Subhash Chand Jain & Anr. v. Savita Devi & Anr.

Delhi High Court · 20 Mar 2023 · 2023:DHC:2007

Gaurang Kanth

RFA 322/2022

2023:DHC:2007

civil appeal_dismissed Significant

AI Summary

The Delhi High Court upheld the trial court's decree for possession and rent against appellants who admitted tenancy, dismissed their application to recall a consent judgment based on false allegations against their counsel, and initiated contempt proceedings for filing false affidavits.

Full Text

NEUTRAL CITATION NO: 2023: DHC: 2007

RFA 322/2022
HIGH COURT OF DELHI

Reserved on: 17.03.2023 Pronounced on: 20.03.2023

RFA 322/2022
SUBHASH CHAND JAIN & ANR. .... Appellants
Through: Mr. Kamal Kant Jha, Advocate along with appellant in person.

VERSUS

SAVITA DEVI & ANR. ..... Respondents
Through: Ms. Namrata Chandorkar, Mr. Ritesh Khare & Mr. Akhilesh, Advocates along with respondents in person.

CORAM:

HON’BLE MR. JUSTICE GAURANG KANTH

JUDGMENT

GAURANG KANTH, J.

CM APPL. 11264/2023

1. The Appellants (Original Defendants) are aggrieved by the Judgment & Decree dated 04.12.2021 (“Impugned Judgment”) passed by the ADJ-01, Shahdara, Karkardooma, Delhi in CS NO. 670/2020 titled as Savita Devi & Anr. Vs Subhash Chand Jain & Anr.

2. Vide the Impugned Judgment, the learned Trial Court was pleased to allow the Applications filed by the Respondents (Original Plaintiffs) under (i) Order XXXIX Rule 10 CPC and

(ii) Order XII Rule 6 CPC. While allowing the said Applications, the learned Trial Court, vide the Impugned Judgment, was pleased to hold that the Respondents are entitled to decree of possession and accordingly directed the Appellants to hand over vacant and peaceful possession of the shop on the ground floor portion as well as the basement below the said shop of the property bearing No. X-3998-A, Gali No.14, Shanti Mohalla, Gandhi Nagar, Delhi-110031 (“Suit Property”) to the Respondents. Learned Trial Court further directed the Appellants to pay the admitted rent @ Rs.40,000/- (Rs. 25,000/- for the ground floor & Rs. 15,000/- for the basement) per month to the Respondents from the date of filing of the Suit till the date of vacation of the Suit Property. The issue of mesne profit is still pending adjudication before the learned Trial Court.

3. This Court disposed of the present Appeal earlier vide Judgment dated 21.12.2022 based on the consent of the parties. As per the said consent Judgment dated 21.12.2022, the Appellants agreed to vacate the Suit Property by 20.03.2023. However, the Appellants now prefers an application for recalling of the said Judgment dated 21.12.2022 (CM No. 11264/2023) on the ground that the counsel representing the Appellants at that time acted without his instructions and gave consent on their behalf before this Court. The Appellants have also filed a complaint before the Bar Council of Delhi against the said Advocate, Mr. Ankit Tandon who was representing the Appellants at that time.

4. After examining facts of the present case, this Court deems it appropriate to deal with the conduct of the Appellants before examining the merits of CM No. 11264/2023 and the present appeal.

CONDUCT OF THE APPELLANTS

5. This Appeal was listed before this Court on 22.07.2022 for hearing on admission. Mr. Ankit Tandon, Advocate appeared and argued the Appeal on behalf of the Appellants. Based on the arguments advanced by the learned counsel for the Appellants, this Court was not inclined to issue notice. At that stage, learned counsel appearing on behalf of the Appellants prayed for some time to obtain necessary instructions from the Appellants as to whether they are interested in seeking time to vacate the Suit Property instead of pursuing the present appeal.

6. On the next date of hearing, i.e. on 18.08.2022, learned counsel, on instructions received from the Appellants, stated that „the Appellant is not interested in pressing the present Appeal on merits, but is seeking one year time to vacate the suit property, which is a commercial property where he is running cloth shop‟. In view of the submission made by the learned counsel for the Appellants, this Court issued notice to the Respondents.

