it is not possible for the Court at a preliminary stage to determine the value of the relief in a suit for accounts simpliciter. If the Court is itself unable to say what the correct valuation of the relief is, it cannot require the plaintiff to correct the valuation that has been made by him. Indeed, in a suit for accounts it is also difficult for the Court to come to a finding even as to the approximate correct valuation of the relief. In such a case, the Court has no other alternative than to accept plaintiff's valuation tentatively."

It is further contended by the defendant that she is open to

give up any prayer at the time of final hearing of the suit if necessary or

if any valid plea is raised by the plaintiff. It is denied that the suit is bad

for mis joinder of the parties. It is argued by the defendant that the said

prayer is made by the defendant so that in case the plaintiff assigns his

right in favour of his sons, employees or any company, the said prayer

made in the counter claim should be covered.

13. The contention of the plaintiff for rejection of the counter

claim of the defendant under Order 7 Rule 11 CPC on the ground of

non-payment of court fee is devoid of any merit. The defendant in her

counter claim has paid a total court fee of Rs.30,285/- for the reliefs of

declaration, injunction as well as rendition of accounts and has also