Delhi High Court
Rajiv Ohri vs Anil Aggarwal on 19 August, 2013
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19 th August, 2013.
+ RFA 379/2013
RAJIV OHRI ..... Appellant
Through: Mr. Mithilesh Kumar Singh and Mr.
Tarun Kumar, Advocates.
Versus
ANIL AGGARWAL ..... Respondent
Through: Mr. Jasbir Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
Caveat No.711/2013
1. The counsel for the caveator/respondent appears; the caveat stands
discharged.
CM No.12603/2013 (for exemption)
2. Allowed, subject to all just exceptions.
3. The application is disposed of.
RFA 379/2013 & CM No.12602/2013 (for stay)
4. The appeal impugns the judgment and decree (dated 22 nd July, 2013
of the Court of Additional District Judge (ADJ)-01, New Delhi District in
Suit No.141/2013) on admissions of ejectment of the appellant from flat
No.1116, Sector A, Pocket B, First Floor Vasant Kunj, New Delhi-110070.
5. Though this is a first appeal under Section 96 of the Civil Procedure
Code (CPC), 1908 and the Trial Court file is also not before this Court but
in the peculiar facts of the case, need is not felt to admit the appeal for
hearing or to issue notice thereof or to call for the Trial Court record.
6. It is not in dispute that the appellant was a tenant in the said flat under
the respondent at a rent of Rs.22,000/- per month and the period for which
the flat was let out by registered lease deed has expired and the tenancy of
the appellant stood determined by efflux of time; the rent being Rs.22,000/-
per month, the premises are outside the Delhi Rent Control Act, 1958.
7. The only defence of the appellant to the suit was/is, that the brother-
in-law of the appellant namely Mr. Neeraj Abrol is the owner of flat
No.165, Sector-A, Pocket-B, Second Floor, Vasant Kunj, New Delhi; that
since the suit flat is more convenient to the appellant, the respondent on the
request of the appellant had orally agreed to the exchange of the suit flat
with the said flat of Mr. Neeraj Abrol upon the appellant paying differential
in costs of Rs.25 lakhs to the respondent and out of which Rs.10 lakhs was
agreed to be paid in cash and which Rs.10 lakhs was agreed to be paid in
quarterly instalments of Rs.15,000/- later on increased to Rs.24,000/- and of
which Rs.4,44,000/- has stood paid.
8. It may be mentioned that the aforesaid Mr. Neeraj Abrol was not a
party to the suit and the appellant neither along with his written statement
nor with this appeal has filed any affidavit of Mr. Neeraj Abrol to show that
Mr. Neeraj Abrol had agreed to exchange his flat with the suit flat as
aforesaid. It was in these circumstances that the learned ADJ, while holding
in para 2 of the impugned order the said defence to be extraneous, to in para
3 also observe the said defence of the appellant to be frivolous with no legs
to stand upon.
9. The counsel for the appellant relies on para 17 of Express Towers P.
Ltd. Vs. Mohan Singh (2007) 97 DRJ 687 where in the face of the written
statement in that case the Division Bench of this Court observed that a
decree under Order 12 Rule 6 of CPC could not have been passed as the
written statement raised various issues and contentions. Upon it being
enquired from the counsel for the appellant as to what is the defence of the
appellant to the suit, he states that if the appellant is successful in proving
the oral agreement of exchange of the flats, the suit of the respondent would
stand dismissed.
10. I am unable to agree. Even if the appellant were to succeed in
proving that the respondent had agreed to such exchange and which
agreement is but an agreement of sale of the flat, the same would still not
constitute a defense in law to the claim of the respondent for ejectment of
defendant/appellant in his capacity as tenant in the flat whose tenancy stands
determined. This Court in Jiwan Das Vs. Narain Das AIR 1981 Del. 291
and reiterated in Sunil Kapoor Vs. Himmat Singh 167 (2010) DLT 806 had
held that a purchaser of immovable property has no rights in the property,
not only till a decree for specific performance is passed in his/her favour but
even till conveyance in pursuance thereto is executed. Thus, a tenant in an
immovable property cannot resist an action for his/her ejectment therefrom
on the ground of the landlord having agreed to sell the property to him,
unless he is able to establish that in pursuance to the said Agreement to Sell
his possession of the said property was changed from that of a tenant to that
of a purchaser in possession in part performance of the Agreement to Sell
under Section 53A of the Transfer of Property Act. However for Section
53A of the Transfer of Property Act to be attracted, not only has there to be
an agreement in writing but the said agreement has also to be registered.
Section 17(1A) of the Registration Act, 1908 provides that if the agreement
is not so registered, the benefit of Section 53A of the Transfer of Property
Act would
not be available. In the present case, there is no written agreement what to
talk of any registered Agreement to Sell. The fact thus remains that the
status of the appellant in the flat remains that of a tenant and consequences
arising therefrom have to follow. If at all the appellant or Mr. Neeral Abrol
have a claim for specific performance of the alleged agreement, the
appellant/Mr. Neeral Abrol have to enforce the said claim by taking
appropriate steps. The counsel for the appellant on enquiry states that no
such suit has been filed.
11. The reason given by the learned ADJ of the sole defence taken to the
ejectment suit being extraneous has to be seen in the said light. Merely
because the learned AJD while holding so has also observed the said
defence to be frivolous and having no legs to stand upon would not make
the order of the learned ADJ liable to be set aside inasmuch as the defence
being extraneous, would have no relevance to the outcome of the present
suit.
12. Merely because a defendant/appellant takes pleas in the written
statement, cannot entitle the defendant/appellant to demand trial and to urge
that decree under Order 12 Rule 6 cannot be passed. If the defence urged
has no relevance to the outcome of the litigation, merely by pleading the
same, the right of the plaintiff/respondent to a decree under Order 12 Rule 6
of CPC cannot be defeated.
13. No other argument has been raised.
14. There is no error in the impugned order. Resultantly, the appeal has
no merit and is dismissed. However, the same having been disposed of
expeditiously, no order as to costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
AUGUST 19, 2013
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