Madhvi Singh & Ors vs Pavik Lifestyle Ltd
2016 Latest Caselaw 4382 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 7th July, 2016

+      RFA No.506/2015 & CM No.13713/2015 (for taking on record
       documents).


       MADHVI SINGH & ORS                                   ..... Appellants
                   Through:             Mr. B. Mohan, Mr. S.C. Verma and
                                        Ms. Harsh Lata, Advs.
                                    Versus
       PAVIK LIFESTYLE LTD                                 ..... Respondent

                    Through:            Mr. Girdhar Govind, Mr. Sharat
                                        Kapoor, Mr. C.B. Tiwari and Ms.
                                        Neetu Singh, Advs.

CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC) impugns the judgment and decree dated 27th May, 2015 of the

Court of Additional District Judge (ADJ)-12, Central District, Tis Hazari

Courts, Delhi of dismissal of CS No.245/14/08, I.D. No.02401C0324222008

filed by the appellants / plaintiffs for ejectment of the respondent / defendant

from the ground floor of property No.D-2, Maharani Bagh, New Delhi (after

determination of tenancy, rent being in excess of Rs.3,500/- per month) and

for recovery of arrears and future mesne profits.

2. The appeal came up first before this Court on 4 th August, 2015 when

notice thereof was issued and Trial Court record requisitioned. Though

ordinarily first appeals are being heard after "admission" and in the category

of "regulars" but finding the impugned judgment to be against the grain of

the recent trend of judgments in such suits including of the same learned

ADJ and finding the impugned judgment and decree to be causing palpable

injustice and injury to the appellants/plaintiffs, the appeal vide order dated

8th March, 2016 was ordered to be listed on 15th March, 2016 for final

hearing. On 15th March, 2016, the matter was adjourned to 31st March, 2016

when the counsels were heard and judgment reserved. The trial court record

requisitioned has been perused.

3. The appellants/plaintiffs Smt. Madhvi Singh and Sh. G.N. Singh

(who died during the pendency of the suit and is now represented by his

legal heirs) on 29th February, 2008 instituted the suit from which this appeal

arises pleading:

(i) that they were the owners and landlords of property No.D-2,

Maharani Bagh, New Delhi, the lease of land whereunder was

granted in favour of Sh. Jamuna Prasad Singh, being the father-

in-law of the appellant/plaintiff no.1 Smt. Madhvi Singh and

the father of the deceased appellant/plaintiff no.2 Sh. G.N.

Singh;

(ii) that the said Sh. Jamuna Prasad Singh died on 15 th August,

1971 leaving a validly executed last Will dated 16 th June, 1969

bequeathing the said property to his wife Smt. Bindu Rani

Singh;

(iii) the said Will was probated and the property mutated in the

name of Smt. Bindu Rani Singh;

(iv) Smt. Bindu Rani Singh died intestate on 24th June, 1979 and the

property devolved on Sh. Avadhaish Narain Singh and the

deceased appellant/plaintiff no.2 Sh. G.N. Singh being the sons

of Sh. Jamuna Prasad Singh and the property was mutated in

their names;

(v) Sh. Avadhaish Narain Singh died intestate leaving the

appellant/plaintiff no.1 Smt. Madhvi Singh as his only legal

heir and the property was mutated in the name of

appellant/plaintiff no.1 Smt. Madhvi Singh and the deceased

appellant/plaintiff no.2 G.N. Singh;

(vi) that the entire ground floor of the property consisting of four

bed rooms with bathroom, living rooms, kitchen, store, garage

and two servant quarters on first floor and front and back lawn

was let out in January, 1981 to M/s Century Tubes Ltd. (CTL)

(impleaded as defendant no.1 in the suit as originally instituted)

for the residence of its Managing Director Sh. Gautam Hada

and at the time of institution of the suit a rent of Rs.4,000/- was

being paid;

(vii) that though from time to time agreements were executed with

the said CTL but the last such agreement was on 1 st January,

2001 for a period of two years and thereafter CTL continued as

a tenant from month to month;

(viii) that though earlier the rent used to be paid by cheques drawn by

CTL but for few years prior to the institution of the suit, the

cheques for rent were being issued by the respondent M/s Pavik

Lifestyle Ltd. (PLL) which in the suit as originally instituted

was impleaded as defendant no.2;

(ix) that the appellants / plaintiffs neither inducted or treated PLL as

their tenant nor entered into any lease with PLL and were

accepting the said cheques drawn by PLL in the account of

CTL only;

(x) that CTL never informed the appellants / plaintiffs of having

gone into liquidation and of which the appellants / plaintiffs

learnt shortly prior to institution of the suit and further learnt

that the High Court of Punjab and Haryana at Chandigarh had

appointed an Official Liquidator with respect to CTL;

