Delhi High Court
Kulbhushan Rathore & Ors. vs Rameshwar Prasad on 10 May, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 62/2007
Date of Decision: May 10, 2010
KULBHUSHAN RATHORE & ORS. ..... Appellant
Through: Mr. R. K. Sharma, Adv. with
Appellant in person.
versus
RAMESHWAR PRASAD ..... Respondent
Through: Respondent in person.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
RSA 62/2007 and CM APPL. 3019/2007, 15630/2009 9 (u/s. 148 CPC)
1. Respondent filed a suit for permanent injunction, possession and
recovery of Rs.1,78,000/- against the appellants in respect of Second
floor in property No.7/841-A, Govindpuri, Kalkaji, New Delhi, being
legal representatives of Shri R.P.S. Rathore. This excluded
electricity and water charges. Tenancy of R.P.S. Rathore was duly
terminated vide notice dated 31.03.1997. He died on 17.04.1997 and
at the time of his death, he was under arrears of rent amounting to
Rs.1,40,000/- for the period from 1.12.2994 to 17.4.1997. Only
defence appellants took was that one Smt. Kamlesh was the landlady
to whom they had handed over the keys as well as physical
possession of the suit premises.
2. The Trial Court decreed the suit of the Respondent vide judgment
and decree dated 6.11.2004. Appeal filed by the appellants met the
same fate as the Appellate Court while agreeing with the findings of
the Trial Court, dismissed the appeal vide impugned order dated
26.04.2006.
3. Respondent received vacant possession of the suit premises in
execution proceedings on 1.04.2005. Therefore, the decree for
possession stood satisfied. The only dispute left for consideration is
the quantum of mesne profits/rent and other charges decreed against
the appellants.
4. Mr. R.K. Sharma, counsel for the appellants has submitted that
Respondent had no right, title or interest in the suit premises and they
were tenant under Smt. Kamlesh Rani, to whom they have handed
over physical possession of the suit premises.
5. This argument is belied because the vacant possession of the suit
premises was taken by the Respondent in execution proceedings
through process of law.
6. Admittedly, appellants could not prove any document on record to
show that the suit property was sold to Smt. Kamlesh Rani. The
property was allegedly mortgaged without any registered Mortgage
Deed. The possession of the suit premises was never handed over to
the mortgagee by the mortgagor.
7. Findings of the courts below are findings on facts based on oral as
well as documentary evidence produced on record by respective
parties. It is pertinent to mention here that Smt. Kamlesh Rani, to
whom the appellants alleged to have handed over the vacant
possession of the suit premises, in her cross-examination had
admitted that Respondent was the owner of the suit premises.
8. Under the facts and circumstances of this case, there is no substantial
question of law which needs formulation. The Court has awarded
rent as per the Agreement and damages after holding an inquiry
under Order 20 Rule 12 CPC. Hence, appeal is hereby dismissed
being without any merit.
9. During the course of arguments, Respondent had agreed that in case
appellants paid a sum of Rs.4,05,000/- being rent/damages, he would
not execute his decree for Rs.9,73,580/- as awarded to him.
However, appellants showed his inability to pay the said amount. He
had deposited a sum of Rs.2, 00,000/- in the form of FDR vide order
of this Court dated 31.08.2009.
10. The said amount of Rs.2,00,000/- deposited in the form of FDR with
the Registrar alongwith interest is ordered to be released in favour of
the Respondent within three weeks.
11. In case, the appellants pay another sum of Rs.2,50,000/- to the
Respondent within two months from today, the decree shall stand
fully satisfied. In case, they fail to pay the said amount, Respondent
is at liberty to execute the decree for the entire balance amount.
(ARUNA SURESH)
JUDGE
MAY 10, 2010
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