Delhi High Court

M/S Ajs Builder Pvt. Ltd & Anr vs Harvinder Singh on 14 July, 2014

$~2
*           IN THE HIGH COURT OF DELHI AT NEW DELHI
             +       RFA(OS) No.73/2013 & CM No.10379/2013


                                             Date of Decision: 14th July, 2014

      M/S AJS BUILDER PVT. LTD & ANR                 ..... Appellants
                    Through   Mr.Kuljeet Rawal, Adv.

                            versus

      HARVINDER SINGH                                          ..... Respondent

Through Mr.Sudhir Nandrajog, Sr. Adv. with Mr.H.S. Kohli, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE SUNIL GAUR

GITA MITTAL, J (Oral)

1. By way of the present appeal, the appellants have challenged the

order dated 25th April, 2013 whereby his Review Petition no.193/2013

was dismissed. The appellants had thereby sought review of the

judgment and decree dated 23rd January, 2013 decreeing CS(OS)

No.3260/2011. A preliminary objection has been pressed with regard to

the maintainability of the present appeal on behalf of the respondent. It is

submitted that RFA(OS) No.34/2013 assailing the judgment & decree

dated 23rd January, 2013, was unconditionally withdrawn, and, therefore,

the present appeal challenging the review order is not maintainable.

2. A suit being CS (OS) No.3260/2011 was filed by Shri Harvinder

Singh (respondent herein) claiming under a registered sale deed dated

15th December, 2009 executed in his favour by M/s AJS Builder Private

Limited (appellant no.1 in the present appeal arrayed as defendant no.2 in

the plaint). In this sale deed, M/s AJS Builders Private Limited has

claimed as follows:-

"Whereas the Vendor is the absolute owner and in possession of entire First Floor portion upto ceiling level along with a constructed portion over and above First floor (shown in RED color in plan annexed herewith), and Staircase from ground onwards (shown in _Red_ color in plan annexed herewith), except Barsati and Open Terrace (Shown in YELLOW colour in plan annexed herewith) with common entrance, parking and easements attached thereto, (Shown in GREEN colour in plan annexed herewith) bearing part of Property No.3, Block No.88 and known as Municipal No.1-B/P-55-55A, along with proportionate undivided share/land rights in the land measuring 7685 Square feet i.e. 850 square yards approximately, situated in the abadi of Lady Harding Road, Gole Market, New Delhi-110001. It is now known as 8, Shaheed Bhagat Singh Marg, Gole Market, New Delhi-110001 (hereinafter called the said PROPERTY)."

3. This property was transferred by M/s AJS Builders Private Limited

to Harvinder Singh for a sale consideration of Rs.2,25,00,000/- received

by M/s AJS Builders Private Limited. We may usefully extract clause 1

& 2 of the registered sale deed which reads thus:-

"1. That in pursuance of the mutual settlement, the total sale consideration amount of Rs.2,25,00,000.00 (Rupees Two Crore and Twenty Five Lakhs Only) which has been received by the Vendor from the

Vendee, as per details given below:-

   Cheque         Date                 Amount (Rs.)       Drawn on
   No.
   Receipt        04.03.09             76,40,000.00
   717817         24.03.09             25,00,000.00       ABN AMRO
                                                          BANK
   37412          30.03.09             40,00,000.00       ABN AMRO
                                                          BANK
   666731         05.06.09             20,00,000.00       ABN AMRO
                                                          BANK
   Receipt        11.12.09             45,60,000.00
   149201         15.12.09             18,00,000.00

                      The receipt of which the Vendor hereby

acknowledges and admits in the presence of the Sub- Registrar, New Delhi at the time of registration of this Sale Deed and the Vendor doth hereby sell, convey, &^transfer all the rights, titles and interests of the said PROPERTY on to the VENDEE, who shall hereafter become the sole and absolute owner of the said PROPERTY with the proportionate rights of the Land underneath along with fixtures, furnitures and fittings and fittings of the said PROPERTY without any claim from the VENDOR or any other person in any manner whatsoever."

"2. That the Vendor with its free-will and without any pressure hereby sells(s), convey(s), transfer(s) and assign(s) the above said portion in the name of the Vendee and the Vendee is free TO HAVE AND TO HOLD the said portion absolutely and forever with all its legal rights, title and interest."

