Full Text
HIGH COURT OF DELHI
JUDGMENT
SWAPNIL AERON ..... Petitioner
Through: Mr. Shailendra Babbar, Adv.
Through: Mr. Vijay Waghey, Adv.
1. The present CM(M) petition no. 1764/2023 has been filed by the petitioner under Article 227 of the Constitution of India against the impugned order dated 25.09.2023 passed by the learned District Judge (Comm)-03, Karkardooma Court, Shahdara District, Delhi (hereinafter referred to as learned “Trial Court”) in CS (COMM) no. 699/2022, titled as “Jagmohan Sapra vs. Swapnil Aeron” whereby the learned Trial Court dismissed the application filed by the petitioner under Order XVI of the Code of Civil Procedure (hereinafter referred to as “CPC”) read with Section 151 of CPC for summoning of record qua 13 title documents of the property bearing no. E-5/8, Krishna Nagar, New Delhi.
2. Petitioner herein is the defendant and the respondent herein is the plaintiff in CS (Comm.) no. 699/2022 which is pending adjudication before the learned Trial Court.
3. For the purpose of adjudication of the present petition, the relevant facts are that in 2021, the petitioner was searching for a shop in Krishna Nagar with the intention of launching a pharmacy business. During the search, the petitioner came across two vacant shops situated directly across Goyal Hospital, Krishna Nagar, both featuring a “To-Let” sign wherein the contact information of the respondent was also mentioned.
4. Thereafter, the petitioner had a meeting with the respondent, during which the respondent agreed to lease both the shops to the petitioner and subsequently, accompanied the petitioner for physical inspection of one of the vacant shops. It is worth noting that the shops in question which the respondent represented to be his and invited the petitioner to inspect were situated adjacent to another vacant shop on the right-hand side.
5. It is the case of the petitioner that the respondent misrepresented to the petitioner that the address of the shop shown is shop no. 3 & 4, E-5/8, Krishna Nagar, Delhi (hereinafter referred to as “suit property”) and further misrepresented to the petitioner that there is no charge, lien, encumbrance or any dispute with regards to the said shop. Relying on the aforesaid representation, the petitioner agreed to take on rent the suit property and accordingly paid a sum of Rs. 1,60,000/- via cheque no. 014115 dated 08.11.2021 to the respondent as advance security deposit, which was refundable at the time of vacating the said property.
6. Subsequently, both the parties entered into a lease agreement dated 29.11.2021 which was duly registered before the Sub Registrar, Vivek Vihar, Delhi. The lease deed is for a period of 5 years, staring from 01.12.2021 and ending on 30.11.2026. Thereafter, on 01.12.2021, the respondent handed over the physical possession of the suit property which was represented to be shop no. 3 & 4, E-5/8, Krishna Nagar, Delhi. After taking possession of the suit property, the petitioner applied for a drug license and commenced renovation work in the rented premises. The expenses incurred for these tasks amounted to Rs. 2,00,000/-. On 18.01.2022, the drug license was issued to the petitioner which involved incurring additional expenses amounting to Rs. 3,45,000/-.
7. Despite obtaining the drug license beforehand, the petitioner could only commence operations at the suit property in March, 2022. However, the petitioner consistently paid the monthly rent of Rs. 80,000/- to the respondent. Upon starting operations on 21.03.2022, the petitioner came across a legal notice sent by Mr. Deepak Rastogi. In the legal notice, Mr. Rastogi had contended that the suit property belongs to him and directed the petitioner to vacate the said property. After examining the notice and the documents annexed thereto, it became apparent that the respondent had handed over possession of shop no. 1 & 2 instead of shop no. 3 & 4, as specified in the registered lease deed.
8. Following this, the petitioner sent a legal notice dated 10.05.2022, whereby the petitioner terminated the lease and called upon the respondent to return the amount of Rs. 10,25,000/- spent by the petitioner till that date which included the rent, security paid, expenses incurred by him to renovate the suit property and to get the drug license etc. Further, on several occasions, the petitioner tried to offer the possession of the suit property back to the respondent but the respondent in order to make false claim of rent against the petitioner refused to take the same.
