Full Text
HIGH COURT OF DELHI
Date of Decision: 07th February, 2023
M/S IONIC MSM LTD. ..... Petitioner
Through: Mr. Santosh Chaurihaa and Mr. Abhishek Verma, Advocates.
Through: Mr. Santosh K. Sethi, Advocate.
JUDGMENT
1. Present revision petition lays a challenge to an order dated 18.01.2023 whereby the Trial Court has dismissed two review applications filed by the Petitioner herein under Section 114 CPC for review of the order dated 29.08.2022. Petitioner before this Court is the Defendant before the Trial Court and Respondent is the Plaintiff and parties hereinafter are referred to by their litigating status before the Trial Court.
2. At the outset, it is pertinent to note that by an order dated 29.08.2022, the Trial Court has decreed the suit of the Plaintiff and against the Defendant for possession of the suit property bearing No.52, Babar Road, New Delhi-110001, measuring built up area of 384 sq. mtrs., exercising power under Order 12 Rule 6 CPC. By the same order, the application filed by the Plaintiff for striking off the defence of the Defendant under Order XV-A CPC has been allowed and the application filed by the Defendant under Order 6 Rule 17 CPC seeking amendment of the written statement has been dismissed. Defendant filed two Review Petitions under Section 114 CPC for review of the order dated 29.08.2022. In one petition, challenge was laid to the order dated 29.08.2022 to the extent the defence of the Defendant was struck off and, in the other, Defendant challenged the dismissal of the amendment application. It is the order dated 18.01.2023 whereby the two Review Petitions were dismissed, which is the subject matter of challenge in this petition. No challenge till date has been made by the Defendant to the decree of possession passed against it. Therefore, this Court is only required to decide the two issues that emanate from the dismissal of the order dated 18.01.2023.
3. The facts necessary for disposal of the revision petition are that Defendant company had taken the suit property, except the servant quarters, on lease vide Registered Lease Agreement dated 12.12.2016 for a period of three years from 12.12.2016 to 11.12.2019, at a monthly rent of Rs.2,00,000/- per month, with security deposit of Rs.6,00,000/-.
4. As per the case of the Plaintiff, the lease expired on 11.12.2019 and despite notice to vacate the suit property, Defendant did not vacate and hand over the possession, compelling the Plaintiff to file a suit for possession and recovery of arrears of rent and mesne profits.
5. The Trial Court has passed a decree of possession with respect to the suit property in favour of the Plaintiff, exercising power on its own motion under Order 12 Rule 6 CPC vide order/judgment dated 29.08.2022. Insofar as the mesne profits/damages are concerned, the matter is still pending before the Trial Court. By the same order dated 29.08.2022, the Trial Court has allowed the application filed by the Plaintiff under Order XV-A CPC for striking off the defence of the Defendant, upon failure of the Defendant to comply with the order dated 08.04.2022, whereby the Trial Court had directed deposit of Rs.55,80,000/- towards arrears of charges for use and occupation and a further deposit of Rs.2,00,000/- per month till vacation of suit property or disposal of the suit, whichever was earlier. Vide order dated 10.06.2022, the timelines for deposit were extended till 07.07.2022.
6. Assailing the impugned orders, learned counsel for the Defendant primarily contends that contrary to the finding of the Trial Court and the stand of the Plaintiff, the lease had not expired on 11.12.2019 as the same was renewed for a further period and that the Defendant had filed an application under Order 6 Rule 17 CPC for amendment of the written statement to incorporate the said fact. However, the Trial Court erroneously decided the application under Order XV-A prior to the decision on the application for amendment, which has gravely prejudiced the defence of the Defendant. Interestingly, during the course of arguments, counsel for Defendant takes a stand, which was not taken before the Trial Court and submits that initially itself, the lease was for a period of 5 years and this information was updated on the online portal by the Plaintiff. Thus, the Plaintiff cannot assert that the lease expired on 11.12.2019, as the same was valid upto the year 2021.
7. Counsel for the Plaintiff, on the other hand, supports the impugned orders and submits that the Plaintiff had categorically pleaded in the plaint that the Lease Agreement between the parties was for a period of 3 years commencing from 12.12.2016 and thus the lease expired by efflux of time on 11.12.2019. This categorical averment of the Plaintiff in para 2 of the plaint was not denied by the Defendant and is, in fact, admitted. Under the lease deed, the lease was renewable only by the ‘lessor’ and on renewal, a fresh lease agreement was required to be executed. In the present case, the lease was not renewed by the Plaintiff and the Defendant has placed no material on record to show to the contrary and/or that a fresh lease agreement was executed. The averments in the written statement to this extent clearly constitute unequivocal admissions on the part of the Defendant and applying the principles under Order 12 Rule 6 CPC, the Trial Court has rightly decreed the suit. In any case, the Defendant has not challenged the decree of possession till date.