The receipt of the above amounts as being the sale consideration

was acknowledged in Clause 1 of the sale deed dated 15th December,

2009. It may be noted that the sale consideration has not been paid in

one day but over a period of time.

4. So far as possession is concerned, the appellant no.1 had stated

thus in the sale deed:

"3. That the actual peaceful and physical possession of the said PROPERTY (Shown in RED and GREEN colour in the plan annexed herewith) has been handed over by the Vendor to the Vendee and the symbolic possession of portion A-2 (Shown in Red colour in the plan annexed herewith has been handed over by the VENDOR to the VENDEE."

5. The appellant no.1 confirmed as title declaratory in Clause 6 thus:-

"6. That the Vendor hereby assures the Vendee that the said PROPERTY under sale is free from all sorts of encumbrances, burden, sale, Decree, Will, Gift, Revision, Writ, Appeal, Court Injunction, Stay Order, any Litigation of any kind, or any other kind of transfer etc. and there is no defect in the title of the said PROPERTY, if proved otherwise then the Vendee shall be bound to indemnify to the Vendee and the Vendor shall be bound to fulfil all such losses sustained by the Vendee as per prevailing rates of the PROPERTY at that point of time."

6. The sale deed also contains the following terms:-

"10. That the Portion A-2 (Marked & shown in RED colour in the plan annexed herewith) is under tenancy of M/s Paradise Towers Pvt. Ltd. and the Vendee is entitled to receive rent from the tenant and take possession from the tenant after completion of tenancy period of earlier termination or otherwise."

7. We may note that the sale deed contained all usual covenants

including covenant in clause 7 that the dues, demands, taxes, bills like

House Tax, Electricity Bills and other liabilities relating to the said

portion of the property upto the date of execution of the sale deed has

been paid by the vendor and thereafter such dues shall be paid by the

vendee. The sale deed also contained the covenant as clause 8 that the

vendee shall have full right to get the above said portion mutated in his

own name in the records of the N.D.M.C., L&DO, electricity and water

departments and other department(s) at their own expenses and that the

vendor shall be liable to sign on all such papers, in connection with the

transfer of the same in the records of N.D.M.C.

8. In clause 11, the appellant no.1/AJS Builders Private Limited also

made the categorical declaration to the following effect:-

"11. That the Vendor is left with no right, title or interest in the said PROPERTY, which is hereby conveyed by the Vendor to the Vendee, by means of this SALE DEED."

9. As per the respondent (plaintiff in the suit), being harassed with the

conduct of the defendant, a legal notice dated 14th May, 2011 was issued,

apart from a communication in personal capacity on 16 th May, 2011,

terminating the tenancy of M/s Paradise Towers Private Limited

(defendant no.1) w.e.f. 15th July, 2011 and demanding arrears of rent

outstanding in respect of the property since 15th February, 2010.

It is an admitted position that no reply was sent by either the

appellant or tenant-the defendant no.1 to this legal notice.

10. Finally on 15th November, 2011, the respondents filed CS (OS)

No.3260 of 2011 seeking the following reliefs:-

"(I) recovery of arrears of rent of Rs.17,60,000/-; (II) recovery of possession of the tenanted premises; (III) recovery of pendent lite and future mesne profits with interest."

11. It is to be noted that the plaintiff had asserted in the plaint at the

time of sale deed dated 15th December, 2009, that it owned the

constructed portion above the first floor, that is the second floor of the

property, and that the same was in the possession of M/s Paradise Towers

Private Limited as a tenant on a monthly rent of Rs.1,10,000/- and that

the plaintiff was handed over constructive/symbolic possession thereafter.

It was also asserted that M/s Paradise Towers Private Limited paid rent to

the plaintiff for a period of two months but stopped paying rent thereafter

and that shortly after the execution of the sale deed, the staff of M/s

Paradise Towers Pvt. Ltd. started operating from the said tenanted

portion.

12. The appellants were duly served with the summons in the suit and

entered appearance before the court on the 25th January, 2012.

13. We find from the record placed before us that an application under

Order 39 Rule 4 of the CPC being IA No.3241 of 2012 was filed by both

the defendants. By an order passed on 21st February, 2012, notice was

issued on this application.