7. The matter was taken up for hearing on 21.12.2022. On the said date, learned counsel for the Appellants appeared along with Appellant No.1 (through video Conferencing). Accordingly, this Court disposed of the present Appeal with the consent of the parties. The Judgment dated 21.12.2022, inter alia reads, as follows:

“1. Present appeal has been filed against the impugned judgment and decree dated 04.12.2021, whereby two applications, one under Order 39 Rule 10 CPC and the other under Order XII Rule 6 CPC, filed by the Plaintiffs before the Trial Court, have been allowed and the Trial Court has decreed the suit in favour of the Plaintiffs and against the Defendants. 2. Learned counsel appearing on behalf of the Appellants, on instructions from Appellant No. 1, who is present in Court albeit through video conferencing, submits that Appellants shall hand over vacant and peaceful possession of the suit property to the Respondents on or before 20.03.2023. Appellants also undertake that all the arrears of rent, payable to the Respondents, commencing from May, 2019 till date shall be paid within a period of two months from today. Insofar as the rent for the period 21.12.2022 till 20.03.2023 is concerned, the rent shall be paid in advance on or before 15.01.2023. 3. At this stage, learned counsel for the Respondents submits that Respondents are old and ailing and the Appellants are causing immense physical and mental harassment to them and therefore, directions be issued that the Appellants shall not cause any kind of harm or harassment till they are in possession of the suit property, as undertaken in the Court. 4. I have heard the learned counsels for the parties. 5. In view of the undertaking and assurance given to the Court, as aforementioned. Appellants are permitted to continue in possession of the suit property till 20.03.2023; subject to the Appellants filing an affidavit of undertaking in the aforesaid, terms, within a period of two working weeks from today. 6. It is directed that the Appellants shall not harass the Respondents in any manner, whatsoever till they continue in possession of the suit property.

7. Appeal along with pending applications is disposed of in the aforesaid terms.”

8. It is pertinent to mention that the learned Trial Court passed the Impugned Judgment on 04.12.2021 and by virtue of the consent judgment dated 21.12.2022, the Appellants were to vacate the Suit Property by 20.03.2023. The Appellants accordingly managed to continue with the possession of the Suit Property for 1 year 3 months even after passing of the Impugned Judgment.

9. The Appellants failed to file the undertaking as per the Judgment dated 21.12.2022. Matter was placed before Court on office note. This Court issued notice to the parties on 17.02.2023.

10. On receiving the said notice, the Appellants filed an Application, CM No. 11264/2023 for recalling of the Judgment dated 21.12.2022. In the said Application, it has been alleged by the Appellants that they neither gave consent for not pressing the Appeal on merits nor agreed to vacate the Suit Property by 20.03.2023. It is further alleged by the Appellants that even though the Appellant No.1 attended the hearing on 21.12.2022 through Video conferencing, due to technical glitch, he could not hear anything with clarity. The Appellants further averred that Mr. Ankit Tandon, Advocate never briefed them properly about the Court proceedings and hence as a layman, they were not aware of the directions to file an undertaking before this Court. In order to prove their bonafide, the Appellants have also lodged a complaint against Mr. Ankit Tandon, Advocate before the Bar Council of Delhi alleging professional misconduct against him. It is worthwhile to reiterate the contents of the said Application:

“3. That the counsel for the applicants I appellants (defendant in the above mentioned civil suit) Mohd. Imran Malik who represented them in the above mentioned civil suit recommended the name of Shri Ankit Tandan, Advocate, for challenging the order passed against the complainant in High Court by filling RFA. 4. That the applicants/appellants duly authorized/engaged Shri Ankit Tandan for challenging the order passed against him in High Court by filling a RFA. 5. That after elapse of some-time of filing of the above mentioned RFA through Shri Ankit Tandan, Advocate, in the month of July, 2022, the applicants/appellants sought information regarding progress and status of the same, however, his Advocate (Shri Ankit Tandan) told them to wait as the arguments were going on in the matter. 6. That on every occasion when the applicants /appellants enquired about the case, their Advocate (Shri Ankit Tandan) told them the same thing again and again, to wait as the arguments were going on in the matter. 7. That the Advocate, Informed the applicants/appellants to attend the case (above mentioned RFA) on 21st December, 2022 through VC. 8. That on appointed date throughout the day, the applicants/ appellants managed to somehow establish connection through the link provided to them by their Advocate (Shri Ankit Tandan), through his Mobile phone (Realme RMX1851), which kept on functioning erratically. However, despite their best efforts they could not understand a single word of what transpired in the court on 21st December, 2022, due to insufficient and erratic network. 9. That when the applicants/appellants told their Advocate (Shri Ankit Tandan), about their failure in participating in the proceedings, they were told by their Advocate (Shri Ankit Tandan), to not to worry as the arguments were still going on in the matter.

