Delhi High Court
Ms Himangni Enterprises vs Kamaljeet Singh Ahluwalia on 3 September, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: September 03, 2021
+ FAO 175/2021, CM Nos. 26748/2021 & 26749/2021
+ FAO 176/2021, CM Nos. 26751/2021 & 26752/2021
+ FAO 177/2021, CM Nos. 26754/2021 & 26755/2021
+ FAO 178/2021, CM Nos. 26759/2021 & 26760/2021
+ FAO 179/2021, CM Nos. 26764/2021 & 26765/2021
+ FAO 180/2021, CM Nos. 26768/2021 & 26769/2021
+ FAO 181/2021, CM Nos. 26775/2021 & 26776/2021
+ FAO 182/2021, CM Nos. 26780/2021 & 26781/2021
+ FAO 183/2021, CM Nos. 26785/2021 & 26786/2021
+ FAO 184/2021, CM Nos. 26792/2021 & 26793/2021
+ FAO 185/2021, CM Nos. 26795/2021 & 26796/2021
+ FAO 186/2021, CM Nos. 26798/2021 & 26799/2021
+ FAO 187/2021, CM Nos. 26803/2021 & 26804/2021
+ FAO 188/2021, CM Nos. 26806/2021 & 26807/2021
+ FAO 189/2021, CM Nos. 26811/2021 & 26812/2021
+ FAO 190/2021, CM Nos. 26814/2021 & 26815/2021
+ FAO 191/2021, CM Nos. 26874/2021 & 26875/2021
+ FAO 192/2021, CM Nos. 26879/2021 & 26880/2021
+ FAO 193/2021, CM Nos. 26882/2021 & 26883/2021
+ FAO 194/2021, CM Nos. 26899/2021 & 26900/2021
+ FAO 195/2021, CM Nos. 26928/2021 & 26929/2021
+ FAO 196/2021, CM Nos. 26939/2021 & 26940/2021
+ FAO 197/2021, CM Nos. 26991/2021 & 26992/2021
+ FAO 198/2021, CM Nos. 26994/2021 & 26995/2021
+ FAO 199/2021, CM Nos. 27360/2021 & 27361/2021
M/S HIMANGNI ENTERPRISES
..... Appellant
Through: Mr. Rajat Aneja, Adv. with
Mr. Kartik Krishan Sood, Adv.
versus
KAMALJEET SINGH AHLUWALIA
..... Respondent
Through: Mr. Sandeep Sethi and
Mr. Sudhir Nandrajog, Sr. Advs. with
Mr. Preet Pal Singh, Mr. Sameer
Chaudhary, Ms. Tanupreet Kaur,
Mr. Aaryan Sharma, Mr. Saurabh
Sharma, Ms.Sonali Jain,
Mr. Gaurav Sharma &
Mr. Siddharth Tandon, Advs.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J (ORAL)
CM No. 26748/2021 in FAO 175/2021
CM No. 26751/2021 in FAO 176/2021
CM No. 26754/2021 in FAO 177/2021
CM No. 26759/2021 in FAO 178/2021
CM No. 26764/2021 in FAO 179/2021
CM No. 26768/2021 in FAO 180/2021
CM No. 26775/2021 in FAO 181/2021
CM No. 26780/2021 in FAO 182/2021
CM No. 26785/2021 in FAO 183/2021
CM No. 26792/2021 in FAO 184/2021
CM No. 26795/2021 in FAO 185/2021
CM No. 26798/2021 in FAO 186/2021
CM No. 26803/2021 in FAO 187/2021
CM No. 26806/2021 in FAO 188/2021
CM No. 26811/2021 in FAO 189/2021
CM No. 26814/2021 in FAO 190/2021
CM No. 26874/2021 in FAO 191/2021
CM No. 26879/2021 in FAO 192/2021
CM No. 26882/2021 in FAO 193/2021
CM No. 26899/2021 in FAO 194/2021
CM No. 26928/2021 in FAO 195/2021
CM No. 26939/2021 in FAO 196/2021
CM No. 26991/2021 in FAO 197/2021
CM No. 26994/2021 in FAO 198/2021
CM No. 27360/2021 in FAO 199/2021
These applications have been filed by the appellant seeking
condonation of 344 days delay in filing these appeals.
For the reasons stated in the applications, the delay of 344
days in filing the appeals is condoned.
Applications are disposed of.
FAO 175/2021, CM No. 26749/2021
FAO 176/2021, CM No. 26752/2021
FAO 177/2021, CM No. 26755/2021
FAO 178/2021, CM No. 26760/2021
FAO 179/2021, CM No. 26765/2021
FAO 180/2021, CM No. 26769/2021
FAO 181/2021, CM No. 26776/2021
FAO 182/2021, CM No. 26781/2021
FAO 183/2021, CM No. 26786/2021
FAO 184/2021, CM No. 26793/2021
FAO 185/2021, CM No. 26796/2021
FAO 186/2021, CM No. 26799/2021
FAO 187/2021, CM No. 26804/2021
FAO 188/2021, CM No. 26807/2021
FAO 189/2021, CM No. 26812/2021
FAO 190/2021, CM No. 26815/2021
FAO 191/2021, CM No. 26875/2021
FAO 192/2021, CM No. 26880/2021
FAO 193/2021, CM No. 26883/2021
FAO 194/2021, CM No. 26900/2021
FAO 195/2021, CM No. 26929/2021
FAO 196/2021, CM No. 26940/2021
FAO 197/2021, CM No. 26992/2021
FAO 198/2021, CM No. 26995/2021
FAO 199/2021, CM No. 27361/2021
1. As these appeals involve almost identical facts and
issues and the parties in these appeals being the same, the
appeals are being decided through this common order.
2. The challenge in these appeals arises from orders, (all)
dated May 30, 2020 passed by the Addl. District Judge-07,
South-East District, Saket Courts, New Delhi ('ADJ' for short)
in the Civil Suit Nos. 8174/2018, 7263/18, 7752/2018,
9213/2018, 6980/2016, 8180/2018, 7137/2018, 7954/2018,
9214/2018, 9216/2018, 7940/2018, 8181/2018, 9215/2018,
7976/2018, 9195/2018, 8176/2018, 6954/2018, 8182/2018,
9194/2018, 8179/2018, 6953/2018, 8178/2018, 9196/2018,
8177/2016 & 7221/2018 (all) titled as Kamaljeet Singh
Ahluwalia v. Himangni Enterprises whereby the applications
of the respondent (plaintiff in the civil suits) under Order
XXXIX Rule 10 read with Section 151 of Code of Civil
Procedure, 1908 ('CPC', for short) were allowed by the ld.