(xi) PLL was being impleaded as a defendant in the suit to avoid

multiplicity of litigation;

(xii) that the monthly tenancy was terminated vide notice dated 19 th

October, 2007 to CTL as well as PLL;

(xiii) that notice dated 19th October, 2007 of determination of tenancy

was duly received by the Official Liquidator appointed of CTL

but no reply was received;

(xiv) however Sh. Vikrant Hada, Director of PLL sent a reply dated

30th November, 2007 claiming to be a tenant under the

appellant/plaintiff no.2 G.N. Singh in the property at a rent of

Rs.4,000/- per month excluding of electricity and water charges

and pleading that upon CTL facing financial crises, the said

CTL had surrendered its tenancy rights and PLL was inducted

as a tenant and had as such been paying rent;

(xv) that though according to the appellants / plaintiffs CTL never

surrendered its tenancy and they had never accepted PLL as a

tenant but in the circumstances the monthly tenancy of PLL had

also been terminated by notice dated 19 th October, 2007 and the

suit was being filed against both CTL and PLL; and,

(xvi) that the said premises had a prevalent letting value of Rs.2.5

lacs per month and hence mesne profits / damages for use and

occupation at the rate of Rs.2.5 lacs per month with effect from

the month of December, 2007 were claimed.

4. Summons of the suit were issued to CTL as well as respondent PLL.

An application under Section 446(1) of the Companies Act, 1956 was filed

on behalf of CTL through Official Liquidator to which a reply was filed by

the appellants / plaintiffs. The appellants / plaintiffs also filed an application

under Order I Rule 10 read with Order VI Rule 17 of the CPC to delete CTL

originally impleaded as defendant no.1 from the array of defendants in the

suit. The same was allowed vide order dated 19th December, 2009 without

any objection from the respondent / defendant PLL and the suit continued

against PLL only.

5. The respondent / defendant PLL contested the suit by filing a written

statement pleading:

(i) that the notice dated 19th October, 2007 of termination of

tenancy had been waived by acceptance of rents for the months

of November and December, 2007;

(ii) that the deceased appellant no.2 Sh. G.N. Singh never told Sh.

Vikram Hada of respondent / defendant PLL that he was not the

absolute owner or that the appellant / plaintiff no.1 Smt.

Madhvi Singh was also the owner;

(iii) that the suit was bad for misjoinder of appellant / plaintiff no.1

Smt. Madhvi Singh and when originally instituted, for joinder

of CTL because the respondent / defendant PLL was the tenant

in the premises under the deceased appellant no.2 Sh. G.N.

Singh;

(iv) that the deceased appellant / plaintiff no.2 Sh. G.N. Singh only

had been receiving rent by cheques in his name;

(v) that the tenancy of respondent / defendant PLL was agreed to

be for an indefinite period;

(vi) that the appellant / plaintiff no.1 Smt. Madhvi Singh had earlier

filed several petitions for eviction under the Delhi Rent Control

Act against the tenants on the upper floors of the property and

had no concern with the ground floor;

6. Though trial court record contains a replication filed by the appellants

/ plaintiffs to the written statement aforesaid but need to refer thereto at this

stage is not felt.

7. On 17th August, 2010, the following Issues were framed in the suit:

"1. Whether the plaintiff is entitled for the decree of possession of the suit property from the defendant, as prayed? (OPP)

2. Whether the plaintiff is entitled for the recovery of Rs.7.54 lacs as damages/mesne profits and rent for the month of November 2007, from the defendant, as prayed? (OPP)

3. Whether the plaintiff is entitled for the recovery of future damages/mesne profits from the defendant, as prayed, if yes then at what rate and for what period? (OPP)

4. Whether the tenancy of the defendant in the suit property has been validly terminated vide notice dated 19.10.2007 as per section 106 of the Transfer of Property Act? (OPP)

5. Whether the plaintiff had waived the notice dated 19.10.2007 in terms of Section 113 of the Transfer of Property Act? (OPD)

6. Whether the suit of the plaintiff is without any cause of action?

(OPD)

7. Relief."

8. The appellants / plaintiffs examined the deceased appellant / plaintiff

no.2 Sh. G.N. Singh, official from the Maharani Bagh Cooperative Housing

Building Society Ltd., official of the Delhi Development Authority (DDA),

official of the Office of the Sub-Registrar, official from the Municipal

Corporation of Delhi (MCD) and one Sh. Kulbushan Chadha and closed

their evidence.

9. The respondent / defendant PLL examined its Director Sh. Vikram

Hada and closed its evidence.

