Satish Kumar Jain v. Brahm Prakash & Anr.

1. By way of the present appeal filed under Order 43 read with Section 151 CPC, the appellant/plaintiff has assailed the order dated 28.08.2018 passed by the Trial Court in Suit No.13886/2016 to the extent that his application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC was dismissed.

2. The appellant filed the underlying suit for declaration, possession, damages, permanent and mandatory injunction, wherein he claimed himself to be the absolute and lawful owner of property bearing No. T-57 (C), Tokri Walan, near Azad Market, Delhi – 110006 admeasuring 42 sq. yards and comprising of its entire ground floor and second floor with roof/terrace rights alongwith common staircase and superstructure. It was further claimed that the aforesaid portions were purchased by him and his brother from respondent No.2/Munni Devi by way of registered GPA and Will both dated 08.06.1998. The first floor of the property was sold by respondent No.2 to respondent No.1 (her brother). Allegedly, after sale of the aforesaid portions to the appellant, somewhere in the first week of November, 2006, respondent No.1 started raising unauthorized construction of a tin shed on the roof of the first floor of the property (i.e. second floor). In the above facts, the appellant prayed for a decree of declaration in his favour declaring him to be the sole and absolute owner of second floor with the superstructure built thereupon and roof/terrace rights alongwith common staircase (hereinafter, the ‘suit property’); of permanent injunction restraining the respondents/defendants from parting with the suit property; of mandatory injunction against the respondents to remove the tin shed constructed at the suit property; alongwith possession. Ancillary reliefs in the form of damages/compensation for use and occupation charges were also sought. Along with the suit, the appellant had also filed an application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC. The suit as well as the application were resisted by the respondents.

3. Learned counsel for the appellant contended that though the Trial Court found a prima facie case in favour of the appellant and directed the respondents not to dispose of the suit property or to create any encumbrance on it till the disposal of the suit, it erred in dismissing the application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC. It was further contended that prior to filing of the aforesaid application, the appellant had also issued a legal notice thereby asking the respondents to pay Rs.10,000/- per month towards the use and occupation charges with respect to their illegal possession at the roof of the first floor, but no reply was given by the respondents. In support of his submissions, learned counsel referred to the decisions in Metropolis Travels & Resorts (I) Pvt. Ltd. v. Sumit Kalra & Anr. reported as 2002 SCC OnLine Del 521, Raghubir Rai v. Prem Lata & Anr. reported as 2014 SCC OnLine Del 3045 and Dil Bahadur v. Arya Samaj Mandir reported as 2018 SCC OnLine Del 12194.

4. Mr. Shiv Charan Garg, learned counsel for the respondents, on the other hand, defended the impugned order by contending that as the respondents never admitted any amount, no application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC could have been filed. It was submitted that the appellant has not placed any material on record to claim the amount of Rs.10,000/- per month towards the use and occupation charges. In support of his submissions, learned counsel placed reliance on the decision in Gujarat Co-operative Milk Marketing v. Jawahar Mal & Sons and Others reported as 2002 SCC OnLine Del

1224.

5. I have heard the learned counsels for the parties and perused the material placed on record.

6. From the material placed on record, it is discernible that on 08.06.1998, two sale transactions took place. The first transaction was between the appellant and respondent No.2, whereby ground floor as well as roof rights of the first floor were purchased. The second sale transaction related to purchase of first floor by respondent No.1 from respondent No.2. Pertinently, respondent No.1 is the real brother of respondent No.2.

7. Prior to underlying suit being filed by the appellant, respondent No. 2 had filed a civil suit being CS (SCJ) No.606753/2016 against the appellant seeking declaration that sale documents, whereby roof rights of the first floor were alleged to have been executed in favour of the appellant, be declared null and void. Apparently, the suit has been dismissed though an appeal is stated to have been preferred and pending.

8. In response to appellant’s application under Order 39 Rule 10 CPC, the respondents stated that a fraud had been played upon them. The Trial Court, by noting that the respondents had not admitted appellant’s claim of trespassing or entitlement to mesne profits, dismissed the appellant’s application.

9. It is worthwhile to note that in Raghubir Rai (Supra), a Division Bench of this Court, while considering Order 39 Rule 10 CPC vis-à-vis Order XV-A CPC observed that language of the latter, especially absence of the word ‘admitted’ in it, vests the Court with discretion to issue a direction for deposit of ‘such amount’ as the Court may deem fit/reasonable. Notably, an SLP filed before the Supreme Court against the decision in Raghubir Rai (Supra) came to be dismissed.

10. Considering the issue involved, it is deemed expedient to also refer to the decision rendered by a Co-ordinate Bench of this Court in Anita Devi v. Sukumar Yadav reported as 2019 SCC OnLine Del 9053, where the plaintiff was held to have made out a case for deposit of arrears of rent under Order XV-A CPC. Relevant excerpt from the decision is reproduced hereunder:-

11. A fact situation similar to the present case had in fact come up before another Co-ordinate Bench of this Court in Madho Singh Chauhan v. Smriti and Others reported as 2022 SCC OnLine Del 1059, where it was opined that the principle under Order XV-A CPC applies differently based upon whether the defendant was a tenant or alleged unauthorized occupant. It was further held that Order XV-A CPC confers complete discretion on the Court to decide the amount to be fixed for payment by the unauthorized occupant and observed thus:-

20. A bare reading of sub-para (F), (G) and (H) of para 9 of the report in Raghuvir Rai, vis-à-vis the earlier sub-paras (A) to (E) thereof, clearly indicate that the principle that applies, under Order XV-A, to unauthorised occupants who are not tenants, and that which applies to tenants, are completely distinct. Where the defendants are the tenants in the suit property, there may be substance in the contention that the payment directed under Order XV-A(1) ought to be commensurate to the rent charged with respect to premises in the vicinity. Where, however, the defendants are not tenants, as in the present case, where they are the divorced wife and children of the petitioner who, according to him, are continuing in unauthorised occupation of the suit property, the discretion of the court, in fixing the amount payable under Order XV-A(1) is not constrained or constricted in any manner by the consideration of the rent chargeable with respect to premises in the vicinity.