ADJ directing the appellant (defendant in the civil suits) to pay
arrears of rent and use and occupation charges to the
respondent / plaintiff with respect to the following suit
properties / units on the second floor in a commercial complex
known as "OMAXE SQUARE" situated at Plot No. 14, non-
hierarchical Commercial Centre, District Centre, Jasola, New
Delhi - 110025 within a period of one year from the date of
the said order as per the details given below:
Sl. Case Nos. / Unit Nos./ suit Amount Awarded Predecessor-in- Dt. Of execution
No. Suit Nos. properties interest of sale deed
1. FAO 175/2021 Commercial Arrears of rent Sh. Mahesh Bajaj 16..09.2014
space/shop bearing @ Rs. 37,363/- per month
CS. No. 8174/2018 No. SF-3, w.e.f. 18.09.2014 till
admeasuring 385.19 29.07.2015 and use and
square feet (super) occupancy charges from
29.07.2015 till 28.11.2018
2. FAO 176/2021 commercial Arrears of rent @ Rs. Smt. Ratna Arora 18.02.2015
space/shop bearing 64,286/- per month w.e.f.
CS. No. 7263/2018 no. SF-40, 20.02.2015 till 08.08.2015
admeasuring 535.72 and use and occupancy
square feet (super) charges from 09.08.2015 till
28.11.2018
3. FAO 177/2021 Commercial Arrears of rent @ Rs. Sh. Sunil Mittal 05.11.2014
space/shop bearing 28,753/- per month w.e.f. and
CS. No. 7752/2018 No. SF-23A, 11.11.2014 till 29.07.2015 Sh. Rakhee Mittal
admeasuring 296.42 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
4. FAO 178/2021 Commercial Arrears of rent @ Rs. Smt. Rachna Saha 05.03.2015
space/shop bearing 48,254/- per month w.e.f.
CS. No. 9213/2018 No. SF-32, 10.03.2015 till 29.07.2015
admeasuring 497.46 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
5. FAO 179/2021 Commercial Arrears of rent @ Rs. Sh. Mitra Lal 16.09.2014
space/shop bearing 33,155/- per month w.e.f. Sharma
CS. No. 6980/2016 No. SF-8, 17.09.2014 till 08.08.2015
admeasuring 341.80 and use and occupancy
square feet (super) charges from 09.08.2015 till
28.11.2018
6. FAO 180/2021 Commercial Arrears of rent @ Rs. Sh. Rajan Bajaj 31.12.2014
space/shop bearing 65,250/- per month w.e.f.
CS. No. 8180/2018 No. SF-42, 13.01.2015 till 10.08.2015
admeasuring 450 and use and occupancy
square charges from 10.08.2015 till
feet (super) 28.11.2018
7. FAO 181/2021 Commercial Arrears of rent @ Rs. Smt. Archana 05.03.2015
space/shop bearing 34,552/- per month w.e.f. Singhal
CS. No. 7137/2018 No. SF-31, 10.03.2015 till 29.07.2015 and
admeasuring 356.21 and use and occupancy Sh. Rahul Singhal
square feet (super) charges from 29.07.2015 till
28.11.2018
8. FAO 182/2021 Commercial Arrears of rent @ Rs. Sh. V.C. Mehta 30.10.2014
space/shop bearing 52,686/- per month w.e.f.
CS. No. 7954/2018 No. SF-43, 11.11.2014 till 29.07.2015
admeasuring 501.77 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
9. FAO 183/2021 Commercial Arrears of rent @ Rs. Sh. Ranvir Singh 28.02.2015
space/shop bearing 13,766/- per month w.e.f.
CS. No. 9214/2018 No. SF-6, 02.03.2015 till 29.07.2015
admeasuring 141.92 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
10. FAO 184/2021 Commercial Arrears of rent @ Rs. Smt. Alka Jain 05.03.2015
space/shop bearing 28,753/- per month w.e.f. and
CS. No. 9216/2018 No. SF-29, 10.03.2015 till 29.07.2015 Sh. Ruchir Jain
admeasuring 296.42 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
11. FAO 185/2021 Commercial Arrears of rent @ Rs. Sh. Mahesh Mittal 13.11.2014
space/shop bearing 43,371/- per month w.e.f.
CS. No. 7940/2018 No. SF-4, 21.11.2014 till 29.07.2015
admeasuring 447.12 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
12. FAO 186/2021 Commercial Arrears of rent @ Rs. Sh. Sanjeev 03.11.2014
space/shop bearing 42,981/- per month w.e.f. Malhotra
CS. No. 8181/2018 No. SF-30, 11.11.2014 till 29.07.2015
admeasuring 296.42 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
13. FAO 187/2021 Commercial Arrears of rent @ Rs. Sh. Joginder Bir 17.10.2014
space/shop bearing 32,624/- per month w.e.f. Kaur
CS. No. 9215/2018 No. SF-25, 18.10.2014 till 29.07.2015
admeasuring 336.33 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
14. FAO 188/2021 Commercial Arrears of rent @ Rs. Sh. G.R. Lakshmi 30.10.2014
space/shop bearing 45,619/- per month w.e.f.
CS. No. 7976/2018 No. SF-45, 11.11.2014 till 10.08.2015
admeasuring 470.30 and use and occupancy
square feet (super), charges from 10.08.2015 till
28.11.2018
15. FAO 189/2021 Commercial Arrears of rent @ Rs. Sh. Sanjay Goel 17.10.2014
space/shop bearing 32,013/- per month w.e.f. and
CS. No. 9195/2018 No. SF-23, 18.10.2014 till 29.07.2015 Smt. Jyoti Goel
admeasuring 296.42 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
16. FAO 190/2021 Commercial Arrears of rent @ Rs. Sh. Rajan Bajaj 31.12.2014
space/shop bearing 68,855/- per month w.e.f.
CS. No. 8176/2018 No. SF-28, 14.01.2015 till 10.08.2015
admeasuring 474.86 and use and occupancy
square feet (super), charges from 10.08.2015 till
28.11.2018
17. FAO 191/2021 Commercial Arrears of rent @ Rs. M/s. Unique 31.12.2014
space/shop bearing 39,661/- per month w.e.f. Alloys Pvt. Ltd.
CS. No. 6954/2018 No. SF-2, 14.01.2015 till 29.07.2015
admeasuring 317.29 and use and occupancy
square feet (super), charges from 29.07.2015 till
28.11.2018
18. FAO 192/2021 Commercial Arrears of rent @ Rs. Smt. Geeta Tiwari 18.02.2015
space/shop bearing 62,904/- per month w.e.f.
CS. No. 8182/2018 No. SF-17, 21.02.2015 till 29.07.2015
admeasuring 648.49 and use and occupancy
square feet (super) charges from 29.07.2015 till
28.11.2018
19. FAO 193/2021 Commercial Arrears of rent @ Rs. Smt. Sunila Goela 23.02.2015
space/shop bearing 59,159/- per month w.e.f.