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10. That dissatisfied by the reply given by his Advocate (Shri Ankit Tandan), the complainant, took help of some other Lawyers to find Status of the case.

11. That upon receiving certified copy of the records of RFA No. 322/2022, in the first week of February, 2023, the applicants/appellants were utterly surprised to find that at the second date of hearing, without any information or consent from any of the Appellant (complainant and his son Abhishek Jain), their Advocate (Shri Ankit Tandan) acting fraudulently and indulging in falsehood, falsely stated before the Hon'ble High Court on 18.08.2022 in RFA No. 322/2022, that the appellants were not interested in pressing the appeal and sought time to vacate the premises.

12. That relying upon the submission of the Counsel for the Appellants, Ankit Tandan, the above noted RFA preferred by the complainant was disposed of in terms of the alleged undertaking by the appellants. Certified copies of the orders passed by the Hon'ble High Court in the RFA No. 322 of 2022, are being collectively annexed herewith as Annexure No. 1 to this application.

13. That it is humbly submitted at the cost of repetition that due to insufficient network, despite their best efforts the applicant and his son (the appellants) could not understand a single word of what transpired in the court on 21st December, 2022, otherwise they would have registered their objection then and there immediately upon coming to know about their alleged wish to not to press the appeal and undertaking asking time to vacate the suit premises.

14. That it is therefore humbly submitted with great respect that the presence of applicants/appellants through as recorded in the judgment and order dated 21.12.2022 is result of submissions made by their Counsel, Shri Ankit Tandan, who apparently came to know at that very moment that the applicants/appellants were not properly connected through video conferencing manipulated the occasion to his planning and made wrong and false submissions on behalf of the applicants/appellants. As such the said submissions made by the Counsel on behalf of the applicants/appellants are not binding upon the applicants/appellants in the eye of law and the judgment and order based there upon is vitiated in law.

15. That as stated above the network failure too helped the counsel for the Applicants/Appellants, Advocate (Shri Ankit Tandan), in as much as it appears from the order dated 21.12.2022 that the applicants/appellants were present through VC, however as mentioned above the truth is that despite their best efforts the appellants could not understand a single word of what transpired in the court on 21st December, 2022 due to due to insufficient erratic network.

16. That despite having gained the knowledge that the applicants failed to actually participate in the court proceedings their Advocate (Shri Ankit Tandan) did not inform that the applicants were required to file an affidavit as directed in order dated 21.12.2022. It is therefore why no such affidavit has been filed till date.

17. That it is submitted that for the reasons best known to the Advocate for the Appellants (applicants herein) acted fraudulently and indulged in falsehood by making false statement on behalf of the complainant behind their back before the Hon'ble High Court on 18.08.2022, while keeping the applicants/appellants in dark about the same.

18. That it is humbly submitted that the respondents in the above noted RFA have been acting Illegally throughout as such they barely contested the said RFA.

19. That the respondents in the above noted RFA have caused too much trouble, loss and injury to the applicants/appellants for redressal of which the applicants/appellants have instituted civil and criminal proceedings against them. In such a situation, the applicants/appellants cannot imperil the fate their own cases against the respondents in RFA by not pressing the above noted RFA and by seeking time to vacate the suit premises. A True Copy of FIR & Recovery Suit filed against the respondents by the appellants are collectively annexed herewith as Annexure No.2 to this application.

20. That the impugned act of the Shri Ankit Tandan, Advocate, has caused a great deal of loss and injury to the applicants/appellants.

21. That aggrieved by the above mentioned fraudulent act of their Advocate, Shri Ankit Tandan, the applicant no.1 has lodged a formal complaint against him under section 35 of the Advocates Act, for institution of disciplinary proceedings against the said Advocate so that he may be punished under relevant sections of Advocates Act and any other law applicable to facts and circumstances of the case. A True Copy of the above mentioned complaint is annexed annexed herewith as Annexure No. 3 to this application.”

