M/S. Cardiff Associates Pvt. Ltd. vs M/S. Indraprastha Ice And Cold ...
2016 Latest Caselaw 5866 Del

$~42
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of decision: 07.09.2016

+      CM (M) No.875/2016

       M/S. CARDIFF ASSOCIATES PVT. LTD.        ..... Petitioner
                      Through: Mr.       Sudhir        Nandrajog,
                               Sr.Advocate with Mr. Jasmeet
                               Singh, Ms. Astha Sharma & Mr.
                               Surya Rajappan, Advocates.

                          versus

       M/S. INDRAPRASTHA ICE AND
       COLD STORAGE PVT. LTD.                  ..... Respondent

Through: Mr. Sandeep Sethi, Sr.Advocate with Mr. Jayant Mehta & Ms. Gurmeet Bindra, Advocates.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH J. (ORAL)

C.M. No.31799/2016 (for exemption) Allowed, subject to all just exceptions.

CM (M) No.875/2016 & C.M. No.31800/2016 (for stay)

1. By the present petition, the petitioner seeks to challenge the order dated 9.8.2016 by the trial court whereby the trial court in a suit filed by the respondent under Section 6 of the Specific Relief Act passed an interim order directing the petitioner to maintain status quo as regards nature and construction of the suit property.

2. The background facts are that Late Sh. Jai Dev Sharma was the owner of property being ‗Ahata' bearing Municipal No.10130 at Katra Chhajju Pandit, Sidi Pura, opposite Model Basti, East Park Road, New

CM (M) No.875/2016 Page 1 Delhi-110005 measuring 1517.25 square yards. The property was leased on 8.9.1953 to the respondent. The respondent inducted two sub-tenants, namely, Om Prakash Gupta and Subhash Aggarwal on 1.11.1989. In the meantime, the original owner Jai Dev Sharma expired. His successor/son Surendra Deo Gaur vide registered sale deed dated 29.5.2013, sold the property to the petitioner/defendant. The said petitioner also took vacant physical possession from the sub-tenants, namely, Om Prakash Gupta and Subhash Aggarwal and commenced construction after demolition of the existing structure.

3. The respondent in 2016 filed the present suit for possession under Section 6 of the Specific Relief Act. Along with the suit, an application under Order 39 Rule 1 & 2 CPC was filed seeking directions to the petitioner/defendant to maintain status quo regarding the nature and construction of the suit property. The trial court relying upon the judgment of the Supreme Court in Sadashiv Shyama Sawant (Dead) & Ors. vs. Anita Anant Sawant; (2010) 3 SCC 385 noted that Section 6 of the Specific Relief Act was applicable to a landlord against a trespasser as in matter of law, the dispossession of a tenant by a third party is dispossession of the landlord. The contention of the petitioner that the suit has been filed beyond the period of six months was not accepted holding that prima facie it appears that the respondent became aware of dispossession in February, 2016 when a representative of the respondent visited the suit property. Noting that the petitioner has started raising construction on the suit property after filing of the suit, the trial court passed the interim order as noted above.

4. I have heard the learned senior counsel for the parties. The learned counsel for the petitioner has vehemently argued that the suit filed by the respondent is, on the face of it, barred by limitation. He submits that the sale took place on 29.5.2013. It is the respondent's own case that since

CM (M) No.875/2016 Page 2 December, 2012, the sub-tenants stopped paying rent and admittedly the respondent took no steps. Subsequently on 9.6.2015, the petitioner applied for sanction of the building plan. On 10.8.2015, he was also permitted to fell trees on the land. It is only now much thereafter in May, 2016 that the present suit has been filed. It is submitted that the conclusions of the trial court that the suit has been filed within six months is erroneous on the face of it. Further, reliance is also placed on various terms of the lease deed to contend that the sub-tenants had a right to demolish the existing structure and construct a new building and had a right to sub-let the property. Given the nature of the lease, no prejudice is caused to the respondent. It is further submitted that irreparable loss and injury is likely to be caused to the petitioner if the order is not at least modified. He submits that if for some reason the order is not vacated, the same may be modified and the petitioner may be permitted to carry on the construction subject to the limitation that the petitioner shall not alienate or part with any part of the property and will abide by the final decision of the case.

5. The learned senior counsel appearing for the respondent has however contended that the action of the petitioners lack equity. The sale deed itself records the rights of the respondent and yet the petitioner has in flagrant violation of the rights of the respondent behind the back of the respondent surreptitiously taken possession from the sub-tenants. It is further urged that this court is exercising powers under Article 227 of the Constitution of India would not in exercise of the said power interfere with the impugned order. Reliance is placed on Surya Dev Rai vs. Ram Chander Rai & Ors.; (2003) 6 SCC 675. It is further stated that the contention of the petitioner that they be permitted to construct subject to limitation that they shall not alienate the property is a mischievous contention. Reliance is placed on the judgment of the Supreme Court in

CM (M) No.875/2016 Page 3 Maharwal Khewaji Trust (Reg.), Faridkot vs. Baldev Dass; AIR 2005 SC 104 to contend that in similar circumstances, the Supreme Court disallowed such a relief.