CS. No. 9194/2018 No. SF-37, 02.03.2015 till 29.07.2015
admeasuring 492.99 and use and occupancy
square feet (super), charges from 29.07.2015 till
28.11.2018
20. FAO 194/2021 Commercial Arrears of rent @ Rs. Sh. Aman Khera 03.11.2014
space/shop bearing 79,450/- per month w.e.f.
CS. No. 8179/2018 No. SF-Com-1, 11.11.2014 till 29.07.2015
admeasuring 820 and use and occupancy
square feet (super), charges from 29.07.2015 till
28.11.2018
21. FAO 195/2021 Commercial Arrears of rent @ Rs. Smt. Kamlesh 31.12.2014
space/shop bearing 32,624/- per month w.e.f.
CS. No. 6953/2018 No. SF-26, 28.11.2014 till 29.07.2015
admeasuring 336.33 and use and occupancy
square feet (super), charges from 29.07.2015 till
28.11.2018
22. FAO 196/2021 Commercial Arrears of rent @ Rs. Sh. Daman Kumar 11.11.2014
space/shop bearing 84,393/- per month w.e.f.
CS. No. 8178/2018 No. SF-39, 11.11.2014 till 10.08.2015
admeasuring 544.47 and use and occupancy
square feet (super), charges from 10.08.2015 till
28.11.2018
23. FAO 197/2021 Commercial Arrears of rent @ Rs. Sh. Inderdeep 24.02.2015
space/shop bearing 37,732/- per month w.e.f Singh Modi
CS. No. 9196/2018 No. SF-24, 24.02.2015 till 29.07.2015 and
admeasuring and use and occupancy Sh. Rajneesh
388.99 square feet charges from 29.07.2015 till Chopra
(super), 28.11.2018
24. FAO 198/2021 Commercial Arrears of rent @ Rs. Sh. Anil Kumar 05.11.2014
space/shop bearing 61,217/- per month w.e.f. Chopra
CS. No. 8177/2016 No. SF-27, 11.11.2014 till 29.07.2015
admeasuring 631.10 and use and occupancy
square feet (super), charges from 29.07.2015 till
28.11.2018
25. FAO 199/2021 Commercial Arrears of rent @ Rs. M/s. Jai Ambey 31.12.2014
space/shop bearing 85,781/- per month w.e.f. Construction
CS. No. 7221/2018 No. SF-1, 14.01.2015 till 29.07.2015
admeasuring 686.25 and use and occupancy
square feet (super), charges from 29.07.2015 till
28.11.2018
3. The facts as noted from the appeals are, Suits were
filed by the respondent alleging therein that the appellant /
defendant was inducted as a tenant / lessee by its predecessors-
in-interest named above in respect of the suit properties on
monthly rental basis besides maintenance, electricity / water
and all other charges. The respondent purchased the suit
properties by way of registered sale deeds on the dates as
mentioned in the table above respectively executed by Sh.
Mahesh Bajaj, Smt. Ratna Arora, Sh. Sunil Mittal and Smt.
Rakhee Mittal, Smt. Rachna Saha, Sh. Mitra Lal Sharma, Sh.
Rajan Bajaj, Smt. Archana Singh and Sh. Rahul Singhal, Sh.
V.C. Mehta, Sh. Ranvir Singh, Smt. Alka Jain and Sh. Ruchir
Jain, Sh. Mahesh Mittal, Sh. Sanjeev Malhotra, Sh. Joginder
Bir Kaur, Sh. G.R. Lakshmi, Sh. Sanjay Goel and Smt. Jyoti
Goel, Smt. Sunila Goela, M/s. Unique Alloy Pvt. Ltd., Smt.
Geeta Tiwari, Smt. Sunila Goela, Sh. Aman Khera, Smt.
Kamlesh, Sh. Daman Kumar, Sh. Inderdeep Singh Modi, Sh.
Anil Kumar Chopra and M/s. Jai Ambey Construction in his
favour. It was also stated by the respondent that he did not
want the appellant to continue as a tenant, therefore the
tenancies of the appellant were terminated vide notices issued
and that despite the service of the said notices, appellant failed
to comply therewith.
4. It was further averred by the respondent that after the
termination of the tenancies, the appellant failed to vacate and
hand over the peaceful, physical and vacant possession of the
suit properties and occupied the same unauthorizedly and
illegally without any right, title and interest in the suit
properties and that the appellant is liable to pay use and
occupation charges till the date of handing over the vacant,
peaceful and physical possession of the suit properties / units.
5. It was pleaded that the appellant had some
arrangement with the predecessors-in-interest of the
respondent and in terms thereof the appellant had sublet the
suit properties along with other adjoining premises to WIPRO
Ltd. and that after the termination of lease with WIPRO Ltd.,
the possession of the suit properties along with other adjoining
premises was handed over by WIPRO Ltd. to the appellant on
March 18, 2015 pursuant to the orders passed by this Court in
the suit bearing CS(OS) No. 3273 of 2014. It was further
stated that the appellant had refused to hand over the
possession of the suit properties and that appellant had neither
paid nor tendered the monthly rent to the respondent which the
appellant is liable to pay along with interest @ 12% per
annum.
6. The appellant filed written statements in all the suits
and took a stand that the Commercial Complex was proposed
to be constructed on a plot of land bearing No. 14, ad-
measuring 6986 Sq. Meters., situated at Jasola, New Delhi
which was allotted by the Delhi Development Authority to a
company namely 'OMAXE Construction Limited' at an
auction held on March 21, 2005 for construction of a
commercial complex as per the building plans approved by
Delhi Development Authority and / or any other authorities. It
was stated by the appellant that the company had a plan to
construct the complex and had decided to make allotments of
the commercial spaces to the intending allottees. It was also
stated that after the construction of the complex namely,
OMAXE SQUARE, the company OMAXE Construction
Limited sold different commercial spaces / units to intending
buyers (including predecessor-in-interest) of the respondent
vide sale deeds qua the respective units. The predecessors-in-
interest of the respondent named above allegedly purchased
the suit properties vide sale deed executed by OMAXE
Construction Limited through its authorized signatory in their
favour. It was further stated that the said owners after having
purchased their respective units / spaces approached the
appellant to facilitate the leasing of their units to WIPRO Ltd.
It was stated that the Company WIPRO Ltd. agreed to take the
entire second floor of the complex including the common
areas on lease with a condition to convert the individual units
into a big open space. The individual owners though agreed to
give their units on lease, but they were not willing to incur the
expenses for breaking down the walls or other expenses to
make the place rentable since it would have been difficult to
coordinate with more than 30 individual owners. In order to
facilitate the modalities of lease, the appellant entered into
three-fold negotiations; firstly, with the individual unit owners,
secondly with WIPRO Ltd. and thirdly with OMAXE Limited.
