MS Punchip Associates Pvt Ltd & Ors. v. Bibi Alape Kaur & Ors.

16. Hence, after the decision of the learned Single Judge in Atma Ram Properties Pvt. Ltd (Supra), Respondent Nos.[1] to 3 terminated the said month to month tenancy in favour of Appellant No.1 vide notice dated 09.04.1995 as the same was terminable under Section 106 of Transfer of Property Act. Thereafter, Respondent Nos.[1] to 3 initiated eviction proceedings against the Appellants and Respondent No. 4 by filing CS (OS) No. 2842/1995. Vide Judgment & Decree dated 19.09.2007, the learned Single Judge of this Court was pleased to decree the said suit in favour of Respondent Nos.1-3.

17. Aggrieved by the said Judgment & Decree of the learned Single Judge dated 19.09.2007, the Appellant herein preferred an Appeal, RFA (OS) No.84/2007 titled as Punchip Associates Pvt. Ltd & Ors Vs S. Rajdev Singh (Deceased) & Ors. Vide orders dated 14.11.2008 and 21.04.2009, the Hon’ble Division Bench of this Court directed Respondent No.4 to deposit the admitted rent with the registry of this Court without prejudice to the rights and contention of the parties.

18. A Division Bench of this Court, vide Judgment dated 11.01.2011, was pleased to dismiss the said RFA (OS) No.84/2007. The relevant portion of the said Judgment reads as follows:

19. The Appellants herein challenged the said decision of the Division Bench before the Hon’ble Supreme Court in SLP (C) No.14174/2011. However, vide order dated 08.11.2011, the said SLP was also dismissed.

20. Respondent Nos.[1] to 3 initiated the execution proceedings against the Appellants and Respondent No.4 by filing the Execution Petition No. 33/2012. During the pendency of the said execution proceedings, Respondent No.4 handed over peaceful possession of the suit property to Respondent Nos.[1] to 3 on 31.08.2012. Respondent No.4 deposited before this Court an amount of Rs.1,29,11,855/- towards the total arrears of rent for the period from 1.10.2007 to 31.08.2012.

21. Respondent Nos.[1] to 3 vide legal notice dated 18.01.2013 sought no objection from the Appellants and Respondent No.4 Bank for releasing the arrears of rent in their favour which was lying deposited before this Court. Subsequent thereto, Respondent Nos.[1] to 3 filed a suit for declaration against the Appellants and Respondent No.4 (CS No. 59197/2016 from which the present proceedings emanate), with the following prayer: “(1) pass a Decree of Declaration in favour of the Plaintiffs and against the Defendants, thereby declaring that the Plaintiffs are entitled to the release of amount of Rs.1,29,11,700/-, (Rupees One Crore Twenty Nine Lacs Eleven Thousand Seven Hundred Only) or any other amount deposited by the Defendant No.5, as per the records maintained by the Registry of the Hon'ble High Court of Delhi, along with the interest accrued or earned on the said amounts, on the FDRs or otherwise and order that the said amount be released to the Plaintiffs; (2) award cost of the suit in favour of the Plaintiffs and against the Defendant”

22. The Appellants filed written statement contesting the suit. The Respondent No. 4 also filed written statement stating that there is no cause of action surviving against them.

23. Based on the pleadings of the parties, learned Trial Court framed the following issues:

1. Whether the suit of the plaintiff is liable to be rejected under the provisions of order 2 rule 2 read with order 7rule 11 CPC? OPD 1 to 4.

2. Whether the plaint is liable to be rejected u/order 7 rule 11(d) of CPC as the suit has not been filed within the period of limitation? OPD 1 to 4.

4. Whether the suit is bad for mis-joiner of defendant no. 5? OPD[5].

5. Whether the plaintiff is entitled to the relief of declaration, declaring that they are entitled to the release of amount of Rs. 1,29,11,700/- or any other amount deposited by the defendant no.5, alongwith the interest accrued or earned on the said amounts, on the FDRs/deposits? OPP.

6. Relief?

24. Since all the issues framed in this case were legal issues based on the admitted facts and documents, no evidence was led by the parties.

25. After hearing the arguments on behalf of the parties, the learned Trial Court was pleased to decree the suit filed by Respondent Nos.[1] to 3 and thereby declared that Respondent Nos.[1] to 3 are entitled for the release of Rs. 1,29,11,700/- or any other amount deposited by the Respondent No.4 with the registry of this Court with up-to-date interest thereon.

