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HIGH COURT OF DELHI
Date of Decision: 08.08.2023
MOHD IRSHAD ...... Petitioner
Through: Mr. Pramod Kumar Ahuja, Advocate with Mr. Umang Mittal, Advocate
Through: Mr. K.K. Aggarwal and Ms. Gayatri Aggarwal, Advocates for R-1
Mr. Asheesh Jain and Mr. Mohit Monga, Advocates for R-2
JUDGMENT
Allowed, subject to all just exceptions.
Accordingly, thepresent application stands disposed of.
1. Thepresentpetitionfiled under Article227 oftheConstitutionofIndia impugnstheorder dated 13.02.2023 passed bytheDistrictJudge, Commercial Court North, Rohini Courts, Delhi, (‘Trial Court’) in CS(COMM.) NO. 168/2021 titled as “M/s Jain Brothers Sanitation Pvt. Ltd. v. M/s Inspire Exim Pvt. Ltd. & Ors.” (‘commercial suit’) whereby, the Trial Court dismissed the Petitioner’s application filed under Order 1 Rule 10 Code of Civil Procedure, 1908 (‘CPC’) seeking his impleadment in the commercial suit.
1.1. The RespondentNo. 1 is theoriginal plaintiffand RespondentNo.2 is original defendant in the commercial suit.
1.2. The commercial suit has been filed by the Respondent No. 1 against RespondentNo. 2,seekingrecovery ofpossession ofthepropertybearingNo. 12, SSI, Jhangirpuri, Industrial Area, G.T. Karnal Road, Delhi (‘subject property’) on the averments of termination of the lease agreement and in addition for recovery of arrears of rent.
1.3. It is thecaseofRespondentNo.1in thecommercialsuit that thesubject property had been leased out at Rs. 4,01,000/- in the year 2019 to the Respondent No.2 herein.
1.4. In the commercial suit a decree for possession has been passed by the Trial Court in favour of Respondent No.1 and against Respondent No.2 on 19.05.2023. The execution petition is listed on 09.08.2023.
2. The learned counsel for the Petitioner states that the Trial Court has committed an error in dismissinghis applicationand notpermittinghim to be impleaded as defendant no. 2 in the commercial suit.
2.1. He states that the Petitioner herein was inducted as a tenant in the subject property by RespondentNo. 1 on 18.12.2022;duringthependencyof the commercial suit at Rs. 72,000/- per month.
2.2. He states that the Petitioner herein apprehends that he will be dispossessed from the subject property by Respondent No. 1 under the garb of decree of possession dated 19.05.2023, passed in the commercial suit against Respondent No.2.
2.3. He states that the Petitioner herein has already filed a criminal complaint and also filed his independent suit for declaration of his tenancy rights mandatory and permanent injunction on 10.01.2023 before the Civil Judge and summons in the said suit has been issued on 18.01.2023.
3. In reply, thelearned counselfor RespondentNo. 1 statesthattheclaims set up by the Petitioner herein are false. He states that the Petitioner has not been inducted as a tenantin thesubject propertyby RespondentNo.1;in fact, he has forcibly and criminally trespassed into the subject property. He states that it is the stand of the Respondent No.1 that the Petitioner trespassed into the subject property with the support of Respondent No.2.
3.1. He states in theimpugned orderdated 13.02.2023;theTrial Courthas already taken noteoftheAppellant’scollusion with the Respondent No. 2.
3.2. He states thatthePetitioner hasbeen proppedup by RespondentNo. 2 to frustratethedecree of possessiondated19.05.2023which has been passed by the Trial Court.
3.3. He states that the Petitioner herein has never remitted any payment to the Respondent No. 1 towards rental for the alleged tenancy or any security amount.
3.4. He states in any event, the Petitioner herein has already instituted a substantive suit on 10.01.2023 for declaration and injunction; and his rights, if any, will be adjudicated in the said suit. He states that Petitioner is not a proper or a necessary party in the commercial suit.
4. The RespondentNo.2has also enteredappearancethrough its counsel, Mr. Asheesh Jain, Advocate.
4.1. He states that the Respondent No. 2 herein disputes the stand of the Respondent No. 1 that the Petitioner herein was illegally inducted by Respondent No.2.
4.2. He states that Respondent No.2 has no privity of contract with the Petitioner;in fact, it is RespondentNo.2 who was illegally dispossessed, and this fact Respondent No.2 learnt on 19.12.2023.
4.3. He states thattheRespondentNo.2 doesnotadmitthatthePetitioneris a proper or necessary party in the commercial suit.
4.4. He states that the Respondent No.2 has also instituted a suit for restitution of his possession by filing a separate suit under Section 6 of the Specific Relief Act, 1963.
