Delhi High Court

Kamal Mitra Chenoy & Anr vs M/S Dunlop India Ltd & Anr on 24 July, 2014

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Reserved on: 14th July, 2014
                                                        Pronounced on: 24th July, 2014
+       CS (OS) 3391/2012

        KAMAL MITRA CHENOY & ANR               ..... Plaintiff
                    Through  Mr. Amitabh Chaturvedi, Advocate
                             with Mr. A.S. Rohtagi, Advocate

                                versus

        M/S DUNLOP INDIA LTD & ANR                ..... Defendant
                      Through  Mr. Sudhir Nandrajog, Sr. Advocate
                               with Mr.Tara Vitasta Ganju, Advocate
                               Ms. Preeti Gupta, Advocate &
                               Ms. Tanya Singh, Advocate

        CORAM:
        HON'BLE MR. JUSTICE G.P. MITTAL



IA No.1072/2013 (under Order 1 Rule 10 CPC)
IA No.4904/2013 (under Order 7 Rule 11 CPC and
IA No.891/2014 (under Order 6 Rule 17 CPC in CS (OS) 3391/2012


1.

Plaintiff No.1 (Dr. Kamal Mitra Chenoy) is husband and Plaintiff

No.2 (Dr. Anuradha Mitra Chenoy) is the wife. A suit for

eviction/possession and permanent injunction was filed by the

Plaintiffs against the Defendants with the allegations that Property

No.19, Block No.171, Sunder Nagar, New Delhi, as described in Para

1 of the plaint was let out by Plaintiffs to Defendant No.1 (M/s.

Dunlop India Limited) through its authorised signatory Mr. R.K.

Kapoor for the residence of Defendant No.2 (Dr. A.P. Singh) and his

family members vide a registered Lease Deed for a period of three

years with effect from 01.08.2009. If the lessee was desirous of

renewal of the lease, he was required to request the lessor in writing at

least three months in advance before expiry of the term of the lease.

Unless specifically agreed in writing by the lessor (Plaintiff No.1), the

lease was not to be renewed automatically on the expiry of the lease

period. Similarly, by a Hire Agreement dated 01.08.2009, the fittings

and fixtures as mentioned in Annexure A to the Agreement were given

on hire. Simultaneously with the agreement of lease on the expiry of

lease period, the Hire Agreement was to automatically come to an end.

The rent of the premises was Rs.1,60,000/- payable by Defendant

No.1 to Plaintiff No.1 whereas the hire charges were Rs.2,40,000/- per

month payable by Defendant No.1 to Plaintiff No.2.

2. In the application under Order 1 Rule 10 read with Section 151 of the

Code of Civil Procedure, 1908 (CPC) being IA No.1072/2013,

Defendant No.1 contends that Plaintiff No.2 is an unnecessary and

improper party in the suit for eviction. Plaintiff No.2 is not entitled

for relief as prayed in the plaint and thus, the name of Plaintiff No.2 is

liable to be deleted from the array of parties.

3. In the application under Order 7 Rule 11 CPC (being IA

No.4904/2013) moved by Defendant No.1, it has been averred that the

basis of the suit are two different agreements with two different

parties. Thus, it is claimed that the suit can be maintained either by

Plaintiff No.1 or by Plaintiff No.2. Since the Plaintiffs have joined

two different causes of action, the Plaint is liable to be rejected.

4. Both these applications have been resisted by the Plaintiffs by way of

filing separate written replies. It is urged that the applications are

misconceived and have been moved with groundless allegations. It is

claimed that the cause of action accruing to Plaintiff No.2 is different

from Plaintiff No.1 or that the Plaintiff No.2 cannot be granted relief

in the instant suit. The sum and substance of the defence raised to the

applications is that since the Lease Agreement dated 31.07.2009 and

the Hire Agreement dated 01.08.2009 have been impliedly admitted

by Defendant No.2 and since Hire Agreement was co-terminus with

the registered Lease Agreement, Plaintiff No.2 has been rightly

impleaded as a party in the instant suit and the suit is perfectly

maintainable.

