9911796707
TMI Blog2014 (5) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... relief, which had not become due to the plaintiff on the date of institution of the suit and the cause of action wherefor had not accrued on the date of institution of the suit and which fell due to the plaintiff after the date of institution of the suit. The said provision was made, perhaps to obviate the need for filing of a suit for recovery of mesne profits/damages for use and occupation of the property during the pendency of a suit for recovery of possession from the person in unauthorized occupation thereof. Though Order XVA is titled as Striking Off defence in a suit by a lessor but the same is not confined to striking off of defence only. The same, independently of Order XXXIX Rule 10 CPC, vests in the Court the power for issuing a direction for deposit. While so empowering the Court, as rightly held by the learned Single Judge, a departure was made from the language of Order XXXIX Rule 10 CPC. While under Order XXXIX Rule 10 CPC, a direction could be issued only for deposit/payment of admitted amount, the word 'admitted' is conspicuous by its absence in Order XV-A of the CPC. A discretion has been vested in the Court to issue direction for deposit of such amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant/defendant to, without prejudice to the rights and contentions of the respective parties, deposit in this Court an amount of ₹ 1 lakh per month with effect from the date of filing of the suit i.e. 14th July, 2011 till the date of the order and to continue to deposit a sum of ₹ 1 lakh per month in this Court during the pendency of the suit. 2. This appeal is pending before this Court since 3rd January, 2014. The counsel for the respondent No. 1/plaintiff being on caveat appeared. Attempts for amicable settlement of the dispute were made but failed. Vide interim orders in this appeal, the date of compliance with the impugned order was extended from time to time. We have heard the counsel for the appellant/defendant and the counsel for the respondent No. 1/plaintiff. 3. The respondent No. 1/plaintiff instituted the suit from which this appeal arises, (i) for possession of part of property No. D-2/12, Model Town-III, Delhi-09 comprising of part of the ground floor and part of the first floor; (ii) for recovery of ₹ 94 lakhs on account of rent of the aforesaid portion of the property; (iii) for recovery of another sum of ₹ 20 lakhs; (iv) for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of taking of the property; (III) denying the ownership of the respondent No. 1/plaintiff of the property; (IV) that the claim of ₹ 20 lakhs had been erroneously joined with the claim for recovery of possession and arrears of rent and mesne profits/damages; (V) that the claim for recovery of ₹ 94 lakhs was also based on Commission Agency Agreement which was denied; (VI) that the appellant/defendant was a tenant in the property, then at a rent of ₹ 1,000/-per month (the property was originally taken on rent of ₹ 400/- per month) and the suit for recovery of possession was barred by Section 50 of Delhi Rent Control Act, 1958; (VII) denying that the rent was ₹ 3 lakhs per month; (VIII) that the appellant/defendant was carrying on businesses in the portion aforesaid of the property in his tenancy under the name of M/s. Dragon Huck's (Chinese Restaurant); (IX) that the appellant/defendant had also taken a loan of ₹ 7 lakhs from the respondent No. 1/plaintiff by depositing the title documents of his property with the respondent No. 1/plaintiff and the claim of ₹ 20 lakhs was towards recovery of the said loan. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sor becomes an unauthorized occupant and the amount which such an authorized occupant can be directed to pay cannot be termed as rent; (G) that it is for this reason only that the expression such amount has been used in Order XV-A CPC (H) that the expression such amount in Order XV-A CPC is also indicative of the amount which can be directed to be deposited thereunder is not limited to an admitted amount of rent; (I) that Order XV-A also used the expression mesne profits ; (J) that any deposit made by the defendant under this provision would obviously be subject to final order passed by the Court; (K) that the respondent No. 1/plaintiff had placed on record copies of Lease Deed of commercial properties in the area to substantiate the plea that the prevalent market rent is more than ₹ 3 lakhs per month; (L) that the appellant/defendant was continuing to occupy commercial property after the termination of his tenancy and running a restaurant therein; (M) that the appellant/defendant had not shown that the prevalent rent was less than ₹ 3 lakhs per month; (N) that the mere fact that the respondent No. 1/plaintiff may have the title document of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mages for unauthorized use and occupation of the property, from the date of institution of the suit till the date of recovery of possession. Order XX Rule 12 thus permits a Court to grant a relief, which had not become due to the plaintiff on the date of institution of the suit and the cause of action wherefor had not accrued on the date of institution of the suit and which fell due to the plaintiff after the date of institution of the suit. The said provision was made, perhaps to obviate the need for filing of a suit for recovery of mesne profits/damages for use and occupation of the property during the pendency of a suit for recovery of possession from the person in unauthorized occupation thereof. 16. As far as the city of Delhi was concerned, such suits for recovery of possession of property were rare. The Delhi Rent Control Act, 1958 governing the relations between the landlord and tenant applied to all tenancies and which did not permit recovery of any mesne profits/damages for use and occupation from the tenant. However, in consonance with Order XX Rule 12 CPC, the same also in Section 15 thereof permitted the Rent Controller to, in a proceeding for eviction of tenant, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the CPC having provided expressly for the situations, where defence could be struck off and having not provided for the same to be struck off for non-compliance of an order under Order XXXIX Rule 10 of the CPC, even if the erstwhile tenant/defendant inspite of direction, failed to pay, the defence could not be struck off; though, by the time Order XVA was incorporated in CPC as applicable to Delhi, this Court held that defence could be so struck off. 21. It was in the aforesaid backdrop that the proposal of Order XV-A came to be mooted. 22. Though Order XVA is titled as Striking Off defence in a suit by a lessor but the same is not confined to striking off of defence only. The same, independently of Order XXXIX Rule 10 CPC, vests in the Court the power for issuing a direction for deposit. While so empowering the Court, as rightly held by the learned Single Judge, a departure was made from the language of Order XXXIX Rule 10 CPC. While under Order XXXIX Rule 10 CPC, a direction could be issued only for deposit/payment of admitted amount, the word 'admitted' is conspicuous by its absence in Order XV-A of the CPC. A discretion has been vested in the Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pendency of the suit such amount as may appear to be reasonable, to safeguard the right of the owner of the property and to ensure that such owner is compensated at least for the time taken in adjudication of a false defence taken up by the defendant in unauthorized occupation. This, in our view is necessary to avoid the process of the Court being abused by unscrupulous litigants and to curb the growing tendency of using the process of litigation as a tool of oppression. 25. We should however not be interpreted as laying down that Order XV-A empowers the Court to, without evidence assess mesne profits or to merely by taking judicial notice and without any material on record, arbitrarily direct the defendant to deposit a much higher amount then what he had been paying or had agreed to pay. Reference in this regard can be made to the judgment of the Division Bench of this Court in National Radio Electronic Co. Ltd. Vs. Motion Pictures Association 122 (2005) DLT 629 laying down that mesne profit have to be proved by reliable and cogent evidence in accordance with law. Of course, if the erstwhile tenant/defendant is found to have agreed to periodically increase the rent/user cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