Yet another application being IA No.8736 of 2012 was filed again

under Order 39 Rule 4 of the CPC by the defendant no.2 M/s AJS

Builders Pvt. Ltd. only. On 8th May, 2012, IA No.3241 of 2012 the first

application for vacation of injunction was withdrawn. On this date, the

plaintiff was also injuncted by the learned Single Judge from obstructing

the respondent no.2 from enjoying occupation and possession of the said

property.

14. It is also on record that after the 8th May, 2012, no appearance was

put in by M/s Paradise Towers Pvt. Ltd. appellant no.2/defendant no.1

in the suit proceedings before the learned Single Judge.

15. Despite repeated opportunities to the defendants to file written

statement, they failed to do so. Finally by an order dated 21st August,

2012 of the Joint Registrar, the appellant's right to file written statement

was closed.

This order has attained finality. No leave was sought by the

appellant in accordance with law nor an appeal filed against the order of

the Joint Registrar.

16. It is also on record that the plaintiff thereafter proceeded to file an

application under Order 8 Rule 10 of the CPC being IA No.13245 of

2012 praying for a decree against the defendants who had failed to file

the written statement. Notice of this application was accepted by the

defendant no.2-M/s AJS Builder Pvt. Ltd. on 24th July, 2012.

17. Interestingly, the defendant failed to file a reply even to the

application of the plaintiff under Order 8 Rule 10 of the CPC. By an

order dated 31st October, 2012, last opportunity for filing reply was

granted to the defendants.

18. In this background, IA Nos.20819/2011 (of the plaintiff under

Order 39 Rule 1 & 2 CPC; 8736/2012 (of the defendant no.2 under Order

39 Rule 4 CPC); 8739/2012 (of the defendant no.2 under Order 7 Rule 11

CPC & 13245/2012 (of the plaintiff under Order 8 Rule 10 CPC were

listed before the court on the 23rd January, 2013. The learned counsel

representing the appellants before us, put in appearance only on behalf of

M/s AJS Builders Pvt. Ltd. (defendant no.2) before the learned Single

Judge and sought an adjournment to move appropriate application along

with its written statement. This prayer was objected on behalf of the

plaintiff who pressed consideration of his application under Order 8 Rule

10 of the CPC.

19. The learned Single Judge considered the afore-noticed facts and the

conduct of the said defendant and denied the adjournment which was

prayed for and proceeded hearing in the afore-detailed applications which

came to be decided by the impugned judgment dated 23rd January, 2013.

20. We may briefly note some of the reasons which weighed with the

learned Single Judge in passing the judgment dated 21 st January, 2013.

The learned Single Judge considered the pronouncement of the Supreme

Court reported at AIR 1999 SC 3381(para 29) Balraj Taneja Vs. Sunil

Madan (para 29) (which pronouncement was relied upon on behalf of the

defendant no.2) and took the view that the facts which the defendants had

not controverted in their application under Order 39 Rule 4 CPC which

were also not controverted even before the learned Single Judge, were

borne out from the documents on record on the basis whereof decree for

ejectment under Order 8 Rule 10 of the CPC can be passed. The learned

Single Judge also noted that the pointed query to the defendant no.2 as to

whether even on such uncontroverted facts, Order 8 Rule 10 CPC cannot

be invoked, could procure no answer. Inter alia, on facts the learned

Single Judge noted the following:-

(i) The plaintiff's claim as landlord was based on a

registered sale deed dated 15th December, 2009 executed by

M/s AJS Builders Pvt. Ltd. (defendant no.2) in its favour. The

execution and registration of this sale deed was an admitted

fact.

(ii) By virtue of the sale deed, the title and notional

possession of the tenanted portion stood transferred to the

plaintiff. M/s Paradise Towers Pvt. Ltd. (defendant no.1) was

described as a tenant therein.

(iii) The averments in the application under Order 39 Rule 4

CPC as well as the oral submissions to the effect that the said

sale deed was in lieu of other transactions between the parties

and that no sale consideration as mentioned therein was paid,

were directly in contravention of the contents of a duly

executed and registered document which were inadmissible in

evidence under Sections 91 and 92 of the Evidence Act.