10. A perusal of the order sheet of the suit shows the respondent /

defendant PLL to have delayed the disposal of the suit at each and every

stage and which resulted in a simple landlord-tenant suit and which suits

ordinarily are decided in less than a year, remaining pending for nearly eight

years. The respondent / defendant PLL is also found to have made all kinds

of frivolous dilatory applications and to have repeatedly approached this

Court by way of i) CM(M) No.831/2013 which was dismissed as withdrawn

on 26th August, 2013; ii) CM(M) No.1204/2013 which was dismissed as not

pressed on 13th August, 2013; iii) CM(M) No.1249/2013 which was

dismissed on 25th November, 2013; v) CM(M) No.341/2015 which was

dismissed on 21st April, 2015; iv) CM(M) No.318/2015 which was

dismissed as withdrawn on 22nd May, 2015; and, vi) CM(M) No.360/2015

which was dismissed on 22nd May, 2015.

11. The learned ADJ, in the aforesaid state of pleadings and evidence, has

found / observed held:

(i) that the appellants / plaintiffs neither in the pleadings nor in the

evidence have admitted the respondent / defendant PLL as their

tenant;

(ii) that the existence of jural relationship of landlord and tenant

between the parties is necessary for determination of tenancy

under Section 106 of the Transfer of Property Act;

(iii) that the respondent / defendant PLL has raised a defence

claiming itself to be a tenant and to have been paying rent

through cheques;

(iv) that it has not come in evidence of the witnesses of the parties

that respondent / defendant PLL was ever inducted as a tenant

by the appellants / plaintiffs or that the possession of the suit

premises was handed over by the appellants / plaintiffs to the

respondent / defendant PLL as a tenant;

(v) that on the contrary it was the case of the appellants / plaintiffs

that premises were let out to CTL by way of unregistered lease

deed which was extended from time to time;

(vi) that deceased appellant / plaintiff no.2 G.N. Singh in his

affidavit by way of examination-in-chief also had stated that it

was CTL who started making payment of rent through cheques

of PLL but the appellants / plaintiffs never treated or inducted

PLL as tenants in the premises or entered into any agreement of

lease with PLL and that the appellants /plaintiffs accepted the

cheques of PLL under a bona fide belief that the same were

towards rent payable by CTL;

(vii) that the respondent / defendant PLL also in its evidence was not

able to establish the factum of its induction in the property as a

tenant;

(viii) that though it was proved that the rent was being paid by

respondent / defendant PLL but mere payment of rent does not

create tenancy without the intention of the parties to create a

tenancy being established;

(ix) that in the absence of any relationship of landlord and tenant,

the question of its termination vide notice or of waiver of such

notice did not arise;

(x) that though CTL which was admitted to be a tenant was added

as a defendant in the suit as originally filed but the suit against

it was not pursued;

(xi) that the suit was filed on the basis of relationship of landlord

and tenant and was not on the basis of the respondent /

defendant PLL being in unauthorized occupation and was

valued for the purpose of court fees and jurisdiction also

accordingly;

(xii) that though the respondent / defendant was impleaded as a party

to the suit but only to avoid multiplicity of litigation of creation

of tenancy in its favour;

(xiii) that since no relationship of landlord and tenant had been found

between the appellants /plaintiffs and the respondent /

defendant PLL, the appellants / plaintiffs in the present suit

could not be said to be having any cause of action against the

PLL for the suit;

(xiv) that CTL was a necessary party for effective adjudication of the

suit;

(xv) that it is of no consequence that the persons who are members

of the Board of Directors of the respondent / defendant PLL are

the same persons who were in the Board of Directors of CTL as

CTL and PLL are different, distinct and separate juristic

persons; and,

(xvi) that since appellants / plaintiffs had dropped CTL, the suit was

liable to be dismissed for non-joinder of necessary parties.

12. The counsel for the appellants / plaintiffs has argued:

(i) that the learned ADJ erred in dismissing the suit only on the

ground of there being no relationship of landlord and tenant

between the appellants / plaintiffs and the respondent /

defendant PLL when there was no issue also to the said effect

had been framed; attention was invited to the Para 8 and to

portion of Para 14 of the amended plaint (in which PLL is

referred to as defendant) as under:

"8. The Defendant has been made party to the present suit in order to avoid multiplicity of litigation or any objection which may be raised by Defendant of creation of the tenancy in their favour. The notice of termination was also sent to the defendant on 19.10.07 and the monthly tenancy of the Defendant was duly terminated as required under section 106 of the T.P. Act and upon expiry of the period of notice on 30th Nov., 2007 the occupancy of Defendant has become unauthorized.

14. ........ The story put forth by the Defendant in the reply that M/s Century Tube Ltd., the M/s. Century Tubes Ltd. surrendered the tenancy and thereafter Defendant was inducted as tenant in the premises. The facts remains that M/s. Century Tubes Ltd. never surrendered the tenancy and the plaintiffs were not aware that M/s. Century Tubes Ltd. had gone under liquidation. The contention made by the Defendant that they were inducted as a tenant is wholly wrong. However, it is stated that as per the records of the plaintiffs, M/s. Century Tubes Ltd. is the tenant of the premises to whom the premises were let out. In case the story put forth by the Defendant assumed to be true, in the circumstances of the case, then the alleged monthly tenancy of Defendant has also been duly terminated by the said notice dated 19.10.07 and the present suit is, therefore, filed both against M/s.

