Sai Motors & Anr vs Aditya Jain & Ors
2017 Latest Caselaw 3137 Del

$~53
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CM(M) 686/2017
       SAI MOTORS & ANR                             ..... Petitioners
                     Through:    Mr. Rajat Aneja and Mr. Vipin
                                 Singhania, Advs.
                           Versus
    ADITYA JAIN & ORS                             ..... Respondents
                      Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                              ORDER

% 10.07.2017 CM No.23664/2017 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

CM(M) 686/2017 & CM No.23663/2017 (for stay)

3. This petition under Article 227 of the Constitution of India impugns the order dated 19th May, 2017 of the Additional District Judge (ADJ) of dismissal of an application of the petitioners/defendants under Order I Rule 10 of the Code of Civil Procedure, 1908 (CPC).

4. The counsel for the petitioners/defendants has been heard.

5. The petition arises out of a suit filed by the respondents/plaintiffs No.1&2 against the petitioners/defendants for ejectment from immovable property admittedly let out by the respondents/plaintiffs No.1&2 to the petitioners/defendants at a rent in excess of Rs.3,500/- per month and after the determination of the tenancy of the petitioners/defendants.

6. The petitioners/defendants filed the application under Order I Rule 10 of CPC pleading (a) that the respondents/plaintiffs No.1&2, in a settlement with the other family members, have agreed to the property in the tenancy of the petitioners/defendants falling in the share of their other family members who were proposed to be added as defendants; and, (b) that the said proposed defendants have also entered into a fresh lease with the petitioners/defendants and the term of which lease is still continuing and the respondents/plaintiffs No.1&2 are thus not entitled to eject the petitioners/defendants.

7. The counsel for the petitioners/defendants, on enquiry, states that the said pleas are also taken in the written statement filed by the petitioners/defendants.

8. I have at the outset enquired from the counsel for the petitioners/defendants, whether not the effect of allowing the application would be to convert the suit, from a simplicitor suit between landlord and tenant, for ejectment after determination of tenancy, to a title suit between the respondents/plaintiffs No.1&2 and the proposed defendants and how can the petitioners/defendants, being merely a tenant, compel the landlord, from whom they had admittedly taken the premises on rent, to litigate with others qua title to the property let out.

9. After some hesitation, the counsel for the petitioners/defendants agrees that the effect would be the same.

10. A simplicitor suit between landlord and tenant cannot be converted into a title suit. Reliance in this regard can be placed on Evangelical Church of India Vs. North India Outreach Society 1997 (40) DRJ 250,

B.K. Dutta Vs. Smt. Nita Madan AIR 1984 Cal 228 and Manju Gupta Vs. Daya Ram 2017 SCC OnLine Del 7331.

11. He however states that the petitioners/defendants have been placed in a difficult position; the proposed defendants have written to the petitioners/defendants that payment of rent by the petitioners/defendants to the respondents/plaintiffs No.1&2 would be at the risk of the petitioners/defendants and would not absolve the petitioners/defendants from liability for rent to the proposed defendants.

12. The petitioners/defendants have their remedies against such a situation.

13. Rather, it is pointed out that a title suit between the respondents/plaintiffs No.1&2 and the proposed defendants is pending in this Court and in which though at one stage a family settlement was arrived at but by a subsequent order, the said family settlement has been held to have been not acted upon and the suit is still pending.

14. If that is the position, then in any case the grounds on which the petitioners/defendants aver that the respondents/plaintiffs No.1&2, through whom the petitioners/defendants had admittedly come into possession of the property as tenant, to have lost their right to recover back possession from the petitioners/defendants, cannot be said to be available to the petitioners/defendants.

15. I have enquired from the counsel for the petitioners/defendants, whether the fresh lease deed claimed to have been executed is a registered document.

16. The counsel for the petitioners/defendants states that though it is not registered but is for a period of eleven months. However, the same is stated to be a bilateral and not a unilateral document.

17. The exemption from registration is available only to a unilateral rent note executed by a tenant alone for a period of less than one year and once a bilateral lease is created, even if it be for a single day, the same is required to be registered. Reference in this regard can be made to Mehar Elahi Vs. Verha Mal (1996) 64 DLT 641, Rama Sahu Vs. Gowro Ratho ILR (1921) XLIV Mad 55 (FB), Om Prakash Vs. Additional Commissioner, Patna Division, Patna AIR 1956 Pat 305 (DB) and Banwarilal Sharma Vs. Ram Swaroop RLW 125 1974 (DB).

18. The counsel for the petitioners/defendants has also urged that the proposed defendants though had at one stage stated that they will be applying for impleadment in the suit from which this petition arises but subsequently did not do so, compelling the petitioners/defendants to apply for their impleadment.

19. It seems that the proposed defendants want to take benefit of the order of eviction as they very well can in law, if have since acquired title to the premises. It is not the concern of the petitioners/defendants, who are mere tenants in the premises, and the petitioners/defendants can succeed in the suit only if establish, inspite of coming into possession of the premises through respondents/plaintiffs No.1&2, being not liable to deliver back possession after determination of tenancy to the respondents/plaintiffs No.1&2.

20. There is thus no merit in the petition. Dismissed.

21. The counsel for the petitioners states that some observations in this order may harm the petitioners/defendants in the suit.

22. Though a party approaching the High Court in revision or under Article 227 of the Constitution during the pendency of the suit takes such a risk but it is deemed appropriate to observe that nothing contained herein shall cause prejudice to any of the parties at the final stage of the suit.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 10, 2017 bs..