Full Text
HIGH COURT OF DELHI
Date of Decision: 22nd October, 2024
JAGDISH KUMAR ARORA .....Petitioner
Through: Mr. Vishal Bhatnagar
Through: None.
JUDGMENT
1. Petitioner is defending two suits filed by respondent Sh. Dinesh Mittal.
2. The first suit was registered as CS(DJ)05/2020 on 21.09.2020 and the second suit was registered as CS(DJ)126/2022 on 17.02.2022.
3. The plaintiff (defendant) had filed the first suit seeking recovery of arrears of rent, damages, mesne profit, recovery of pending electricity bills and for seeking permanent injunction. He did not seek any decree of possession.
4. By virtue of the above said second suit, the plaintiff is seeking recovery of possession of the same tenanted premises i.e. property bearing No.C-3/122, Ashok Vihar, Phase-II, Delhi.
5. Learned counsel for the petitioner (defendant) moved an application under Order II Rule 2 CPC before learned Trial Court in relation to second suit, claiming that such second suit was barred in view of above said provision as the relief of possession should have also been included in the first suit.
6. Order II Rule 2 CPC reads as under:-
7. Order II Rule 4 CPC reads as under:-
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.”
8. This Court has gone through the averments made in the above said suits. The issue contained in the aforesaid Rules have to be appreciated in the backdrop of the averments made in the plaint.
9. According to defendant, there was never any formal execution of the lease agreement between the parties and it is also claimed that the defendant is, even otherwise, not in the possession of the suit property.
10. Be that as it may, it is up to the concerned landlord/lessor to choose as to when such lessor wants to terminate the lease/tenancy and wants to seek possession. At an earlier point of time, when a simplicitor suit for recovery of rentals was filed, the plaintiff had not terminated the tenancy and was not interested in reclaiming the possession. Thus, there was no cause of action entitled him to include relief of possession in first suit.
11. The averments made in the second suit is also very clear and it has been mentioned as under in para 43 of the above said suit which reads as under:-
12. It is, thus, very obvious that according to the plaintiff, the lock-in period had only ended on 14.03.2021 and it is only subsequent to that, he was competent to file a suit for possession.
13. Be that as it may, when the legal notice was issued to the defendant, prior to the institution of the first suit, even in such legal notice, the petitioner had never terminated the tenancy or sought for any possession and, therefore, it cannot be said that the subsequent suit filed by the plaintiff was barred under Order II Rule 2 CPC.
14. This Court, therefore, does not find any merit in the present petition.
15. The same is, hereby, dismissed.
JUDGE OCTOBER 22, 2024