Manmohan Singh v. Harish Kumar Setia

1. This petition has been filed by the petitioner challenging the order dated 06.11.2020 passed by the learned District Judge (Commercial Court)-02, West District, Tis Hazari Courts, Delhi in Suit, being CIV DJ No. 244/2020, filed by the respondent against the petitioner, dismissing the application filed by the petitioner seeking review of the orders dated 08.06.2020 and 29.07.2020 passed by the learned Trial Court exercising powers under Order XVA of the Code of Civil Procedure, 1908 and directing the petitioner to clear the arrears of rent and to deposit future monthly rent.

2. The Suit has been filed by the respondent seeking recovery of possession as also mesne profits on basis of a registered Lease Deed 2021:DHC:262 CM (M) 53/2021 Page 2 dated 02.05.2019. The learned Trial Court by its order dated 08.06.2020 issued the following directions under Order XVA of the Code of Civil Procedure, 1908: -

3. On an application filed by the respondent, the said order was modified by the order dated 29.07.2020, directing the petitioner herein CM (M) 53/2021 Page 3 to clear 50% of arrears of rent and user charges within a week and rest of the amount be cleared in equal monthly installments within a period of six months.

4. The petitioner thereafter filed an application seeking review of the orders passed by the learned Trial Court. Apart from claiming that the petitioner had not been properly served in the petition and could not be represented, the main ground for seeking review was as under: - “d. That the defendant already had informed the plaintiff to evict the tenanted shop and requested to take key of the vacated shop but the plaintiff himself insisted the defendant to remain in tenancy atleast upto the period mentioned in the rent agreement and only thereafter he will return the security amount to the defendant, for which defendant became ready, however the defendant had already bind up his business, which fact was well within the knowledge of plaintiff. But due to unfortunate pandemic of Corona Virus, lockdown was started from 22-03- 2020 onwards and government strictly advice to senior citizen not to go out of house and not to come in touch of any person. As the answering defendant is a senior citizen and aged about 70 years, therefore the defendant did not go outside of his house nor visited to the tenanted shop, however plaintiff was informed telephonically and through messenger to take possession of the tenanted shop lying vacant but the plaintiff misuse the process of law just to export money from the defendant and filed the present suit under reply based on the false and concocted facts. As such under the above said facts and circumstances, which was beyond the control of answering defendant, the defendant is not liable to pay even a single penny either in account of rent or otherwise to the plaintiff for the period of 01- CM (M) 53/2021 Page 4 04-20 to 29-07-20 nor the plaintiff is entitle for the same. Further the plaintiff is guilty of committing wrong his own and thus he cannot be allowed to take benefit of his own wrong.

XXXXX e. That no amount is due against the defendant either in account of arrear of rent as alleged by the plaintiff or in any other account rather the plaintiff is liable to return the returnable security amount of Rs.1,00,000/-, which is required to be return to the defendant by the plaintiff immediately at the time of vacating the premises but the plaintiff did not do the same till date.”

5. The learned Trial Court has dismissed the said application by way of the Impugned Order on ground of limitation as also on merit.

6. As far as the merit of the application is concerned, the learned Trial Court has observed as under: -

7. The learned counsel for the petitioner submits that the application filed by the petitioner was not only in terms of the liberty granted in the order dated 08.06.2020 by the learned Trial Court but was also even otherwise within limitation considering that the petitioner was supplied with a copy of the plaint and the documents only on 11.08.2020. On merit, he submits that there was an oral agreement between the parties that the rent shall stand reduced from Rs.49,000/- to Rs. 40,000/-. He further submits that certain cheques encashed by the respondent were not taken into account nor were mentioned in the plaint.

8. I have considered the submissions made by the learned counsel for the petitioner. In the order dated 22.07.2020, while considering the application of the respondent seeking modification of the order dated 08.06.2020, the learned Trial Court observed as under:- “It is submitted on behalf of defendant that they need time to file reply to application for modification of previous order dated 08.06.2020 and engage counsel, which is strongly opposed by counsel for plaintiff. On the previous date as well, despite having knowledge regarding hearing of the case, none had joined the meeting/video conferencing on behalf of the defendant and today also they sought time for reply/arguments. The application is of urgent nature. In view of it, let counsel for plaintiff be heard and case be posted for order on the application with liberty to defendant to submit reply and written arguments on the e-mail id CM (M) 53/2021 Page 7 of the reader i.e. readerdjcomm02west@gmail.com three days prior to next date of hearing with advance copy to counsel for plaintiff through e-mail i.e. raneja@anejaandaneja.com and rishabhjainadv@gmail.com.”

9. Thereafter, in the order dated 29.07.2020, the learned Trial Court observed as under:- “I am in agreement with the Counsel for the plaintiff that sufficient time has already been granted for arguments on the modification as reflected in the order sheets.”

10. The learned Trial Court then passed a separate order on the same date modifying the direction under Order XVA of the CPC. The said order has not been placed on record by the petitioner. Therefore, this court cannot give its opinion on the validity of the same. Even otherwise, the direction to pay the rent has been passed on basis of the registered Lease Deed. The plea of an oral understanding reducing the rent, cannot be accepted. I, therefore, find no merit in the present petition.