9. Subsequently, on 19.11.2022, the respondent filed a suit against the petitioner for recovery of possession and arrears of rent of Rs. 8,80,000/-. In the suit, the respondent prayed for a decree of possession of the suit property, i.e. shop no. 3 & 4 on Ground Floor, in property bearing no. E-5/8 (Block-E-5 Plot No.8), Krishna Nagar, Delhi; a decree of due rent for a sum of Rs. 8,80,000/- from January 2022 to November 2022 and a decree of pendente lite future rent till handing over the possession of the suit property.
10. Thereafter, the petitioner filed his written statement wherein, he raised preliminary objections regarding the maintainability of the suit filed by the respondent. Petitioner also moved an application under Order I Rule 10 CPC to implead Mr. Deepak Rastogi and Mr. Abhinav Rastogi for efficacious adjudication of the controversy involved. The said application was dismissed vide order dated 19.07.2023 and vide the same order the learned Trial Court directed the petitioner to hand over the keys of the suit property in question to the respondent.
11. On 31.08.2023, the petitioner filed three applications before the learned Trial Court, outlined as: a) Application under Section 151 CPC thereby flagging the fact that the respondent has not filed his affidavit of admission and denial of documents; b) Application under Section 340 Cr.P.C read with Section 151 CPC for seeking prosecution of the respondent for willful concealment of material facts having undergone prelitigation mediation before the Shahdara District Legal Services Authority and c) Application under Section 45 of the Indian Evidence Act (hereinafter referred to as IEA).
12. Additionally, on 22.09.2023, the petitioner moved another application under Order XVI CPC for summoning of record qua 13 title documents related to the suit property as well as the adjoining shop. Through this, the petitioner sought to place the same in evidence to bring on record the true facts of the case in order to demonstrate the inaccuracies in the deposition of the respondent.
13. Vide impugned order dated 25.09.2023, the learned Trial Court dismissed the said application and held that none of these documents or evidence were mentioned in the list of documents filed by the petitioner as per Order XVI Rule 1 CPC. Further, the learned Trial Court was of the view that as per Section 116 of the IEA, the petitioner is estoppel from questioning the title of the tenanted property of the respondent. The petitioner being aggrieved by the impugned order dated 25.09.2023 has filed the present petition.
14. Learned counsel for the petitioner submitted that the learned Trial Court has erroneously dismissed the application vide the impugned order due to misinterpretation of the facts of the subject proceedings as well as the law in regard to the principle of estoppel as outlined in Section 116 of the IEA.
15. It is submitted by the learned counsel that Section 116 of the IEA states that the principle of estoppel, which prevents a tenant from denying the title of the landlord to the premises leased at the commencement of the tenancy, applies only for the duration of the tenancy. In the present case, the petitioner has duly deposited the keys of the suit property on 21.04.2023 before the learned Trial Court. Therefore, it is submitted that the rule of estoppel does not apply. To support this contention, the learned counsel placed reliance on the Hon’ble Supreme Court cases of Vashu Deo vs. Balkishan [(2002) 2 SCC 50] and T. Lakshmipathi and Ors. vs. P. Nithyananda Reddy and Ors., [AIR 2003 SC 2427].
16. It is further submitted that the learned Trial Court has erred in observing that none of the title documents requested in the application were listed in the petitioner’s list of documents. The petitioner has already submitted the legal notice along with the title documents which was served upon the petitioner by Mr. Deepak Rastogi and Mr. Abhinav Rastogi.
17. Learned counsel for the petitioner submitted that the learned Trial Court has further erred in dismissing the application in question on the basis that none of the witnesses were mentioned in the petitioner’s list of witnesses. It is submitted that the necessity for summoning the title documents from the office of concerned sub-registrars arose only after the respondent submitted its affidavit of admission and denial of the documents thereby evasively denying the documents of the suit property in question.