11. The said Application was listed before this Court on 07.03.2023 and directions for issuance of notice to the Respondents on the said Application were given on the said date returnable on 17.03.2023. Thereafter, on 17.03.2023, CM No.11264/2023 along with the RFA 322/2022 was taken up for hearing by this Court.

12. It is pertinent to mention that the Appellants filed CM No.11264/2023 through Mr. Pranav Kumar Srivastava & Mr. Rajesh Pandit, Advocates. Mr. Pranav Kumar Srivastava, Advocate represented the Appellant on 07.03.2023 when the Application was taken up for hearing on admission. However, on 17.03.2023, Mr. Pranav Kumar Srivastava stated that he is withdrawing his Vakalatnama as the Appellants have engaged Mr. Kamal Kant Jha, advocate to represent his matter before this Court. Mr. Pranav Kumar Srivastava advocate is permitted to withdraw his vakalatnama. In view of the same, Mr. Kamal Kant Jha, learned counsel advanced arguments on behalf of the Appellants on the said Application.

13. It is also pertinent to note that Mr. Ankit Tandon, Advocate appeared and submits before this Court that the Appellants were aware of the complete court proceedings and he had acted as per the instructions of the Appellants. Mr. Tandon further submitted that as per the instructions of the Appellants, he even prepared an undertaking in compliance of the Judgment dated 21.12.2022. The said undertaking bears the signature of Appellant No.1 and was duly notarized on 04.01.2023. Mr. Tandon handed over the duly notarized undertaking of the Appellant No.1 in which he has categorically stated that he will vacate the Suit Property by 21.03.2023. Mr. Tandon further submitted that after preparing the said undertaking, the Appellants changed their mind and instructed him not to file the said undertaking. Hence, in view of changed instructions received from the Appellants, he did not file the said undertaking before this Court. Mr. Tandon further placed on record the WhatsApp communications between him and the District Court lawyer of the Appellant, Mohd. Imran Malik. The Appellants, in CM No. 11264/2023, specifically pleaded that they engaged Mr. Tandon through Mohd. Imran Malik.

14. From the documents placed on record by Mr. Tandon, it is manifestly clear that the Appellants were fully aware of the proceedings before this Court and Mr. Tandon acted strictly in compliance with the instructions of the Appellants. This Court highly condemns the disparaging conduct of the Appellants in the present case. The Appellant No.1 attended the Court hearing on 21.12.2022 through Video Conferencing. He understood the court proceedings and even instructed his counsel to prepare an undertaking to comply with the directions passed by this Court vide judgment dated 21.12.2022 after recording consent of the Appellants. However, it is evidently clear that subsequently, the Appellants changed their minds and therefore instructed the counsel not to file the said undertaking before this Court. Further, in view of their plan of not vacating the Suit Property, the Appellants filed a complaint against Mr.Ankit Tandon, Advocate with the Bar Council of Delhi by placing the entire blame on him. The Appellants further filed CM No. 11264/2023 before this Court with false Affidavit stating that they were not aware of the court proceedings held on 21.12.2022 before this Court and levelled allegations against Mr.Ankit Tandon, Advocate for acting without seeking necessary instructions from the Appellants.

15. It would not be out of context to mention that Advocates are officers of this Court and they play a vital role in the administration of justice. They are a part and parcel of the justice dispensation system. There exists a fiduciary relationship between the client and his Advocate and any professional misconduct on the part of the Advocates needs to be viewed very seriously. Undertaking such misconduct invites severe punishment against the concerned Advocate including temporary or permanent revocation of his right to practice the legal profession. Accordingly, raising false and frivolous allegations against Advocates and filing false complaints against them before the Bar Council with an intention to get favourable order(s) from this Court by mischievous clients is also required to be viewed sternly. Such a conduct will affect the morale of the lawyer community and the same cannot be permitted. A complaint against a lawyer by his client in the Bar Council may have serious repercussions and therefore, cannot be permitted to be undertaken in a casual and routine manner. It will always remain as a stigma on the career of the concerned Advocate. Hence, it is the duty of this Court to curb the tendency of such dishonest clients to file frivolous complaints which are devoid of any merit against Advocates before the Bar Councils and to protect the Advocates from such unscrupulous clients by taking appropriate action against such clients in accordance with law.