Century Tubes Ltd. & Defendant. The Defendant has wrongly alleged that they have paid a sum of Rs.2.50 lakhs in cash to Mr.

G.N. Singh. It is stated that no such amount or any amount in cash has ever been received by the plaintiff. The contents of the reply which are contrary to and inconsistent with the notice dated 19.10.07 are wholly false and are disputed by the plaintiffs. The plaintiffs through their counsel sent reply addressed to Defendant vide letter dated 15.2.08 and subsequent letter dated 22.2.08. The plaintiffs to avoid technical objection since the Defendant had started alleging himself to be the tenant in the premises, the plaintiffs have also terminated the monthly tenancy of the Defendant vide said notice dated 19.10.07 and the occupation and user of the premises by the Defendant after the expiry of the period of the notice have also become wholly unauthorized and illegal." (emphasis added)

and to the prayer paragraph of the plaint as originally filed

where the reliefs of ejectment and recovery of arrears of mesne

profits were claimed jointly and severally against both CTL and

PLL and in the amended plaint where relief of ejectment after

determination of tenancy is claimed against the respondent /

defendant PLL;

(ii) attention was also invited to the notice dated 19th October, 2007

of determination of tenancy address to CTL (as addressee No.1)

as well as to PLL (as addressee No.2) and to Sh. Gautam Hada

and in which also it was stated as under:

"10. That in case you Addressee No.2 considers to be also the tenant in the demised remises (though my clients do not admit) your tenancy shall also stand determined and terminated by this notice on the expiry of 30th Nov., 07, and in that event you Addressee No.1 alongwith Addressee No.2 would be liable to surrender the vacant and peaceful possession of the demised premises to my clients on the expiry on 30th Nov., 07 as stated herein above, failing which occupation will be unauthorized and you will be liable to make payment of damages @2.5 lakhs per month as stated above."

(iii) attention was invited to the reply dated 30th November, 2007 of

respondent / defendant PLL to the aforesaid notice claiming to

be a tenant in the premises under the deceased appellant /

plaintiff no.2 G.N. Singh and claiming to have been paying rent

of the property;

(iv) attention was next invited to the written statement of the

respondent / defendant PLL in para 12 whereof it is inter alia

pleaded as under:

"12. That the present suit is bad for mis-joinder of plaintiff no.1 namely Smt. Madhvi Singh and defendant No.1 M/s. Century Tubes Ltd. because it is only plaintiff no.2 who had let out the premises i.e. entire ground floor of property bearing no.D-2, Maharani Bagh, New Delhi to the answering defendant and the suit premises is under lawful possession of the answering defendant since 1st April, 2001 and plaintiff no.2 has been receiving the rent

since the inception of the tenancy i.e. 1st April, 2001 from the answering defendant at the monthly rental of Rs.4,000/- exclusive of other charges. The plaintiff has wrongly and intentionally and with malafide intention implicated the defendant No.1 in the present suit inorder to mislead this Hon‟ble court. It is submitted that the defendant no.1 has no locus standi in the present suit as he is not the tenant of the suit premises, it is only the answering defendant who is the tenant , having lawful possession of the suit premises since 1st April, 2001 and paying the rent regularly, in view of the above the suit is not maintainable and liable to be dismissed. Copy of the bank statement clearly showing that answering defendant regularly paying the monthly rent to the plaintiff no.2 are annexed herewith as Annexure 'A5'(Colly)."

(v) attention was also invited to the replication filed by the

appellants / plaintiffs to the written statement aforesaid in

which it was inter alia stated as under:

"12. ......... In the facts and circumstances of the case since defendant No.2 has been admitted to be the tenant in the suit premises and the tenancy has been duly terminated, the suit of the plaintiffs for the recovery of possession of the suit premises is liable to be decreed as prayed under order 12 rule 6 of the CPC.

6. Para 6 of the written statement as alleged is wrong, incorrect and denied except the defendant No.2 had started making payment of rent by cheque which the plaintiffs accepted under bona fide belief that rent was being paid in the account of M/s. Century Tubes Ltd. However in the circumstances of the

case to avoid multiplicity of litigation, the plaintiffs admitted the defendant No.2 to be the tenant and the tenancy of defendant No.2 has also been duly terminated as required under the law. The controversy as to whether the defendant No.2 was inducted as a tenant or not no longer exists as the plaintiffs have admitted the defendant No.2 to be the tenant along with defendant No.1 and the tenancy has been duly terminated."

