Delhi High Court
Jaswinder Kaur & Anr vs Anil Ahuja on 16 November, 2018
$~68
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 16.11.2018
+ FAO 528/2018
JASWINDER KAUR & ANR ..... Appellants
Through: Mr.Surinder Singh, Advocate
with Mr.Sanjay Kumar,
Advocate.
versus
ANIL AHUJA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
CM No. 47527/2018 (for exemption)
1. Allowed, subject to all just exceptions.
FAO 528/2018 & CM No. 47526/2018 (for stay)
2. The impugned order dated 19.09.2018 passed by the court of
the learned Additional District Judge-06, South-East District, Saket
Courts, New Delhi ('ADJ') in Civil Suit No. 1731/2017, is the subject
matter of challenge in this appeal by the appellants/defendants.
3. The respondent/plaintiff has filed a suit for possession, recovery
of rent and damages and permanent injunction against the appellants
in respect of a Flat No.2, Block No.1, DDA Flats, Kalkaji, New Delhi
(Ground Floor) as shown in red colour in the site plan annexed along
with the plaint. The said premises was rented out to the appellants
FAO 528/2018 Page 1 of 5
initially by the rent agreement dated 11.02.2014 at a rent of
Rs.16,500/- per month excluding electricity and water charges for a
period of 11 months. The tenancy was renewed orally after the
expiration of said period. Thereafter, the respondent/plaintiff asked
the appellants to vacate the property by the letter dated 07.05.2017. A
reminder dated 27.06.2017 was sent to the appellant. When the
appellants failed to deliver back the possession or pay the arrears of
rent, the respondent/plaintiff got issued a legal notice dated
26.09.2017 asking them to vacate the property in question within 15
days and make the payment of arrears of rent and damages w.e.f.
01.03.2017.
4. In their written statement, the appellants have, inter alia,
pleaded that „the said rent agreement clearly indicates that the
property mentioned in the rent agreement is shop not the flat. It has
come in the knowledge of the defendant no.1 that the shop in the
possession of the defendant no.1 does not belong to the plaintiff.
Despite this fact plaintiff illegally received monthly rent of Rs.16,500/-
from the defendant no.1 for the last three years, hence the plaintiff
illegally received around Rs.6,00,000/-.........‟. They further pleaded
that „it is further submitted that a shop was taken on rent by the
defendant no.1 which was claimed to be owned by the plaintiff and the
said rent amount of Rs.16,500/- was paid for the shop. This amount
was paid for around three years by the defendant no.1 but when the
defendant no.1 came to know that the said shop was not owned by the
plaintiff, the defendant no.1 stopped paying the rent to the plaintiff
FAO 528/2018 Page 2 of 5
and requested him to show the ownership documents of the shop so
that she could pay the rent of the shop but till date the plaintiff did not
show any proof........‟.
5. The respondent/plaintiff filed an application under Order
XXXIX Rule 10 read with Section 151 of the Code of Civil
Procedure, 1908 ('CPC') for directions to the appellants to either
deposit the admitted rent in the court or to pay the amount directly to
him.
6. The respondent/plaintiff had claimed that the rent has been paid
only upto February, 2017. However, during the course of arguments
before the learned 'ADJ', the learned counsel for the appellants
submitted that it has been paid up to March, 2017 @ Rs.16,500/-.
After hearing both the parties, the learned 'ADJ' passed the following
order: -
"Keeping in view the fact that rent was being paid
admittedly at the rate of Rs.16,500/- and even as
per contention of defendant it was not paid from
April, 2017, I deem it proper to direct the
defendant to pay at the said rate of Rs.16,500/- per
month from April onwards during pendency of the
suit. Let the arrears w.e.f. April 2017 be paid
within four weeks and continued to be paid
regularly at the said rate by account payee cheque
or demand draft in the name of plaintiff by 7th of
every month in advance. Application u/o 39 R 10
CPC stands disposed accordingly."
7. The learned counsel for the appellants contends that the
respondent/plaintiff has constructed a shop in the flat illegally and
FAO 528/2018 Page 3 of 5
unauthorizedly without the permission of the Delhi Development
Authority (DDA) and as such the appellants cannot be made liable to
make the payment of rent. He further submits that the appellants have
filed an application under Order VII Rule 11 CPC for rejection of the
plaint, which has not been disposed of.
8. The appellants have admitted that the premises in question was
taken by them on rent @ Rs.16,500/- per month from the
respondent/plaintiff by the said rent agreement. During the course of
arguments, it was contended by the learned counsel for the
appellants/defendants before the Ld. 'ADJ' that the rent has been paid
upto March, 2017 @ Rs.16,500/-. This indicates that rent has not been
paid by the appellants from April, 2017 onward. However, the
appellants have been occupying and enjoying the premises in question
without payment of any charges to the respondent/plaintiff, from
whom they had taken the same on rent.
9. Order XXXIX Rule 10 CPC stands attracted where the subject-
matter of a suit is money or some other thing that is capable of
delivery and any party to the suit admits that he holds such money or
other thing as a trustee for another party, or that it belongs to or is due
to another party, the Court is empowered to direct the same to be
deposited in the court or deliver to such last-named party, with or
without security, subject to further directions. Section 151 of the CPC
empowers the court to make such orders as may be necessary to meet
the ends of justice and to prevent the abuse of the process of the court.
FAO 528/2018 Page 4 of 5
10. The appellants have been enjoying the property in question
without payment of any charges, which is not permissible in law.
Relationship of landlord and tenant is admitted by the appellants. Rate
of rent is also not in dispute. As per the appellants, rent is due from
April, 2017. Therefore, the court is empowered to direct the
appellants/defendants to deposit/pay such money as it thinks fit,
particularly, to prevent the abuse of the process of the court and to
meet the ends of justice.
11. I do not find any illegality or infirmity in the order dated
19.09.2018 passed by the learned 'ADJ'. The petition is without any
merit and accordingly dismissed with no order as to costs.
12. In view of the above, the application, being CM
No.47526/2018, is also dismissed.
VINOD GOEL, J.
NOVEMBER 16, 2018
"shailendra"
