Prof. Ram Prakash vs M/S Bengali Sweet Centre
2011 Latest Caselaw 6297 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision: 22nd December, 2011

+                          LPA No.768/2011

%         PROF. RAM PRAKASH                             ...........Appellant
                       Through:       Appellant-in-person.

                                   Versus

    M/S BENGALI SWEET CENTRE              ..........Respondents
                  Through: Ms. Neha Jain, Adv. for Mr. Mohit
                           Gupta, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. In this intra court appeal, the appellant who appears in person

impugns the order dated 26th August, 2011 of the learned Single Judge

dismissing the application filed by the appellant in Contempt Case (Civil)

No.789/2009 seeking release of the amounts deposited by the respondent in

terms of order dated 6th August, 2009 as modified vide order dated 30th

October, 2009 in CM (M) No.703/2009 preferred by the appellant.

2. Notice of the appeal was issued and we have heard the appellant in

person and the counsel for the respondent.

3. The respondent was a tenant under the appellant in a portion of

Premises No.B-48, South Extension Part-1, New Delhi-49 on the terms and

conditions contained in registered Lease Deed dated 1 st May, 2007. The said

Lease Deed was for a term from 1st August, 2007 to 31st July, 2010, on rent

of `30,000/- per month from 1st August, 2007 to 31st July, 2009 and the rent

of `34,500/- per month from 1st August, 2009 to 31st July, 2010.

4. The appellant in or about January, 2009 filed a suit inter alia for (i)

recovery of rent from October, 2008 to January, 2009 amounting to

`1,20,000/- (ii) recovery of interest thereon of `4,500/- (iii)

compensation/damages of `20,000/-, besides costs etc. The respondent filed

a counter claim in the said suit contending inter alia that the respondent had

vide its letter dated 25th June, 2008 intimated to the appellant of its intention

to vacate the premises on 31st July, 2008; that the appellant however refused

to take possession of the premises; that on 24 th August, 2008 it was orally

mutually agreed that the respondent shall not vacate the premises and

continue to occupy the same till November, 2008 and vacate the premises on

30th November, 2008; that it was further orally agreed that the appellant shall

adjust the security deposit of `90,000/- in monthly rent for the months of

September, 2008 to November, 2008; that the appellant however did not take

possession on 30th November, 2008 also; that the respondent was as such not

liable to pay any rent or other charges with respect to the premises from 1 st

December, 2008; however owing to the appellant having not taken

possession, the respondent has had to incur expenses of securing the

premises and towards electricity and water charges thereof; the respondent

thus made a counter claim for recovery of `1,72,642/- from the appellant.

5. The appellant, in the aforesaid suit, filed an application for payment of

rent from October, 2008 in terms of the Lease Deed. The said application

came to be dismissed by the Court of the Civil Judge before whom the suit

and the counter claim aforesaid were pending.

6. Aggrieved from the aforesaid order of the Civil Judge, CM (M)

No.703/2009 (supra) was preferred by the appellant in this Court.

7. This Court vide order dated 6th August, 2009 as modified on 30th

October, 2009 in CM (M) No.703/2009, observing that the plea of the

respondent of oral agreement in contravention of the registered Lease Deed

(as per which the security deposit was to be refunded only at the time of

vacation of the premises by the respondent) and further observing that it was

highly unlikely that in view of other claims of the appellant against the

respondent, the appellant would have agreed to adjustment of the security

deposit, and in view of the fact that the possession of the premises was got

delivered before this Court on 6th August, 2009, directed the respondent to

deposit in the Court within one month an amount calculated at the rate of

`30,000/- per month, from October, 2008 till 6th August, 2009. The said

amount was further directed to be kept in a fixed deposit and to abide by the

final decision in the suit.

8. The respondent preferred Special Leave Petition No.30950-

30953/2009 to the Apex Court against the orders dated 6th August, 2009/30th

October, 2009 in CM (M) No.703/2009 (supra). The Special Leave Petition

was dismissed vide order dated 14th December, 2009; the time for

compliance of the order dated 6th August, 2009 was however extended by

two weeks without prejudice to the rights of either parties.

9. We are informed that in pursuance thereto, a sum of `3,06,000/- was

deposited by the respondent in the Court of the Civil Judge in December,

2009.

10. At this stage, it may be mentioned that upon the respondent not

complying with the order dated 6th August, 2009 (supra), the appellant filed

Contempt Case (Civil) No.789/2009 (supra). The same was however

dismissed in limine on 12th October, 2009 observing that since the order

dated 6th August, 2009 was in the nature of direction under Order XVA of

the CPC, the remedy of the appellant was by way of execution and not by

way of contempt and giving liberty to the appellant to take appropriate

proceedings.

11. The appellant thereafter applied for execution of the order dated 6 th

August, 2009/30th October, 2009 and it was in fact in pursuance to the said

execution that the amount came to be deposited as aforesaid by the

respondent. The Civil Judge however vide order dated 28th May, 2011

refused to release the amount so deposited by the respondent to the appellant

on the ground that this Court had in CM (M) (supra) directed the amount to

be deposited in the Court and subject to decision of the suit and thus the

appellant was not entitled to release of the amount till the decision of the

suit. Aggrieved therefrom the respondent preferred CM (M) 739/2011 to

this Court. The same was however dismissed on 7th July, 2011, again owing

to the order dated 6th August, 2009 (supra) directing the amount to be

deposited in the Court and holding that the appellant was not entitled to

release thereof till the decision of the suit.