(emphasis added)

(vi) attention was also invited to the application of the

appellants/plaintiffs under Order I Rule 10 read with Order VI

Rule 17 of the CPC for deletion of CTL as defendant no.1 and

in which it was inter alia stated as under:

"1. That the above mentioned suit is pending before this Hon‟ble Court and is fixed for 6th February, 2009.

2. That Defendant No.1 has been served through the Official Liquidator as the Defendant No.1 Company has gone under liquidation.

3. That Official Liquidator for Defendant No.1 Company has not filed any Written Statement and has not claimed any interest in the tenanted suit premises.

4. That Defendant No.2 has claimed tenancy rights and plaintiffs have also admitted the defendant No.2 as tenant in the facts and circumstances pleaded in the plaint.

5. That since the Official Liquidator has no interest and has not claimed tenancy rights in the suit premises, which is also not the asset of the Company, therefore, Defendant No.1 may be deleted from the array of the parties."

(emphasis added)

(vii) attention was next invited to the reply filed by the respondent /

defendant PLL to the aforesaid application in which it is inter

alia pleaded as under:

"5. That, initially plaintiff has never considered the answering defendant as tenant, which becomes crystal clear after going through their legal notice and suit, but when the plaintiffs files their replication then for the first time they admitted the tenancy of the answering defendant ......."

(viii) that the learned ADJ has returned the finding on which the suit

has been dismissed ignoring of the aforesaid material and by

reading the evidence selectively;

(ix) attention is also invited to the letter under cover of which the

respondent / defendant PLL was sending cheques for rent and

proved on trial court record as Ex.DW1/6, DW1/7 and DW1/8

and it was argued that therefrom also it is evident that the

respondent / defendant PLL was paying rent on its own behalf

and not on behalf of CTL;

(x) attention is invited to the cross-examination of 8th February,

2012 of the deceased appellant / plaintiff no.2 G.N. Singh by

the counsel for the respondent / defendant to the effect "it is

correct that I recognize the defendant no.2 as a tenant";

(xi) reliance is placed on Tmt. Kasthuri Radhakrishnan Vs. M.

Chinniyan 2016 (1) SCALE 569 to contend that in such

circumstance the respondent/defendant was the tenant;

(xii) that the appellants / plaintiffs are also entitled to mesne profits

for use and occupation as claimed by them and have proved

lease deed of property No.B-13, Maharani Bagh, New Delhi as

Ex.PW1/16;

(xiii) reliance is placed on Mercury Travels (India) Ltd. Vs.

Mahabir Prasad 2001 (58) DRJ 781 (DB) to contend that for

property No.2A, Maharani Bagh, New Delhi ad-measuring

1800 sq. yds. mesne profits at the rates of Rs.1,60,000/- per

month was awarded 15 years ago and thus mesne profits

claimed at rate of Rs.2,50,000/- per month is justified.

13. Per contra, the counsel for the respondent / defendant PLL argued:

(a) that the appellants /plaintiffs have to stand on their legs and

cannot rely on the defence to succeed;

(b) that the appellants / plaintiffs could not have dropped CTL

whom they claimed to be the tenant and who was in the suit as

originally filed also impleaded as a defendant;

(c) that the appellants / plaintiffs were throughout treating the CTL

as their tenant;

(d) that since the appellants / plaintiffs admitted CTL only to be the

tenant, they could claim mesne profits only from CTL;

(e) that the deceased appellant / plaintiff no.2 G.N. Singh in his

evidence did not say that he accepted rent from respondent /

defendant PLL as a tenant; on the contrary, the evidence was

that CTL was paying through cheques of PLL;

(f) that since according to the appellants / plaintiffs PLL, though

admittedly in occupation of premises was not a tenant, the suit

should have been valued for the purposes of court fees and

jurisdiction as against unauthorized occupant;

(g) that CTL was a necessary party to the suit and was rightly

impleaded as a defendant and was wrongly deleted;

(h) that the arguments now being raised are contrary to the

evidence of deceased appellant / plaintiff no.2 G.N. Singh;

(i) that the trial court has not decided the suit on the Issues framed

but only on the jural relationship;

(j) that the suit thus has to be remanded to the trial court for

decision on all the Issues;

(k) that this Court should not in the first instance proceed to decide

the Issues which the Trial Court has failed to decide:

(l) that in fact the sole ground on which the learned ADJ has

dismissed the suit was not the argument of either of the

counsels and the said reasoning is the judge‟s own reasoning.

14. I was during the hearing little intrigued by the last of the contentions

aforesaid of the counsel for the respondent / defendant PLL, of the sole

ground on which the learned ADJ has dismissed the suit being a figment of

the learned Judges own imagination without the same being in issue or being

the contention of either of the parties. Rather by arguing so, the counsel for

the respondent / defendant has washed away his other arguments in

opposition to the arguments of the counsel for the appellants / plaintiffs and

which stand strengthened. It is for this reason only that the said contention

of the counsel for the respondent / defendant was also recorded in the order

dated 31st March, 2016 while reserving judgment.

