Shree Hari Diagnostics Pvt. Ltd. vs Sh. Manohar Lal Sethi & Ors.
2013 Latest Caselaw 3870 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: September 02, 2013

+                          CM(M) No.877/2013

      SHREE HARI DIAGNOSTICS PVT LTD             ..... Petitioner
                    Through Mr.Rajat Navet, Adv. with Mr.Gaurav
                            Sharma, Adv.

                           versus

      SH MANOHAR LAL SETHI & ORS                          ..... Respondents
                  Through   None.

+                          CM(M) No.882/2013

      SHREE HARI DIAGNOSTICS PVT LTD              ..... Petitioner
                    Through Mr.Rajat Navet, Adv. with Mr.Gaurav
                            Sharma, Adv.
                    versus

      SH MANOHAR LAL SETHI & ORS                          ..... Respondents
                  Through   None.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

CM No.13444/2013 & CM No.13431/2013 Exemption allowed, subject to just exceptions.

The applications are disposed of.

CM(M) 877/2013 & CM No.13432/2013 CM(M) 882/2013 & CM No.13445/2013

1. By way of the present petition under Article 227 of the Constitution of India, the petitioner has assailed order dated 15 th April 2013 passed by ADJ,

Tis Hazari Courts, Delhi in a suit for recovery of possession and recovery of arrears of rental and use and occupation charges/ damages/ mesne profits filed by the respondents herein, whereby an application of the petitioner under Order 1 Rule 10 CPC seeking its impleadment in the said suit as a proper and necessary party was dismissed.

2. The said suit was filed against M/S National MRI Scan Centre (defendant therein) with respect to a portion of the ground floor of property no. 19/35, Punjabi Bagh, New Delhi (hereinafter referred to as "the suit property") taken on lease by the said defendant. It was stated by the respondents that after the expiry of the lease, the defendant therein continued to remain in occupation of the suit premises and defaulted in payment of rent thereof. Consequently a suit for recovery of possession and recovery of damages/use and occupation charges was filed against the defendant therein which was dismissed giving defendant therein the benefit of Section 114 of the Transfer of Property Act.

3. It was stated by the respondent that after paying rent for a while, the defendant therein had again defaulted in making payment due to which the present suit was filed. In the said suit an application under Order 1 Rule 10 CPC was filed by the petitioners herein stating that in April 2010 the defendant therein i.e. M/S National MRI Scan Centre along with M/S National CT Scan Diagnostic Centre have been merged into one unit which had been taken over by M/S National MRI, CT Scan and Diagnostic Centre, a unit of the petitioner herein. It was stated that since April 2010, M/s National MRI, CT Scan and Diagnostic Centre had been occupying the entire ground floor of the suit property and also tendering rent to the respondents. Hence, the presence of the petitioner is proper and necessary in order to enable the court to effectually adjudicate the matter. The said

application was contested by the respondents and it was stated that the suit was between the landlords and the tenant of the suit property in respect of tenancy created vide the registered lease deed and a third person had no right to claim its impleadment in the suit by alleging that it is a necessary/proper party in the suit. The relationship of landlord-tenant with the petitioner as well as tendering of any rent thereof was denied by the respondents. It was stated that the rent was always being paid from the account of the defendant therein.

4. Dismissing the application of the petitioner vide the impugned order, it was observed by the learned trial court that considering the fact that an earlier suit was filed against the defendant therein which was dismissed extending a benefit of Section 114 of the Transfer of Property Act to the defendant therein and that it was only after he defaulted in payment of the rent that the present suit was filed against him, the petitioner's claim to have become the tenant of the suit property is a unilateral action. It was observed by the learned trial court that no document had been filed on record to prima facie show that either the defendant therein or the petitioner had in fact informed the respondents about such acquisition of the defendant therein by the petitioner. No document was filed to show that the petitioner had tendered the rent in respect of the suit property to the respondents. Therefore, it was opined that the petitioner is a stranger and a third party so far the tenancy in respect of the suit property in favour of the defendant therein is concerned. It was accordingly held that the petitioner was neither a necessary nor a proper party in the said suit.

5. Aggrieved by the impugned order, the petitioner has filed the present petition on the ground mainly that the learned trial court failed to appreciate

the law settled in respect of Order 1 Rule 10 CPC and erred in dismissing his application.

6. It is not denied by the petitioner that the petitioner was inducted as a tenant in the suit premises when the original tenant fell in arrears of rent. Thereafter, the notice under Section 106 of the Transfer of Property Act was served. The said earlier tenant failed to comply with the notice. Therefore, the respondents had filed the civil suit. The said suit was contested mainly on the ground that under Section 114 of the Transfer of Property Act, the benefit was extended to the defendant. But even after taking the advantage of the said benefit, the defendant still became defaulter in payment of rent. Another notice under Section 106 of the Transfer of Property Act was served upon the tenant/defendant and when there was no compliance, the suit was filed which is the subject matter of the present case.

7. The petitioner claims itself to become the tenant of the suit property. The Resolution dated 31st March, 2010 does not disclose that the defendant/original tenant has merged with the petitioner. No cogent and clear evidence is available on record in order to show that there was acquisition of the defendant therein by the petitioner. Therefore, no benefit under these circumstances is available to the petitioner. I agree with the finding of the learned trial court that the petitioner is a stranger as far as the tenancy in respect of the suit property is concerned. There is no infirmity in the impugned order. Therefore, the petition is dismissed.

(MANMOHAN SINGH) JUDGE SEPTEMBER 02, 2013