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Date of Decision: 26th August, 2013.
MOHD. YUNUS QURESHI ..... Appellant
Through: Mr. V.V. Singh, Adv.
Through: Mr. S.P. Singh Choudhary and Mr. Y.R. Shama, Advocates.
CM No.7262/2013 (of appellant for condonation of 26 days delay in filing the appeal)
JUDGMENT
1. The counsel for the respondent has stated that if the appeal is heard today itself, he will not oppose this application.
2. The counsel for the appellant states that he is ready to argue the appeal.
3. Though this is first appeal and notice only of this application for condonation of delay was issued and the notice of the appeal even has not been issued as yet and appeal not admitted for hearing and the Trial Court record not requisitioned, but considering the argument raised by the counsel 2013:DHC:4196 for the appellant, need is not felt to postpone the hearing of the appeal to after receipt of the Trial Court record.
4. Accordingly, the delay in preferring the appeal is condoned.
5. The application stands disposed of. RFA 221/2013 & CM No.7260/2013 (for stay)
6. Admit.
7. In the light of the aforesaid, the appeal is immediately taken up for hearing.
8. The appeal impugns the judgment and decree dated 7th January, 2013 of the Court of Additional District Judge, Central-01, Delhi in C.S. No.144/2011 (Unique ID No.02401C0217532008) filed by the respondent against the appellant for ejectment of the appellant from the premises being portion of Shop No.B-894 (basement and portion of ground floor), New Sabzi Mandi, Azadpur, Delhi and for recovery of arrears of rent and mesne profits.
9. The learned Additional District Judge (ADJ) has decreed the suit by ordering ejectment of the appellant and recovery of arrears of rent from 15th February, 2007 to 15th December, 2007 and damages for use and occupation @ 12% above the last paid rent.
10. The only contention of the counsel for the appellant is that one Sh. Satish Kumar has also filed a suit claiming possession of the same premises from the appellant and in which suit the appellant, respondent and several other persons are defendants. He states that his prayer before the Trial Court was for consolidation of the suit from which this appeal arises with the suit filed by the said Sh. Satish Kumar and the appellant cannot be made liable to deliver possession and pay rent and mesne profits to two persons i.e. the respondent herein as well as to the said Sh. Satish Kumar.
11. It has been enquired from the counsel for the appellant as to in what capacity the appellant claims to be in occupation of the premises and who according to the appellant had let out the said premises to him and to whom the rent was being paid.
12. The counsel for the appellant admits that the appellant was let out the said premises and put into occupation thereof by the respondent and had earlier been paying the rent to the respondent.
13. It is also not in dispute that the rate of rent was Rs.10,000/- per month.
14. On enquiry, as to how the aforesaid sole plea of the appellant has been dealt with in the impugned judgment and decree, the counsel for the respondent informs that the defence of the appellant to the suit from which this appeal arises was struck off for the failure of the appellant to comply with the order under Order 39 Rule 10 of Civil Procedure Code, 1908 to pay the admitted arrears of rent to the respondent.
15. The impugned judgment in para 41 appears to have taken the view that the claim of Sh. Satish Kumar in the suit filed by him, though two years prior to the institution of the suit from which this appeal arises, was on the basis of title to the property and which title has no relevance in a suit between landlord and tenant, as the suit from which this appeal arises was, and thus the pendency of suit filed by Sh. Satish Kumar did not come in the way of disposal of the present suit.
16. On enquiry, both counsels admit that intimation of the pendency of suit from which this appeal arises was given in the suit filed by Sh. Satish Kumar.
17. The counsel for the respondent also states that the application filed by Sh. Satish Kumar for impleadment in the suit from which this appeal arises was dismissed.
18. I have also enquired whether there is any interim order for maintenance of status quo in the suit filed by Sh. Satish Kumar.
19. The counsel for the respondent informs that there is an interim restraint order against alienation to third party.
20. The sole contention aforesaid of the appellant is found to be without any merit. The appellant having come into occupation of the premises through the respondent, has to go out of the premises in pursuance to the proceedings taken by the respondent, irrespective of the claim made by Sh. Satish Kumar to the title to the property. It is for the said Sh. Satish Kumar to, in the suit filed by him, protect his rights qua possession which will be so delivered by the appellant to the respondent in pursuance to the decree and the appellant cannot be permitted to remain in the premises for the reason only of the pendency of a title suit by some third party against the respondent who had let out the premises to the appellant.
21. No other point has been argued.
22. Resultantly, the appeal fails and is dismissed. However, the counsel for the appellant having co-operated in expeditious disposal of the appeal, no order as to costs. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J. AUGUST 26, 2013 bs