Sh Pradeep Kumar vs Sh Mukesh Kumar Jain
2014 Latest Caselaw 3445 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+               CM(M) 467/2014 & C.M.Nos.8155-8156/2014

%                                                           JULY 31, 2014

SH PRADEEP KUMAR                                               ......Petitioner
                          Through:       Mr.Pankaj Vivek with Ms.Anupriya
                                         Singh, Advocates.

                          VERSUS

SH MUKESH KUMAR JAIN                                        ...... Respondent

                 Through:                Mr.Rahul Garg, Advocate.



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 impugns

the order of the trial court dated 22.1.2014 whereby the right of the

petitioner/defendant to file the written statement was closed.

2. Ordinarily, the courts are liberal in setting aside such orders, however,

the facts as stated below will show that liberal attitude cannot be adopted in

the present case.

3. The subject suit is a suit filed by the respondent/plaintiff/landlord for

possession and mesne profits. In the city of Delhi, tenancies where rents are

more than 3500/- per month, and the tenant is a month to month tenant, such

a tenant has no defence because premises are outside the Delhi Rent Control

Act, 1958 and even if no notice is sent terminating the tenancy, it is a settled

law so far as this Court is concerned vide M/s. Jeevan Diesels and

Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2011) 183

DLT 712 , that even summons of service of the suit can be taken as a notice

under Section 106 of the Transfer of Property Act, 1882 for terminating the

tenancy.

4. In the present case, counsel for the petitioner does not dispute that as

per the case of the petitioner/defendant himself, the rate of rent is

Rs.13,000/- per month, if not Rs.23,000/- per month, as stated by the

respondent/plaintiff/landlord. It is also not in dispute that there is no

registered lease deed with respect to the suit premises, and therefore the

petitioner/defendant is only a month to month tenant.

5. In view of the aforesaid position, counsel for the respondent in my

opinion made a very fair offer to the petitioner/defendant, that, possession

can be handed over so that there is no delay on this aspect, however, the

petitioner/defendant can file the written statement so far as the aspect of

mesne profits is concerned, but the counsel for the petitioner after

instructions obtained on a passover states that the petitioner/defendant is not

agreeable. It is, therefore, clear that the petitioner/defendant has malafides

to somehow or the other continue the illegal stay in the suit premises with

respect to which he has no protection of law.

6. Code of the Civil Procedure, 1908 (CPC) was amended in 1999 and

2002, especially for cases such as the present, and vide Order 8 Rule1 CPC a

specific time was fixed for filing of the written statement. Though the period

for filing of written statement is only directory and not mandatory, courts

have to see the facts of each case to determine whether delay in filing of the

written statement should or should not be condoned.

7. In the present case, in view of the afore-stated including the refusal of

the petitioner/defendant to accept the offer to take time for vacating the suit

premises, I have no option but to hold that there is no illegality in the

impugned order dated 22.1.2014 closing the right of the petitioner/defendant

to file the written statement.

8. Dismissed.

VALMIKI J. MEHTA, J JULY 31, 2014 KA