Ajender Singh v. S. Kulvinder Singh & Ors.

1. This is an Application seeking condonation of delay in filing the present Appeal.

2. Learned Counsel for the Respondents submits that he has no objection to the delay being condoned subject to the Appellant being put to terms with respect to the costs incurred by the Respondents in these proceedings.

3. Since, the delay is substantial, the parties consent to a payment of Rs.[1] lac being paid by the Appellant to the Respondents.

4. Accordingly, subject to the payment of Rs.1,00,000/- as costs payable to the Respondents within 6 weeks, the delay is condoned.

5. The Application stands disposed of. RFA 531/2024 & CM APPL. 47643/2024 [Stay]

6. With the consent of parties, this Appeal is taken up for hearing and disposal today.

7. Learned Counsel for the parties have been heard in the matter.

8. The present Appeal has been filed impugning an ex-parte decree dated 19.11.2022 [hereinafter referred to as “Impugned Order”], wherein the learned Trial Court has held that the Respondent No.1/Plaintiff and the Respondent No.2 are entitled to possession of the premises at property bearing no. A-21/15, Naraina Industrial Area, Phase II, New Delhi [hereinafter referred to as “suit property”]. In addition, it has been held that the Appellant/Defendant is liable to pay arrears of rent in the sum of Rs.90,750/- for the period 01.05.2014 till 31.10.2014 alongwith interest at 9% on a monthly basis along with interest. The Respondent/Plaintiff has also been held to be entitled to mesne profits for the period from 01.11.2014 to 31.10.2015 at the rate of Rs.18,150/- per month till, actual realisation with 10% increase every year. 8.[1] In addition, a challenge has also been made to the Order dated 11.03.2024, wherein an Application filed by the Appellant/Defendant No.1 under Order IX Rule 13 of Civil Procedure Code, 1908 [hereinafter referred to as “CPC”] was also dismissed by the learned Trial Court.

9. Learned Counsel for the Appellant has submitted that the Appellant had vacated the suit premises in May, 2019 and handed over the key of the premises to the mother of the Respondents. He further submits that the Appellant had rented another premises initially on an oral tenancy, and thereafter, in terms of a written lease Agreement on 04.02.2020. 9.[1] Learned Counsel for the Appellant submits that so far as concerns the rent for period from November, 2014 to May, 2019, the payment was made by way of deposit in the bank account of the mother of the Respondents. He seeks to rely upon the documents which were annexed alongwith the Application filed under Order IX Rule 13 of CPC in this regard, which are the bank statements of the Appellant, showing payments made to the mother of the Respondents by the Appellant. 9.[2] The explanation given by the learned Counsel for the Appellant is that initially when the premises were taken on rent in the year 2009, the rent was being paid to the owner of the premises late Sardar Sarmukh Singh, who was the predecessor-in-interest of the Respondents. Subsequent thereto and after the demise of the predecessor-in-interest of the Respondents, a deed of indemnity dated 02.03.2015 was executed by the mother of the Respondents in favour of the Appellant. Thereafter, the rental was paid to the mother of the Respondents for the subject premises. 9.[3] Learned Counsel further submits that the Indemnity Bond, the rental agreement and the bank statements referred to above, although were filed alongwith the Applications under Order IX Rule 13 of the CPC before the learned Trial Court, however, the same were not examined by the learned Trial Court prior to passing the Impugned Order dated 11.03.2024. 9.[4] Learned Counsel for the Appellant further submits that it is not disputed by the Respondents that the payments were made upto November, 2014 and so far as concerns the payment from the period of November, 2014 onwards, till May, 2019, all payments were made by cheque by the Appellant to the mother of the Respondents.

10. Learned Counsel for the Appellant further submits that pursuant to the demise of the mother of the Respondents on 25.06.2019, litigation commenced inter-se between the Respondents (who are siblings).

11. It is not disputed by the parties that the premises were vacated by the Appellant, however, the date of vacation of premises is disputed. According to the Appellant, the premises were vacated in May, 2019 and as per the Respondents, the premises were vacated in May, 2023 pursuant to the Execution Proceedings filed by the Respondent.

12. Admittedly, thus, so far as concerns the aspect of possession, the same does not require to be adjudicated any more. However, the arrears of rental as well as the mesne profits awarded by the learned Trial Court do require to be examined in view of the documents filed by the Appellant. Since, prima facie, the documents which were annexed by the Appellant alongwith the Application under Order IX Rule 13 of the CPC which resulted in the Impugned Order, were not taken into consideration by the learned Trial Court prior to ascertaining the rental/mesne profits due.

13. In view of the aforegoing discussions, the Impugned Order dated 11.03.2024 is set aside. The Appellant is permitted to reagitate his Application under Order IX Rule 13 of the CPC, subject to a deposit of sum of Rs.5,00,000/- with the Registry of this Court, within 6 weeks. 13.[1] The Appellant will also take appropriate steps to bring on record the documents that he seeks to rely upon qua his claim of payments already made to the mother of the Respondents. 13.[2] The parties may appear before the learned Trial Court on 18.10.2024 (the date has been given at the request of the parties). The parties confirm that no unnecessary adjournments will be taken by the parties before the learned Trial Court.

14. All rights and contentions of the parties are left open to be agitated before the learned Trial Court.

15. The Appeal and pending Applications stand disposed of in the aforegoing terms.