Full Text
HIGH COURT OF DELHI
Date of Decision: 16th October, 2024
ATAM PRAKASH KAUSHIK THR LRS .....Petitioner
Through: Mr. Raman Kapoor, Sr. Advocate
Through: Mr. Arvind Dhingra, Advocate.
JUDGMENT
Exemption allowed, subject to all just exceptions.
1. Respondent herein i.e. Mr. Amit Kumar Khattar had filed a suit under Section 6 of Specific Relief Act, 1963 against four persons i.e. (i) Atam Prakash, (ii) Sanjay Pasrija, (iii) Ram Kumar and (iv) Manoj Kumar Khattar.
2. According to the averments made in the plaint, plaintiff Mr. Amit Kumar Khattar and his brother Mr. Manoj Kumar (defendant No.4) were joint tenants in a shop situated at Kucha Natwa, Chandni Chowk, Delhi.
3. According to plaintiff, the tenancy was protected under Delhi Rent Control Act and the tenancy was never terminated and they never surrendered the tenancy in favour of landlord or in favour of anyone else.
4. According to plaintiff, on 9th April, 2018, it was learnt that defendant Nos. 1, 2 and 3, in an illegal and clandestine manner, removed the locks as CM(M) 97/2024 2 well as the goods belonging to the plaintiff from the suit shop and thus trespassed into the shop, unlawfully.
5. Such action resulted in the filing of the above said suit.
6. The suit was resisted and a joint written statement was filed by defendant Nos. 1, 2 and 3 and in such written statement, it was denied that the plaintiff was a joint tenant, while also supplementing that the possession had been rather given back by the defendant No. 4 (brother of the plaintiff) vide surrender deed dated 2nd April, 2018. It was also denied that the plaintiff was in joint control and possession of the suit premises along with his brother and was running any business from such suit premises or for that matter that the rent was being regularly paid by him.
7. During trial, plaintiff entered into witness box.
8. However, from the side of defendants, defendant No.1 Mr. Atam Prakash did not enter into witness box but his co-defendant Mr. Ram Kumar (defendant No.3) entered into witness box. He was duly examined and discharged and on the basis of statement made by counsel of defendants No.1, 2 & 3 on 23rd September, 2021, DE was closed and the case was fixed for final arguments.
9. Mr. Atam Prakash (defendant No.1) died on 23rd April, 2022.
10. Thereafter, his LRs were brought on record. However, even before their formal impleadment, such LRs moved an application under Order VI Rule 17 CPC praying therein that they may be permitted to amend written statement. They also prayed to lead evidence in terms of Order XVIII Rule 17 CPC.
11. Such request has been declined vide order dated 22nd December, 2023 and this is how the present petition under Article 227 of Constitution CM(M) 97/2024 3 of India has been filed.
12. Since the brief background of the entire case was necessary to decide the above said issue, this Court has, albeit briefly, noted the averments made in pleadings, germane for the present limited purpose.
13. As noted above, the suit has been filed under Section 6 of Specific Relief Act, 1963.
14. Section 6 of Specific Relief Act, 1963 reads as under:-
15. It is, thus, very much obvious from the bare contents of the aforesaid Section that in any such suit, the only question which is to be determined by the Court is whether the plaintiff was in possession of the disputed property or not and whether he has been illegally dispossessed by anyone or not. Such suit has to be filed before the expiry of six months, from the date of alleged dispossession. CM(M) 97/2024 4
16. The purpose behind aforesaid provision is to restrain a person from using force or to dispossess anyone without his consent, otherwise then in due course of law. It is a summary procedure and if the ingredients are proved, the plaintiff concerned can be put back into possession and, evidently, the aspect of title does not come into play at all.
17. Reference be made to ITC Ltd. v. Adarsh Coop. Housing Society Ltd., (2013) 10 SCC 169. Relevant paras of said judgment read as under:-
CM(M) 97/2024 5 judgment passed in Sanjay Kumar Pandey [(2004) 4 SCC 664] may be a useful reiteration of the law in this regard. The same is, therefore, extracted hereinbelow:
18. Here, as per the averments made in the plaint, though the plaintiff claimed himself to be joint tenant along with his brother but he has, in no uncertain terms, claimed that he was dispossessed by defendant Nos.1, 2 and 3 in an illegal manner on 09.04.2018 and the suit has also been filed within the stipulated period of said dispossession.
19. As noted above, when the joint written statement was filed by all the above said three defendants, they claimed that the brother of the plaintiff had surrendered the tenancy in favour of defendant No.1 on 02.04.2018.