Eventually OMAXE Limited agreed to accord permission to
break down the walls of the units situated on the second floor
of the said complex on payment of a one-time fee of Rs. 15
Lacs. After due negotiations, separate agreements / lease
deeds were entered into between the individual unit owners
and the appellant wherein it was specifically agreed that the
lessee (appellant herein) would be entitled to sub-lease the said
units to WIPRO Ltd. only on the terms and conditions settled
therein. It was also the stand of the appellant in its written
statements that the suits were not maintainable as the
predecessors-in-interest of the respondent entered into lease
deeds with the appellant qua suit properties with the sole
intention to give the suit properties on lease to WIPRO Ltd.
through appellant and that the predecessors-in-interest of the
respondent had authorized and empowered the appellant with
full liberty to sign the lease deeds in favour of the WIPRO Ltd.
thereby making it clear that the end user was WIPRO Ltd.,
who had all the rights to enjoy the suit properties. After the
agreements with the individual owners of the units, a lease
deed dated June 4, 2010 was executed between the appellant
and the WIPRO Ltd. in respect of super area of approximately
17921 Sq. Ft. on the second floor of the business complex,
OMAX SQUARE which area was transformed into an open
space after breaking the walls of the individual units inclusive
of the suit properties.
7. It was further the stand of the appellant in the written
statements that the subject suits filed by the respondent against
the appellant on the basis of the lease deeds is bad in law and
liable to be dismissed since the said lease deeds executed by
the predecessors-in-interest of the respondent were not lease
deeds as envisaged under Section 105 of the Transfer of
Property Act, 1882 but a contract of agency for looking after
and managing the suit properties for the purposes of letting out
and collecting the rent from the respective suit properties.
8. It was further pleaded that besides the predecessors-in-
interest of the respondent, other owners of the individual units
of the second floor of the commercial complex had in similar
and identical manner appointed the appellant as their agent to
collect rent and to distribute the same among the individual
owners and as such the title of a landlord given to the appellant
is only a misnomer, whereas the appellant has always acted for
individual owners as an agent. That apart it was the stand of
the appellant that the respondent had falsely alleged about the
termination of the tenancy as no legal or valid notices for
termination of tenancies have been given by the respondent, as
required under the terms of the agreement between the
predecessors-in-interest and the appellant. It was also
contended that at the time of purported expiry of the lease deed
between the appellant and WIPRO Ltd. certain disputes arose
between them, pursuant thereto a suit being Wipro Ltd. v.
Himangni Enterprises and Ors., CS(OS) No. 1526/2014 was
filed by WIPRO Ltd. seeking recovery of advance rent along
with pendente lite and future interest. Further in the said suit a
counter-claim was filed by the appellant seeking recovery of
mesne profits, damages and user / occupation charges, besides
of recovery of possession, pendente lite and future interest and
restoration of the leased premises to its original condition. It
was further averred that a fresh suit being Himangni
Enterprises v. Wipro Ltd., CS(OS) No. 3273/2014 was
preferred by the appellant before this Court seeking reliefs of
specific performance and damages. In the latter suit,
respondent had also filed an application under Order I Rule 10
CPC seeking its impleadment as a defendant in the said suit. It
was contended by the appellant that issue involved in the said
suit was directly and substantially related to the issues of the
previously instituted suit, i.e., CS (OS) No. 1526/2014 and
thus the said suit would not be maintainable. The application
filed by the respondent under Order I Rule 10 CPC was
dismissed by this Court on July 21, 2016.
9. Pursuant to the written statements, replications were
filed by the respondent controverting the contentions of the
appellant.
10. The respondent had also filed applications under Order
XXXIX Rule 10 read with Section 151 CPC in the aforesaid
suits seeking direction against the appellant for payment of
arrears of rent as well as user and occupancy charges qua the
suit properties. The appellant had filed replies to the
applications whereby reference was made to the averments
made in the written statements in the aforesaid suits and it was
further pleaded by the appellant that there is no relationship of
landlord and tenant between the respondent and the appellant
in respect of the suit properties as the lease agreements
executed between the predecessors-in-interest of the
respondent and the appellant was in fact an agency agreement
and the appellant was working as an agent on behalf of the
owners of the individual units including the predecessor-in-
interest of the respondent, who through appellant had let out
their units to WIPRO Ltd. The said applications came up for
hearing before the ld. ADJ, who disposed of the applications in
all the suits vide order dated May 30, 2020 thereby giving
directions, a reference of which has already been made above.
SUBMISSIONS
11. It is the submission of Mr. Rajat Aneja, learned
counsel appearing for the appellant that the ld. ADJ while
passing the impugned orders thereby allowing the applications
under Order XXXIX Rule 10 CPC failed to take into
consideration the pleadings of the parties coupled with the
documentary material placed on record by the appellant
inasmuch as after the expiry of the initial period of tenancy of
WIPRO Ltd., in the year 2013 the suit properties were not in
exclusive possession of the appellant, i.e., after the delivery of
the possession by WIPRO Ltd. on March 18, 2015, the
possession thereof was forcibly taken by the respondent in
2015 through M/s. Godfrey Philips. He further stated that
notwithstanding the aforesaid position, the ld. ADJ while
considering the applications under Order XXXIX Rule 10
CPC failed to appreciate that the entitlement of the respondent
could not be established conclusively keeping in view the fact
that there was no privity of contract between the appellant and
the respondent. It is more so because, the respondent claimed
the arrears of rent and occupancy charges through his
predecessor-in-interest whose agreement with the appellant
was still to be tested on the touchstone of trial. Therefore, ld.
ADJ has committed a grave jurisdictional error by unilaterally
placing reliance upon the version of the appellant without even
considering the aforesaid vital aspect of the matter. Mr. Aneja
has also stated that the ld. ADJ failed to take into consideration
the scope of jurisdiction vested in it which empowers the
Courts to apply its discretion to pass appropriate orders in the
event of a strong prima facie case existing in favour of the
respondent. However, there existed no prima facie case in
favour of the respondent in view of the documents filed on
record by the appellant including the Memorandum of
Understanding ('MoU' for short) dated October 12, 2015 by
virtue of which a settlement was arrived at between the
respondent and Rajesh Arora (partner of the appellant firm)
wherein the respondent undertook to pay a sum of Rs. 20
Crores to Rajesh Arora, who in turn agreed to hand over the
possession of the units situated on the second floor of the
business complex OMAXE SQUARE against receipt of the
said amount. According to Mr. Aneja, reference to the delivery
of possession of the second floor in the MoU was in the
context of the suit properties, i.e., second floor of the business
complex OMAXE SQUARE of which the suit properties form
a part. That apart, the MoU does not stipulate that the payment
of arrears of rent due qua the suit properties. However,
contrary to the aforesaid position, the Ld. ADJ disregarded the
MoU and instead observed that the said MoU was not set up as
a defence by the appellant and it was attempted to be put on
record by means of an amendment application which has been
disallowed earlier.