15. The aforesaid argument of the counsel for the respondent / defendant

PLL shows that both parties the appellants / plaintiffs as well as the

respondent / defendant PLL went to trial on the understanding that the

relationship of landlord-tenant prior to the determination thereof existed and

the possession of the respondent/defendant of the premises became

unauthorized only after determination of tenancy vide notice dated 19 th

October, 2007 and not prior thereto. It is unfathomable that when this was

the understanding with which the parties went to trial, how could the suit

have been dismissed for the reason only of lack of such relationship of

landlord and tenant.

16. The counsel for the appellants / plaintiffs is also correct in his

submission that the impugned judgment is totally in ignorance of the

material pleadings and evidence which has been highlighted hereinabove.

17. The position which emerges from the pleadings and evidence is that

while it was a statement of fact according to appellants/plaintiffs that they

had let out their premises to CTL and CTL never surrendered its tenancy or

vacated the premises and they accepted cheques of PLL for the amount of

the rent payable by CTL as on behalf of CTL and without treating or

accepting PLL as a tenant but since PLL was claiming itself to be a tenant to

the exclusion of CTL, the appellants/plaintiffs at the time of determination

of tenancy and institution of suit nevertheless accepted PLL also as a tenant;

however when PLL in its written statement to the suit also claimed to be the

only tenant in the premises and CTL through the Official Liquidator did not

claim to be the tenant in the premises, the appellants/plaintiffs also accepted

PLL to be the only tenant in the premises and dropped the suit insofar as

against CTL and chose to proceed with the suit only against PLL. I do not

find any rule of law prohibiting a plaintiff from taking such a stand. It is

always open to a person instituting a suit to take a stand that though

according to him the claim of another person (made prior to institution of

suit) is not correct but he is entitled in law to relief against such other person

even if such claim were to be accepted. Reference in this context may also

be made to Rule 7 of Order I of CPC which permits the plaintiff, if in doubt

as to the person from whom he is entitled to obtain redress, join two or more

defendants in order that the question as to which of the defendants is liable,

and to what extent, may be determined as between all parties. The suit, as

originally filed impleading both CTL which according to

appellants/plaintiffs was the tenant as well as PLL which was claiming to be

the tenant, was in accordance with law. Though according to

appellants/plaintiffs PLL was not a tenant and in occupation of premises

through CTL and / or unauthorisedly but the appellants/plaintiffs while

instituting the suit gave up their claim of PLL being in occupation of

premises through CTL and being liable to be evicted under the decree for

ejectment against CTL and / or of CTL being in unauthorised occupation

and which also Order II Rule 2(1) permits a plaintiff to do and sued PLL

also for ejectment as a tenant whose tenancy had been determined.

Subsequently, the appellants/plaintiffs, in exercise of power under Order

XXIII Rule 1 which entitles a plaintiff to at any time after the institution of

suit abandon a part of the claim or against all or any of the defendants, gave

up their claim of CTL being the tenant.

18. The learned ADJ, in my view, was unduly swayed by the stand of the

appellants/plaintiffs of CTL only being a tenant according to them and

glossed over the fact of the appellants/plaintiffs having nevertheless sued

PLL as a tenant and which was, as aforesaid, permissible to

appellants/plaintiffs in law. It is also not as if it was the stand of PLL before

the learned ADJ that it was not the tenant and the suit against it as a tenant

was bad. PLL, in its written statement also continued with its stand of being

a tenant and which was expressly admitted by the appellants/plaintiffs in

their replication. In this state of affairs, the learned ADJ ought not to have

sprung a surprise on the appellants/plaintiffs, as has been done.

