Daljeet Singh v. I Brand Curry Communication (P) Ltd

1. By way of this petition under: Article 227 of the Constitution of India, petitioner has challenged the order dated ll'"' January, 2013 passed by the learned Civil Judge-02 (North), fis Hazari Courts, Delhi in Suit No.15/2012 whereby the application of the petitioner under Order 15A of the Code of Civil Procedurehas been dismissed.

2. Petitioner i.e., plaintiffbefore the learned trial court has filed asuit for ejectment/possession, recovery ofdamages/mesne profits, arrears ofrent and for permanent injunction against the respondent i.e., defendant which is CM(M) 219/2013 Page 1of[4] 2013:DHC:7418 pending disposal. In the said suit, petitioner/plaintiffhas alleged that he is the owner of the property bearing no.24, Village Adchini, New Delhi ad measuring 128 sq. yds wherein ground, first and second floors have been constructed. It is alleged in the suit that by way oflease agreement dated 4"^ April, 2006, he had let out the ground floor ofthe aforesaid property to the respondent-company at amonthly rent of ? 9500/- excluding the othei charges. Aseparate agreement for the fixtures and fittings had also been entered between the respondent-company and the petitioner's wife Smt.Sudesh Sejwal. Petitioner/plaintiff has alleged that uptil November, 2007 rent was paid to him. Thereafter, respondent/defendant stopped paying rent. He had sent a legal notice on December, 2007 to the respondent/defendant through his Advocate whereby the tenancy was terminated. Petitioner/plaintiff has also received a notice from the respondent/defendant wherein it was stated that wife of the petitioner was the lawful owner of the property and the petitioner was called upon to provide the ownership documents failing which the respondent/defendant would execute a fresh lease agreement with his wife so that unnecessary dispute may not arise. Thereafter the petitioner/plaintiff filed the aforesaid suit making the aforesaid prayers.

3. Respondent/defendant has filed written statement stating therein there was no privity of contract between the parties and the wife ofthe petitionei is the owner of the property, as such, respondent/defendant is not liable to pay any rent to him.

4. During the pendency of the suit, petitioner/plaintiff has moved an application under Order 15A ofthe CPC seeking direction to the respondent to deposit monthly rent in court. In the said application, petitioner has CM(M) 219/2013 Page 2of[4] <5narrated the same facts as are there in the suit and contended that sirce December, 2007, respondenthas not paidrentto him, as such, he be directed to deposit rent in court.

5. The said application was opposed by the respondent by contending that petitioner's wife is the real owner ofthe property by virtue ofsale deed in her favour and he has been paying regular rent to her under the lease agreement dated 1'' January, 2008. Respondent has also filed copies of account statement and bank statement to corroborate the stand that rent is being paid regularly to the wife ofthe petitioner.

6. After hearing the parties, the learned trial court^ dismissed the application of the petitionervide impugned orderdated 11" January, 2013. Aggrieved with the same, present petition is filed.

7. It is admitted position that the sale deed ofproperty in question is in favour ofhis wife. It has also come on record that petitioner has filed asuit for cancellation ofsale deed in favour ofhis wife which is pending disposal. The stand ofthe respondent is that petitioner has misrepresented himself to it as the owner of the property whereas the actual owner is his wife.^ Respondent has also alleged that he has entered into lease agreement on 1" January, 2008 withthe wife ofthe petitioner and rent is being regularly paid to her under the said agreement. Respondent has also filed documents i.e., relevant bank statements before the learned trial court to substantiate their stand. It is not the stand ofthe petitioner that respondent is not paying rent to his wife. The relevant finding ofthe learned trial court on the aforesaid Stand is as under "In the peculiar facts of the present case where it is admitted that there is a registered sale deed in favour of Smt.Sudes CM(M)219/2013 M been filed by the plaintiff), the defence of the defendant i based on attommentto the paramounttitleholder whether such a^lentwas valid as per law or not can be through trial and any orders in favour of plaintiff und 15A CPC would amount to giving a finding plaintiff without evidence which can not be allo circumstances ofthe case. In view ofthe d— hold that the right of the parties can be ^^ertmned by adiudication by way of trial therefore at this stage the application ofthe plaintiffin my opinion is devoid ofmerit and same ishereby dismissed."

8. In view ofthe stand ofthe respondent/defendant taken in the written statement, the learned trial court has rightly not issued direction for deposit of rent as the same is asubject matter of evidence which is yet to be recorded by the trial court.

9. No illegality is seen in the impugned order which calls for interference of this court.

10. Petition is dismissed. No costs.

FEBRUARY 25,2013 ssb VEENA BIRBAL, J