Sulekha Karir Marwaha vs Mukesh Karir & Ors.
2011 Latest Caselaw 3012 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

        I.A. No. 12160/2010 & 3423/2011 in I.P.A. No. 30 of 2009

                                   Judgment pronounced on 03.06.2011

+ Sulekha Karir Marwaha                         ......Applicant
                    Through: Mr.Arun Khosla, Adv. with
                             Ms. Shreeanka Kakkar, Adv.

                        Versus

Mukesh Karir & Ors.                                  ....Respondents

Through: Mr. Nishant Dutta, Adv.

CORAM:-

HON'BLE MR JUSTICE MANMOHAN SINGH

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

MANMOHAN SINGH, J .

1. By this order, I shall dispose of the above mentioned

applications filed by the applicant in the I.P.A. praying that directions be

issued to the registry to release the money deposited by the respondent

Nos. 1 and 2 in compliance with the order dated 27.04.2010 of this court

and to further release each month, such money, as deposited by the said

respondents in the future.

2. The factual matrix of the case is that the applicant and the

respondent No.1 to 3 are brothers and sisters living together on the

ground floor of House No. C-43, Panchsheel Enclave, New Delhi -

110017. The said house is built on a plot of land measuring 260 square

yards comprising three bedrooms, two bathrooms, mandir, drawing-cum-

dining room, store room and a mezzanine floor. On the date of filing of

petition, the respondent No.4 was the tenant of the first floor of the super

structure built on the said property.

3. Mr. Krishan Kumar Karir, father of the applicant and the

respondent Nos. 1 to 3 was the sole owner of the said property who died

on 16.11.2008 leaving behind the parties as mentioned above as his

legal heirs.

4. The applicant was married to Mr. Rajender Kumar Marwaha

and has a child namely Mr. Rohan Marwaha from the said wedlock. She

got separated from her husband about fourteen years ago. She along

with her son came to live with her father at his aforementioned house. The

applicant, brother Mukesh aged 48 years, respondent No.1 and Bhupinder

aged 41 years, respondent No.3 did not marry and is living in the same

house. Respondent No.3, Veena aged about 44 years who is the sister

of the applicant was also unmarried on the date of filing of petition.

There is a common kitchen and other facilities are also shared by the

parties alongwith the son of the applicant.

5. After the demise of their father, respondents Nos. 1 and 2

have a bed room apiece to themselves, the applicant and her son are

residing in one room while respondent No. 3 was confined to the

drawing-cum-dining room of the ground floor.

6. The first floor of the suit property was leased out to

respondent No. 4 i.e. M/s. Giraffe Advertising and Marketing Pvt. Ltd.

by the father of the parties under a duly registered deed dated 05.08.2008

for the period from 01.07.2008 to 31.06.2010 at a monthly rental of

Rs.20,000/-. Running concurrently with the said lease deed was an

agreement between the applicant and respondent No.4 in respect of

fittings and fixtures, etc. provided by her at the said first floor of the suit

property for a monthly rental of Rs.15,000/-. The applicant had given

authorization to respondent No.2, to collect the same and deposit it into

her bank account.

7. The grievance of the applicant is, that in the month of August

2009 the respondent No. 2 did not deposit her monthly rental in her bank

account. The respondent No.2 instructed the respondent No.4 to make

future payments of rent in respect of property as well as fittings and

fixtures through cheque in favour of respondent Nos.1 and 2. When she

made the enquiry with respondent Nos. 1 and 2 in this regard, she was

told that after their father's death, she was not entitled for any amount.

It is alleged by the applicant, that the respondent Nos.1 and 2 have taken

over all the moveable assets left behind by their father, like share in the

partnership firm comprising the father and respondent Nos.1 and 2, cash-

in-hand, credit balance in the banks, shares, units in mutual funds etc.

without giving any information to the applicant and respondent No.3. It

was informed by the respondent Nos. 1 and 2 that their father had made

a Will bequeathing all his moveable and immoveable assets in favour of

respondent Nos.1 and 2 only.