(iv) The submission of learned counsel for M/s AJS Builders

Pvt. Limited was that the plaintiff was required to prove

attornment by tenant in his favour as well as payment of rent by

the tenant to it. In this regard, the learned Single Judge has held

that once the title in the property (in occupation of tenant)

stands conveyed as by the registered sale deed in the present

case, the coming into existence of the relationship of the

landlord and tenant between the purchaser and the tenant in

occupation of the property conveyed, is not dependent upon the

attornment by the tenant of such purchaser as landlord.

(v) In para 14 of the judgment dated 23rd January, 2013, the

learned Single Judge placed reliance on (2002) 6 SCC 1

Nalakath Sainuddin Vs. Koorikadan Sulaiman; (1997) 5 SCC

329 Mahendra Raghunathdas Gupta Vs. Vishwanath Bhikaji

Mogul and (1988) 3 SCC 63 Mohar Singh Vs. Devi Charan.

Therefore, the question whether the tenant had paid any rent for

two months or not as pleaded by the vendee, was held to be

irrelevant.

(vi) The plea that M/s AJS Builders Pvt. Ltd. was in

possession of the tenanted premises and the denial of the

tenancy of M/s Paradise Towers Pvt. Ltd. was held to be

diametrically opposite to the clear recital by M/s AJS Builders

Pvt. Ltd. and the covenants in the registered sale deed dated 15th

December, 2009 wherein the tenanted premises were described

to be in the tenancy and possession of M/s Paradise Towers Pvt.

Ltd. It was also specifically recorded in the sale deed that M/s

AJS Builders Pvt. Ltd. has delivered constructive possession

thereof to the vendee.

(vii) There was no denial in the application of M/s AJS

Builders Pvt. Ltd. under Order 39 Rule 4 of the CPC that the

rate of rent was Rs.1,10,000/- per month.

(viii) The registered sale deed was dated 15th December, 2009

and had been executed against receipt of a total sale

consideration of Rs.2,25,00,000/-. It was against the logic that

the sale consideration would be paid for a property part whereof

was let out for a paltry sum as has been ascertained.

(ix) Control on M/s Paradise Towers Pvt. Ltd. and appellant

no.1 M/s AJS Builder Pvt. Ltd. was with the same persons who

were family members.

(x) M/s AJS Builders Pvt. Ltd. was claiming that it had no

title to the second floor which had been conveyed by the sale

deed to the plaintiff. This being its stand, it was not open for

M/s AJS Builders Pvt. Ltd. to contend that the vendee while

asserting rights as landlord under the sale deed, was required to

lead evidence to prove the rent asserted by it. The rental in any

case was not disputed by the defendants/appellants.

(xi) There was no requirement of the plaintiff being called

upon to lead evidence with regard to the determination of

tenancy in view of the fact that the office copy of the legal

notice dated 14th May, 2011 of the determination of the tenancy

which bore the signatures of the counsel for the plaintiff;

original postal receipt as well as the AD cards bearing

signatures and acknowledgment return to the counsel, had been

placed on record.

(xii) Placing reliance on the Division Bench pronouncement

of this court in Shri Ram Pistons and Rings Ltd. Vs C.B.

Agarwal HUF passed in RFA No.389/1999 on 11th December,

2008 and International Building & Furnishing Co.Pvt. Ltd.

Vs. Life Insurance Corporation of India in LPA No.512/2012

on 18th July, 2012, it was held that institution of the suit for

ejectment itself amounted to determination of the tenancy.

The suit had been filed on 15th November, 2011 and by

the 23rd January, 2013, when the matter was considered by the

learned Single Judge, a period of more than one year had

elapsed.

(xiii) The plaintiff had given up its claim for mesne profit and

for all these reasons, it could be concluded that the tenancy

stood legally determined entitling the plaintiff to decree for

ejectment.

21. Premised on the above, the learned Single Judge decreed the suit

for possession in favour of the respondent on the 23rd of January, 2013

and directed that a decree sheet be drawn up. In fact the learned Single

Judge had granted the prayer made by the plaintiff in IA No.13245 of

2012 which was filed under Order 8 Rule 10 of the CPC.