5. As per Order 1 Rule 1 CPC, all persons may be joined in one suit as

Plaintiffs where: (a) any right to relief in respect of, or arising out of,

the same act or transaction or series of acts or transactions is alleged to

exist in such persons, whether jointly, severally or in the alternative;

and (b) if such persons brought separate suits, any common question

of law or fact would arise.

6. Similarly, as per Order 2 Rule 3 CPC, a Plaintiff may unite in the

same suit, several causes of action against the same Defendant, or the

same Defendants jointly and any Plaintiffs having causes of action in

which they are jointly interested against the same Defendant or the

same Defendants jointly may unite such causes of action in the same

suit.

7. It is well settled that for the purpose of deciding maintainability of the

suit, the averments made in the plaint have to be taken on their face

value. Thus, the averments are that Plaintiffs No.1 and 2 are husband

and wife and they had entered into a Lease Agreement and Hire

Agreement respectively for a period of three years w.e.f. 01.08.2009

and that the Hire Agreement was co-terminus with the Lease

Agreement. Thus, one of the questions that may be required to be

gone into by the Court during the trial will be that whether Lease

Agreement dated 31.07.2009 (though the same appears to have been

admitted by Defendant No.2) was entered into between the parties and

whether the Agreement came to an end by efflux of time. Similarly,

the Court will have to decide whether as per the terms of the Hire

Agreement, the same was co-terminus with the Lease Agreement.

These are the common questions of facts which are required to be

decided in the suit.

8. Learned senior counsel for the Defendants has urged that the suit for

recovery of possession of movable property having market value has

to be valued as per Section 7(iii) of the Court Fees Act according to

the value of the suit property on the date of presentation of the plaint.

Whereas the suit of recovery of possession from the tenant has to be

valued according to the amount of rent of immovable property to

which the suit refers.

9. It is well settled that if a suit conforms to the requirement of Order 1

Rule 1 CPC, that is, different parties have been properly joined, the

suit will not be bad mis-joinder of parties and causes of action. In

Iswar Bhai C. Patel @ Bachu Bhai Patel v. Harihar Behera & Anr.,

(1999) 3 SCC 457, it was held that Order 1 Rule 3 read with Order 2

Rule 3 CPC indicates that the question of joinder of parties also

involves the joinder of causes of action. A person is made a party in a

suit because there is a cause of action against him and when causes of

action are joined, the parties are also joined.

10. In Chander Parkesh Chawla v. K.K. Kapoor, 64 (1996) DLT 614, it

was held that the absence of any order under Order 2 Rule 6 is a

pointer to the fact that the court at no point of time thought that one

trial in respect of two causes of action was likely to embarrass or delay

the trial or would otherwise be inconvenient to it. In this case,

originally the first floor was let out and later on the second floor was

also let out. It was held that though the parties may have treated the

two lettings as separate tenancies, yet there are common questions of

law and fact arising between the same parties in respect of different

portions of the same property and keeping in view the fact that the

court did not consider it appropriate to pass any order under Order 2

Rule 6, there would be nothing illegal in one eviction petition being

entertained and tried in respect of the entire premises though different

portions were let out at two different times. Such approach is in the

interest of justice and has the effect of avoiding multiplicity of

proceedings.

11. Learned counsel for the Plaintiffs also relies upon K.V. Jai Singh v.

C.R. Govindaswamy Chettiar (D) & Ors., JT 1996 (8) SC 266 to

contend that the intention of the parties has to be seen on interpretation

of the terms of the agreement and from perusal of the agreements of

lease and hire, it is clear that there was a composite Agreement. The

learned senior counsel particularly relies on the portion of Para 4 of

K.V. Jai Singh, which is extracted hereunder:-

"4........Clause 10 of that agreement is relevant. It provides that the lease of the theatre and the hiring of the furniture, fittings, etc., shall be coextensive.

