Priti Sharma vs Jatinder Kaur
2017 Latest Caselaw 4024 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No. 704/2017

%                                                      9th August, 2017

PRITI SHARMA                                            ..... Appellant
                           Through:      Ms. Bhavya, Advocate.
                           versus

JATINDER KAUR                                          ..... Respondent

                           Through:      Mr. Rajesh Yadav, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This fresh RFA is coming up for hearing today for

admission. On the first call it was passed over as this Court declined

the request of the appellant for adjournment on the ground that

appellant's counsel is busy in the Supreme Court. In my opinion,

seeking adjournment in admission matters is not justified on the

ground that counsel for the appellant is busy in another Court because

it is easy not to get a case listed on a particular date if the Advocate is

not available. Also, it is seen that actually the appeal has no merits

and in my opinion therefore unnecessary adjournment is sought. Even

after pass over and the matter being called out after two hours it is

stated that counsel for the appellant will not be available and this

Court refuses to accept that for two hours counsel for the appellant

will be consistently and continuously on his legs in the matter in the

Supreme Court and had no time to appear in this Court.

2. It is seen that the present first appeal is against the

judgment of the trial court dated 31.5.2017 decreeing the suit for

possession under Order XII Rule 6 CPC filed by the

respondent/plaintiff/landlord against the appellant/tenant/defendant.

3. In Delhi, a suit filed for possession in a civil court by a

landlord against the tenant is decreed once relationship of landlord and

tenant is admitted, and the rate of rent is above Rs.3500/- per month.

The service of notice under Section 106 of the Transfer of Property

Act, 1882 terminating tenancy helps the respondent/plaintiff, but this

is not a sine qua non as service of summons in the suit have to be

taken as service under Section 106 of the Transfer of Property Act in

view of the judgment of this Court in the case of Jeevan Diesels and

Electricals Limited Vs. Jasbir Singh Chadha (HUF) & Anr., (2011)

183 DLT 712.

4. It is seen that the relationship of landlord and tenant

between the parties is admitted. It is also admitted that the rate of rent

was Rs.90,662/- in terms of the registered lease deed dated 16.5.2011

and which was for a period of five years. Therefore, the relationship

of land and tenant being admitted and rate of rent being above Rs.

3500/-, the appellant/defendant had no defence to the suit. The only

defence of the appellant/defendant was that she had incurred

Rs.10,89,000/- for renovation of the suit property and which had to be

repaid by the respondent/plaintiff before the appellant/defendant

vacated the suit property. In my opinion, even if this defence is

correct, at best it will entitle the appellant/defendant to recovery of

money for which a counter-claim had to be filed in the present suit and

admittedly no counter-claim is filed in the present suit. In fact,

appellant/defendant has filed subsequent suit for recovery of this

amount, and this aspect therefore will be decided in the other suit and

therefore the same cannot be a reason to decline the relief of

possession under Order XII Rule 6 CPC. Admittedly, there is no

written agreement with respect to any alleged entitlement of the

appellant/defendant to continue to be in possession of the suit property

on the alleged ground that renovation expenditure of Rs. 10,89,000/-

has to be first paid by the respondent/plaintiff to the

appellant/defendant.

5. I would also note on record that appellant/defendant has

not paid rent from the month of August 2015 till date.

6. Since counsel appearing for the appellant/defendant

refuses to argue the matter as the main counsel is not available, this

appeal is therefore dismissed in default and for non-prosecution in

view of the aspects and facts detailed above.

7. No application for recall of this order or for restoration of

this appeal be entertained by the Registry of this Court unless costs of

Rs.30,000/- are first paid to the counsel for the respondent/plaintiff.

AUGUST 09, 2017/ib                           VALMIKI J. MEHTA, J