Rajesh Tandon and Ors. v. M/s Magiq Intershoppe Pvt Ltd & Ors.

1. Plaintiffs have filed the present suit for recovery of possession of the first floor and the second floor of the property bearing no.G-3, South Extension, Part I, New Delhi. A decree for mesne profits, interest and costs is also prayed by the plaintiffs against the defendants.

2. As per the plaint, plaintiffs no.1 to 4 are the owners of a two and a half storeyed built up commercial immovable property raised on Plot no.3, Block G, admeasuring 250 sq. yards, situated at South Extension, Part-1, New Delhi (hereinafter referred to as „the suit property‟). Further, as per the plaint, on 28.11.1979, plaintiff no.5 entered into a Franchise Agreement with defendant no.3 for sale of readymade garments at the first floor and second floor of the suit property initially for a period of five years. Since defendants were not paying any amount as per the Franchise Agreement, a suit, being CS(OS)445/2007, was instituted by plaintiff no.5 2014:DHC:3773 against defendant no.3 wherein defendant no.3 took a stand that the subject property was never in their possession and the same was in the possession of defendant no.1, which led to the filing of the present suit.

3. Learned senior counsel for the plaintiffs contends that a bare reading of the written statement would show that no plausible defence has been raised, neither any particulars have been given with regard to alleged tenancy having been created by plaintiff no.5 in favour of defendant no.1. It is next contended that the pleas raised by defendant no.1 is vague as in para C of the preliminary objections defendant no.1 has stated on instructions from the plaintiff that defendant no.1 made advance/security payment of rental amount towards tenancy of the suit premises in lump sum for Rs.2.00 lakhs to one of their employees, Mr.Nippun Chaudhary, and out of the amount of Rs.2.00 lakhs, an amount of Rs.45,000/- was towards rental amount payable till December, 2011. It is further contended that the written statement is not supported by any document to show as to who inducted defendant no.1 as a tenant since there are five plaintiffs, what was the rate of rent and what was the other terms and conditions. No rent receipt has also been filed on record. Senior counsel, thus, prays that a decree may be passed in terms of Order VII Rule 10 CPC read with Order XV Rules 1 and 2 CPC against the defendants as no issue arises which would require adjudication.

4. I have heard learned senior counsel for the plaintiffs and also perused the plaint and the documents filed along with it. Summons in the suit were issued vide order dated 14.5.2012.

5. Written statement has been filed by defendant no.1, however, thereafter defendant no.1 has chosen not to appear in the matter. In the written statement filed, defendant no.1 does not raise any issue except a bald assertion has been made that defendant no.1 was a tenant of the plaintiffs, however, it may be noticed that in the written statement neither it has been specified as to which plaintiff nor the written statement discloses how defendant no.1 is a tenant of one of the plaintiffs.

6. In para 2 of the written statement filed by defendant no.1 it has been stated that Rs.2.00 lakhs was paid by defendant no.1 to one of the employees of the plaintiffs, however, not a single document has been placed on record by defendant no.1. On reading of the written statement there is no issue, which requires determination by this Court.

7. In the case of D.M. Deshpane and Others v. Janardhan Kashinath Kadam (Dead) By Lrs. and Others, reported at (1998) 8 SCC 315, the Supreme Court of India has held that where vague pleas are raised by the defendant the Court should hesitate to frame an issue:

9. Plaintiff no.5 is a partnership firm of which plaintiffs no.1 to 4 are partners. It is the case of the plaintiffs that they entered into a Franchise Agreement with defendant no.3 with respect to the shop, in question. Defendants have not filed a single document along with the written statement in support of this plea, neither there is any explanation nor any averment as to who inducted defendant no.1 as the tenant, what was the rate of rent and what were the terms and conditions of the tenancy. Defendants have also chosen not to appear in the matter. A suit for injunction filed by defendants against the plaintiffs stand dismissed for non-prosecution on 11.12.2013. Order dated 11.12.2013 reads as under: “CS No.632/13 11.12.2013 At 2.15 PM. Present: None for the plaintiff, despite repeated calls since morning. Ms.Ritu Paul, proxy counsel for the defendants. The matter is at the stage of PE since 19.08.2013. Already three opportunities have been granted to the plaintiff for leading evidence. However, the plaintiff has failed to lead PE. No affidavit has been filed as yet. The plaintiff has not paid the previous costs. It appears that the plaintiff is not interested in pursuing the matter. Hence, the suit is dismissed in default of non-appearance and non-prosecution. The plaintiff is also burdened with a cost of Rs.2,000/- to be deposited in DLSA South for wasting the judicial time. File the (sic. be) consigned to record room.”

10. Applying the law to the facts of the present case, I find that the defendants have raised completely vague pleas unsubstantiated by any document. A plea has been raised that on instructions of the plaintiff defendant no.1 made advance/security payment of rental amount towards tenancy of the suit premises in lump sum of Rs.2.00 lakhs to one of their employees, Mr.Nippum Chaudhary, and out of the amount of Rs.2.00 lakhs, Rs.45,000/- was rental amount payable till December, 2011.