8. It is further contended that the Trial Court had granted two opportunities to the Defendant to clear the arrears of user charges but the Defendant failed to comply with the orders and did not deposit a single penny till the order dated 29.08.2022 was passed and was also unable to show cause why the defence should not be struck off. The Trial Court, thus, rightly exercised powers under Order XV-A CPC to strike off the defence of the Defendant. Insofar as the application under Order 6 Rule 17 CPC is concerned, the same was decided by the same impugned order and since the defence of the Defendant was struck off, the Court found no purpose in allowing the application for amendment.
9. I have heard the learned counsels for the parties and examined their rival contentions.
10. As aforementioned, Defendant has not challenged the decree for possession passed by the Trial Court under Order 12 Rule 6 CPC. Defendant has only challenged the order dated 18.01.2023, whereby two review petitions have been dismissed seeking review of the order dated 29.08.2022 to the extent of the applications under Order XV-A and Order 6 Rule 17 CPC respectively. Therefore, this Court need not delve into the correctness and legality of order dated 29.08.2022 to the extent the Trial Court has passed the decree for possession. However, the need to refer to the admissions made in the written statement has arisen on account of the amendment application filed by the Defendant for amending the written statement, which is the subject matter of the present petition.
11. Before examining the amendment sought by the Defendant to the written statement, it would be necessary to refer to relevant pleadings in the plaint and the written statement. Plaintiff had categorically averred in para 2 of the plaint that the suit property, except the servant quarters, was leased to the Defendant Company vide Registered Lease Agreement for a period of 3 years from 12.12.2016 to 11.12.2019 and in response, the Defendant has stated in the written statement, in para 2, that the contents of para 2 of the suit are a matter of record and need no comments and that the averments are admitted. Para 2 of the plaint and its response in para 2 of the written statement are extracted hereinunder for ready reference:- PARA 2 OF THE PLAINT
12. From the written statement, it is apparent that Defendant has admitted to the averments in para 2 of the plaint that the Lease Agreement was only for a period of 3 years ending on 11.12.2019. Therefore, Defendant has admitted the jural relationship of a lessor and a lessee between the parties to the lis and also the fact that the lease was for a period of 3 years ending on 11.12.2019. In view of this stand in the written statement and there being nothing to show that there was a further renewal of the lease agreement at the option of the lessor, Trial Court exercised powers under Order 12 Rule 6 CPC, on its own motion, and passed a decree for possession. Defendant, as rightly noted by the Trial Court was unable to plead or show on what basis it was entitled to remain in possession of the suit property beyond 11.12.2019.
13. Since what is essentially challenged before this Court is the dismissal of the amendment application, the first question that arises is as to what was the amendment sought by the Defendant and secondly, whether the Trial Court was right in dismissing the application. Before examining the issues that emanate, it would be significant to look into the application filed by the Defendant under Order 6 Rule 17 CPC. Since it is a short application, I may extract the same in entirety hereunder for ready reference:- “APPLICATION UNDER ORDER 6, RULE 17, READ WITH SECTION 151 C.P.C. FOR AMENDMENT OF THE WRITTEN STATEMENT Most Respectfully Showeth:
1. That earlier the present civil suit was filed by the plaintiff through power of attorney holder which is pending for adjudication before this Hon'ble Court at the initial stage and is fixed for 07.07.2022.
2. That the defendant had been served with the summons in the present suit on 19.03.2020 and the plaintiff expired on 26.06.2020. The defendant filed their written statement dated 12.10.2020 which has taken on record on 04.11.2020. It is pertinent to mentioned that the written statement of the defendant was filed during the statutory period when the power of attorney was seized to be exists and as such the defendant filed the written statement in view of the prevailing facts and circumstances before this Hon’ble Court.
3. That the Power of Attorney holder of the deceased/sole plaintiff Mr. Subodh Kumar Jain filed application under Order 22 Rule 1 for the survival of Right to Sue and this Hon’ble court vide its order dated 09.08.2021 was pleased to allowed the application under Order 22 Rule 1 of the POA holder of Deceased/Sole Plaintiff and his impleadment as LR to the present suit. It is submitted that vide the said order dated 09.08.2021, the POA of the plaintiff steps in the shoes of the plaintiff, therefore the defendant wants to amend the written statement dated 12.10.2020 came on record on 04.11.2020.
