Delhi High Court
Rajan vs Shree Durga Mandir Prabhandak ... on 21 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.637/2017
% 21st July, 2017
RAJAN ..... Appellant
Through: Mr. K.K. Sharma, Advocate
with Mr. S. Khan, Advocate.
versus
SHREE DURGA MANDIR PRABHANDAK SABHA (REGD.)
..... Respondent
Through: Ms. Sonali Malhotra, Advocate
with Mr. Amit Sanduja,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.25526/2017 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No.25527/2017 (for condonation of delay)
2. For the reasons stated in the application, delay of seven
days in re-filing the appeal is condoned.
C.M. stands disposed of.
RFA No.637/2017 and C.M. No.25525/2017 (stay)
3. This Regular First Appeal is filed by the defendant in the
suit impugning the judgment of the trial court dated 6.4.2017
decreeing the suit so far as possession is concerned with respect to the
suit property being one shop in Durga Mandir, R Block, Professor
Ram Nath Vij Marg, Opposite Double Storey, New Rajinder Nagar,
New Delhi-110060 and as shown in red colour in site plan filed with
the plaint.
4. In Delhi, a suit for possession in civil court can be filed
against a person who is a tenant if there is a relationship of landlord
and tenant between the parties, rate of rent is above Rs 3,500/- per
month and the tenancy of the tenant has been terminated under Section
106 of the Transfer of Property Act, 1882. In fact the last aspect of
service of notice is complied when summons of the suit are served on
the defendant and so held in the judgment in the case of Jeevan
Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) & Anr.
2011 (183) DLT 712.
5. In the present case, the court below has found that the
appellant/defendant admitted himself to be a tenant of Rs 5,000/- per
month in an earlier suit for injunction filed by the appellant/defendant
against the respondent/plaintiff/society. This is observed by the court
below in para 6 of the impugned judgment and this para 6 reads as
under:-
"6. Now, the question arises whether the defendant admitted that he is
a tenant in respect of suit property at monthly rent of Rs.5,000/-.
The defendant has filed suit against one Shri Rohit Jolly, Smt. Asha
Gandhi and M/s Shri Durga Mandir Prabhandak Sabha (Regd.) for perpetual
and mandatory injunction which was registered as Suit No.46/12. In para
no.6 of this suit, defendant has mentioned that he was inducted as tenant of
the defendant no.3 for the shop as shown red colour in the site plan on a
monthly rent of Rs.3,000/- but the greed and temptation of the defendant
no.2 is so high and because of said reason she now and then used to used to
increase the rent in arbitrary manner and the same has now reached to
Rs.5,000/- per month. The defendant has also admitted in para no.3 of
plaint that he took the shop in question on monthly rent of Rs.3,000/- in the
year 2008 and he is paying the rent to the defendant no.2 who accepted the
same on the pretext and on behalf of the defendant no.3 but no receipt to
that effect was issued even after making several requests. Plaintiff has also
enclosed the application under Order 39 Rule2-A CPC filed by the
defendant in suit No.46/12 and in para no.5 of the application, it is
mentioned that the applicant paid Rs.5,000/- to the respondent Nos.3 & 4
towards the payment of rent for the month of June, 2012. In para no.7 of
evidence by way of affidavit, he has categorically mentioned that defendant
no.2 i.e. Smt. Asha Gandhi has increased the rent to Rs.5,000/- per month.
Thus, defendant in the suit filed by him admitted himself to be tenant of Shri
Durga Mandir Prabhandak Sabha (Regd.) at the rate of Rs.5,000/- per month
at the suit property. He also admitted that earlier he was inducted as tenant
of the defendant no.3 for the shop as shown red colour in the site plan on a
monthly rent of Rs.3,000/- but the greed and temptation of the defendant
no.2 is so high and because of the said reason she now and then used to used
to increase the rent in arbitrary manner and the same has now reached to
Rs.5,000/- per month. The defendant has also admitted to receive the legal
notice from the plaintiff and he also sent reply to the legal notice dated
05.1.2015." (underlining added)
6. I completely agree with the reasoning and conclusions of
the trial court for decreeing the suit for possession under Order XII
Rule 6 CPC as the appellant/defendant himself admitted in the earlier
litigation to be a tenant of the respondent/plaintiff at rent of Rs 5,000/-
per month. There is also no dispute that appellant/defendant received
the notice dated 5.1.2015 terminating the tenancy. It is trite that in an
application under Order XII Rule 6 CPC besides pleadings the
admitted documents can also be looked in view of the language of the
provision which entitles looking into pleadings as also all other
admitted facts and documents.
7. Learned counsel for the appellant/defendant argued that
the suit is not properly instituted through Smt. Asha Gandhi and Smt.
Asha Gandhi is not the President, however, I may note that there is no
opposition by any other member of the respondent/plaintiff/society
that Smt. Asha Gandhi is not the President and has no right to institute
the suit. Under Section 6 of the Societies Registration Act, 1860 a suit
by and/or on behalf of the society instituted in its name through the
President, Chairman, or Principal Secretary or trustees as determined
by the rules and regulations of the governing body. In my opinion,
once there is no opposition by any member of the society to filing of
the suit by the respondent/plaintiff/society through Smt. Asha Gandhi,
then, appellant/defendant will have no locus standi to question the
filing of the suit by the respondent/plaintiff/society through Smt. Asha
Gandhi. In any case, I clarify that any benefit of the decree will not go
to Smt. Asha Gandhi but will only go to the
respondent/plaintiff/society and it is the society which will be the
beneficiary under the subject decree.
8. In view of the above discussion, I do not find any merit in
the appeal. Dismissed.
JULY 21, 2017 VALMIKI J. MEHTA, J
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