26. Being aggrieved by the impugned Judgment, the Appellant preferred the present Appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

27. Ms. Malvika Trivedi, learned senior counsel for the Appellants submits that the impugned Judgment is erroneous and unsustainable both in law and on facts. According to Ms. Trivedi, CS (OS) No.2195/2012 filed by the Appellants against Respondent No.4 for mesne profit is still pending adjudication before this Court. However, the learned Trial Court without considering the said facts, effectively disentitled the Appellants from contesting the said suit.

28. Learned senior counsel for the Appellants further argued that the suit filed by the Respondents (CS No. 59197/2016 from which the present proceedings emanate) is barred by Order II Rule 2 CPC. It is the contention of the learned senior counsel for the Appellants that Respondent Nos.[1] to 3 originally filed CS (OS) No. 2842/1995 for eviction against the Appellants and Respondent No.4. However, no prayer was made for damages/mesne profits/arrears rent etc against the defendants therein. The decision in the said suit attained finality and hence now at this stage, Respondent Nos.[1] to 3 are barred from seeking a declaration regarding the entitlement of the amount deposited by Respondent No.4 Bank towards the arrears of rent qua the suit property for the period from 1.10.2007 to 31.08.2012. Hence learned senior counsel for the Appellant contended that the present suit is barred by Order II Rule 2 CPC.

29. Learned senior counsel for the Appellants again contended that the suit filed by Respondent Nos.[1] to 3 is barred by limitation. Respondent Nos.[1] to 3 never claimed arrears of rent while issuing eviction notice dated 09.04.1995. Hence according to the learned counsel for the Appellants, the cause of action for filing the present suit arose in the year 1995, whereas the present suit was filed in the year 2012, therefore the present suit is barred by limitation.

30. It was further argued on behalf of the Appellants that as per clause 1(g) of the lease deed dated 18.09.1986, the Appellants were allowed to sublet the suit property and entitled to create separate and independent contractual relation as landlord and tenant with the sub lessees (Appellants and Respondent No.4). However, the learned Trial Court failed to appreciate the said aspect of the matter and erroneously decreed the suit in favour of Respondent Nos.1-3.

31. It was also contended by the learned senior counsel for the Appellant that there is no privy of contract between Respondent Nos.[1] to 3 and Respondent No.4. Respondent No.4 was the tenant of the Appellants and hence Appellants are entitled for the arrears of rent deposited by Respondent No.4.

32. With these submissions, learned senior counsel for the Appellant prays for the setting aside of the impugned Judgment.

SUBMISSIONS ON BEHALF OF RESPONDENT NOS.1-3

33. Mr. Amit Seth, learned counsel for Respondent Nos.1-3, argued in support of the Impugned Judgment and contended that Respondent Nos.[1] to 3 are the landlords of the suit property. The original lease deed expired on 17.09.1991 and the same was never renewed. Hence after 17.09.1991, it was a month-to-month tenancy and hence the terms of the original lease deed will not be applicable thereafter. The Appellants, unauthorisedly sublet the suit property and hence Respondent Nos.[1] to 3 initiated the eviction proceedings against them. The termination of the tenancy was upheld upto Hon’ble Supreme Court and the possession of the suit property was handed over to Respondent Nos.[1] to 3 by Respondent No.4. The tenancy was terminated vide notice dated 09.04.1995. Hence the Appellants had no right over the suit property thereafter. The amount lying deposited with this Court is towards the arrears of rent qua the period from 01.10.2007 to 31.08.2012, and hence Respondent Nos. 1 to 3, being the landlord of the suit property is entitled for the arrears of rent.

34. Regarding limitation, Mr. Amit Seth, learned counsel for the Respondents submits that the Division Bench vide order dated 11.01.2011 in RFA (OS) No. 84/2007, categorically held that the amount lying deposited with this Court will be released to the party who have rights over the same as determined by the appropriate forum. Hence the cause of action for filing the present suit arose on 11.01.2011 and accordingly the present suit is not barred by Limitation. In relation to the objection qua order II Rule 2 CPC also, learned counsel for Respondent Nos.[1] to 3 relied upon order dated 11.01.2011 to substantiate that the Court consciously granted liberty to the parties to establish their rights before the appropriate forum. Respondent Nos.[1] to 3 exercised the said rights and hence the same is not barred by Order II Rule 2 CPC.

35. Mr. Amit Seth, draws the attention of this Court to paras 4 & 5 of the order dated 02.02.2022 passed by the Division Bench of this Court in CM No.1248/2007 in RFA (OS) 84/2007, which reads as follows:

36. Learned counsel for Respondent Nos.[1] to 3 argued that since the Hon’ble Division bench has already directed for the release of the deposited amount in favour of the landlords, there is no further adjudication required in the present matter.

