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* IN THE fflGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 519/2013
RAGHUBIRRAI ... Appellant
Through: Mr Viraj R. Datar, Adv.
* IN THE fflGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 519/2013
RAGHUBIRRAI ... Appellant
Through: Mr Viraj R. Datar, Adv.
VERSUS
PREM LATA & ANR. ... Respondents
Through:Mr Ashok Gumani, Adv.
Through:Mr Ashok Gumani, Adv.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE VEBHU BAKHRU
% 18.11.2013
Caveat No. 1017/2013
The counsel for the caveator/respondent is present.
The caveat stands discharged.
CM No. 18070/2013
Exemption is allowed subjectto alljust exceptions.
CM No. 18069/2013
The learned counsel for the respondent does not object to the delay being condoned. The delay is condoned.
The application stands allowed.
FAO (OS) No. 519/2013 & CM No. 18068/2013 (stay)
This appeal is directed against the order dated 19.09.2013 passed by a learned single Judge of this court in LA No. 22751/2012 in CS(OS) NO. 1698/2011. The said application was filed both under Order XV A as well as under Order XXXIX Rule 10 CPC by the respondents/plaintiffs.
We may point out that two suits were being heard together. One suit was numbered as CS(OS) No. 1863/2010 which had been filed by the appellant herein against the respondents seeldng injunction from being
2013:DHC:7307-DB
•A dispossed from the property at D-2/12, Model Town-III, Delhi-110009.
The other suit being CS(OS) No. 1698/2011 was filed by the respondent herein in which thepresent appellants were the defendants. In that suit, the relief sought was for recovery of possession and for arrears of rent and mesne profits.
Earlier, in both the suits, an order was passed on 29.11.2012 directing the appellant herein to deposit a sum of ^ 1000/- per month by way of arrears of rent but that deposit was not made. Subsequently, the respondent herein moved the saidappUcation being lA No. 22751/2012 in
CS(OS)No. 1698/201.
From paragraph 10 of the impugned order it is apparent that although submissions had been made by the counsel on the question, whether the failure on the part of the appellants herein to make payment of arrears of rent as directed by the court on 29.11.2012 would attract the consequences spelt out in order XV A CPC, the learned single Judge did not feel it appropriate to consider the said question in view of the reasons given in the said order. It is further clear from paragraph 10 of the impugned order that the learned single Judge proposed to issue direction
(afresh) in lA No. 22751/2012 under Order XXXIX Rule 10 CPC and also to spell out the consequences of the failure on the part of the appellants in case they did not comply with the said directions. From this it is evident that the learned single Judge passed the impugned order not under Order
XV A CPC but under Order XXXIX Rule 10 CPC.
In this backdrop the learned counsel for the appellants submitted that the directions to deposit a sum of ^ 1,00,000/- per month as arrears of rent could not have been made under Order XXXIX Rule 10 CPC because that provision only speaks of admitted amounts of money. The amount of rent admitted by the appellants in this case was ? 1000/- per month and therefore a direction under Order XXXDC Rule 10 CPC could only have been passed with regard to the payment of arrears @ ^ 1000/- and not of ^
1,00,000/- per month.
As a result of the foregoing discussion, we feel that it would be appropriate ifthe impugned order is set aside and the matter is remanded to the learned single Judge for considering the application of the respondent under Order XV A CPC on merits. In the meanwhile, the arrears calculated
@ ^ 1000/- per month be deposited within ten days and further deposits, subject to any order that may be passed by the learned single Judge on merits, be made on month to month basis @ ^ 1000/- per month.
The matter be listed before the learned single Judge, in the first instance, on 03.12.2013, the date already fixed in CS(OS) No. 1698/2011.
BADAR DURREZ AHMED, J
VIBHU BAKHRU, J
NOVEMBER 18, 2013 kb
HON'BLE MR. JUSTICE VEBHU BAKHRU
% 18.11.2013
Caveat No. 1017/2013
The counsel for the caveator/respondent is present.
The caveat stands discharged.
CM No. 18070/2013
Exemption is allowed subjectto alljust exceptions.
CM No. 18069/2013
The learned counsel for the respondent does not object to the delay being condoned. The delay is condoned.
The application stands allowed.
FAO (OS) No. 519/2013 & CM No. 18068/2013 (stay)
This appeal is directed against the order dated 19.09.2013 passed by a learned single Judge of this court in LA No. 22751/2012 in CS(OS) NO. 1698/2011. The said application was filed both under Order XV A as well as under Order XXXIX Rule 10 CPC by the respondents/plaintiffs.
We may point out that two suits were being heard together. One suit was numbered as CS(OS) No. 1863/2010 which had been filed by the appellant herein against the respondents seeldng injunction from being
2013:DHC:7307-DB
•A dispossed from the property at D-2/12, Model Town-III, Delhi-110009.
The other suit being CS(OS) No. 1698/2011 was filed by the respondent herein in which thepresent appellants were the defendants. In that suit, the relief sought was for recovery of possession and for arrears of rent and mesne profits.
Earlier, in both the suits, an order was passed on 29.11.2012 directing the appellant herein to deposit a sum of ^ 1000/- per month by way of arrears of rent but that deposit was not made. Subsequently, the respondent herein moved the saidappUcation being lA No. 22751/2012 in
CS(OS)No. 1698/201.
From paragraph 10 of the impugned order it is apparent that although submissions had been made by the counsel on the question, whether the failure on the part of the appellants herein to make payment of arrears of rent as directed by the court on 29.11.2012 would attract the consequences spelt out in order XV A CPC, the learned single Judge did not feel it appropriate to consider the said question in view of the reasons given in the said order. It is further clear from paragraph 10 of the impugned order that the learned single Judge proposed to issue direction
(afresh) in lA No. 22751/2012 under Order XXXIX Rule 10 CPC and also to spell out the consequences of the failure on the part of the appellants in case they did not comply with the said directions. From this it is evident that the learned single Judge passed the impugned order not under Order
XV A CPC but under Order XXXIX Rule 10 CPC.
In this backdrop the learned counsel for the appellants submitted that the directions to deposit a sum of ^ 1,00,000/- per month as arrears of rent could not have been made under Order XXXIX Rule 10 CPC because that provision only speaks of admitted amounts of money. The amount of rent admitted by the appellants in this case was ? 1000/- per month and therefore a direction under Order XXXDC Rule 10 CPC could only have been passed with regard to the payment of arrears @ ^ 1000/- and not of ^
1,00,000/- per month.
As a result of the foregoing discussion, we feel that it would be appropriate ifthe impugned order is set aside and the matter is remanded to the learned single Judge for considering the application of the respondent under Order XV A CPC on merits. In the meanwhile, the arrears calculated
@ ^ 1000/- per month be deposited within ten days and further deposits, subject to any order that may be passed by the learned single Judge on merits, be made on month to month basis @ ^ 1000/- per month.
The matter be listed before the learned single Judge, in the first instance, on 03.12.2013, the date already fixed in CS(OS) No. 1698/2011.
BADAR DURREZ AHMED, J
VIBHU BAKHRU, J
NOVEMBER 18, 2013 kb
JUDGMENT