Sheri Khem Chand & Ors. vs Sh. Arjun Jain
2014 Latest Caselaw 3035 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) 398/2014
%                                              10th July , 2014

SHERI KHEM CHAND & ORS.                              ......Petitioners
                 Through:                Mr. Pradeep Dewan, Sr. Adv. with
                                         Mr. A.K.Rohtagi, Adv.


                          VERSUS

SH. ARJUN JAIN                                      ...... Respondent
                          Through:       Mr. A.K.Tandon and Mr.
                                         Chandrashekhar, Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This petition under Article 227 of the Constitution of India is filed by

the petitioners who are the respondents before the Additional Rent

Controller, Delhi in a petition under Section 14(1)(e) of the Delhi Rent

Control Act, 1958. By the eviction petition the respondent herein seeks

eviction of the tenant on the ground of bonafide necessity.

2.    The present challenge is to the impugned order dated 6.3.2014 by

which the Additional Rent Controller has dismissed the application filed by

the petitioners herein under Section 10 CPC for stay of the proceedings in

CM(M) 398/2014                                                Page 1 of 6
 the eviction petition under Section 14(1)(e) of the Act. The petition under

Section 14(1)(e) for bonafide necessity is sought to be stayed on the ground

that one of the issues in this matter is the same in an earlier eviction petition

seeking eviction on the ground of subletting. The common issue is the aspect

of existence of relationship of landlord and tenant between the parties.

3.    By the impugned order, the application under Section 10 CPC has

been dismissed.

4.    Learned counsel for the petitioners, respondents/tenants in the court

below argues that since one of the main issues in both the petitions, is

identical hence the subject petition for bonafide necessity, which is a

subsequent proceeding, should be stayed under Section 10 CPC. Reliance

for this purpose is placed upon a judgment of a learned Single Judge of this

Court in the case of M/s. Mehta Gandhi and Associates Vs. Shree Pipes

Ltd. AIR 1990 Delhi 139.

5.    At the outset, I would like to refer to the Explanation-I of Section 11

CPC. This Explanation-I read with main Section reads as under:-

             "Section 11. ....
             Explanation I.- The expression "former suit" shall denote a suit
             which has been decided prior to the suit in question whether or
             not it was instituted prior thereto."



CM(M) 398/2014                                                Page 2 of 6
 6.    A reading of Explanation-I makes it more than abundantly clear that

two suits can simultaneously be heard/proceeded with, even if one or more

issues are common. In fact, if a latter suit filed is decided earlier than the

earlier filed suit, the decision in the later suit will operate as res judicata for

the common issues of the earlier filed suit. In view of the language of

Explanation I of Section 11 CPC, merely because some issues in the two

suits are common, it is not necessary that the subsequent suit should be

stayed and in fact the decision in the subsequent suit will operate as res

judicata between the parties.

7.    It is now well known that tenants make every effort to delay and drag

eviction petitions which are filed by landlords in the city of Delhi as the

prices of the immovable properties have shot through the roof. Of course,

legal expertise does help the tenants in different ways in this regard. This

appeal is one such misuse of the legal process.

8.    The law is well settled that powers under Section 10 CPC are not only

discretionary, but also the object thereof is not to cause prejudice or delay in

disposal of the validly instituted proceedings unless most of the issues are

more or less identical or the single most issue is identical. Section 10 is

applied when common questions of law and fact when decided will have the


CM(M) 398/2014                                                  Page 3 of 6
 effect of more or less deciding the reliefs prayed in a subsequent suit, on the

decision being passed in the earlier suit.

9.           In a petition for bonafide necessity there are three ingredients

i.e (i) existence of relationship of landlord and tenant; (ii) landlord requires

the tenanted premises for his necessity or that of his family, and, (iii) the

landlord has no other reasonably suitable accommodation available.

10.   In a petition for eviction on the ground of subletting, besides the

existence of relationship of landlord and tenant, it is further required by the

landlord to be proved is that the tenant has sublet, assigned or otherwise

parted with possession of the tenanted premises, and which major issue is

not an issue in a petition for bonafide necessity. In fact, in a petition for

bonafide necessity, once the owner files a petition, then the owner is

automatically a landlord by virtue of the definition of landlord in Section

2(e) of the Act, because whereas all owners are automatically landlords, but,

all landlords are not automatically owners. In subletting cases, the

requirement is to only prove existence of relationship of landlord and tenant

and ownership is not required to be proved, though if the same is proved, it

would also mean proof of existence of relationship of landlord and tenant.

In a bonafide necessity petition there are issues which are not issues in a

petition for eviction on the ground of subletting. Hence many questions of
CM(M) 398/2014                                               Page 4 of 6
 law and facts being different in the eviction petitions on the ground of

subletting and bonafide necessity, Section 10 CPC cannot be applied.

11.   The judgment relied upon by the petitioners in the case of M/s Mehta

Gandhi (supra) would not apply because in the said case, and as argued by

the petitioners, the two suits related to the same major issue ie the first suit

was of a demand by the seller for monies for goods supplied and the second

suit was the suit filed by the buyer to claim that the goods which were

supplied were defective hence damages were prayed for. Therefore, the

most important crucial issue in the two suits was common, and therefore, the

application of 10 CPC was called for. Therefore, the cited judgment in the

case of M/s Mehta Gandhi (supra) has no application to the facts of the

present case.

12.   In view of the above, the present petition is grossly misconceived.

Petitioners have been successful in delaying the continuance of the eviction

proceedings for bonafide necessity because the proceedings before the court

below have remained stayed in view of the ex parte order of a learned Single

Judge dated 28.4.2014.

12.   The present petition is therefore dismissed with costs of Rs. 50,000/-

which shall be paid within a period of six weeks inasmuch Supreme Court

has observed in the case of Ram Rameshwari Devi & Ors. Vs. Nirmala
CM(M) 398/2014                                               Page 5 of 6
 Devi & Ors. (2011) 8 SCC 249 that it is high time that in certain litigations

appropriate actual costs must be imposed. I am also empowered to impose

actual costs in exercise of powers under Volume V of the Punjab High

Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule

15. Payment of costs shall be a condition precedent for the petitioners to

pursue the defence in the subject eviction petition in the court below.




JULY 10, 2014                                 VALMIKI J. MEHTA, J.

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