Thus, the terms and conditions stipulated in the various agreements referred to and entered into between the parties to this action clearly go to show that the intention of the parties is to run the theatre as a going concern with the furnitures, fittings, etc., as originally provided by the lessors and subsequently altered and provided from time to time by the lessees. As pointed out by a Division Bench of this Court in 86 LW 65, the question of intention of the parties will become relevant only if the terms of the transaction are not clear. In this case, the terms are very clear, simple and unambiguous and therefore, the intention also can be clearly seen and the purpose for which the building was taken is to run the business of the theatre with the fixtures, fittings, etc. There can be no doubt in holding that the intention of the parties was to enter into a transaction of lease of a going concern of theatre. So, we have no hesitation in holding that Ex. A-1 is a composite lease. We answer the point accordingly and in favour of the lessors and against the lessees."

12. The judgment of K.V. Jai Singh may not be strictly attracted to the

facts of the present case in view of the fact that in that case, there was

only one agreement between the parties and on the interpretation of

the agreement, the clear cut intention of the parties was to run the

theatre as a going concern with furniture, fittings, etc. and thus, it was

held that the lessee was not entitled to the protection of Tamil Nadu

Building (Lease and Control) Act, 1961.

13. At the same time, in view of the provisions of Order 1 Rule 1 CPC, it

can very well be stated that the Plaintiffs were entitled to sue the

Defendant jointly and the plaint did not suffer from any mis-joinder of

parties or mis-joinder of causes of action as common question of fact

did arise for decision.

14. At this stage, this Court need not go into the question whether the suit

has been properly valued for the purpose of court fees and jurisdiction

as the Plaintiffs can always be directed to correct the value of the suit

for the purpose of court fees and jurisdiction and they can also be

required to pay the deficient court fees at a later stage.

15. Thus, Defendant No.2 is not liable to be deleted from array of parties

nor the suit is bad for misjoinder of parties or causes of action. IAs

No.1072/2013 and 4904/2013 are devoid of any merit; the same are

accordingly dismissed.

16. Now, I shall turn to IA No.891/2014 (under Order 6 Rule 17 CPC).

As stated earlier, the Plaintiffs have filed this suit for recovery of

physical possession of the suit property. The premises also included

certain fixtures which were given on hire along with Lease

Agreement. Along with recovery of possession, the Plaintiffs were

entitled to sue for recovery of mesne profits also. Along with suit, the

Plaintiffs moved an application under Order 2 Rule 2 (3) read with

Section 151 CPC stating that the Plaintiffs are unable to ascertain or

quantify the mesne profits due to them and that they may be permitted

to sue for such other relief as may be available to them subsequently.

17. By virtue of this application, the Plaintiffs want to claim the

damages/mesne profits at the rate of Rs.2.4 lacs towards rent and

Rs.3.6 lacs per month towards hire charges (totalling Rs.6 lacs per

month) and accordingly, want to value the suit for the purpose of

recovery of damages and mesne profits at Rs.30 lacs.

18. The application is opposed on the ground that the amendment sought

will change the nature of the suit and that the application has been

moved in order to overcome the Defendant's application under Order

7 Rule 11 CPC.

19. It is urged by the learned senior counsel for the Defendants that if two

causes of action cannot be joined and Plaintiff No.2 is to be deleted,

this Court will not have any jurisdiction to entertain the suit as the

value of the suit for the purpose of court fees and jurisdiction will be

only Rs.19,20,000/- and the District Court will have the jurisdiction to

entertain the suit.

20. I have already rejected the plea of Defendant No.2 in this regard and

also dismissed application under Order 7 Rule 11 CPC.

21. The law with regard to amendment of pleadings is very liberal. The

amendments are freely allowed as may be just and for determining the

real question in controversy between the parties. Order 6 Rule 17 CPC

reads as under:-

"17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

22. In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors., (2006) 4

SCC 385, it was held that all amendments that may be necessary for

determining the real questions between the parties must be allowed

provided it does not cause injustice or prejudice to the other side. It

was observed that at this stage, the Court should not go into the factual

correctness or falsity of the case in the amendment and the merits of

the amendment are not to be adjudged at the stage of allowing the

prayer for amendment.

23. As stated earlier, a Plaintiff is otherwise entitled to claim mesne

profits along with suit for recovery of possession. It may be noted that

the plea that the amendment will render the suit non-maintainable was

rejected by the Supreme Court. In Usha Devi v. Rijwan Ahmad &