22. Aggrieved by the above judgment and decree, M/s AJS Builder

Pvt. Ltd. alone filed RFA (OS) No.34 of 2013. The appeal came up to be

listed before the Division Bench of this court on 20th March, 2013 when

upon the oral request of learned counsel, M/s Paradise Towers Pvt. Ltd.

was transposed as the second appellant in the case. During the course of

hearing of the aforesaid appeal, it was not pressed on behalf of the

appellants and came to be withdrawn.

23. Inasmuch as the order recorded by this court on 20th March, 2013 is

heavily relied upon by Mr. Sudhir Nandrajog, learned senior counsel for

the respondent, to press the preliminary objection to the maintainability

of the present appeal, we may extract the relevant portion of the order in

extenso which reads as follows:

"After some hearing, learned counsel for the appellants sought liberty to approach the learned Single Judge with a review application. In the event of the review application being filed within two weeks from today, it is agreed by counsel for the parties that the same shall be considered unhindered by the question of limitation.

The appeal is accordingly dismissed as withdrawn but in the above terms. "

(Underlining by us)

24. Both the appellants before us filed a review petition under Section

114 read with Section 47 of the CPC seeking review of the judgment and

decree dated 23rd January, 2013 which came to be registered as Review

Petition No.193 of 2013. This petition was dismissed by the learned

Single Judge by the order dated 25th April, 2013. This order passed in

R.P. No.193 of 2012 has been assailed before us by way of the present

appeal.

25. It appears that before the learned Single Judge, the review

petitioners had sought to urge that their entire defence to the suit was

contained in IA No.8739 of 2012 which had been filed under Order 7

Rule 11 of the CPC which ought to have been considered while passing

the judgment dated 23rd January, 2013. We find that in the order dated

25th April, 2013, the learned Single Judge has noted that the judgment

dated 23rd January, 2013 had been passed taking note of the assertions in

IA No.8739 of 2012. In the order on the review petition, the learned

Single Judge has also noted that the defendants' fair statement that in fact

there was no ground for the rejection of the plaint under Order 7 Rule 11

of the CPC, in the factual matrix of its defence as stated in the

application.

26. While rejecting the review petition, the court has also noted that in

a suit between the landlord and tenant (as was the suit before it filed by

the respondent herein), the question of title was not required to be gone

into. It also notes the further fact that the sale deed had been executed by

the defendant itself. The execution and registration of the sale deed was

admitted by the defendants.

27. So far as the present appeal is concerned, a preliminary objection

has been pressed by Mr.Sudhir Nandrajog, learned senior counsel for the

respondent herein. It is submitted that in view of the unconditional

withdrawal of RFA (OS) No.34 of 2013 on 20 th March, 2013, the

judgment and decree dated 23rd January, 2013 has attained finality.

Therefore, the present appeal laying a challenge to the judgment and

decree dated 23rd January, 2013 or the order dated 25th April, 2013

dismissing the review petition are not maintainable. In support of

this objection, reliance is placed on the judicial precedent reported at

2013 (135) DRJ 705 (DB) Govt. of NCT of Delhi & Ors. Vs. Mool

Chand Sharma. In this case, the question which arose for consideration

was whether in view of withdrawal of earlier appeal filed by the

appellant, a second appeal challenging the order was maintainable or not.

It was an admitted position that while withdrawing the earlier appeal, the

appellant did not seek any permission from the court to file a fresh appeal

against the said order in the event of the review petition which they were

proposing to file being dismissed. The observations of the court in paras

4, 6, 9 & 11 which are relevant in this regard read thus:-

"4. The first question, which comes up for consideration is as to whether in view of the withdrawal of the earlier appeal filed by the appellants against the order dated 9.10.2002, a second appeal challenging the said order is maintainable or not. Admittedly, while withdrawing the earlier appeal, the appellants did not see any permission from the Court to file a fresh appeal against the order dated 9.10.2002, in the event of the review petition which they were proposing to file before the learned Single Judge being dismissed. The only liberty taken from the Court, while withdrawing the appeal, was to file a review application before the learned Single Judge. Order 23 Rule 1 of Civil Procedure Code, to the extent it is relevant for our purpose provides that where the plaintiff withdraws from a suit or part of a claim without the permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. The provisions contained in Order 23 Rule 1 of the Civil Procedure Code equally apply to the appeals preferred in terms of the said Code.

