Prem Lata vs Raghubir Rai & Ors
2012 Latest Caselaw 6811 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision: 29.11.2012
+      CS(OS) 1863/2010
       RAGHBIR RAI & ANR                         ..... Plaintiffs
                     Through: Mr Mayank Mikhail Mukherjee, Adv

                       versus

       PREM LATA & ORS                          ..... Defendants
                    Through: Mr Ashok Gurmani, Adv.

                                            AND
+      CS(OS) 1698/2011

       PREM LATA                                                          ..... Plaintiff

                                 Through: Mr Ashok Gurmani, Adv.

                       versus

       RAGHUBIR RAI & ORS                                          ..... Defendants

                                 Through: Mr Mayank Mikhail Mukherjee, Adv

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                 JUDGMENT

V.K.JAIN, J. (ORAL)

IAs No. 12120/2010 (O. 39 R. 1&2 CPC) and 3478/2011 (O. 39 R. 4 CPC) in CS(OS) 1863/2010 and IA No.11080/2011 (O. 39 R. 1 and 2 CPC) in CS(OS) 1698/2011

1. CS(OS) No. 1863/2010 is a suit for permanent injunction. The case of the

plaintiffs in this suit is that they are the tenants of defendant No. 1 in respect of

ground and first floor of Property No.D-2/12, Model Town-III, Delhi-110 009,

where they are running a restaurant by the name Dragon Hucks Restaurant.

Defendant No. 2 was the husband of defendant No. 1, whereas defendant No. 3 is

her son. Defendant No. 2 has since expired during pendency of the suit.

2. The case of the plaintiffs in CS(OS)No. 1863/2010 is that the rent agreed by

them with the defendant No. 1 was Rs 1,000/- per month since they had paid Rs 20

lakh as Pagri (an official premium) to her. It is alleged that the defendants are

threatening to dispossess the plaintiffs from the suit premises, without due process

of law and are demanding rent from them at the rate of Rs 4 lakh. The plaintiffs

have accordingly sought an injunction restraining the defendants in this suit from

dispossessing them from the suit property. They have also sought a mandatory

injunction, directing the police authorities to provide protection to them.

3. The defendants 1 and 3 in CS(OS) No.1863/2010 have alleged in their

written statement that the plaintiffs are tenant in respect of only the ground floor

and the right side of the first floor of the property. This is also their case that the

rent agreed between the parties was Rs 3 lakh per month. It is alleged by them that

a sum of Rs 94 lakh is now due from the plaintiff in the said suit towards arrears of

rent for the period from 01.09.2008 to 30.04.2011. According to the defendants in

the said suit, the tenancy of the plaintiffs was terminated and they are liable to pay

damages for use and occupation with effect from 01.05.2011 at the rate of Rs 4

lakh per month.

4. The learned counsel for the plaintiffs in CS(OS) No.1863/2010 states that the

agreed rate of rent of Rs 1,000/-, they are ready to agree to deposit as arrears of rent

at the said rate. He further submits that they have been tendering rent at the agreed

rate of Rs 1,000/- to defendants, but they have not accepted the rent at the agreed

rate. The plaintiffs in CS(OS) No. 1863/2010 are, therefore, directed to deposit the

admitted arrears within four weeks.

5. Suit No. 1698/2011 has been filed by defendant No. 1 in CS(OS)

No.1863/2010 seeking possession of the whole of the ground floor except one shop

shown as Chemist Shop in the site plan filed in that suit and the right side portion

on the first floor. There is an alternative prayer for possession of the whole of the

first floor of the property. Defendant No. 1, in CS(OS) No. 1863/2010, who is the

plaintiff in Suit No.1698/2011, has also claimed arrears of rent, amounting to Rs 94

lakh for the period from 01.09.2008 to 30.04.2011 at the rate of Rs 3 lakh per

month and damages for use and occupation amounting to Rs 4 lakh per month for

the period from 01.05.2011 to 31.05.2011. A sum of Rs 20 lakh has also been

claimed in that suit towards some previous arrears of rent in terms of a writing

dated 14.07.2010, alleged to have been executed by Raghubir Rai, who is plaintiff

No. 1 in this suit and defendant No. 1 in Suit No. 1698/2011.

6. In Suit No. 1698/2011, a Local Commissioner was appointed by the Court to

inspect property No. D-2/12, Model Town-III, Delhi-110 009 and ascertain as to

who was in physical possession of the suit property. The Local Commissioner

accordingly carried the inspection on 23.07.2011 and found that though the whole

of the ground floor except one shop is in possession of defendant No. 1 in that suit,

i.e., plaintiff No. 1 in Suit No. 1863/2010 only part of the first floor of the suit

property is in his possession.