8. It is stated by the applicant, that at the time of his death, their

father was prosecuting a civil suit Bieng suit No.321/87 in District

Courts, Tis Hazari, against his siblings for partition and rendition of

accounts in respect of property bearing No.94, Krishan Nagar, Gali

No.5, Safdarjung Enclave, New Delhi and after his death on 16.11.2008

the respondent Nos. 1 to 3 and the applicant had filed an application

under Order 22 Rule 3 CPC with a supporting affidavit deposed by

respondent No.1 seeking substitution as the only legal heirs of Mr.

Krishan Kumar Karir and in the said application, nothing was mentioned

about any Will left behind by him.

9. According to respondent Nos. 1 and 2, the Will made by their

father is lying with one Mr. D.D. Karir, brother of Late Mr. K.K. Karir. In

the said Will, it is clearly stated that all the moveable and immoveable

assets of the testator Will devolve upon the respondent Nos. 1 and 2 and

only the bank accounts and shares Will go to the applicant and respondent

No.3. Further, it is mentioned in the said Will that the applicant and

respondent No.3 Will be looked after by respondent Nos. 1 and 2.

10. The applicant submits that she and her son have no other

source of livelihood than the income accruing from the rental of the

fittings and fixtures. The applicant, her son and respondent No.3 are

surviving on the bank savings amounting to meager sum of

Rs.1,41,000/- as on the date of petition. Since the respondents No.1 and

2 are not inclined to help them, therefore, the present petition was filed.

11. Alongwith petition, the applicants also filed interim

applications being IA No.16962/2009 (Order 39 R 10 CPC) and IA

No.16961/2009 (Order 39 Rule 1 & 2 CPC).

12. In IA No.16961/2009, on 23.12.2009 the respondent Nos.1

and 2 were restrained from disturbing the possession of the petitioner in

respect of partition of the suit property which is shown in red colour in

the site plan and not to impede the enjoyment of common facilities by

the petitioner. The notice was issued in the other application i.e. Order

39 R 10 CPC.

13. When the matter was listed before Court on 27.4.2010, the

court in IA No.16962/2009, inter alia, passed the following orders :

"In these circumstances, for the moment, it would suffice if the hire charge, which is admittedly payable at the rate of Rs.15,000/- per month, is deposited in court for the remaining period of the hire agreement as well as for the period September, 2009 till April, 2010. The needful will be done within two weeks. The respondent No.4 shall pay the hire charges to respondent No.2; who shall deposit the same in court. Renotify on 09.07.2010."

14. After the said order, the applicant in September, 2010 filed

two applications viz. IA No.12159/2010 (Order 39 R 10 2(A) CPC) and

IA No.12160/2010 (Section 151 CPC). The first one was regarding

disobedience of the interim orders passed on 23.12.2009 in the

following manner as mentioned in para 13 of the application, which reads

as under :

"13. That the Respondents No.1 and 2 have disobeyed this Hon'ble Court's order by

(i) Impeding the Applicant's enjoyment of the common facilities in the suit property, namely the living room and the dining room, as evidenced by a photograph, annexed hereto as Annexure A-3,

(ii) Repeatedly assaulting the Applicant and her son physically in order to force them to leave the suit property,

(iii) Usurping the hire moneys due from the Respondent No.4 for the period September, 2009 till June, 2010 and

(iv) Colluding with the Respondent No.4 to enter into a fresh application in respect of the said property at the back of the Applicant and usurping the hire moneys post June, 2010 at a rate that is not known to the applicant."

And in the second application i.e. IA No.12160/2010, the

following prayers were made :

(I) direct the Registry to release the hire moneys deposited by the Respondents No.1 and 2 in this Hon'ble Court for the period September, 2009 till September, 2010,

(II) direct the Respondents No.1 and 2 to pay future hire moneys received from Respondents No.4 directly to the Applicant, OR ALTERNATIVELY, direct the Respondent No.4 to pay hire moneys from October 2010 onwards to the Applicant at such rate as contracted at the Applicant's back with Respondents No.1 and 2,

(III) direct the Respondents No.1, 2 and 4 to place on record the Agreement/Contract in respect of the fittings and fixtures comprised in the first floor of the building bearing No.C-43, Panchsheel Enclave, New Delhi-1100 17 and

(IV) grant any other or further reliefs that this Hon'ble Court may deem fit and proper in the facts and circumstances of this case in favour of the Applicant and against the Respondents No.1, 2 and 4."