18. It is also submitted that petitioner is seeking to summon the title deeds in order to bring the rightful picture of the suit property and the entitlement of the respondent to let out the same premises to the petitioner and in order to confront the respondent qua his entitlement to let out the above-said premises.
19. The entire range of submissions were refuted by the learned counsel of the respondent by submitting that the learned Trial Court has handed over the possession of the suit property to the respondent vide order dated 19.07.2023 and the said order is the final as no appeal has been filed against the order by the petitioner.
20. It is further submitted that the petitioner has filed the present petition only to delay the matter as before the learned Trial Court, the petitioner filed an application under Order I Rule 10 CPC thereby claiming that Mr. Deepak Rastogi and Mr. Abhinav Rastogi are the owners of the suit property. However, before this Court, the petitioner is now claiming that Mrs. Rammo Devi is the owner of the suit property. Thus, it is submitted that the petitioner is making inconsistent submissions in different Courts.
21. Learned counsel for the respondent submitted that in the cases where the tenancy has been admitted by the tenant then the tenant cannot challenge the ownership of the landlord/owner. Therefore, the petitioner cannot challenge the ownership of respondent in the present case.
22. It is relevant to note the findings given by learned Trial Court while dismissing the application of the petitioner under Order XVI Rule 1 CPC read with Section 151 CPC which is as follows: “It is settled legal proposition that landlord need not be owner of the property. I see no merits in the present applicant and accordingly, same stands dismissed. Application disposed accordingly.”
23. The short controversy has arisen in the present petition, the petitioner seeks to summon record qua 13 title documents related to the suit property as well as the adjoining shop. The respondent has pleaded that by virtue of Section 116 of the IEA, the petitioner cannot challenge the ownership of the landlord, therefore, the application moved on behalf of the petitioner has been rightly dismissed by the learned Trial Court. Whereas the primary submission of the petitioner is that the principle of estoppel as provided under Section 116 of the IEA does not apply in the present case as the respondent ceases to be the landlord since he has surrendered his tenancy rights by handing over the possession of the suit property to the respondent on 21.04.2023.
24. It is not disputed that by entering into a registered lease deed dated 29.11.2021, the petitioner became a tenant under the respondent/landlord on 01.12.2021 for a period of 5 years ending on 30.11.2026. He was given the physical possession of the suit property, i.e. Shop Nos.[3] & 4, E-5/8, Krishna Nagar, Delhi on a monthly rent of Rs. 80,000/- per month. The possession of the subject suit property has been handed back to the respondent/landlord on 19.07.2023 in the present suit filed by the respondent for recovery of possession and arrears of rent against the petitioner. The application under Order I Rule 10 CPC moved on behalf of the petitioner to implead Mr. Deepak Rastogi who as per the petitioner had claimed himself to be the owner of the subject property was dismissed by the learned Trial Court on 19.07.2023 and the said order has attained finality.
25. The position of law is well-settled that the principle of estoppel as provided under Section 116 of the IEA bars a tenant from questioning the title of the landlord and the landlord is not required to prove his title in the subject property unlike in a title suit. Accordingly, the estoppel as laid down by Section 116 precludes the petitioner from submitting anything contrary to a claim raised by the landlord.
26. This Court does not find any merit in the submission of the petitioner that since he has surrendered the possession of the tenanted premises, therefore, the principle of estoppel does not operate any longer. The petitioner may have surrendered his tenancy rights in favour of the landlord still it does not give him a right to challenge the title of the landlord as the tenancy has been surrendered during the pendency of the suit and arrears of rent are being claimed of the subject premises during the period, the petitioner had been a tenant under the respondent.
27. Therefore, considering the facts of the matter at hand with reference to the abovesaid considerations, it is clear that there is no infirmity in the order of the learned Trial Court. Consequently, the instant petition along with pending applications stands dismissed.
SHALINDER KAUR, J. APRIL 15, 2024