12. It is also stated by Mr. Aneja that while disregarding
the MoU dated October 12, 2015, the ld. ADJ failed to
consider the order dated November 28, 2018 passed by this
Court in Civil Suit bearing CS(COMM) No. 1218 of 2018 of
the appellant filed by Rajesh Arora against the respondent
seeking a relief of specific performance in respect of the said
MoU dated October 12, 2015 and which suit is still pending
adjudication before this Court. In other words, the Ld. ADJ
should have considered the said MoU inasmuch as the
appellant was entitled to prove in his defence during the cross-
examination of the witnesses of the respondent the effect of
the MoU dated October 12, 2015 and which right of the
appellant could not have been taken away.
13. It is the submission of Mr. Aneja that there were
critical admissions which have come in the testimony of the
respondent in CS (COMM) 1218/2018 during his cross-
examination as DW1 therein accompanied by document which
clearly bring forth the factum of the MoU dated October 12,
2015 having been executed between the parties and which
clearly had a bearing on the subject suits from which the
impugned orders dated May 30, 2020 have arisen. Mr. Aneja
states that even if the amendment applications of the appellant
were earlier dismissed by the Trial Court, it could not have
precluded the appellant from producing or relying upon the
document(s) already on record in support of his defence and
which defence was principally on the lines of the appellant
herein being an agent only and not a tenant.
14. Mr. Aneja has also stated that the ld. ADJ in the
impugned order had observed that the contention of the
appellant regarding non-existence of relationship of landlord
and tenant between the parties had already been dealt with in
an earlier application filed under Order XII Rule 6 CPC, while
passing a decree of possession is erroneous inasmuch as the
application of the appellant / defendant filed under Order XII
Rule 6 CPC was allowed by the ld. ADJ vide order dated July
20, 2018. However, after the said order dated July 20, 2018
was passed in the suits, this Court in CS(COMM) No.
1218/2018, with the consent of the parties therein while
disposing of an interim application (IA. No. 15170/2018 filed
under Order XXXIX Rule 1 and 2 CPC) vide order dated
November 28, 2018 directed the parties therein that the
process of demarcation and construction of the partition wall
segregating flats / units of the defendant (respondent herein)
and that the flats / units of the plaintiff (appellant herein) and
the common areas be carried out whereupon the defendant
(respondent herein) will take possession of his flats / units on
the one hand and plaintiff (appellant herein) will take
possession of its flats on the other hand, whereas the common
areas will be meant for common use. Thus, according to Mr.
Aneja it became abundantly clear that after the aforesaid order
dated November 28, 2018 was passed by this Court, the issue,
i.e., aspect of possession of the suit properties having been
handed over was put to rest. Since the issue of possession was
sorted out between the parties by this Court, any challenge to
the order dated July 20, 2018 of the ld. ADJ under Order XII
Rule 6 CPC would have been a futile exercise on the part of
the appellant and thus no appeal was filed against the said
order dated July 20, 2018. However, without appreciating this
aspect, the ld. ADJ had observed in Para 24 of the impugned
orders, though erroneously, that the orders passed in the earlier
applications under Order XII Rule 6 CPC were never
challenged by the appellant and therefore the observations
made therein had attained finality. The said observations
according to Mr. Aneja are totally extraneous. That apart, it is
the submission of Mr. Aneja that the ld. ADJ gravely erred in
observing in Para 28 that the lease deeds between the
predecessors-in-interest of the respondent and the appellant
have been placed on record by the appellant itself and
therefore it could not be argued that there was no admission on
the part of the appellant, is totally erroneous inasmuch as the
said observations of the ld. ADJ below were unsustainable as
it was the case of the appellant as pleaded in the written
statements that the lease deeds executed between the
predecessors-in-interest of the respondent and the appellant
were not lease deeds as envisaged under Section 105 of the
Transfer of Property Act, but a contract of agency merely for
the purpose of looking after and managing the suit properties
to ensure its letting out and for collecting the rents qua the suit
properties. He also stated, it was the case of the appellant that
besides the predecessors-in-interest of the respondent, other
owners of individual units of the second floor of the
commercial complex had in a similar and identical manner
appointed the appellant as their agent to collect rent and to
distribute the same amongst the individual owners.
15. Mr. Aneja stated that the ld. ADJ failed to appreciate
that there has been no compliance of the terms of the clause
8.2 of the lease / agreements by the respondent under which it
has been agreed between the predecessors-in-interest of the
respondent and the appellant that in case the lessee fails to
make the payment of rent on the due date then the lessor shall
give a notice of such default to the lessee and the lessee may
pay within 90 days. However, no such notice qua the rent or
arrears of rent had ever been issued by either the respondent or
the predecessors-in-interest at any point of time. Mr. Aneja
had also stated that the ld. ADJ had failed to take into
consideration that the case of the respondent was based on the
sale deeds which were allegedly executed by the predecessors-
in-interest of the respondent in his favour. As per clause 4 of
the sale deed (for example, dated February 24, 2015), it was
clearly mentioned that the vendor (predecessor-in-interest) of
the respondent has handed over the vacant and physical
possession of the suit properties to the vendee (respondent /
plaintiff). However, it was an admission that the suit properties
were under the physical possession of the tenant WIPRO Ltd.
and the said possession of the suit properties was delivered by
the WIPRO Ltd. to the appellant on March 18, 2015 and in the
light of the aforesaid, there was no question of delivery of
possession of the suit properties by the predecessor-in-interest
of the respondent to him on February 24, 2015. Therefore, the
execution of the alleged sale deed on the basis of which the
said suit was filed was under cloud. In view of the
uncontroverted material on record, the ld. ADJ has committed
an error in allowing the application under Order XXXIX Rule
10 CPC.
16. Mr. Aneja has also stated, it was the stand of the
respondent that Rajesh Arora, the partner of the appellant
represented that WIPRO Ltd. is interested in taking on lease
the suit properties and that Rajesh Arora can get all the units
leased out to WIPRO Ltd. and shall take his brokerage by way
of service charges for facilitating and working out the
modalities of the lease with WIPRO Ltd. It was further averred
by the respondent that Mr. Rajesh Arora is in discussion with
other unit holders in the said commercial complex and will try
to facilitate their leases also since WIPRO Ltd. is interested in
taking a substantial chunk of the commercial complex on rent.
According to Mr. Aneja, it was apparent that the respondent
himself admitted that the role of appellant was merely that of
an agent.
17. Mr. Aneja concluded his arguments by stating that the
appeals filed by the appellant need to be accepted and the
impugned orders passed on the applications filed by the
respondent under Order XXXIX Rule 10 CPC need to be set
aside.
