Full Text
HIGH COURT OF DELHI
Date of Decision: 07th May, 2025
KANTA GOSWAMI(SINCE DECEASED ) THR LRS .....Petitioner
Through: Mr. Shams Khwaja, Advocate.
Through: Mr. Digvijay Singh
JUDGMENT
1. Petitioner is defending a suit for recovery of possession, arrears of rent, damages/mesne profits.
2. She is aggrieved by order dated 09.02.2023 whereby her application moved under Order VII Rule 11 CPC has been dismissed.
3. The bare averments made in the plaint in question would indicate that the plaintiff asserts himself to be owner and landlord of the suit property in question which is situated in Mohan Park, Model Town, Delhi. According to plaintiff, the abovesiad property was let out to one Ms. Nidhi Goswami and a lease-deed was also executed and signed by the plaintiff and such Ms. Nidhi Goswami.
4. After expiry of such tenancy which the plaintiff had with Ms. Nidhi Goswami, the tenancy got converted into a month-to-month tenancy by efflux of time. CM(M) 2318/2024 2
5. Defendant Kanta Goswami(since deceased), mother of Ms. Nidhi Goswami made a request to plaintiff, and on the basis of her oral request, she was inducted as tenant in the same very property at a monthly rent of Rs. 10,000/-, excluding electricity and water charges.
6. The oral tenancy was allegedly, created on 01.02.2007.
7. Based on the abovesaid oral tenancy, the plaintiff has filed a suit for recovery of possession, arrears of rent and damages/mesne profits.
8. The process was served to defendant and she was also served also but according to learned counsel for plaintiff, on account of her unfortunate death, her written statement was never placed on the record. After her death, her LRs were though substituted in her place, even they did not file written statement as such, though, they placed on record an ad-hoc written statement. In such ad-hoc written statement, they denied the fact that the plaintiff was the owner and also disputed the relationship of the landlord and the tenant between the parties.
9. The petitioner herein filed an application under Order VII Rule 11 of CPC with the prayer that the suit be rejected on account of non-disclosure of cause of action and also because of the fact that oral tenancy is, allegedly, barred by law. According to the stand taken by the LR of the defendant, her mother had rather been cheated by the plaintiff and there was no such tenancy.
10. The challenge herein is to the dismissal of said application.
11. Mr. Shams Khwaja, learned counsel for petitioner, submits that the impugned order suffers from perversity and his contentions have not been appreciated by the learned Trial Court in the desired manner. During the course of arguments, he also submitted written submissions with advance copy to the other side. These have also been duly considered. CM(M) 2318/2024 3
12. Fact remains that plaintiff has, along with the suit, filed previously executed lease-deed which he had entered into with Ms. Nidhi Goswami.
13. The creation of oral tenancy is not barred by any law.
14. Indubitably, the onus on any such plaintiff is relatively rigorous and heavy but he has to, in any case, discharge the same in order to show and demonstrate that any such tenancy was created.
15. As per the averments made in the plaint, the plaintiff is not asserting his ownership over the property in question on the basis of any document or title. He simply submits that that there was an oral tenancy between him and the defendant (since deceased), and in view of such oral tenancy, which has already been terminated, the plaintiff is entitled to possession and arrears of rent /damages etc.
16. There is nothing reflected here which may indicate, even remotely, that the suit is barred by any provision of law.
17. According to learned counsel for the petitioner, the plaintiff is attempting to rely upon documents which are not even registered and these unregistered documents cannot create any interest in his favour and he is, for all practical purposes, a stranger and, therefore, the petitioner cannot be expected to return possession to the plaintiff.
18. However, as already noticed above, the plaintiff is seeking recovery of possession, merely, on the basis of fact that there was an oral tenancy created 01.02.2007 and that the defendant (since deceased) had agreed to take tenanted premises on rent at the rate of Rs. 10,000/- per month.
19. The aspect of ownership, as such, does not even come into picture in the present case. Nonetheless, it will be open to the petitioner to take all such pleas as are permissible to be taken in accordance with law, during the trial CM(M) 2318/2024 4 and, therefore, this Court does not find any merit in the present petition and the same is accordingly, dismissed.
20. Pending application also stands disposed of in aforesaid terms.
JUDGE MAY 7, 2025/sw/PB