7. Since it is an admitted case that as far the ground floor except one shop and

part of the first floor is concerned, the same is in possession of plaintiff No.1 in

Suit No. 1863/2010 and was let out to him by the defendant No.1 in Suit No.

1863/2010, the defendants in CS(OS) No. 1863/2010 cannot dispossess the

plaintiffs in the suit from the portion occupied by them in property No. D-2/12,

Model Town-III, Delhi-110 009, except by due process of law. Even if it is

assumed for the sake of arguments that the rate of rent was Rs 3 lakh per month

and the plaintiff No. 1 in Suit No. 1863/2010 is in arrears of rent, the defendants in

the said suit cannot take law in their own hands and dispossess him from the

portion which was lawfully let out to him except due process of law. The plaintiffs

in CS(OS) No. 1863/2010 did not trespass in the portion occupied by them. This is

an admitted case that they were lawfully inducted as tenant in the portion occupied

by them. The intention of defendant No. 1 to take recourse to legal proceedings is

evident from the that that he has already filed CS(OS) No. 1698/2011 for recovery

of possession of the said portion. But, this be ensured that the defendant in CS(OS)

No. 1863/2010 do not take recourse to extra legal methods during pendency of the

suits and do not give a fait accompli to the plaintiffs in the said suit by

dispossessing them without due process of law. It is, therefore, directed that during

pendency of the suit, the plaintiffs in Suit No.1863/2010 shall not be dispossessed

from the portion which the Local Commissioner found in their possession at the

time of inspection by her except by due process of law.

8. The learned counsel for the plaintiff in CS(OS) No. 1863/2010 states that the

defendants are obstructing smooth functioning of their restaurant by creating

nuisance there. If that be so, nothing prevents them from lodging report with the

police for redressal of their grievance.

This order is passed being without going into the question as to whether the

defendants in CS(OS) No. 1863/2010 actually made an attempt to forcefully

dispossess the plaintiff from the suit property or not. As noted earlier, defendant

No. 1 in CS(OS) No. 1863/2010 has already filed CS(OS) No.1698/2011 for taking

possession of the suit premises and prima facie, this would indicate that the

defendants in CS(OS) No. 1863/2010 do not propose to take law in their hands.

The prohibitory order is intended to ensure that no party to the suit takes advantage

of pendency of the suit so as to defeat the right of the opposite party in the suit.

IA No. 11080/2011 has been filed by the plaintiff in CS(OS) No.1698/2011

suit, seeking injunction restraining the defendants in that suit from creating third

party interest in the suit property, during pendency of the suit. This is not the case

of the defendants in this suit that they have a right to create any third party interest

in the portion occupied by them in the property No. D-2/12, Model Town-III,

Delhi-110 009. They do not claim any ownership right in the said portion and their

case is that they are lawful tenants in the said premises. If that be so, they cannot

create any third party interest in the portion occupied by them. Accordingly, they

are restrained from creating any third party interest in the suit property subject

matter of CS(OS) No. 1698/2011, during pendency of the suit. This order is being

passed without going into the question as to whether the defendants in CS(OS) No.

1698/2011 actually intended to create any third party interest in the property

subject matter of that suit or not.

The IAs stand disposed of.

IA No. 15955/2012 (under Section 151 CPC) in CS(OS) 1863/2010 This application should be taken as disposed of since the written submissions

referred in this application were taken on record and the application referred

therein also stand disposed of.

The application may be treated as disposed of.

IA No. 12121/2010 (O. 2 R. 2 CPC) in CS(OS) 1863/2010

This application will be considered at the final hearing of the suit.

IA No. 11081/2011 (O. 26 R. 9 CPC) in CS(OS) No. 1698/2011

This application may be taken as disposed of since Local Commissioner has

already been appointed and she has submitted her report.

IA No. 11082/2011 (O. 2 R. 2 CPC) in CS(OS) No. 1698/2011

This application would be taken up for consideration at the time of final

hearing of the suit.

IA No. 13496/2011 (O. 38 R. 1, 2, 4&5 CPC) in CS(OS) No. 1698/2011

Mr. Gurnani states that he would be filing an application seeking a direction

to the defendant to deposit arrears of rent as well as damages for use and

occupation. The proposed application be filed within two weeks. Reply to the

application be filed within four weeks thereafter and rejoinder be filed within one

week on getting the copy of the reply.

Renotify on 08.03.2013.

CS(OS) 1863/2010 and CS(OS) 1698/2011 and IA 12875/2010 (O. 39 R. 2A)

Renotify on the date fixed above.

V.K. JAIN, J NOVEMBER 29, 2012 bg