18. Mr.Sandeep Sethi, learned Senior Counsel appearing
for the respondent in some appeals would submit that the
respondent had filed the suits for ejectment of the appellant,
who was a tenant, from different units; for recovery of rent and
mesne profits at market rate on the ground that the appellant is
in unauthorized occupation. In a suit for ejectment, what has
to be seen is whether there is a landlord-tenant relationship and
the tenancy has been terminated. According to him, both the
requirements have been met in the cases in hand as can be seen
from various documents filed on record. He stated that the
lease deeds executed between the appellant and the
predecessors-in-interest of the respondent (which are identical
in respect of all units) are registered deeds and as the
nomenclature itself suggest the same were "lease deed". That
apart, clause 2.1 of the same suggest the payment of lease rent
@ Rs.37,732/- (in FAO 197/2021) by the appellant to the
respondent and it is this amount as depicted in all the lease
deeds pertaining to the units in all the appeals which have been
granted by the ld. ADJ.
19. He laid stress on the fact that the payment of rent by
the appellant was not subject to use by WIPRO Ltd. Mr. Sethi
has also referred to Clause 8.2 of the lease deed (in FAO
197/2021) which is a stipulation governing termination of
lease in the eventuality, the appellant (lessee) failing to make
payment of the lease rent which shall result in the appellant
handing over the vacant possession of the premises (units).
Mr.Sethi has also highlighted the fact that on an application
filed by the respondent under Order XII Rule 6 CPC, the
possession of the units / premises was granted in favour of the
respondent vide order dated August 20, 2018 which order has
not been challenged by the appellant, and to that extent the
same has attained finality. Mr. Sethi stated, reliance placed by
Mr.Aneja on the MoU dated October 12, 2015 is misconceived
as the same was not the part of the defence / written statements
filed by the appellant. In fact, according to him, there is no
counter claim of the appellant in the suits. Even the attempt of
the appellant to seek amendment of the written statements was
rejected by the ld. ADJ on July 19, 2018 and the appeals
thereof have been dismissed.
20. Further, Mr. Sethi by contesting the MoU would
submit, even otherwise the appellant Himangni Enterprises
was not a signatory to the said MoU, i.e., the parties herein are
not bound by the same. He has drawn my attention to the order
dated August 03, 2018 of this Court in CM (M) 880/2018
wherein this Court has rejected the challenge to the order dated
July 19, 2018 and has noticed that the suit and the MoU have
no connection, as the subject manner of the suit was
completely different.
21. In substance, it is his submission, that Mr.Aneja cannot
rely on MoU. He also stated, in fact, no issue has been framed
in the suits for Mr.Aneja to argue that the respondent has to
pay the amount as sought to be claimed by the appellant. He
stated if a party intend to setup a case different from landlord
and tenant, it has to specifically plead and place evidence in
that regard. He has relied upon the judgment in the case of
Sudhir Sabharwal v. Rajesh Pruthi, 218 (2015) DLT 290.
Mr. Sethi has also relied upon the order dated January 20,
2020 of a Coordinate Bench of this Court in transfer petition
being TR.P.(C.) 7/2020 whereby the transfer petition of the
appellant seeking transfer of 28 suits (including these) to this
Court on the ground of pendency of suit being CS (COMM)
1218/2018, Rajesh Arora & Ors. v. Kamaljeet Singh
Ahluwalia & Ors., was dismissed by noting that the decree of
ejectment has been passed against the appellant which has
been given effect to in terms of order dated November 28,
2018 passed in CS (COMM) 1218/2018 and also it do not find
any overlapping issues in the two suits.
22. According to him, under Order XVA CPC, the Court
not only can direct payment of admitted rent but can also
direct something more than that by referring to the judgment in
the case of Raghubir Rai v. Prem Lata & Ors., 211 (2014)
DLT 516. On similar proposition, he relied upon the judgment
in the case of Sunil Kapoor v. Himmat Singh & Ors., 2010
SCC OnLine Del 354. It is his plea that the appellant cannot
take recourse to the pending suit (being CS (COMM)
1218/2018) to frustrate the provisions of Order XVA CPC. In
conclusion he stated that the impugned order is not perverse in
nature but based on reasons and seeks the dismissal of the
appeals.
23. Mr.Sudhir Nandrajog, learned Senior Counsel
appearing for the respondent in some other appeals would
contest the case setup by the appellant in the appeals, that it
has a claim of Rs.20 Crores against the respondent, by stating
the same is untenable in view of the provisions of Order VIII
Rule 6 CPC, which requires the case has to be setup in the
pleadings at the first instance. Concedingly, the case as being
argued, has not been pleaded in the written statements. The
attempt of the appellant to plead such a case by way of
amendment has been rejected, so also the appeal therefrom.
24. Mr.Aneja in rejoinder submissions stated that even if
the appellant is precluded from relying upon the MoU, surely
the appellant is within its right to cross examine the witnesses
of the respondent on the same as it is the case of the appellant
that there is no relationship of tenant and landlord between the
parties but that of a principal and agent and the amounts
sought in the suits are not payable.
CONCLUSION
25. Having heard the learned counsel for the parties, and
perused the record, the only issue which arises for
consideration in these appeals is, whether the ld. ADJ is
justified in allowing the applications of the respondent (in the
suits filed by him) under Order XXXIX Rule 10 read with
Section 151 CPC and grant the arrears of rent and use and
occupation charges in his favour till the date of possession of
the units / suit properties to him.
26. The respondent has filed Suits for ejectment
possession, recovery of arrears and permanent injunction on
the strength of lease deeds executed in respect of the properties
/ units by his predecessors-in-interest. The respondent
purchased the units / suit properties from the predecessors-in-
interest by way of registered sale deeds. It was the case of the
respondent that the tenancies have come to an end with efflux
of time and the appellant neither paid nor tendered monthly
rentals to the predecessors-in-interest or to him from different
dates with regard to different units. Despite notices, the
appellant had not vacated the unit / properties.
27. There is no dispute that the appellant, handed over the
possession of the units / properties on November 28, 2018
after the application of the respondent under Order XII Rule 6
was allowed which order was given effect to in the order dated
November 28, 2018 in CS (COMM) 1218/2018 of this Court.
28. The plea of Mr.Aneja in substance is that the ld. ADJ
could not have passed the impugned orders in view of the
documents filed on record by the appellant including the MoU
dated October 12, 2015 by which a compromise was entered
between the respondent and Rajesh Arora, whereby the
respondent undertook to pay Rs.20 Crores to Rajesh Arora
who in turn agreed to handover the units situated at the second
floor of OMAXE SQUARE. That apart, the MoU does not
stipulate, the payment of arrears of rent due, qua the suit
properties.