16. Additionally, Appellant No.1 filed false Affidavit before this Court knowing fully well that its contents are wrong. This Court is of the prima facie view that the act of the Appellant No.1 amounts to interference with the administration of justice.

17. In view of the same, issue notice to the Appellant No.1 returnable on 24.04.2023 to show cause as to why action should not be taken against him for Contempt of Court for wilful disobedience of the judgment dated 21.12.2022 and wilful breach of undertaking given to the court and also for filing false affidavit.

18. The Registry is directed to register and number a separate Contempt Petition against the Appellant No.1 for filing a false Affidavit before this Court thereby interfering with the administration of justice.

19. This Court passed the Judgment dated 21.12.2022 based on the consent of the parties. However, the Appellants have now moved an Application, CM No.11264/2023 for recalling of the said Judgment dated 21.12.2022 on the ground that the counsel appearing for the Appellants at that time gave consent before this Court without their instructions.

20. As discussed hereinabove, CM No. 11264/2023 is based on false and frivolous allegations and misleading facts and is supported with false Affidavit. Hence, CM No.11264/2023 is hereby dismissed with cost quantified as Rs. 25,000/- to be paid by the Appellants to the Respondents.

21. However, considering the fact that the Appellants have withdrawn their consent, this Court deems it appropriate to decide the present Appeal on its merits.

22. This Court heard the rival contentions of both the parties and perused the relevant documents on record.

23. Respondent No.1 is a 70-year-old widow lady and Respondent No.2 is her son. Respondents are the joint owners of entire suit property being X-3998-A, Gali No.14, Shanti Mohalla, Gandhi Nagar, Delhi-110031 consisting of one basement, one shop at ground Floor and three independent floors at first, second and third floors respectively.

24. In the month of May, 2019, the Appellants approached Sh.Hukum Singh Kataria (husband of Respondent No.1 and father of Respondent No.2) and requested him to hand over the possession of the shop situated at the ground floor portion of the said premises for two months for the purpose of storing his goods which were lying in open space. Sh. Hukum Singh Kataria, with the consent of the Respondents, agreed to lease out the ground floor of the said property to the Appellants for a period of two months at a monthly rent of Rs.1,35,000/- excluding electricity and water charges. The Appellants also paid a token amount of Rs. 50,000/- to the Respondents towards security. Accordingly, the keys of the ground floor of the premises were handed over to the Appellants on 09.05.2019.

25. The Appellants, without the prior permission of Sh. Hukum Singh Kataria or the Respondents, started their business from the said ground floor. The Appellants failed to vacate the ground floor of the premises and also failed to make payments for rent/electricity/water charges.

26. It is further case of the Respondents that the basement of the premises (the entry gate of which is below the shutter of the ground floor) was never leased out to the Appellants. However, on 11.12.2020, the Appellants broke the lock of the basement and forcibly took possession of the basement. In view of the same, according to the Respondents, the Appellants are liable to pay Rs. 50,000/- per month towards the use & occupation charges of the said basement.

27. Even after repeated requests, the Appellants refused to enter into a rent agreement with the Respondents. The Appellants neither paid rent nor vacated the basement and the ground floor of the said property which was in their possession. Hence, Sh. Hukum Singh filed police complaints against the Appellants. As a counter blast, an FIR No.470/2020 u/s 436/34 IPC was registered against Sh. Hukum Singh Kataria and Respondent No.1 at the instance of the Appellants. Sh. Hukum Singh Kataria remained in judicial custody for 20 days, whereas the learned ASJ granted anticipatory bail to Respondent No.1.

28. The Respondents filed the suit for possession, permanent and temporary injunction, mandatory injunction and for damages/mesne profit against the Appellants in respect of the Suit Property i.e., the shop on the ground floor portion as well as the basement below the said shop of the property bearing No. X- 3998-A, Gali No.14, Shanti Mohalla, Gandhi Nagar, Delhi- 110031.