20. These defendants have also strongly relied upon Surrender Deed dated 02.04.2018.
21. Fact remains that such Surrender Deed does not contain signature of CM(M) 97/2024 6 the plaintiff and plaintiff has also disputed the same.
22. Interestingly, the brother of the plaintiff (defendant No.4) is not traceable since 08.04.2018 and plaintiff apprehends that he has colluded with the other defendants.
23. By virtue of moving an application under Order VI Rule 17 CPC, the LRs of deceased defendant No.1 want to introduce a new fact.
24. According to them, the property in question was never let out by Sh. Atam Prakash Kaushik but it was let out by Kaushik Family Trust and, therefore, the plaintiff is tenant of Kaushik Family Trust and, therefore, a preliminary objection is sought to be raised by incorporating such amendment.
25. By moving another application under Order XVIII Rule 17 CPC, permission has been sought to lead evidence to the above said effect. It is claimed that there were certain documents on record already which indicated that the landlord was Kaushik Family Trust but these documents could not be exhibited and, therefore, it was prayed that permission may be granted to LRs of defendant No.1 to lead evidence to that effect.
26. The case is already at the stage of final arguments and the above said legal representatives have merely stepped into the shoes of deceased defendant No.1. It has to be assumed that they do not have any interest adverse or contrary to the plea taken by the original defendants. Sh. Atam Prakash Kaushik, never claimed any such thing when the written statement was filed by him along with other defendants. It was never mentioned in the written statement that the landlord was trust. For the reasons best known to him, he never entered into witness box and did not make reference to the alleged documents which, as alleged, indicated that the landlord was said CM(M) 97/2024 7 trust.
27. Moreover, it hardly is of any concern as to who is the landlord.
28. It’s a case of dispossession under Section 6 of the Specific Relief Act, 1963 and the alleged dispossessor can be anyone, including a stranger.
29. As already noticed above, the case of the plaintiff is very clear and unambiguous.
30. Even if it is assumed for a moment that the tenancy was created by such trust, fact remains that Section 6 of the Specific Relief Act, 1963 comes into play when any person is dispossessed otherwise then in due course of law and, in the case in hand, according to plaintiff, he was dispossessed by defendant Nos.1, 2 and 3 and, therefore, even otherwise, the plea or the averments, which are now being sought to be incorporated, are not necessary herein. If the trust is of the view that it is the landlord of the suit shop, it can always file independent suit to establish its such right over the suit property and to also recover possession thereof, in case the possession is restored to the plaintiff in the suit in hand.
31. Learned counsel for the petitioner/LRs of deceased defendant No.1 has relied upon Sumtibai & Others vs. Paras Finance Co. Mankanwar: AIR 2007 Supreme Court 3166 and contends that any such impleaded legal representative can also be permitted to file additional written statement. However, in that case, the application was moved by them under Order XXII Rule 4(2) CPC read with Order I Rule 10 CPC and they had sought permission to file additional written statement. There is nothing in that judgment which may indicate that any such additional written statement sought to be filed by such legal representatives was inconsistent to the stand taken by their predecessor-in-interest. CM(M) 97/2024 8
32. The case is already at the stage of final arguments and unless cogent reason is supplied or some exceptional exigency is pleaded, no such amendment should be permitted at such a belated stage. As regards permission to lead evidence, the learned Trial Court has not committed any error in rejecting the above said application as well.
33. During his lifetime, defendant No.1 Sh. Atam Prakash Kaushik never thought of entering into witness box.
34. Moreover, the LRs of defendant merely want to lead evidence to show that the landlord of the suit property is Kaushik Family Trust and not defendant No.1. In the suit in hand, the Court is not required to answer the above said aspect of relationship of landlord and tenant between the parties and, for that matter, as to who was the landlord.
35. As noted already, it is a case of dispossession and the alleged dispossession is by defendant Nos.1, 2 and 3 and if the plaintiff is able to prove that he had been dispossessed by them illegally, the plaintiff becomes entitled to recover back such possession irrespective of the fact that the actual landlord might be the trust. Powers under Order XVIII Rule 17 CPC need to be exercised only for seeking elucidation and clarification, which may assist the Court in rendering justice and in view of above discussion, there is no compelling reason to permit legal representatives of deceased defendant No.1 to enter into witness box under Order XVIII Rule 17 CPC either.
36. The petition is, accordingly, dismissed.
JUDGE OCTOBER 16, 2024/ss/st