6. I may first look at Section 6 of the Specific Relief Act. The same reads as follows:-

―6. Suit by person dispossessed of immovable property.--

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought--

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.‖

7. The Supreme Court in Sadashiv Shyama Sawant (Dead) & Ors. vs. Anita Anant Sawant (supra) noted the rights of a landlord under Section 6 of the aforesaid provisions as follows :-

―21. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word "dispossessed" in Section 6(1) must be read in this context and not in light of the actual possession alone. If a

CM (M) No.875/2016 Page 4 tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression "any person claiming through him" would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant.

22. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant.‖

8. In the present case, the suit is filed by the tenant on account of dispossession of his sub-tenants. Keeping in view the legal position as enunciated by the Supreme Court in the above judgment, it can safely be said that dispossession of the sub-tenants was dispossession of the tenant as for the purposes of adjudication of this interim injunction application. It can safely be concluded that prima facie the respondent was entitled to file the present suit being the tenant.

9. Coming to the issue of limitation, the trial court noted that as per the plaint, the plaintiff became aware of dispossession only in February, 2016 when a representative of the plaintiff visited the suit property. The fact that the sale has been effected and demolition of construction took place, sanction of the plan was given are facts not necessarily known to the respondent. The court noted that nothing has been placed on record to show that any of the parties to the sale deed or the sub-tenants had informed the respondent that the property has been handed over to the

CM (M) No.875/2016 Page 5 petitioners. The petitioners have not been able to place on record any concrete evidence to show that the respondent was aware about the fact that possession had been taken over by the petitioner in 2013. This contention about the alleged knowledge of the respondent is an issue which can only be concluded after evidence of the parties had been led. At this stage, no prima facie view can be taken in favour of the petitioners.

10. The next contention of the petitioner is that the petitioner be permitted to raise construction on the property subject to the limitation that he may not sell any part of the property and will abide by the final decision of the court.

11. The learned senior counsel for the respondent has relied upon Maharwal Khewaji Trust (Reg.), Faridkot vs. Baldev Dass (supra) to contend that such a relief has been declined by the Supreme Court. That was also a suit filed by one of the parties seeking possession of the suit. The appellate court had allowed the other party to alienate the property subject to law of lis pendence and the construction if any it was noted would be removed by the opposite party at his own risk and cost in the event the suit was decreed. The Supreme Court noted that in the facts and circumstances of the case, the High Court was not justified in permitting the other party to change the nature of the property by raising construction and also by permitting alienation of the property whatever may be the condition of the same. It also noted that in case the first party's claim is proved to be baseless, it is open to the other party to claim damages in an appropriate case.

12. I may note the powers of this court in exercise of its jurisdiction under Article 227 of the Constitution. In Surya Dev Rai vs. Ram Chander Rai & Ors (supra), the Supreme Court concluded as follows:-

―38. Such like matters frequently arise before the High

CM (M) No.875/2016 Page 6 Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-

(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which

CM (M) No.875/2016 Page 7 can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or

CM (M) No.875/2016 Page 8 afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self- restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.‖

13. In the facts and circumstances of this case, I am unable to hold that the trial court has acted in disregard of law, the rules and procedures or that the jurisdiction to grant interim orders has been passed in a manner which caused failure of justice or grave injustice was occasioned.

14. The peculiar facts of this case lead me to the conclusion that both the parties are prima facie only exploiting the situation.

15. The respondent was the tenant inducted vide lease deed dated 8.9.1953. On 1.11.1989, he has inducted two sub-tenants stating that its business had closed and the property at that time was not being used. The lease executed by the respondent in favour of the sub-tenant make an interesting reading. Clause 7 of the lease permits the sub-tenant to

CM (M) No.875/2016 Page 9 demolish all existing structures, construct any new building or structure entirely at their own cost and expense. Clause 8 permits the sub-tenant to sub-let the whole or part of the property. Clause 13 states that in case the sub-tenant purchases the premises from the owners, the lease deed shall extinguish on the date of registration of the sale deed. The terms are peculiar and not the usual terms as used normally in Delhi when a lease is executed between the owner and the tenant or the sub-tenant. The special clauses indicate that the respondents prima facie washed their hands of the property. Prima facie it appears to be what in common parlance is called a pagri transaction.

16. Let me also note the conduct of the petitioner. The petitioner was well aware about the statutory rights of the respondent. Clause 5 of the sale deed dated 24.5.2013 executed in favour of the petitioner states that the vendor has handed over symbolic possession along with the tenant/respondent and the sub-tenants. Despite this position, the petitioner has gone ahead with the transaction and taken possession from the sub-tenants in an attempt to by-pass the rights as claimed by the respondent.

17. It is clear there is no special equity in favour of the petitioner. The trial court has exercised its discretion in granting injunction in favour of the respondent. There are no reasons to hold that the said exercise of powers is in disregard of law or has caused any failure of justice or grave injustice.

18. There is no patent error in the impugned order. The petition is without merits and is dismissed.

JAYANT NATH, J.

SEPTEMBER 07, 2016/AA/v




CM (M) No.875/2016                                                     Page 10