29. The Appellants filed their joint written statement. In the said written statement, the Appellants admitted that the Appellants are running cloth trading from the Suit Property and the Respondents are owners of the said property. According to the Respondents, the rent for the ground floor was fixed at Rs.25,000/- per month and for the basement was fixed at Rs.15,000/- per month (excluding other charges). The tenancy commenced on 10.05.2019. According to the Appellants, they paid Rs.4,00,000/towards security deposit. It is further case of the Appellants that the Respondents avoided the execution of the rent agreement. In the second week of July, 2019, Sh. Hukum Singh Kataria along with his associates came to the tenanted premises and asked the Appellants to vacate the Suit Property. Further, they threatened the Appellants with dire consequences. Hence, the Appellants lodged a police complaint against Sh. Hukum Singh Kataria. Sh. Hukum Singh Kataria and his associates continuously pressurized the Appellants for vacating the Suit Property and the Appellants filed various police complaints against Sh. Hukum Singh Kataria. On 03.10.2020, a fire broke at the shop of the Appellants and the Appellants suffered a loss to the tune of Rs.30 Lakhs. The Appellants further suspect that the said fire happened at the instance of the Respondents. Hence, an FIR under Sections 436/34 IPC was registered against Sh. Hukum Singh Kataria and Respondent No.1 at the instance of the Appellants. However, the police officers in collusion with the Respondents, did not invoke the correct provision of law and hence the Appellants filed a complaint under Section 156(3) of Cr.P.C. before the learned Metropolitan Magistrate and the same is pending adjudication. In addition, the Appellants also filed a suit for permanent and mandatory injunction against Sh. Hukum Singh Kataria and the same is also pending. According to the Appellants, the Respondents filed the present suit as a counter blast to the suit filed by the Appellants.

30. Based on the admissions made by the Appellants, the Respondents filed Applications under Order XXXIX Rule 10 CPC and Order XII Rule 6 CPC. The Appellants filed their reply to the Application under Order XII Rule 6 CPC reiterating their stand in the written statement.

31. Learned Trial Court vide the Impugned Judgment, allowed both the Applications. Learned Trial Court held that the Respondents are entitled for the decree of possession and hence directed the Appellants to hand over the vacant peaceful possession of the Suit Property to the Respondents. In addition, the learned Trial Court further directed the Appellants to pay the admitted rent @ Rs 40,000/- (Rs. 25,000/- for the ground Floor & Rs. 15,000/- for the basement) to the Respondents from the date of filing of the suit till the date of vacation of the Suit Property. The issue of mesne profit is still pending adjudication before the learned Trial Court.

32. Learned Trial Court passed the Impugned Judgment based on the admission made by the Appellants in their written statement. The relevant portion of the impugned Judgment is reiterated herein:

“24. For passing the decree of possession in favour of

the landlord, three conditions are required to be fulfilled,

which are as under:-

(a) Relationship of landlord & tenant

(b) Rate of rent above Rs. 3500/- per month.

(c) Valid termination of tenancy under Section 106 T.P. Act. 25. Perusal of record reveals that the defendants in para 5 of preliminary objections of written statement have admitted that plaintiffs are the owners of the tenanted premises and defendant no. 1 is running his business in the same. It has further been admitted in para 6 of preliminary objections of written statement by the defendants that their tenancy w.r.t. tenanted premises as well as basement had commenced on 10.05.2019 and on the request of plaintiff no. 1 and her husband i.e. Sh. Hukum Singh Kataria, an amount of Rs. Four Lacs was paid by defendant no.to the plaintiffs and husband of plaintiff no. 1 as security deposit and he had been assured that agreement / documents regarding the tenancy and security deposit will be get executed within 2-3 days. Thus, the relationship of landlord-tenant between the plaintiffs and the defendants is categorically established.

26. The defendants in para 6 of preliminary objections of their joint written statement have further admitted that the rate of rent for the ground floor was Rs. 25000/- p.m. and for the basement was Rs. 15000/- p.m. Thus, it is clear that agreed rate of rent was well above Rs. 3500/- per month.

27. However, the plaintiffs in their averments have not mentioned anywhere about the termination of the said tenancy by way of legal notice or otherwise. But, it is a settled law that the institution of eviction suit shall be treated as notice of termination of tenancy where the intention to terminate the tenancy has been unequivocally expressed in the plaint. The Hon'ble Supreme Court has, in the case of Nopany Investments (P)Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728, held that the tenancy would stand terminated on filing of a suit for eviction. This decision has been followed by Hon'ble High Court of Delhi in the case of M/s. Jeevan Diesels & Electricals vs M/s. Jasbir Singh Chadha (Huf) & RFA No.179/2011 dated 25.3.2011. Therefore, in the light of above authorities, it is crystal clear that upon filing of present suit and also by way of issuance of summons / notice of the present suit, tenancy has been terminated and the defendants have become unauthorized occupants. They are under an obligation to deliver vacant physical possession of the suit property to the plaintiffs, as prayed by the plaintiffs.