19. There is another aspect of the matter. It is a settled principle of law

that a litigant before a Court cannot approbate and reprobate or blow hot and

cold to the detriment of his opponent. The respondent / defendant PLL at

the time when the appellants / plaintiffs applied for deletion of CTL from the

array of defendants did not contend that on such deletion the suit will not

remain as between landlord and tenant or would not be maintainable. It is

not as if the respondent / defendant PLL remained quiet at that stage. On the

contrary, it chose to file a reply to the application for deletion of PLL,

reinforcing that the suit against it was as an erstwhile tenant whose tenancy

has been determined. On such a stand taken by the respondent / defendant

PLL, the appellants / plaintiffs went ahead and withdrew the suit insofar as

against CTL. If a party has taken a specific stand at one stage of the

proceeding, it is not open to it to take a contrary stand/position at a

subsequent stage of the litigation. It was not open to the respondent /

defendant PLL to after eight years non-suit the appellant / plaintiff for the

reason of there being no relationship of landlord and tenant between the

appellants / plaintiffs and the respondent / defendant. Supreme Court, in

Shyam Telelink Limited Vs. Union of India (2010) 10 SCC 165 held that a

person cannot say at one time that a transaction is valid and thereby obtain

some advantage to which he could only be entitled on the footing that it is

valid and then turn around and say it is void for the purpose of securing

some other advantage. The principle of "Estopple by acceptance of

benefits" of American Jurisprudence was held to be applicable in India to do

equity but not to violate the principles of "right and good conscience" and

which I may add is the guiding light of a Court of law which cannot allow

legalese for law to be called "an ass". Applying the said principles to the

facts of this case, it has but to be held that once the appellants/plaintiffs, on

the basis of the claim of respondent/defendant PLL of being a tenant in the

premises, had sued for ejectment treating respondent/defendant PLL to be a

tenant, even the Court could not dismiss the said suit for the reason of the

appellants/plaintiffs having not accepted respondent/defendant PLL as a

tenant.

20. The learned ADJ also in the impugned judgment has noted and it is

otherwise borne from the trial court record that right since the letting of the

property in the year 1981 to CTL, it is the Hada family which has been

residing therein. It is Hada family which had taken the premises on rent in

the name of CTL and who subsequently started paying rent in the name of

respondent / defendant PLL, also got incorporated by them. Else, there is no

change. While according to the appellants / plaintiffs, the appellants /

plaintiffs treated respondent / defendant PLL to be paying rent on behalf of

CTL, the respondent / defendant PLL claimed to be paying the rent on its

own behalf. Tearing the corporate veil as has often been done in landlord-

tenant disputes (see Inder Mohan Khanna Vs. Jai Parkash ILR (1978) II

Delhi 287 (DB), Lalita Gupta Vs. Modern Trading Co.

MANU/DE/9152/2006 and Parvinder Singh Vs. Renu Gautam (2004) 4

SCC 794), the relationship of landlord and tenant is writ large and it cannot

be said that any injustice would be done in ejetment of those in possession of

the premises as a tenant.

21. The learned ADJ has also held that the respondent/defendant PLL also

was unable to establish / prove the tenancy claimed by it. The only

inference of that, even if CTL and PLL were to be treated as distinct entities,

is of CTL having inducted PLL into the premises. Under Section 108(B)(j)

of the Transfer of Property Act, 1882, subject to a contract to the contrary,

the lessee / tenant is entitled to transfer absolutely or by way of sub-lease the

whole or any part of his interest in the property and transferee of such

interest or part may again transfer but the lessee by reason only of such

transfer, does not cease to be subject to any of the liabilities attaching to the

lease. There has admittedly never been any registered lease deed between

the appellants / plaintiffs and CTL and which alone could have contained a

contract to the contrary. The respondent / defendant PLL by virtue of the

said Section 108(B)(j) of the Act also was liable to be ejected as a tenant in

the property specially when CTL was not claiming any tenancy rights.

22. Reference in this regard to Smt. Pushpa Devi Vs. Milkhi Ram (1990)

2 SCC 134 is also apposite. Supreme Court, though in the context of

Section 13(2)(i) of East Punjab Urban Rent Restriction Act, 1949

containing the obligation on the tenant to tender the rent on the first hearing

date when an action for eviction is brought by the landlord on default in

payment of rent, held that the word tenant therein has to be given wider

meaning and broader concept notwithstanding the spirit of the text especially

where a literal construction will not provide a square answer for all problems

coming before the Court. The benefit thereof was held to be available not

only to the tenant but also to those who claimed to be tenant.

23. In my view the learned ADJ also wrongly applied the doctrine of

"mere payment of rent not creating a relationship of landlord and tenant" to

the facts of the case. The present was not a case of mere payment of rent but

of the appellants / plaintiffs, in view of the claim of the respondent /

defendant PLL of being a tenant, having also proceeded to terminate the

tenancy claimed by respondent / defendant PLL and having sued respondent

/ defendant PLL as a tenant for ejectment and for mesne profits and

respondent / defendant PLL, at the time of the appellants / plaintiffs

choosing to drop CTL (to whom the premises were admittedly initially let)

when it ceased to exist and when its Official Liquidator did not stake any

claim to the tenancy rights and the respondent / defendant PLL only claimed

to be the tenant in the premises, affirming that appellants / plaintiffs were

proceeding against it as a tenant. The facts thus had gone far beyond "mere

payment of rent". In these circumstances, to say that the suit was not

maintainable for want of relationship of landlord and tenant would in my

opinion result in arbitrary and unjust result as in the case of Smt. Pushpa

Devi (supra).