29. I am not impressed by this submission of Mr.Aneja;
firstly there is no stand / claim of the appellant based on the
MoU as a defence or as a counter claim(s) in the written
statements and as such no issue has been framed in that regard,
for determination by the Court. Secondly, even otherwise, the
MoU has not been filed by the appellant in the suits. The
attempt of the appellant to seek amendment of written
statements based on MoU was rejected by the ld. ADJ vide
order dated July 19, 2018 wherein in para 12 the ld. ADJ has
stated as under:
"12. This judgment is squarely applicable to
the case in hand. However, even if we consider
this application on merits, it is an admitted fact
that this application has no concern with the
defendant firm whatsoever or with the subject
matter of the present case. The present suit has
been filed for eviction of the defendant firm
from the suit premises. The WS filed earlier
contained no reference to these two companies.
By moving this application, the defendants
wishes to file MoU entered into between the
parties out of court, however, this document
does not find mention of these cases pending
before this court specifically. There is no
mention with respect to disputes pending
between the plaintiff and defendant herein in
this MoU. It is pertinent to mention here that as
per the application of the defendant Mr Rajesh
Arora was Managing Director of the two
companies namely Arora and Associates Realty
Ltd. and M/s Innovating Thermal Coatings Pvt
Ltd known as ARC Arora Projects Pvt Ltd. It is
pertinent to mention here that companies are
distinct legal entities separate from its
shareholders/directors. This MoU- is between
the plaintiff and Mr Rajesh Arora and is not
even accompanied board resolution in favour
of Mr Rajesh Arora to act on behalf of the
company. The court itself cannot contemplate
or take into consideration that this MoU
includes the settlement in respect of present
case as well. Even if this settlement is taken to
be true, the amendments proposed to be made
in the written statement in this case are not
related to the defendant firm. The subject
matter of the suit pending in this court is
completely different. Therefore, this court do
not find any merits in this application. Hence,
application is dismissed."
(emphasis supplied)
30. The above reveals a finding of the Court below, that
the MoU on which reliance is placed by Mr. Aneja does not
include a settlement in respect of the suits filed by the
respondent herein. It is also a finding that the MoU is not
related to the appellant (defendant firm) which means, the
amount is not payable to the appellant. This finding of the
Court has attained finality with the rejection of CM (M)
880/2018 on August 03, 2018.
31. The ld. ADJ has dealt with the submission, as now
made by Mr. Aneja in para 25 which I reproduce as under:
"25. Another argument of the defendant's
counsel is that there was no admission in respect
to the rent and a memorandum of understating
was executed between one of the partners of the
defendant and the plaintiff and as per that MOU,
defendant was not required to pay any rent till it
received the same from Wipro. As far as this
argument is concerned, first of all, the MOU
relied upon by the defendant is not a part of
defence of the defendant of all in this case. It was
attempted to be put on record by way of moving
an amendment application which was disallowed.
The order of dismissal was challenged by the
defendant however of no avail and that order has
also attained finality. Apart from this, the
defendant tried to club the present case alongwith
the suit for recovery filed by the defendant against
the plaintiff before the Hon'ble High Court of
Delhi but the application for transfer was
dismissed by the Hon'ble High Court of Delhi
vide its order dated 20.01.2020."
(emphasis supplied)
32. Insofar as the submission of Mr.Aneja that the ld. ADJ
has failed to consider the order dated November 28, 2018
passed in CS (COMM) 1218/2018 of this Court seeking the
relief of specific performance in respect of MoU dated October
12, 2015 which is still pending and the appellant is entitled to
prove his defence during cross examination of the witnesses of
the respondent, which right cannot be taken away is
concerned, the said submission of Mr.Aneja is overlooking the
fact that the appellant had failed in its attempt to bring on
record the said MoU through amendment. Even the revision
petition was dismissed. The ld. ADJ while rejecting the
argument has in para 26 stated as under:
"26. As far as the lease deed executed between
the defendant and predecessor in interest of the
plaintiff is concerned, there can not be any
contest to the same as it was placed on record by
the defendant itself & the rate of rent is
mentioned therein. So, defendant can not fall on
any MOU for absolving itself from its liability to
pay the arrears."
(emphasis supplied)
33. I agree with the aforesaid conclusion of the ld. ADJ.
As the application under consideration was under Order
XXXIX Rule 10 CPC for payment of arrears of rent / use and
occupation charges, till the possession of the units was given
to the respondent, based on the admitted rent in the lease deed
executed between the predecessors-in-interest of respondent
and the appellant, the ld. ADJ has rightly granted the amounts
by holding that the appellant cannot fall back upon MoU and
absolve itself from its liability to pay the arrears.
34. The plea of Mr. Aneja that, the Trial Court could not
have precluded the appellant from producing or relying upon
the documents already on record in support of his defence
which is principally that the appellant is an agent only and not
a tenant is also not appealing. This I say so, in view of the
conclusion of the ld. ADJ while deciding application under
Order XII Rule 6 CPC of the respondent herein, wherein in
para 23 to 27 ld. ADJ has held as under:
"23. Relationship of landlord and tenant between
the parties: Ld Sr. Advocate for the defendant has
argued that lease deed executed between the
predecessor in interest of the plaintiff and that of
defendant is not a lease deed, in its true spirit and
it is a contract of agency. In order to decide
whether the lease deed in question was in fact a
lease deed or a contract of agency, certain facts
are important which are placed herein under:-
24. First of all, it is pertinent to mention here that
it was a registered lease deed for a period of three
years which had already expired on 14.07.2013.
Section 105 of the Transfer of the Property Act
provides here as under:-
"A lease of immovable property is a transfer
of a right to enjoy such property, made for a
certain time, express or implied, or in
perpetuity, in consideration of a price paid
or promised, or of money, a share of crops,
service or any other thing of value, to be
rendered periodically or on specified
occasion to the transfer by the transferee,
who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined:-
The transferor is called the lessor, the
transferee is called the lessee, the price is
called the premium, and the money, share,
service or other thing to be so rendered is
called the rent."
25. First condition is that it should be of an
immovable property which is satisfied here.
Second, it is a transfer of right to enjoy such
property. Transfer of possession of unit in question
from predecessor of plaintiff to defendant is not
denied. In the lease deed specific period of three
years have been mentioned with a further clause of
allowing the lessee i.e. defendant to sub let the
same to Wipro Ltd. The consideration amount is in
the form of rent which was Rs. 37,732/- per month.