28. In view of above, it is evident that the afore mentioned conditions as to passing of judgment on admission have been fulfilled and it has been established that there was a land lord-tenant relationship between plaintiffs and the defendants, rent was well over Rs. 3500/- and there was valid termination of tenancy. Therefore, in view of the above, the plaintiffs are entitled to vacant and peaceful possession of the tenanted premises i.e. the shop on the ground floor as well as the basement situated at X/3998 A, Gali No. 14, Shanti Mohalla, Gandhi Nagar, Delhi 31, from the defendants. Thus, the decree of possession qua the tenanted premises as well as the basement situated at X/3998 A, Gali No. 14, Shanti Mohalla, Gandhi Nagar, Delhi 31 is passed in favour of the plaintiff and against the defendant u/o 12 R 6 CPC. Decree-sheet be prepared accordingly. The application u/o 12 R 6 CPC stands disposed of accordingly.”

33. Mr. Kamal Kant Jha, learned counsel for the appellants contented that the impugned order dated 4.12.2021 is perverse and arbitrary and is liable to be set aside. Learned counsel further contented that the learned Trial Court erred in ignoring the fact that an FIR No. 470/2020 under section 436/34 IPC has been registered against the Respondent No. 1 and 2 for allegedly entering the shop of appellants and setting it on fire thereby causing a loss of approximately 30 lacs to the appellants. Learned counsel further contented that the respondents are not the landlords and Late Sh. Hukum Singh Kataria was the owner of tenanted premises and as such the impugned judgment is liable to be set aside as the appellants have never admitted the Landlord-tenant relationship with the respondents. He further contented that there was no admission on the part of appellants and principle of natural justice require that the appellants be allowed to lead evidence.

34. On the contrary, Ms. Namrata Chandorkar learned counsel for the respondents contented that there is a clear and unequivocal admission by the appellants in their written statement and as such the present appeal is liable to be dismissed.

35. This Court has examined the pleadings filed by the Appellants before the learned Trial Court. From the pleadings, it is clear that the Appellants admitted the following facts in their written statement: (1) the Appellants are tenants, and the Respondents are landlords of the Suit Property. Hence, there is an unequivocal and unambiguous admission regarding the tenancy and landlord-tenant relationship between the parties. (2) The Appellants categorically admitted that they are occupying the Suit Property on rent. However, there is dispute regarding the quantum of rent payable. According to the Appellants, the rent was Rs. 40,000/- per month (Rs.25,000/- per month for ground Floor and Rs.15,000/- per month for basement) whereas as per the Respondents, the rent was Rs.1,85,000/- per month (Rs.1,35,000/- per month for ground floor and Rs.50,000/- per month for basement). (3) It is an admitted position between the parties that the rent of the Suit Property is more than Rs.3500/-, therefore, the present case is outside the ambit of the Delhi Rent Control Act. (4) The Appellants in their written statement, have categorically stated that in the second week of July, 2019, Sh. Hukam Singh, on behalf of the Respondents, asked the Appellants to vacate the Suit Property. Hence, the same can be treated as an admission regarding the termination of tenancy. Additionally, in view of the law laid down by the Hon’ble Supreme Court in Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728, the tenancy would stand terminated on filing of a suit for eviction.

36. Hence, it is evident that there are categorical admissions made by the Appellants in their written statement and the learned Trial Court has accordingly passed the Impugned Judgment based on the said admissions.

