Delhi High Court
Mutallib vs Sunil Jain on 6 October, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI: NEW DELHI
CM (M) No. 1252/2010 & CM No. 17880/2010
% Judgment reserved on: 30th September, 2010
Judgment delivered on: 6th October, 2010
Mutallib
S/o Mr. Farman Ali
R/o H.No. 3577, Band Gali,
Near Jain Mandir, Dharampura,
Gandhi Nagar, Delhi-110031 ....Petitioner.
Through: Mr. Mukesh Birla, Advocate.
Versus
Sunil Jain
S/o Sh. S.C.Jain
R/o H.No. 3577, Band Gali,
Near Jain Mandir, Dharampura,
Gandhi Nagar, Delhi-110031 ....Respondent
Through: None
HON'BLE MR. JUSTICE V.B. GUPTA
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
in the Digest? Yes
V.B.Gupta, J.
Present revision petition has been filed by petitioner against
order dated 13th July, 2010 passed by Civil Judge, Delhi.
2. Brief facts of this case are that petitioner is a tenant under the
respondent in premises H.No. 3577, Band Gali, Near Jain Mandir,
Dharampura, Gandhi Nagar, Delhi.
3. Petitioner filed suit for permanent and mandatory injunction
against respondent on the ground that respondent should not get the
premises vacated without due process of law. In those proceedings,
respondent filed an application under Order 39 Rule 10 of Code of
Civil Procedure (for short as „Code‟).
4. Vide impugned order, trial court held that the rate of rent of
premises is Rs.19,000/- p.m. and rent has been paid till 9th August,
2009. Petitioner was directed to make payment of Rs.1,14,000/- as
rent from September, 2009 till the filing of application.
5. It is contended by learned counsel for petitioner that respondent
has not filed any documentary proof in support of his claim as to how
the rent of the premises comes to Rs.19,000/- p.m. Petitioner‟s case is
that rent of the premises is Rs.2,800/- p.m. only. Trial court passed
the impugned order on the basis of some amount calculated or entries
made on a plain paper which is void ab initio. The said entries have
not yet been proved in the court and as such impugned order is liable
to be set aside.
6. Petitioner admits that he is a tenant under the respondent but
the rate of rent is Rs.2,800/- p.m., whereas case of respondent is that
rent is Rs.19,000/- p.m. As far as the alleged piece of writing is
concerned, therein rate of rent has been mentioned as Rs.19,000/- p.m.
As per findings of the trial court, this document has not been denied
by the petitioner. Relevant findings of the trial court in this regard
read as under:-
"Admittedly, the plaintiff is in possession of two
floors of the suit property. The defendant has placed
on record a writing on which it is mentioned that till
24.11.08 the account settled as per reading. The
plaintiff has not denied his signatures on the writing.
It is also mentioned that Rs.18,000/- has been paid on
17.02.09. There are signatures of the daughter of the
plaintiff. It is also mentioned that Rs.10,000/- for the
month of March received and balance Rs.9,000/- was
received on 29.03.09. Further there is a writing that
Rs.15,000/- was given on 05.04.09 and Rs.13,000/-
on 21.04.09. Rs.8,000/- was given on 29.05.09 and
Rs.9,000/- on 09.06.09, Rs.15,000/- on 17.06.09,
Rs.25,000/- on 10.07.09 and Rs.20,000/- was paid on
09.08.09. There are signatures of the daughter of the
plaintiff on this writing. It is also mentioned in this
writing that from 01.12.08, the rent is at the rate of
Rs.19,000/- per month. There are signatures of the
plaintiff underneath this writing. The writing
suggests that the rent of the premises is Rs.19,000/-
per month. Admittedly, the plaintiff is also doing
commercial activities at the suit property. From the
writing, it can be inferred that the rent of the
premises is Rs.19,000/- per month and the rent is
paid till 09.08.09. Though this writing also shows
that some payment has already been made on account
of electricity charges. Thus, this application in
respect of the rent is allowed and the plaintiff is
directed to make the payment of Rs.1,14,000/- for the
rent from September 2009 till the filing of the
application. The plaintiff is also directed to make the
payment of future rent on or before the 7th day of
each succeeding month."
7. Order XXXIX Rule 10 of the Code read as under:
"10. Deposit of money, etc., in Court. Where the
subject-matter of a suit is money or some other thing
capable of delivery and any party thereto admits that
he holds such money or other thing as a trustee for
another party, or that it belongs or is due to another
party, the Court may order the same to be deposited
in Court or delivered to such last-named party, with
or without security, subject to the further direction of
the Court."
8. According to this provision, where rent is payable and liability
to pay is admitted, the court can order deposit of arrears of rent in the
court.
9. Petitioner has taken a contradictory stand with regard to the rate
of rent. In the grounds for challenging the impugned order, it is stated
that rate of rent is Rs.2,800/- p.m. and it was never fixed at
Rs.19,000/- p.m. However, in the synopsis (page D and E of the
paper book) case of petitioner is that in September, 2009, respondent
started raising demand of Rs.5,000/- p.m. as rent. This is nobody‟s
case that respondent demanded rent at the rate of Rs.5,000/- p.m.
10. Petitioner has not denied his signatures on the writings and it
has been clearly mentioned in these writings that from 1.12.2008 the
rate of rent is Rs.19,000/- p.m. So, trial court rightly inferred, that the
rate of rent of the premises is Rs.19,000/- p.m. and the same has been
paid only till 9.8.2009.
11. It is apparent from the record that petitioner who is residing as a
tenant in the premises in question wishes to continue to enjoy the use
and benefit of the premises without having to pay for the same at the
agreed rent.
12. Under these circumstances, the impugned order is fully justified
and do not want any interference in the exercise of the revisional
jurisdiction.
13. Present revision petition being bogus and frivolous one having
no merit is hereby dismissed with costs of Rs.25,000/- (Twenty five
thousand).
14. Petitioner is directed to deposit the costs with Registrar General
of this court by way of cross cheque, within four weeks from today.
CM No. 17880/2010 (stay)
15. Dismissed.
16. List for compliance on 9th November, 2010.
6th October, 2010 V.B.GUPTA, J.
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