xxx xxx xxx

6. The appeals to a Division Bench of this Court against the order passed by the learned Single Judge of this Court in exercise of his jurisdiction under Article 226 of the Constitution is governed by Clause 10 of Letters Patent Appeal. Though the provisions contained in the Civil Procedure Code have not been expressly made applicable to the Letters Patent, the principle contained therein would certainly apply inasfar as the effect of withdrawal of an earlier appeal is concerned. Therefore,

once the appeal preferred against the order dated 9.10.2002 was withdrawn by the appellants on 10.1.2003, without obtaining liberty to file a fresh LPA No.73/2007 Page 6 of 19 appeal against the said order, the second appeal challenging the very same order would not be maintainable.

xxx xxx xxx

9. It would thus be seen that though the order granting the review was held to be judgment, no such view was taken with respect to an order refusing a review, the necessary implication being that an order refusing the review is not a judgment under Letters Patent.

xxx xxx xxx

11. Order 47 Rule 1 of Code of Civil Procedure gives a discretion to the Court, to review a judgment/ order in the following circumstances: (a) a new and important matter or evidence has been discovered, which, despite exercising due diligence, was not within the knowledge of the review applicant or could not be produced by him when the judgment or order was passed; LPA No.73/2007 Page 12 of 19 (b) there is some mistake or error apparent on the face of the record; and (c) for any other sufficient reason. When the Court dismisses a review petition, it merely takes a view that no new important matter or evidence as contemplated in Rule 1 of Order 47 of the Code of Civil Procedure has been discovered, there is no mistake or error apparent on the face of the record and there is no other sufficient reason for reviewing of the judgment/order in question and, therefore, declines to exercise the jurisdiction vested in it to review its judgment/decree or order. Such an order cannot be said to be an order deciding or adversely affecting, directly and immediately, any valuable right of the parties and, therefore, would not qualify as "judgment" within the meaning of clause 10 of Letters Patent, in terms of the decision of the Supreme Court in Shah Babulal Khimji (supra). Consequently, no appeal against an order dismissing the review application is maintainable either under Code of Civil Procedure or under Clause 10 of Letters Patent."

(Emphasis by us)

28. The judgment dated 9th April, 2013 passed in LPA No.114/2013

Neelam Arya Vs. Din Mohd. (Deceased) & Ors. is also pertinent

wherein the court answered the same question thus:-

"4. As far as order dated 26.2.2009 passed in W.P(C) 2365/1982 is concerned, admittedly, the said order was challenged by the appellant by way of LPA No.217/2011, which came to be withdrawn on 7.3.2011. Admittedly, the appellant, while withdrawing the aforesaid LPA did not seek any permission from the Court to file a fresh appeal against the order dated 26.2.2009 in case the review petition which she proposes to file was dismissed. Having withdrawn the appeal without obtaining liberty to file LPA Nos.114/2013 & 181/2013 Page 4 of 13 a fresh appeal in the event of not succeeding in the review petition, the appellant is precluded from filing a fresh appeal questioning the very same order. Therefore, the appeal to the extent it assails the order dated 26.2.2009 is not maintainable."

29. Mr.Kuljeet Rawal, learned counsel appearing for the appellants is

unable to distinguish these judicial pronouncements or dispute the

applicability of principles laid down therein.

30. It may be noted that M/s AJS Builders has set up a plea that it is

not the owner of the premises, which admittedly have been tenanted to

M/s Paradise Towers Pvt. Ltd. No other person has asserted a title to

these premises. No objection has been laid by any person to the sale deed

relied upon by the present respondents other than by M/s AJS Builders

Pvt. Ltd.

31. It is stated at bar by Mr.Rawal, learned counsel for the appellants

that he has filed a suit on behalf of M/s AJS Builders Pvt. Ltd. seeking

cancellation of the sale deed.

32. The judgment dated 23rd January, 2013 has attained finality upon

unconditional withdrawal of RFA (OS) No.34 of 2013 on the 20th March,

2013 and cannot be assailed by way of the present appeal.