All the conditions mentioned in the Section 105 of
Transfer of Property Act stands satisfied. Merely
having a clause of sub letting does not make it
contract of agency. It is pertinent to mention here
that an agent has no right to retain the property
whatsoever unless otherwise stated or proved. The
defendant has filed documents along with its
written statement. A lease deed entered between it
(defendant) and M/s Wipro was executed in
pursuance of the lease deed executed between the
parties herein. This lease deed (between defendant
and M/s Wipro) specifically provides that M/s
Himangi Enterprises i.e. defendant is a lessor. At
one place i.e. in the written statement, defendant
alleges that property was taken for giving it to
Wipro as an agent, however, in the lease deed
executed between the defendant and Wipro, it
specifically shows that defendant is a lessee. This
fact is neither disputed nor explained in any
manner. Defendant cannot be allowed to
approbate & reprobate at the same time. Merely
taking a plea in this case that a registered lease
deed is a contract of agency is inconsequential.
The execution of the same has not been denied.
This is an attempt to bring it within the ambit of
Section 202 of Indian Contract Act, where agent
has an interest in the subject matter. But this
argument or interpretation is an absolute fallacy.
Registered lease deed has to be read in the manner
in which it is written in view of Section 91 & 92 of
Indian Evidence Act, 1872. Therefore, it stands
established that predecessor in interest of the
plaintiff and defendant had a relationship of
landlord and tenant between them.
26. This lease deed expired by efflux of time on
14.07.2013, however, admittedly no fresh lease
deed was executed between the parties and the
defendant became a month to month tenant.
Plaintiff purchased this property on 18.02.2015
from the predecessor and got the sale deed
registered on 24.02.2015 and at that time
defendant was a month to month tenant. It is
pertinent to mention here that in a separate suit
filed by defendant against Wipro, the property
stood vacated on 18.03.2015 by the order of
Hon'ble High Court of Delhi and possession lies
with the defendant thereafter. Though, it is argued
that possession has been taken forcibly by one M/s
Godfrey at the instance of plaintiff, however, it is
not substantiated by any document and merely
remains an averment which is denied by plaintiff.
As far as Naspuri Dharmaiah (Supra) is
concerned, in this case it was not clear as to who is
in the possession of the property, however, in the
present case documents and the pleadings reveals
that property has already been handed over by M/s
Wipro to defendant on 18.03.2015 in pursuance of
the order of Hon'ble High Court of Delhi in
another case filed by the defendant herein against
M/s Wipro. The plea of forcible dispossession of
defendant by M/s Godfrey in connivance with
plaintiff is not substantiated. Therefore, this
judgment is not applicable.
27. It is also argued that no deed of adherence was
signed by subsequent purchaser i.e. plaintiff in
view of clause 6.2 of the lease deed. In this regard,
it is worthwhile to note here that when the plaintiff
purchased the suit property, this lease deed had
already expired and none of the terms of the lease
deed with respect to any compliance was binding
on the plaintiff. The reading of the entire lease
deed together clearly shows that it was a rent
agreement. The relationship of landlord and tenant
between the parties stands established."
(emphasis supplied)
35. There is a conclusive finding of the Trial Court that
there is a relationship of landlord and tenant between the
parties. This finding has not been disturbed, as no appeal has
been filed. The said finding is also not interfered with in the
order dated November 28, 2018 in CS (COMM) 1218/2021.
So, the plea of Mr.Aneja that the appellant was only an agent,
is liable to be rejected. The plea of Mr.Aneja that; (i) after the
aforesaid order dated August 20, 2018 was passed, this Court
in the suit bearing CS (COMM) 1218/2018, with the consent
of the parties disposed of an interim application being
I.A.15170/2018 vide order dated November 28, 2018, which
clearly reveals the issue, of handing over of possession of the
suit properties, was put to rest and there was no necessity to
challenge the order dated August 20, 2018 and; (ii) the ld. ADJ
without appreciating erroneously held that the order passed in
the application under Order XII Rule 6 was never challenged
and therefore observation made therein had attained finality
are concerned, the same are unmerited as in the order dated
November 28, 2018 this Court in paragraphs 9 and 10 has also
stated as under:
"9. It is also informed that there is a decree for
ejectment in favour of the defendants and
against the plaintiff no.4 Himangi Enterprises
with respect to the aforesaid flats.
10. It is clarified that the execution of the decree
will be in terms of above."
36. From the above, it is clear that this Court was
conscious that a decree of ejectment has been passed against
the plaintiff No.4, i.e., Himangni Enterprises appellant herein
with respect to flats / units and that the execution of the decree
will be in terms of the above, i.e., the decree of ejectment in
favour of the respondent herein. In other words, this Court has
not varied the order passed by the ld. ADJ in the application
under Order XII Rule 6 CPC. Hence, I am in agreement with
the conclusion of the ld. ADJ that the order passed on
application under Order XII Rule 6 CPC has attained finality.
37. The argument advanced by Mr.Aneja that the lease
deed executed between the predecessor in interest of the
respondent and the appellant, was not a lease deed as
envisaged under Section 105 of the Transfer of Property Act,
1882 as the same is only a contract of agency for the purpose
of looking after and managing the suit properties, is also
without merit for the reasons already stated above.
38. The plea of Mr.Aneja that the other owners of
individual units of the second floor of the commercial complex
had in similar and identical manner appointed the appellant as
their agent to collect rent, which fact has not been appreciated
by the ld. Trial Court is also unmerited in view of clear
stipulation in lease deed and the conclusion already drawn by
the ld. ADJ on the application under Order XII Rule 6.
39. Insofar as the plea of Mr. Aneja, with regard to the
date of possession is concerned, the order dated November 28,
2018 is very clear wherein in para 7 this Court has clearly
stated that defendants will take the possession of their flats,
which presupposes till that date, the possession of the flats was
not taken by the defendants, who included the respondent
herein. Hence, the ld. ADJ has rightly granted the use and
occupation charges till November 28, 2018.
40. In the end, I may refer to the judgment of this Court in
the case of Sunil Kapoor (supra), wherein this Court has held
that pendency of suit for specific performance is not a bar for
suit for ejectment. The relevant paragraph of the said judgment
is reproduced as under:
"20. Though the aforesaid two judgments of the
Division Bench of this Court are on injunction
application in suits for specific performance, but
the principles laid down therein would apply here.
The jurisdiction, if any, to stay eviction pending a
suit for specific performance is of the court where
the suit for specific performance is pending and the
court where the suit for ejectment/eviction is
pending ought not to restrain its hands merely
because the suit for specific performance has been
filed."
41. In the case of Nutan Tyagi v. Nirmala Dabas, 232
(2016) DLT 60, wherein it was similarly held as under:
"38. Thus, while allowing the appeal, it is clarified
(i) that the pendency of the suit for specific
performance will not come in the way of the suit
for ejectment filed by the respondent/defendant
against the appellant/plaintiff and/or in execution
of the decree therein........."
42. In view of my above discussion, I do not see any
illegality / perversity in the orders passed by the ld. ADJ in the
appeals. The appeals and connected application(s) are
accordingly dismissed. No costs.
V. KAMESWAR RAO, J
SEPTEMBER 03, 2021/jg/aky