4. That the defendant wants to amend the written statement in the preliminary submission as well as in preliminary objections by adding the additional para No.6. The defendant further wants to amend in parawise reply in para No.2, 3, 4,,7, 10, 11, 13, 14,15,16,17,18,19,24,25,26, 27,28,29,30,31, 32,33, and 34. The defendant crave leave of this Hon’ble Court to put the amendments on the written statement demarking within the para as sub para with the heading that “The Defendant wants to further add in the present para as under;” just to avoid multiplicity of the papers.
5. That the proposed amendment goes to the root of the case and in order to determine the real question in controversy by this Hon'ble Court, it is necessary that proposed amendment may be allowed.
6. That if the applicant is not allowed to amend its written statement as proposed above, irreparable loss will be suffered by the defendant PRAYER In view of above, it is humbly prayed that by this Hon’ble Court may be pleased to: a) allow the present application; b) permit the defendant to amend the written statement dated 12.10.2020 and came on record on 04.11.2020 as detailed separately in the paras of the written statement itself; i.e. in the preliminary submission as well as in preliminary objections by adding the additional para No.6. and also to amend in parawise reply in para No. 2, 3, 4, 7, 10, 11, 13, 14, 15, 16, 17, 18, 19, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, and 34. c) Pass any order or such order as this court deem fit and proper.”
14. From a bare perusal of the application, it is clear that the same is not in accordance with the procedure and practice for filing an amendment application. Moreover, other than vaguely stating that the Defendant wants to amend the written statement in the preliminary submission as well as certain paragraphs, referred to in the application, there are no averments as to what amendments were sought to be incorporated in the amended written statement in the paras alluded to in the application. Significantly, there is nothing in the application which even remotely suggests as to what amendment the Defendant was seeking to carry out in para 2 of the written statement, which, according to the Trial Court, constituted an admission of the jural relationship of landlord-tenant as well as the lease period. Therefore, no infirmity can be found in the order of the Trial Court dismissing the application as well as the Review Petition.
15. At this stage, it would be relevant to note that on the previous date of hearing, counsel for the Defendant had submitted that an amended written statement was filed in the Trial Court incorporating the proposed amendment and it was stated that lease was renewed after 11.12.2019. At request of the counsel, time was granted to place the same before this Court. An amended written statement proposed to be taken on record by the Trial Court has been filed. Counsel for the Defendant draws the attention of the Court to para 6(iv) of the amended written statement in support of the plea that the lease was extended. However, a plain reading of the para shows that the only averment is that the matter was discussed with the Power of Attorney of the Plaintiff and the Plaintiff in January, 2018, whereafter the Defendant was permitted to use the premises and after the Plaintiff agreed to the proposal for extension of tenancy period, renovation was carried out by the Defendant. There is nothing in the written statement which is a pointer to the fact that a fresh lease agreement was executed and signed between the parties. Clause 2 of the Lease Deed dated 12.12.2016 provided that the lease was renewable only at the option of the lessor for a period mutually agreed between the parties and on renewal, a fresh agreement shall be executed incorporating the conditions and such other terms and conditions as may be mutually agreed. In the absence of any such agreement having been executed between the parties on expiry of the lease on 11.12.2019, the stand of the Defendant has no basis. Therefore, even assuming for the sake of argument that the application for amendment was to be allowed and the amended written statement was taken on record, it would not further the only plea of the Defendant that the lease was renewed after 11.12.2019.
16. This Court also does not find any illegality in the impugned order to the extent the defence of the Defendant has been struck off. On 08.04.2022, the following order was passed by the Trial Court:-
17. Thereafter, the Plaintiff filed an application for clarification of the order as no timeline for deposit of the use and occupation charges/ arrears of rent was specified. Accordingly, vide order dated 10.06.2022, the Court fixed the timeline for deposit, whereby Defendant was directed to deposit the amount of Rs.55,80,000/on or before 07.07.2022. On failure of the Defendant to comply with the said orders, Plaintiff filed an application under Order XV-A CPC.
18. The Trial Court while deciding the application noted that till the date of passing of the impugned order, not a penny had been deposited by the Defendant and in the reply to the application, Defendant had failed to show any cause for the failure. In these circumstances, on account of non-compliance with the Court orders, the Trial Court exercised powers under Order XV-A CPC and struck off the defence of the Defendant.
19. In my view, the Trial Court has rightly passed the said order. Provisions of Order XV-A are explicit in providing that in a suit by or a lessor for eviction of a lessee, Defendant shall deposit such amount as the Court may direct on account of arrears and in the event of any default in making the deposit, the Court may strike off the defence subject to requiring the Defendant to show-cause why the defence be not struck off.
20. For all the aforesaid reasons, the Revision Petition is dismissed being wholly devoid of merit.