37. With these submissions, learned counsel for Respondent Nos.[1] to 3 prays for the dismissal of the present Appeal.

LEGAL ANALYSIS

38. This Court had heard the arguments advanced by learned counsel for both the parties and perused the documents on record and Judgments relied upon by the parties.

39. It is an admitted position that Respondents Nos. 1 to 3 are the owners of the suit property. Vide lease deed dated 18.09.1986, Appellant No.1 was inducted as a tenant. Appellant No.1 further inducted Appellant Nos. 2 to 4 and Respondent No.4 as sub tenants. The said tenancy was for a period of 5 years and expired on 17.09.1991. Thereafter, the tenancy continued as a month-to month to tenancy. Vide legal notice dated 09.04.1995, the said tenancy was terminated w.e.f 31.05.1995.

40. Respondent Nos.[1] to 3 initiated the eviction proceedings and vide order dated 19.09.2007 in CS (OS) No.2842/1997, the said suit was decreed in favour of Respondent Nos.[1] to 3 and granted decree of possession in favour of Respondent Nos.1-3. Learned Single Judge, vide Judgment dated 19.09.2007, held as follows:

42. Special Leave Petition filed against the said Judgment dated 11.01.2011 was also dismissed.

43. From the perusal of these Judgments, it is evident that legal notice dated 09.04.1995 was held to be valid. Hence the tenancy was terminated w.e.f 31.05.1995. Therefore, w.e.f 31.05.1995, Respondent Nos.[1] to 3 has no right over the suit property.

44. As noticed herein above, in pursuance of the directions of this Court dated 11.04.2008 & 21.04.2009 in RFA (OS) 84/2007, Respondent No.4 deposited the arrears of the rent with the Registry of this Court. This rent was for the period 01.10.2007 to 31.08.2012. Hence it is very clear that the Appellants had no right over the suit property for the period from 01.10.2007 to 31.08.2012 as their tenancy was terminated w.e.f 31.05.1995. Hence the Appellants are not entitled to receive any rent after 31.05.1995. However, it appears that Respondent No.4 was paying rent to the Appellants till 30.09.2007. However, Respondent Nos.[1] to 3 never claimed the said amount. From 01.10.2007 onwards, the rent was deposited with this Court. Since their lease was already terminated, the Appellants had no legal right to claim the said rent.

45. Learned senior counsel for the Appellants sought to argue that the suit filed by Respondent Nos.[1] to 3 was hit by Order II Rule 2 CPC. There is a specific issue, Issue No.1 framed in this regard, and hence it is important to examine how the learned Trial Court dealt with the said issue, relevant portion of which reads as under:- “49. Order 2 Rule 2 (1) of CPC provides that every suit shall include the whole of claim, which plaintiff is entitled to make in respect of the cause of action, Hence, the sine qua non for invoking order 2 rule 2 (2) CPC against the plaintiff by the defendant is that relief which plaintiff has claimed in second suit was also available to the plaintiffs for being claimed in the previous suit against the defendants and yet not claimed by the plaintiffs”.

50. Therefore, what we have to examine is whether the plaintiffs were entitled to claim the relief sought in the instant suit in the previous suit on the basis of action pleaded by the plaintiffs in the previous suit. The previous suit CS (OS) NO. 2842/95 was instituted in December, 1995 for seeking relief of possession of suit premises against D-1 to D-5. Admittedly, no relief of mesne profits, arrears of rent/use and occupation charges was prayed for in said suit.

51. However, to my mind on the basis of cause of action pleaded in the previous suit, at the most, plaintiff could have claimed arrears of rent for the period of last three years immediately preceding the date of institution. As such, there was no cause of action to claim arrears of rent/mesne profit for the period in question i.e. w.e.t. 01.10.2007 till 31.08.2012. Here, I may draw support from the judgment of Hon'ble High Court in Syndicate Bank Vs. Raj Kumar Tanwar 154 (2008) DLT 230 (DB), wherein it was held that cause of action to recover damages or mesne profits against person in unauthorized occupation of property accrues each month. It was further observed that the rule enshrined in Order 2 rule 2 CPC is directed at securing the exhaustion of the relief in respect of a cause of action and is not intended to included in one and the same action, different causes of action though they arise from the same transaction. While referring to Order 2 rule 4 CPC, Hon'ble High Court further observed that the CPC itself clarifies that an action for recovery of immovable property is a distinct cause of action vis-a-vis cause of action for a claim for mesne profit.