37. It is a well settled principle of law that an Application under Order XXXIX Rule 10 CPC can be passed in a case where the ingredients of Order XII Rule 6 CPC are existing. In the present case, as discussed herein above, all the ingredients of Order XII Rule 6 CPC are subsisting. Hence, the learned Trial Court rightly allowed the Application under order XXXIX Rule 10 CPC on the basis of the rent admitted by the Appellants. The relevant portions of the Impugned Judgment regarding are as follows:

“13. Order XXXIX, Rule 10 CPC reads as under:- “10. Deposit of money etc. in Court. - Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to further direction of the Court.” 14. In a landlord-tenant dispute, where their relationship is admitted, the obligation of the tenant to pay rent for the tenanted premises during the period that the tenant is in occupation of the premises cannot be disputed. Inherent in this admission is embedded an obligation to pay the rent / occupation charges, because the admission of the said relationship excludes a claim based on any other title to the property. The relationship between a landlord and a tenant is one where the tenant agrees to pay the rent / occupation charges in consideration for the right granted to him by the landlord to use and occupy the premises. Therefore, he cannot be permitted to remain in arrears of rent /

occupation charges while being in use or occupancy of the premises. 15. However, the tenant may set up defences to justify suspension of his obligation to make payment of rent and once the said defences have been considered by the Court, it necessarily follows that the obligation of the tenant to pay the rent is established and the tenant holds the money due on account of rent on behalf of landlord.

16. In Sangeeta Prints Vs. Hemal Prints and Others, the Hon'ble Bombay High Court relied upon its earlier Division Bench judgment in the case of Chandrakant ShankarraoDeshmukh Vs. Haribhau Tukaramji Kathane, to hold that in case of a landlord and a tenant, the tenant cannot dispute his liability to pay rent to the landlord although the quantum of such rent may be dispute. The tenant, in fact, is deemed to admit some money is due to the plaintiff. In such situation the Court can direct the tenant to deposit such amount as the Court may deem fit under Order XXXIX R 10 CPC.

17. Also, in Surjit Singh Vs. H.N. Pahilaj, the Hon'ble High Court of Delhi while considering the object of Order XII, Rule 6 CPC, held that relief under the said provision was also available where liability to pay is not denied but being avoided on untenable pleas. The power in such cases could also be exercised under Order XXXIX, Rule 10CPC. The Hon'ble High Court held that u/s 151 CPC, every Court is constituted for the purpose of doing justice according to law and must be deemed to possess, as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo a wrong in the course of the administration of justice. In appropriate cases the Court can exercise powers u/s 151 CPC, where Order XII R 6 CPC or Order XXXIX Rule 10 CPC may not be applicable for the purpose of doing justice or to prevent abuse of the process of the court.

18. The admitted fact amongst the parties is that plaintiffs are the owners of the suit property and the tenanted premises was given to the defendants. Thus, the said admissions establishes the landlord-tenant relationship between the parties w.r.t. to tenanted premises a/w basement. However, there is no written rent agreement between the parties qua the tenanted premises. Plaintiffs have averred that the tenanted premises was given to defendants on rent @ Rs. 1.35 Lacs pm w.e.f. 09.05.2019, but the defendants failed to pay any rent to them till date and that they be directed to pay the rent of the tenanted premises @ Rs. 1.35 Lacs pm, till the vacant possession of the same is handed over to them. It is further averred that defendants have taken forcible illegal possession of the basement (situated below the tenanted premises) w.e.f. 11.12.2020 by breaking open the locks and therefore, defendants are liable to pay Rs. 50,000/- pm w.e.f. 11.12.2020 till handing over of the possession of the same. The defendants in para 6 of preliminary objections of written statement have categorically admitted the rate of rent @ Rs. 25,000/p.m. for the tenanted premises and Rs. 15,000/- pm for the basement.”

38. After examining the record of the present case, this Court is of the considered view that the Impugned Judgment is based on correct appreciation of law and facts. The Appellants admitted the landlord-tenant relationship. Even though the rate of rent is disputed, they have admitted the liability to pay rent. The termination of tenancy is also admitted. In view of the same, the learned Trial Court rightly allowed the application under Order XII Rule 6 CPC. Further, the learned Trial Court allowed the Application under Order XXXIX Rule 10 CPC based on the admitted rent. The issue of mesne profit is yet to be adjudicated and decided by the learned Trial Court. Hence in view of clear admissions made by the Appellants in the written statement, this Court is of the considered view that the learned Trial Court has rightly passed the Impugned Judgment and the same warrants no interference by this Court.

39. In view of the detailed discussion hereinabove, the present Appeal is dismissed.

40. The date already fixed i.e. 22.05.2023 stands cancelled.

GAURANG KANTH, J. MARCH 20, 2023

Subhash Chand Jain & Anr. v. Savita Devi & Anr.

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