15. The respondents No.1 and 2 have denied all the allegations

made in the applications. Thereafter, the applicant filed another

application being IA No.3423/2011 under Section 151 CPC requesting

the court to summon the respondents No.1 and 2 and Director of

respondent No.4 company, namely Mr. Rohit Sharma to appear and to

meet out appropriate punishment for having instructed the counsel for

respondent No.4 to make a false statement before the court on

21.2.2011. No reply to this application was filed by the said

respondents. Thereafter, the matter was adjourned for settlement but

the settlement did not materialize between the parties, and on 18.4.2011,

it was informed to the court by the counsel for respondent No.4 that a

new tenant has been inducted w.e.f. July, 2010 and he would file the

affidavit in this regard.

16. However, prior to the above, it was averred that on

21.02.2011, Learned counsel for respondent No.4 had prayed that the

name of his client/ respondent No.4 be deleted from the array of parties,

as the respondent No.4 has surrendered the possession of the first floor of

the suit property after the termination of its lease due to efllux of time.

17. Mr. Rohit Sharma, Director of respondent No.4, in the present

case, in terms of order dated 18.04.2011 has filed an affidavit admitting

that the earlier lease deed as well as the higher purchase agreement

executed between the respondnet No.4 with the respondent Nos 1 and 2

had expired by flux of time on 30.06.2010 and the respondent No.4,

therefore, ceased to be the tenant in respect of the premises in question.

He stated that now the property in question has been taken on lease by

M/s Kompass Konsultants a proprietorship firm in which he is the sole

proprietor on lease from respondent No.2 for a period of two years

commencing from 14.07.2010 and ending on 30.06.2012 and as per the

lease deed the firm M/s. Kompass Konsultant which is owned by him has

to pay the rent of Rs. 35,000/- per month to respondnet No.2. Copy of

the lease deed dated 14.07.2010 has also been produced.

18. The learned counsel for the respondnet No.2 has confirmed

that in view of the order passed by the court on 27.04.2010, the

respondnet No.2 has deposited the amount payable at the rate of Rs.

15,000/- per month in court for the remaining period. However, his only

prayer is that the said amount may not be released to the applicant.

19. As far as merit of the applicant's case is concerned, the same

cannot be determined at this stage, particularly in these applications.

But certain facts are not denied by the respondents No.1 and 2 and these

are (i) that the first floor of the property was leased out by the father of

the respondent No.4 and an agreement to hire was executed and

registered between the applicant and respondent No.4 in respect of the

fitting and fixture provided by her at a monthly rental of Rs.15,000/-.

The applicant and her son have no source of income and she is the real

sister of respondents No.1 and 2. Her son is a minor and is studying . It

is also not denied by the respondents No.1 and 2 that in the alleged Will,

there is a provision of maintenance of the applicant and respondent No.3

by respondents No.1 and 2. The respondents No.1 and 2 have deposited

the amount of her share in the court as per directions issued in order

dated 27.4.2010. After discussion, this court is not inclined to accept the

submission of the respondents No.1 and 2 for not to release the said

amount to the applicant. This court is of the considered view, that no

harm would be caused to the respondents No.1 and 2, if the said

amount is utilized by the applicant for her livelihood and for the

education of her son. At the end of the day, applicant is their sister

who wants to use the said amount for her survival and for which she is

otherwise entitled as per hire agreement.

20. Hence, both the applications are disposed of with the

following directions:

i. The respondent No. 4 shall continue to pay Rs.15,000/- per month

directly to the applicant during the continuity of the lease deed.

The amount deposited by the respondent Nos.1 and 2 in terms of

order dated 27.4.2010 be released by the Registry in favour of the

applicant.

ii. In case a new tenant is inducted by the defendant Nos. 1 and 2, the

applicant shall have the right to move a fresh application in this

regard.

21. This order shall have no bearing on the merit of the suit. Both

the applications, being I.A. No. 12160/2010 and 3423/2011 stands

disposed of.

I.P.A. No. 30/2009

List on 13.08.2011.

MANMOHAN SINGH, J JUNE 03, 2011 Jk/sa/dp