52. In above judgment, while discussing the ambit of Order 2 rule 2 CPC the Hon’ble High Court also referred to its previous judgment in M/s U.K. Paints Sales Vs. M/s. Madho Ram Bhan Singh FAO (OS) no. 350/2001 decided on 24.02.2004, wherein it was held as under: “ The principle enshrined under Order 2 Rule 2 is aimed against a multiplicity of suits in respect of the same cause of action. The Rule is based on the principle that a party should not be vexed twice for the one and the same cause of action. However, the said rule must be applied with caution. The plea of bar under Order 2 Rule 2 defeats, what otherwise may be legitimate claim of a party, and therefore, care must be taken to see that complete identity of cause of action is established. Can it be said that the recovery of damages for unauthorized use and occupation of a premises for different periods constitutes a single cause of action. To our mind it does not. Cause of action to recover rent for a premises or damages for unauthorized use and occupation would arise each month for which possession is retained by the tenant or the person in unauthorized occupation as the case may be "

53. In the light of above law, there is no question of applicability of Order 2 rule 2 CPC in the instant case. The issue is hence decided in favour of plaintiffs and against D-1 to D-4. In the light of above findings on issue no.1&2, both the questions mentioned above in para no.35 of this judgment are answered in negative.”

46. It is an admitted position that there is no prayer for damages/mesne profits/rent from the defendants therein in CS (OS) No.2842/1995. However, during the pendency of the Appeal proceedings, Respondent No.4 Bank approached this Court vide CM NO. 4745/2008 regarding the deposit of rent as there was a dispute regarding whom the rent is to be paid. This Court permitted Respondent No.4 to deposit the admitted rent with the registry of this Court. Finally, while dismissing the RFA (OS) No.84/2007, vide Judgment dated 11.01.2011, this Court specifically clarified as follows: “22. The amounts deposited by the respondent No.5 pursuant to directions given by virtue of the order dated 21.04.2009 in CM No.4745/2008 by the respondent No.5 shall continue to remain deposited with the Registrar of this Court till the parties have their rights to the same, if any, determined by an appropriate forum.”

47. While giving clarification as mentioned above, this Court was conscious of the fact that rights of the parties regarding the entitlement of the deposited amount is to be adjudicated in a fresh proceeding. Respondent Nos.[1] to 3 initiated fresh proceedings and the learned Trial Court vide impugned Judgment decided that Respondent Nos.[1] to 3 are entitled for the amount deposited with the registry of this Court as arrears of rent. It is pertinent to note here that no proceedings were initiated by the Appellants for the release of the deposited amount nor filed any counter claim.

48. This Court is in agreement with the reasoning of the learned Trial Court. In addition, in view of the clarification as mentioned herein above, this Court is of the considered view that the present suit is not barred by order II Rule 2 CPC.

49. Learned counsel for the Appellants argued that the present suit is barred by limitation. Learned Trial Court has framed issue No. 2 in this regard and the finding of the learned Trial Court is reiterated as follows:

50. This Court agrees with the findings of the learned Trial Court. There is no infirmity or perversity in the findings of the learned Trial Court. In view of the clarification provided by this Court vide order dated 11.01.2011 in RFA (OS) 84/2007, the suit filed by Respondent Nos.[1] to 3 is not barred by limitation. Hence no interference is called for.

51. Learned counsel for the Appellants further submits that CS (OS) No.2195/2012 filed by the Appellants against Respondent No.4 for mesne profits is still pending adjudication before this Court. However, the learned Trial Court without considering the said fact, effectively disentitled the Appellants from contesting the said suit. As discussed herein above, the Appellants have no right over the suit property after 31.05.1995 as their lease got terminated w.e.f 31.05.1995. Hence the Appellants have no locus standi to seek the relief of mesne profits from Respondent No.4 after 31.05.1995. Hence this Court is not impressed with the said argument and hence the same is rejected.

52. In view of the detailed discussion herein above, this Court is of the considered view that Respondent Nos.[1] to 3 being the landlords of the suit property is entitled to receive the amount deposited in this Court by Respondent No. 4 towards the arrears of rent. Learned Trial Court examined all the issues in detail and rightly passed the impugned Judgment. There is no illegality, infirmity or perversity in the impugned Judgment. Hence the present Appeal is dismissed.

53. As directed by the Division Bench of this Court vide order dated 02.02.2022 in CM No.1248/2007 in RFA(OS) 84/2007, the beneficiaries of the estate of Respondent Nos.[1] to 3 shall obtain succession certificates/letter of administration/ probate of Will, if any, which would specifically deal with the fixed deposits lying in this Court. On production of the said documents, the amounts shall be released in favour of the beneficiaries of Respondent Nos.1-3.

54. With these directions, the Appeal is dismissed. No order as to costs.

GAURANG KANTH, J NOVEMBER 25, 2022