12. It was thereafter that the appellant filed an application being CM

No.15956/2011 in the disposed of Contempt Case (Civil) No.789/2009 again

seeking release of the amount. The said application was also dismissed by

the learned Single Judge vide order dated 26th August, 2011, again in view

of the direction in the order dated 6th August, 2009 (supra) being for deposit

of the amount in the Court and there being no direction for release thereof to

the appellant.

13. It is the aforesaid order which is now under challenge before us.

14. Needless to state that the aforesaid multiple proceedings are

attributable partly to the fact that the appellant who is 82 years of age, is

pursuing the litigation in person.

15. The only argument of the counsel for the respondent is that this appeal

is not maintainable. It is contended that no intra Court appeal lies against

the dismissal of a contempt petition and would not lie against the dismissal

of an application moved in a dismissed contempt petition.

16. On the contrary the appellant urges that inspite of the clear provision

of the registered Lease Deed, he is without rent provided in the Lease Deed

till the admitted date of vacation of premises before the Court. He also

contends that notwithstanding the direction of this Court in order dated 6th

August, 2009 (supra), the amount deposited by the respondent in the Court

of the Civil Judge was not kept in a fixed deposit causing further loss to him.

He thus seeks a direction for the respondent to also compensate him for

interest etc.

17. Though there is merit in the contention of the counsel for the

respondent as to the maintainability of this appeal but we have wondered

whether we, as dispensers of justice to the consumers thereof, find our hands

to be so tied so as to convert into reality what was said by Charles Dickens

in a work of fiction Oliver Twist that "law is a ass". We are constrained to

observe that if, we, owing to the shackles aforesaid do not grant the relief if

found to be due to the appellant, would be doing disservice rather than

service. We are also forced to wonder whether we should always be guided

by logic when human behavior and transactions on which we are to

adjudicate and do justice are not always logical and are irrational and

misguided. When the action of a party/litigant before the Court is found to

be irrational, illogical and injurious to the others, to not come to the rescue

of a litigant in such a situation would not be rendering justice for which the

Courts have been set up. Justice is a virtue which transcends all barriers.

Neither the rules of procedure nor technicalities of law can stand in its way.

It is the duty of the Court, as a policy, to set the wrong right and not allow

the perpetuation of the wrongdoing.

18. The Supreme Court in M.S. Grewal v. Deep Chand Sood (2001) 8

SCC 151 noticed that the judicial attitude has taken a shift from the old

draconian concept and the traditional jurisprudential system - affectation of

the people has been taken note of rather seriously and the judicial concern

thus stands on a footing to provide relief to an individual when needed. It

was held that Law Courts will lose their efficacy if they cannot possibly

respond to the needs of the society - technicalities there might be many but

the justice oriented approach ought not to be thwarted on the basis of such

technicality since technicality cannot and ought not to outweigh the course

of justice. Much earlier, Krishna Iyer, J. in Busching Schmitz Private Ltd.

v. P.T. Menghani (1977) 2 SCC 835 held that the principle of

unconscionability clothes the Court with the power to prevent its process

being rendered a parody. Recently also, in Krishnadevi Malchand

Kamathia v. Bombay Environmental Action Group (2011) 3 SCC 363, the

Supreme Court observed that justice is only blind or blindfolded to the

extent necessary to hold its scales evenly; it is not, and must never be

allowed, to become blind to the reality of the situation, lamentable though

that situation may be.

19. This Court in the order dated 6th August, 2009/30th October, 2009 was

concerned only with an interim direction as to payment and not with the

release thereof; the matter was at large before the learned Civil Judge. The

said direction was made owing to the unambiguous provision of the

registered Lease Deed. The emphasis at that time was to make the

respondent cough up the money.

20. We have today enquired from the counsel for the respondent whether

the respondent has any order of attachment before judgment in the counter

claim preferred against the appellant. The counsel for the respondent has

fairly stated that no such order has been sought. It is not in dispute that the

possession of the premises was delivered to the appellant before the Court

only on 6th August, 2009. We fail to see as to why the appellant who had

taken care to register the transaction of lease should not be entitled to the

benefit thereof and/or to the rent thereunder till the date of actual vacation of

the premises. The counter claim of the respondent against the appellant for

having not taken possession of the premises earlier etc. is yet to established.

This Court has in order dated 6th August, 2009 (supra) already observed that

the said plea of the respondent being contrary to the registered document, the

onus on the respondent to prove the same is heavy. If the respondent

succeeds in discharging the said onus and becomes liable to recovery of any

money from the appellant, it can always recover the same. However for the

said reason we cannot deprive the appellant of the monies due to him under

the registered Lease Deed and which were got deposited in the Court. We

may also notice that Order XVA was incorporated in the Civil Procedure

Code in Delhi for doing this kind of justice only and it was for this reason

only that the contempt petition filed by the appellant was dismissed.

21. We therefore find the opposition by the respondent before the Court

of the Civil Judge to the release of the said amount to the appellant to be

irrational and injurious to the appellant and unconscionable and consider it

our imperative duty to direct release of the said amount to the appellant.

22. As far as the grievance of the appellant of the amount being not kept

in fixed deposit as directed is concerned, the appellant is given liberty to

agitate the same before the Court which was directed to keep the amount in a

fixed deposit. Further, in these proceedings we cannot adjudicate the claims

of the appellant against the respondent for further interest etc. The appellant

shall have liberty to agitate the same before the appropriate fora / Court.

23. The appeal is therefore allowed, the Court of the Civil Judge, Delhi

before whom the amount aforesaid were deposited, to release the amount

together with interest if any accrued thereon to the appellant forthwith.

24. In the facts aforesaid, no order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

DECEMBER 22, 2011 bs