Bashir Ahmad Shah Hami & Anr vs Smt Sunita Arora & Anr
2012 Latest Caselaw 963 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.77/2012

%                                                     13th February, 2012

BASHIR AHMAD SHAH HAMI & ANR               ..... Appellants
            Through: Mr. G.M.Chand with Mr. K.Z.Khan, Advs.


                      versus


SMT SUNITA ARORA & ANR                         ..... Respondents

Through: Mr. Rohit Singha, Adv. for R-1&2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.2566/2012(exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

CM No.2567/2012(condonation of delay)

Delay of 2 days in filing of the appeal is condoned. CM

stands disposed of.

RFA No.77/2012

1. The challenge by means of this Regular First Appeal (RFA)

filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment and decree of the Trial Court dated 19.10.2011

decreeing the suit of the respondents/plaintiffs/landlords for possession and

mesne profits. At the outset itself, I may note that the

appellants/defendants were proceeded ex parte repeatedly before the Trial

Court, and which ex parte proceedings were set aside, subject to payment

of costs, however, no costs were paid and ex parte proceedings thereafter

continued. Not only that, the malafides of the

appellants/defendants/tenants are apparent on the face because even at the

stage of final arguments once again an application was filed seeking the

relief for filing of the written statement, which of course was rightly

dismissed.

2. The facts of the case are that the appellants/defendants were

inducted as tenants in the entire lower ground floor of the property bearing

no. 146, Kailash Hills, New Delhi under a registered lease deed dated

20.6.2008 (Ex.PW2/1). The lease was for a period of 11 months at a rent

of `17,000/- per month. The premises were let out for residential purposes.

3. The travails of the respondents/plaintiffs/landlords started

within 2 months of the letting out inasmuch as the appellants/defendants

failed to pay the rents after two months of commencement of tenancy. The

tenancy of the appellants/defendants was therefore terminated by notice

dated 11.9.2008. The subject suit thereafter came to be filed claiming

arrears of rents, mesne profits and possession.

4. The appellants/defendants were served but since remained

absent, therefore, they were proceeded ex parte on 3.12.2010. The ex parte

order was set aside by giving a last opportunity to file the written

statement by an order dated 25.3.2011 subject to payment of costs,

however, the directions were not complied with and the costs were not

deposited. Of course, the appellants/defendants cross-examined the

witnesses of the respondents/plaintiffs. To further delay the proceedings

one application at the stage of final arguments was moved to file the

written statement, and which was dismissed by the Trial Court.

5. The trial Court has arrived at the findings that there exists a

relationship of landlord and tenant between the parties; the rate of rent

being more than `3,500/- per month, i.e. `17,000/- per month; the premises

were outside the protection of Delhi Rent Control Act, 1958 the tenancy

therefore could be and was terminated by a notice under Section 106 of the

Transfer of Property Act, 1882 especially because the

appellants/defendants were rank defaulters in making payment of the

admitted rate of rent. The Trial Court has granted mesne profits, not at the

rate claimed by the respondents/plaintiffs, but at 30% more than the last

paid rate of rent, i.e. at `22,100/- per month.

6. Learned counsel for the appellants/defendants argued two

points before this Court. The first was that the respondents/plaintiffs were

not the owners of the premises as they had forged and fabricated the power

of attorney in their favour. The second argument was that the Trial Court

should have exercised discretion to allow the appellants/defendants to file

the written statement at the stage of final arguments.

The first argument urged on behalf of the

appellants/defendants that the respondents/plaintiffs/landlords were not the

owners is an argument of sheer malafides because it is with the

respondents/landlords that a registered lease deed was entered into with

respect to the suit premises on 20.6.2008. Section 116 of the Indian

Evidence Act, 1872 estops a tenant from questioning the title of the

landlord. I therefore hold that the appellants/defendants are estopped from

questioning the ownership of the appellants/defendants. The second

argument that at the stage of final arguments an opportunity should be

given to the appellants/defendants to file the written statement, is, without

adding anything further, surely a baseless argument. Obviously, there is no

inherent right to keep on delaying a suit filed by the landlords for

possession of the tenanted premises, more so when even at the admitted

rate, the rent is not paid. As already stated above though the

appellants/defendants were proceeded ex parte, they however did get an

opportunity to file the written statement by payment of costs but they failed

to use the opportunity and did not pay costs. In fact the appellants cross-

examined the witnesses of the respondents/plaintiffs.

7. The Hon'ble Supreme Court in the recent judgment of the

Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors., 2011 (8) SCC 249

has held that it is high time that a message must be sent that dishonesty in

litigation must be compensated by actual costs. A Division Bench of three

judges of the Supreme Court in the case of Salem Advocate Bar

Association Vs. Union of India, (2005)6 SCC 344 in para 37 had also

observed that it is high time that actual costs be imposed. I am also

empowered to impose actual costs by virtue of Volume V of the Punjab

High Court Rules and Orders (as applicable to Delhi) Chapter VI Part I

Rule 15.

In the stark facts of the present case because of the sheer

harassment meted out to the respondents/landlords, I find the present to be

a fit case for being dismissed with actual costs, which I quantify at

`50,000/-. Costs shall be paid within a period of 2 weeks from today.

8. This case was adjourned to today at the request of counsel for

the appellants to take instructions from his clients for taking time to vacate

the premises and paying the arrears, but the counsel for the appellants states

that he has received instructions that the appellants are not in a good

financial position and, therefore, this Court should proceed to hear

arguments and pass a judgment. I have therefore heard the parties and

disposed of the present appeal on merits.

9. The appeal is dismissed with the aforesaid observations.

CM No.2565/2012(stay)

10. Since the appeal has itself been dismissed, no orders are

required to be passed in this application for stay and the same is also

disposed of having become infructuous.

VALMIKI J. MEHTA, J FEBRUARY 13, 2012 ak