5. This Court hasconsideredthesubmissionoftheparties and perused the record.
6. It may be noted at the outset that the relief for possession has been decreed by the Trial Court on 19.05.2023 in an application filed by the Respondent No.1 under Order 12 Rule 6 CPC. In fact, the matter is listed beforetheExecutingCourton 09.08.2023 for issuanceofnoticeand warrants of possession.
7. The impugned order dismissing the Petitioner’s application for impleadment waspassed on 13.02.2023. ThePetitioner herein wasseekingto oppose the decree of possession. The said decree however has already been passed on 19.05.2023. No impleadment can therefore be allowed in a suit which already stands decreed.
8. This Court has perused theorder dated 13.02.2023passed by theTrial Court and is of the opinion that there is no infirmity in the order of the Trial Court in facts or in law. The relevant portion of the order dated 13.02.2023 read as under: “(ii) Discussion on merits of the two applications: Having regard to entire facts and circumstances as coming out from the submissions of all the Ld. Counsels, I feel in agreement with the submissions of Ld counsel for the plaintiffs. It cannot be gainsaid that the plaintiffs are following due legal recourse for recovery of possession of the tenancy premises from the defendants by filing the instant suit. They also filed an application under Order XII Rule 6 CPC seeking judgment on the admissions of the defendants, which application was heard on 16.12.2022. It is on 03.01.2023 when the orders were to be pronounced on the said application that the intervener came up with application under Order I Rule 10 CPC. On the subsequent date i.e 05.01.2023, the defendants filed application under Order XXXIX Rule 1 & 2 CPC. In these circumstances, it beats all imagination to think that the plaintiffs would break open the locks of the tenancy premises to take its possession forcibly as well as illegally and would induct the intervener as a tenant therein. It is also unconscionable to comprehend that the plaintiffs would let out the suit premises to the intervener for a paltry sum of Rs. 72,000/- as monthly rent when they had let out the same to the defendants for a monthly rent of Rs. 4,01,000/- in the year, 2019. The intervener claims to have paid Rs. 1,44,000/- in cash to the plaintiff towards security deposit as well as one month's rent but has not produced any document in this regard (this rate of rent is not disputed by the defendants in the written statement) It is difficult to believe that any person would pay such huge amount in cash without seeking a proper receipt. The source of this enormous amount of cash has also not been disclosed by the intervener anywhere in the application. The falsehood of the story put forward by the intervener as well as by the defendants is also evident from the material contradictions in their statements. The defendants, in their application under Order XXXIX Rules 1 & 2 CPC, have claimed that the tenancy premises was trespassed on behalf of the plaintiffs on 19.12.2022. Intriguingly, the intervener in his application under Order I Rule 10 CPC has claimed to have been put in possession of the tenancy premises as tenant thereof by the plaintiffs on 18.12.2022, which was not possible at all for the reason that on that day, the suit premises was in possession of the defendants. Thus, it becomes limpid that the defendants, upon getting impression that the decree for recovery of possession of the suit premises is going to be passed against them under Order XII Rule 6 CPC(which is manifest from the fact that some pertinent questions were put to their counsel during arguments on the said application to which he had no answer), did not actually intend to handover the possession of the premises to the plaintiff and thus, have conspired with the intervener by handing over the possession of the suit premises to him in order to deprive the plaintiffs from the same. Thus, no merit is found in both the the applications and are hereby dismissed.”
9. In view of thestand ofthePetitionerherein thathewas inducted in the subject property by the Respondent No.1, the application seeking impleadment in a suit filed by RespondentNo.1 againstRespondentNo. 2 is not maintainable.
10. Thereliefs which aresoughtbytheRespondentNo.1 in thecommercial suit arequa theRespondent No.2and sincethePetitioner is not claimingany rights from Respondent No.2; he is neither a necessary nor a proper party in the said commercial suit. For this additional reason, he cannot maintain this application for impleadment in the decreed suit, which is concerned with termination of lease executed between Respondent No. 1 and Respondent No.2 and the Petitioner herein, admittedly does not claim any interest under the said lease deed.
11. Further, thefact remainsthatthePetitioner hasavailed his ownremedy by filing a substantive suit against Respondent No.1 and for this additional reason he cannot seek impleadment in the commercial suit.
12. The presentpetitionis accordingly dismissed. Pendingapplications, if any, stands disposed of.
MANMEET PRITAM SINGH ARORA (JUDGE) AUGUST 8, 2023/hp/asb