Delhi High Court
Mohd. Yunus Qureshi vs Zikru Rehman Khan on 26 August, 2013
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th August, 2013.
+ RFA 221/2013 & CM No.7260/2013 (for stay)
MOHD. YUNUS QURESHI ..... Appellant
Through: Mr. V.V. Singh, Adv.
Versus
ZIKRU REHMAN KHAN ..... Respondent
Through: Mr. S.P. Singh Choudhary and Mr.
Y.R. Shama, Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
CM No.7262/2013 (of appellant for condonation of 26 days delay in
filing the appeal)
1. The counsel for the respondent has stated that if the appeal is heard
today itself, he will not oppose this application.
2. The counsel for the appellant states that he is ready to argue the
appeal.
3. Though this is first appeal and notice only of this application for
condonation of delay was issued and the notice of the appeal even has not
been issued as yet and appeal not admitted for hearing and the Trial Court
record not requisitioned, but considering the argument raised by the counsel
for the appellant, need is not felt to postpone the hearing of the appeal to
after receipt of the Trial Court record.
4. Accordingly, the delay in preferring the appeal is condoned.
5. The application stands disposed of.
RFA 221/2013 & CM No.7260/2013 (for stay)
6. Admit.
7. In the light of the aforesaid, the appeal is immediately taken up for
hearing.
8. The appeal impugns the judgment and decree dated 7 th January, 2013
of the Court of Additional District Judge, Central-01, Delhi in C.S.
No.144/2011 (Unique ID No.02401C0217532008) filed by the respondent
against the appellant for ejectment of the appellant from the premises being
portion of Shop No.B-894 (basement and portion of ground floor), New
Sabzi Mandi, Azadpur, Delhi and for recovery of arrears of rent and mesne
profits.
9. The learned Additional District Judge (ADJ) has decreed the suit by
ordering ejectment of the appellant and recovery of arrears of rent from 15 th
February, 2007 to 15th December, 2007 and damages for use and occupation
@ 12% above the last paid rent.
10. The only contention of the counsel for the appellant is that one Sh.
Satish Kumar has also filed a suit claiming possession of the same premises
from the appellant and in which suit the appellant, respondent and several
other persons are defendants. He states that his prayer before the Trial
Court was for consolidation of the suit from which this appeal arises with
the suit filed by the said Sh. Satish Kumar and the appellant cannot be made
liable to deliver possession and pay rent and mesne profits to two persons
i.e. the respondent herein as well as to the said Sh. Satish Kumar.
11. It has been enquired from the counsel for the appellant as to in what
capacity the appellant claims to be in occupation of the premises and who
according to the appellant had let out the said premises to him and to whom
the rent was being paid.
12. The counsel for the appellant admits that the appellant was let out the
said premises and put into occupation thereof by the respondent and had
earlier been paying the rent to the respondent.
13. It is also not in dispute that the rate of rent was Rs.10,000/- per
month.
14. On enquiry, as to how the aforesaid sole plea of the appellant has
been dealt with in the impugned judgment and decree, the counsel for the
respondent informs that the defence of the appellant to the suit from which
this appeal arises was struck off for the failure of the appellant to comply
with the order under Order 39 Rule 10 of Civil Procedure Code, 1908 to pay
the admitted arrears of rent to the respondent.
15. The impugned judgment in para 41 appears to have taken the view
that the claim of Sh. Satish Kumar in the suit filed by him, though two years
prior to the institution of the suit from which this appeal arises, was on the
basis of title to the property and which title has no relevance in a suit
between landlord and tenant, as the suit from which this appeal arises was,
and thus the pendency of suit filed by Sh. Satish Kumar did not come in the
way of disposal of the present suit.
16. On enquiry, both counsels admit that intimation of the pendency of
suit from which this appeal arises was given in the suit filed by Sh. Satish
Kumar.
17. The counsel for the respondent also states that the application filed by
Sh. Satish Kumar for impleadment in the suit from which this appeal arises
was dismissed.
18. I have also enquired whether there is any interim order for
maintenance of status quo in the suit filed by Sh. Satish Kumar.
19. The counsel for the respondent informs that there is an interim
restraint order against alienation to third party.
20. The sole contention aforesaid of the appellant is found to be without
any merit. The appellant having come into occupation of the premises
through the respondent, has to go out of the premises in pursuance to the
proceedings taken by the respondent, irrespective of the claim made by Sh.
Satish Kumar to the title to the property. It is for the said Sh. Satish Kumar
to, in the suit filed by him, protect his rights qua possession which will be so
delivered by the appellant to the respondent in pursuance to the decree and
the appellant cannot be permitted to remain in the premises for the reason
only of the pendency of a title suit by some third party against the
respondent who had let out the premises to the appellant.
21. No other point has been argued.
22. Resultantly, the appeal fails and is dismissed. However, the counsel
for the appellant having co-operated in expeditious disposal of the appeal,
no order as to costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
AUGUST 26, 2013
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