24. Tmt. Kasthuri Radhakrishnan supra cited by the counsel for the

appellants/plaintiffs was a case of the High Court holding relationship of

tenant between the landlord and his power of attorney holder and not with

the tenant inducted by the said attorney and against whom proceeding for

eviction was filed. While reversing the said finding of the High Court it was

also observed that the High Court also did not notice that the tenant was

admitting his status as a tenant under the landlord.

25. I am therefore unable to sustain the reasoning on which the learned

ADJ has dismissed the suit.

26. Though the counsel for the respondent / defendant is correct in his

submission that the learned ADJ having proceeded to dismiss the suit for the

reasoning aforesaid has not answered the Issues framed in the suit but in my

opinion no case for remand of the suit is made out. The powers of an

appellate Court are the same as of the trial court. Reference in this regard

can be made to Section 107 and Order XLI Rule 33 of the CPC. Order XLI

Rule 24 of CPC also expressly empowers the Appellate Court to, where

evidence on record is sufficient to pronounce judgment, finally determine

the suit notwithstanding the Trial Court having proceeded wholly upon some

other ground. It has been held in Bachahan Devi Vs. Nagar Nigam,

Gorakhpur (2008) 12 SCC 372 that it is not always mandatory for the

appellate court to remand the suit when the trial court has failed to render

findings on any of the Issues.

27. The appellants / plaintiffs herein have been without their property for

the last over 35 years. Though till the year 1988 the provisions of the Delhi

Rent Control Act, 1958 provided protection from eviction to the tenant but

the said law ceased to apply to the premises owing to the rent thereof being

in excess of Rs.3,500/- per month. The appellants / plaintiffs claim to have

allowed the Hada family to reside in the premises till the year 2003. More

than 13 years have elapsed since then. Considering the propensity of the

respondent / defendant of delaying the proceedings before the Trial Court,

the argument of the counsel for the respondent / defendant PLL of remand,

tactically made, is found to be likely to cause injustice to the appellants /

plaintiffs.

28. Moreover, the law on the subject of suits between the landlords and

tenants has sufficiently evolved and is well settled. Supreme Court in

Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728

has held that even institution of a suit for ejectment serves as a notice of

determination of tenancy and a decree for ejectment can be passed.

Moreover, in the present case the service of notice of determination of

tenancy is not in dispute. Post the amendment of the year 2003 to Section

106 of the Transfer of Property Act, the defence as earlier available of defect

in notice of determination of tenancy are now no longer available.

Similarly, it has been held in Sarup Singh Gupta Vs. S. Jagdish Singh

(2006) 4 SCC 205 cited by counsel for appellants/plaintiffs that acceptance

of rent at the same rate as was paid earlier after the determination of tenancy

does not amount to waiver of the notice of determination of tenancy. In any

event, even if the appellants / plaintiffs are deemed to have waived the

notice dated 19th October, 2007 of determination of tenancy, the same did

not come in the way of their again determining the tenancy and which they

have done by institution thereafter of the suit from which this appeal arises

and which proceedings have now remained pending for the last eight years.

Thus none of the Issues are such for decision whereof the suit needs to be

remanded.

29. That leaves the aspect of mesne profits.

30. Maharani Bagh, New Delhi in which the suit property is situated is a

premier residential colony of the sought after South Delhi. As per the

documents on record, the property is constructed over land ad-measuring

1150 sq yrd i.e. 10350 sq.ft. It is not in dispute that the same comprises of

four bed rooms, living room, etc. besides garage, servant quarters and front

and rear lawn. Ex.PW1/16 proved by the appellants / plaintiffs shows the

property No.B-13, Maharani Bagh, New Delhi, comprising of front unit only

admeasuring 4000 sq. ft. to have been let out in the year 2008 at a rent of

Rs.2,40,000/- per month. I have recently in Udayan Sinha Vs. Fertilizers &

Chemicals Tranvencore Ltd. (2016) SCC OnLine Del 3247 held that

computation of mesne profits of residential properties entail some element of

genuine, intelligent and honest guess work. On the basis of the material on

record, I am of the view that a case for awarding of mesne profits to the

appellants / plaintiffs and against the respondent / defendant with effect from

1st December, 2007 at the rate of Rs.1,50,000/- per month inclusive of

interest on arrears, is made out.

31. The appeal is thus allowed.

32. The impugned judgment and decree is set aside and the suit of the

appellants / plaintiffs is decreed i) for the relief of ejectment of the

respondent / defendant PLL from the entire premises in their occupation at

D-2, Maharani Bagh, New Delhi; ii) for recovery of mesne profits / damages

for use and occupation at the rate of Rs.1,50,000/- per month with effect

from 1st December, 2007 till the date of recovery of possession and with

costs throughout; the component of interest on arrears of mesne profits has

been taken into account while fixing rate thereof.

Counsel‟s fee assessed at Rs.55,000/-.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

JULY 07, 2016 „gsr‟..