Manoranjana Sharma vs Naresh Kumar Manshani
2013 Latest Caselaw 4098 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 11th September, 2013.

+                                RFA 119/2013

       MANORANJANA SHARMA                   ............ Appellant
                  Through: Mr. Anand Prakash, Adv.

                                       Versus

    NARESH KUMAR MANSHANI                      ..... Respondent
                  Through: Mr. K.K. Aggarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This appeal impugns the judgment (dated 29.11.2012 of the Court of

Additional District Judge-04, South District, New Delhi in CS No.175/2011

filed by the respondent) on admissions of ejectment of the appellant from

the premises earlier in her tenancy.

2. Notice of the appeal was issued. The counsels were heard on

27.08.2013. However upon the counsel for the appellant contending that the

appellant in her written statement had disputed the service of notice dated

01.06.2011 of determination of tenancy and having sent a reply dated

06.06.2011 thereto and realizing that the Trial Court record had not been

requisitioned, the appeal was admitted for hearing and the Trial Court

record requisitioned. The appellant thereafter filed CM No.13653/2013

impugning the decree for recovery of possession / ejectment against the

appellant which had since been drawn up by the Trial Court. The counsels

were heard further on 10.09.2013, on which date while the contention of the

counsel for the respondent was that the appellant in her written statement

had admitted giving of the reply dated 06.06.2011 to the notice dated

01.06.2011, the contention of the counsel for the appellant was that there

was no such admission. Finding the said reply dated 06.06.2011 to have

been of an advocate on behalf of the appellant, it was enquired from the

counsel for the appellant whether the appellant had engaged the said

advocate. Upon the counsel for the appellant expressing ignorance, the

personal presence of the appellant for today was directed. The appellant has

appeared and the counsel under instructions from her states that the reply

dated 06.06.2011 was indeed got sent by the appellant to the legal notice

dated 01.06.2011 of determination of tenancy. The appellant tenders

unconditional apology for wrongfully instructing the counsel that she had

not sent any such reply. Considering that the appellant is a lady and in view

of the remorse expressed by her, it is not deemed proper to take any further

action against the appellant for indulging in falsehood, though the appellant

is cautioned to be careful in future.

3. The further contention of the counsel for the appellant is that there

was no admission in the written statement of the appellant / defendant for

judgment for recovery of possession / ejectment being passed without any

trial.

4. However, the said argument loses sight of the fact, and the counsel

for the appellant during the hearing also admitted, that there is no dispute,

(i) that the period for which the premises were let out to the appellant has

expired; (ii) that the last paid rent was at the rate of Rs.8,000/- per month,

taking the premises outside the purview of Delhi Rent Control Act, 1958

and the protection from eviction provided to the tenant thereunder; and (iii)

that the rent was so being paid to the respondent and the appellant was a

tenant under the respondent.

5. The service of notice of determination of tenancy also now stands

admitted. Even otherwise the Supreme Court in Nopany Investment (P)

Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728 followed by the Division

Bench of this Court in Sri Ram Pistons & Rings Ltd. Vs. C.B. Agarwal

HUF MANU/DE/2381/2008 has held that service of summons of a suit for

ejectment in itself amounts to determination of tenancy.

6. It would thus be seen that all the ingredients necessary for passing a

judgment / decree for ejectment were not controverted and there was

nothing which required trial for the relief claimed of ejectment. Order XV

of CPC mandates the Court to pronounce judgment forthwith where the

parties are not at issue on any question of law or fact.

7. The counsel for the appellant also has not stressed on the aforesaid

aspect but has contended that, in the judgment / order dated 29.11.2012,

against which this appeal has been preferred, there was no direction for

preparation of decree and the appellant was given two months time to vacate

the premises; that the appeal, which could have been filed against the decree

only, was also filed without the decree being in existence; when the

respondent applied for execution to the Trial Court, it was realized that there

was no decree and a decree was then prepared in the date of 18.02.2013

when the judgment in pursuance to which the decree was to be prepared was

of 29.11.2012; that Order 20 Rules 6 & 7 require the decree to be of the

same date as the judgment and that it is not so in the present case; that the

decree gives two months time from the date thereof i.e. 18.02.2013 to the

appellant to vacate the premises. He has thus contended that there is an

error and though he has taken these objections before the Executing Court

but he would rather have these adjudicated in this appeal rather than before

the Executing Court.

8. The counsel for the appellant, upon being asked as to how the

appellant is prejudiced from the aforesaid illegality in procedure in

preparation of the decree, is unable to give any answer.

9. The CPC has been amended with effect from the year 2002 to provide

for an appeal against the judgment alone, without the decree being required

to be filed along with memorandum of appeal.

10. The Supreme Court in Dr. Chiranji Lal Vs. Hari Das (2005) 10 SCC

746 referring to Order 20 Rule 6A of the CPC reiterated the view earlier

taken in West Bengal Essential Commodities Supply Corporation Vs.

Swadesh Agro Farming and Storage Pvt. Ltd. (1999) 8 SCC 315 that as

long as the decree is not drawn up the last paragraph of the judgment shall

be deemed to be a decree and the party interested in executing the decree

before it is drawn up can apply for execution of the last paragraph of the

judgment.

11. Of course, Rule 6A (supra) of Order 20 of the CPC has been amended

with effect from 1st July, 2002 and which amendment though was not

noticed in Dr. Chiranji Lal (supra) but in my view the amendment does not

affect what was laid down as aforesaid by the Supreme Court inasmuch as

though the amended Rule 6A does not contain the express provision as

earlier contained that so long as the decree is not drawn up, the last

paragraph of the judgment shall be deemed to be the decree for the purpose

of execution, but still provides that as soon as the decree is drawn, the

judgment shall cease to have the effect of a decree for the purposes of

execution or for any other purpose and which implies that till the decree is

drawn up, the judgment shall have the effect of a decree for the purposes of

execution also. The objects and reasons for the amendment with effect from

1st July, 2002 of Rule 6A of Order 20 of CPC also do not indicate that the

purpose of amendment was to take away the effect of the judgment as a

decree till the drawing up of the decree.

12. Though the counsel for the appellant is correct in his contention that

the judgment and decree are to bear the same date and that there is a

violation of the said Rule by the Trial Court but it is also a settled principle

of law that a mistake of the Court would not prejudice any person. Neither

can the appellant derive any benefit nor can the respondent be made to

suffer any prejudice owing to the said mistake which is clearly of the Court

and for rectification of which an application under Section 152 of the CPC

is stated to have already been filed. The counsel for the appellant further

states that the said application has been filed before the Executing Court and

not in the Suit Court. He however admits that the Suit Court and the

Executing Court is the same i.e. the Court of Additional District Judge-04,

South District, New Delhi.

13. Though there is merit in the contention of the counsel for the

appellant that the application u/S 152 CPC should have been filed in the suit

proceeding and not in the execution proceeding but the appellant having

now chosen to have the said conflict resolved in this appeal, by this Court,

the said objection also disappears. The error in preparing the decree of a

date other than the date the judgment bears is ordered to be corrected and

the necessary correction be made by the Court of Additional District Judge-

04, South District, New Delhi in this regard in the record.

14. I reiterate that the aforesaid cannot be grounds for challenging the

order / judgment of ejectment on admissions and qua which no fault is

urged.

15. The appeal is therefore dismissed but with the direction aforesaid for

correction of date of the decree.

16. In the entirety of the facts, no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J SEPTEMBER 11, 2013 'gsr'