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IN TIIE IIIGH COURT OF DELHI AT NEW DELHI c.R.P. r4u20rl
SANTOSH CHAUDHARY & ANR ..... Petitioners fhrough: Mr. K. I(. Shanna, Sr. Advocate with
Dr. Saif Mahrnoocl. Advocate.
SANTOSH KUMAIT SURI & ORS ..... Respondents
' Through: Mr. Arun Bhardwaj, Sr. Advocate with
Mr. Manish Sharma & Mr. Amit Bhardwai, Advocates for R-l.
*
,}
IN TIIE IIIGH COURT OF DELHI AT NEW DELHI c.R.P. r4u20rl
SANTOSH CHAUDHARY & ANR ..... Petitioners fhrough: Mr. K. I(. Shanna, Sr. Advocate with
Dr. Saif Mahrnoocl. Advocate.
SANTOSH KUMAIT SURI & ORS ..... Respondents
' Through: Mr. Arun Bhardwaj, Sr. Advocate with
Mr. Manish Sharma & Mr. Amit Bhardwai, Advocates for R-l.
CORAM:
HON'BLE MIT. JUSTICE P.K. B}IASIN
ORDEII
22.09.2011
I have heard the learned senior counsel for the petitioners. Counsel for the other side have appeared on their own on receiving advance notice fi'orn the petitioner.
The petitioners are two defendants in a suit fol recovery of possession/mesne profits etc. filed against them in respect of ploperty No. N-6, NDStr 1, New Delhi. They are aggrievecl by the order passed by the Additional District Judge whereby their application undel Ordel VII Rule 11 fol rejecting the amended plaint dated 21't March, 2009 has been dismissed.
'fhe main grievance of the petilioners, who were let out the above property in the year 1988 by its four co-owners including respondent no.l herein, is that reading of the amended plaint shows that the suit for possession, which initially was filed by all the four t co-or.vners/lessors and was in respect of the entire tenanted premises in occupation of the petitioners, has now become a suit for a part of the tenanted premises in view of the fact that two of the co-owners, who rvere initially plaintiffs no.3 and 4, have sold their rndivided half interest in the property to respondent no.2 herein, who then was brought on record as defendant no.3 in the amended plaint and plaintiffs no. 3 and 4 were deleted fi'orn the array of parties.. 1'he application under Order VII Rule 11 CPC was filed claiming that the suit had become not maintainable because of the fact that there was no partition amongst the co-owners including the purchaser of half undivided interest from the two co-owners and that ptuchaser has decided not to seek eviction of the petitioners- tenants frorn the aforesaid premises. c.R.P. t4u20t1
" pagp I of 2
2011:DHC:9206
-t a
In older to appreciate the submissions made by learned senior counsel for the petitioners I have read the entire amended plaint. The first prayer made therein clearly slrorvs that despite the fact that the two original plaintiffs no. I and 2 have claimed in the plaint that there was a sale of 50 per cent undivided interest by theil other two co-owners a decree for possession r.vas being sought in respect of the entire tenanted premises in occupation of the present petitioners. It is, thelefore, apparent that it is not a case of splitting up of tenancy and consequently the plaint could not be rejected as was claimed on behalf of the petitioners relying upoll ol1 various judgments of the Hon'ble Supreme
Court wherein it has been held that splitting up of a tenancy is not permissible.
During the course of arguments learned senior counsel for the petitioners had also submitted that the plaint is, in fact, also liable to be rejected because the purchaser of the undivided 50 per cent interest of the trvo co-owners has already extended the lease in favour of the petitioners by executing a Lease Deed on 25th August,2009 and it was also submitted that extension of lease was in lespect of the 50 per cent only of its undivided interest in the property undel the tenancy of the petitionels and, thelefore, the suit for possession, which had been filed after the alleged termination of its tenancy by all the four co-owners has for this reason also now ceased to be rnaintainable. In my view, this submission cannot be entertained at all because the same was not taken up before the trial
Courl.
This petition is accordingly dismissed in limine but making it clear that if at all the petitioners take a plea before the trial Court at any stage that their lease has been extended by the lespondent no.2 helein and for that reason the suit should be disrnissed, the same shall be dealt with in accoldance with law uninfluenced by the filing of the present revision petition and its disrnissal today.
SEPTEMBF.R22,}OLI nk c.R.P. r4u20ll paee? of2 its
P.K. BHASIN, J
2011:DHC:9206
ORDEII
22.09.2011
I have heard the learned senior counsel for the petitioners. Counsel for the other side have appeared on their own on receiving advance notice fi'orn the petitioner.
The petitioners are two defendants in a suit fol recovery of possession/mesne profits etc. filed against them in respect of ploperty No. N-6, NDStr 1, New Delhi. They are aggrievecl by the order passed by the Additional District Judge whereby their application undel Ordel VII Rule 11 fol rejecting the amended plaint dated 21't March, 2009 has been dismissed.
'fhe main grievance of the petilioners, who were let out the above property in the year 1988 by its four co-owners including respondent no.l herein, is that reading of the amended plaint shows that the suit for possession, which initially was filed by all the four t co-or.vners/lessors and was in respect of the entire tenanted premises in occupation of the petitioners, has now become a suit for a part of the tenanted premises in view of the fact that two of the co-owners, who rvere initially plaintiffs no.3 and 4, have sold their rndivided half interest in the property to respondent no.2 herein, who then was brought on record as defendant no.3 in the amended plaint and plaintiffs no. 3 and 4 were deleted fi'orn the array of parties.. 1'he application under Order VII Rule 11 CPC was filed claiming that the suit had become not maintainable because of the fact that there was no partition amongst the co-owners including the purchaser of half undivided interest from the two co-owners and that ptuchaser has decided not to seek eviction of the petitioners- tenants frorn the aforesaid premises. c.R.P. t4u20t1
" pagp I of 2
2011:DHC:9206
-t a
In older to appreciate the submissions made by learned senior counsel for the petitioners I have read the entire amended plaint. The first prayer made therein clearly slrorvs that despite the fact that the two original plaintiffs no. I and 2 have claimed in the plaint that there was a sale of 50 per cent undivided interest by theil other two co-owners a decree for possession r.vas being sought in respect of the entire tenanted premises in occupation of the present petitioners. It is, thelefore, apparent that it is not a case of splitting up of tenancy and consequently the plaint could not be rejected as was claimed on behalf of the petitioners relying upoll ol1 various judgments of the Hon'ble Supreme
Court wherein it has been held that splitting up of a tenancy is not permissible.
During the course of arguments learned senior counsel for the petitioners had also submitted that the plaint is, in fact, also liable to be rejected because the purchaser of the undivided 50 per cent interest of the trvo co-owners has already extended the lease in favour of the petitioners by executing a Lease Deed on 25th August,2009 and it was also submitted that extension of lease was in lespect of the 50 per cent only of its undivided interest in the property undel the tenancy of the petitionels and, thelefore, the suit for possession, which had been filed after the alleged termination of its tenancy by all the four co-owners has for this reason also now ceased to be rnaintainable. In my view, this submission cannot be entertained at all because the same was not taken up before the trial
Courl.
This petition is accordingly dismissed in limine but making it clear that if at all the petitioners take a plea before the trial Court at any stage that their lease has been extended by the lespondent no.2 helein and for that reason the suit should be disrnissed, the same shall be dealt with in accoldance with law uninfluenced by the filing of the present revision petition and its disrnissal today.
SEPTEMBF.R22,}OLI nk c.R.P. r4u20ll paee? of2 its
P.K. BHASIN, J
2011:DHC:9206
JUDGMENT