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Delhi District Court

Smt. Sarita vs Sh. Gyan Chand on 21 February, 2022

IN THE COURT OF ADJ­07, SOUTH­EAST DISTRICT, SAKET COURTS,
                                    DELHI


Presided By: Mr. Jay Thareja, DHJS

MCA No: 03/2022

Smt. Sarita
W/o. Sh. Balraj
R/o. 56, Bharat Nagar,
New Delhi­110025.
                                                              ... Appellant

                                    Versus

Sh. Gyan Chand
S/o. Late Sh. Raghbar Dayal
R/o. 56, Bharat Nagar,
New Delhi­110025.
                                                            ... Respondent


                APPEAL UNDER ORDER XLIII RULE 1(r) READ
                    WITH SECTION 151 OF CPC, 1908.

                                     DATE OF INSTITUTION : 17.02.2022
                        DATE OF RESERVING FOR JUDGMENT : 17.02.2022
                                       DATE OF DECISION : 21.02.2021

                                 JUDGMENT

1. The appellant/defendant/tenant (henceforth 'appellant') has filed this appeal under Order XLIII Rule 1(r) read with Section 151 of CPC, 1908, challenging the Order dated 09.09.2021, passed by the Court of Ld. Civil Judge­01, South­East District, Saket Courts, New Delhi (henceforth MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.1 of 11 'Ld. Trial Court') in Suit No.1969/19, Sh. Gyan Chand v Smt. Sarita (henceforth 'subject suit').

2. By way of the impugned Order dated 09.09.2021, the Ld. Trial Court has (a) allowed the application under Order XXII Rule 3 of CPC, 1908, seeking the impleadment of LRs of the deceased respondent/plaintiff/landlord (henceforth 'respondent') in the subject suit;

(b) allowed the application under Order XVA of CPC, 1908 and directed the appellant to deposit in Court (i) a sum of Rs.2,43,000/­ towards arrears of rent/usage charges of the tenanted premises for the period, June 2019 to August 2021, within 30 days and (ii) a sum of Rs.9,000/­ per month w.e.f. September 2021 till the disposal of the subject suit; and (c) disposed of the application under Order XXXIX Rule 10 of CPC, 1908, by directing the appellant to comply with the directions given in respect of the application under Order XVA of CPC, 1908.1

3. In the impugned Order dated 09.09.2021, the Ld. Trial Court, after examining the pleadings of the parties, has concluded that the LRs of the respondent are entitled to the relief(s) granted under Order XVA of CPC, 1908 and Order XXXIX Rule 10 of CPC, 1908 (a) because in paragraph 2 of the reply on merits pleaded in written statement, the appellant has admitted that she had taken the tenanted premises on rent from the respondent vide a lease agreement which was signed by both the parties in September 2017; (b) because in paragraph 6 of the reply on 1 At this stage, I must point out that in this appeal, the appellant has not raised any grievance regarding the impleadment of the LRs of the respondent. The appellant has only challenged the directions given by the Ld. Trial Court in respect of the applications under Order XVA of CPC, 1908 and Order XXXIX Rule 10 of CPC, 1908.

Smt. Sarita v Sh. Gyan Chand Page No.2 of 11 merits pleaded in the written statement, the appellant has admitted that she had paid the agreed rent of Rs.9,000/­ per month to the respondent;

(c) because in view of the said admissions the jural relationship of tenant­ landlord stands duly established inter­se the appellant and the respondent/LRs of the respondent qua the tenanted premises and (d) because in such circumstances, the appellant cannot be permitted to utilize the tenanted premises, without paying any rent/usage charges to the LRs of the respondent.

4. Upon prima­facie finding the impugned Order dated 09.09.2021 to be in accordance with judgment of the Hon'ble Supreme Court in Kamaljit Singh v Sarabjit Singh, (2014) 16 SCC 472 as well as the judgment of the Hon'ble High Court of Delhi in Raghubir Rai v Prem Lata & Anr., (2014) 211 DLT 516 (DB), I had requested the Ld. Advocate for the appellant, on 17.02.2022 to point out the perversity, if any, in the impugned Order dated 09.09.2021. In response thereto, the Ld. Advocate for the appellant had made the following submissions.

5. Firstly, the Ld. Advocate for the appellant had submitted that impugned Order dated 09.09.2021 is perverse because it does not give due credence to the defence of the appellant that the respondent/LRs of the respondent are not the owners of the tenanted premises. In my view, the said submission of the Ld. Advocate for the appellant is liable to be rejected on account of Section 116 of the Evidence Act, 1872 which clearly prohibits an admitted tenant from denying the title of the admitted landlord qua the tenanted premises. In this regard, reference is craved to the MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.3 of 11 judgment in Kamaljit Singh v Sarabjit Singh, (2014) 16 SCC 472, wherein the Hon'ble Supreme Court has observed as under:

"15. Section 116 of the Evidence Act deals with estoppel against tenants and of licensees or persons in possession. Estoppel under this provision falls in the category of estoppel by contract and is relatively a recent development. The rule embodied in Section 116 simply prevents the tenant in occupation of the premises from denying the title of the landlord who let him into possession, just as it applies to a mortgagor or a mortgagee, vendor or a vendee, bailer or a bailee and licensor or a licensee. The rationale underlying the doctrine of estoppel against the tenant's denial of title of his landlord was stated by Jessel, M.R. in Stringer's Estate, In re, Shaw v Jones­Ford (1877) LR 6 Ch D 1 (CA) as under:

"Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title. This is perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.4 of 11 title. That is a well­established doctrine. That is estoppel by contract."

16. There is considerable authority for the proposition both in India as well as in U.K. that a tenant in possession of the property cannot deny the title of the landlord. But if he wishes to do so he must first surrender the possession of the property back to him. He cannot, while enjoying the benefit conferred upon him by the benefactor, question latter's title to the property.

..."

In my view, on account of the aforesaid law, the appellant, who has admitted in her written statement that she was inducted as a tenant qua the tenanted premises by the respondent, is estopped from challenging the ownership of the respondent/LRs of the respondent qua the tenanted premises.

6. Secondly, the Ld. Advocate for the appellant had submitted that impugned Order dated 09.09.2021 is perverse because it does not give due credence to the defence of the appellant that the lease agreement signed by the parties in September 2017 is neither stamped as per the provisions of the Indian Stamp Act, 1899 nor registered as per the Registration Act, 1908. In my view, the said submission of the Ld. Advocate for the appellant is liable to be rejected (a) because in the written statement of the appellant, no objection has been taken regarding the lease agreement signed by the parties in September 2017, not being MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.5 of 11 stamped as per the provisions of the Indian Stamp Act, 1899; (b) because in any event, the said plea of the appellant presents a curable defect, which can be cured by the Ld. Trial Court by resorting to the powers available under Section 33 to 38 of the Indian Stamp Act, 1899 and (c) because the defence of the defendant that the lease agreement signed by the parties in September 2017 is not registered as per the Registration Act, 1908 cannot defeat the case of the respondent/LRs of the respondent and only makes the admitted tenancy of the appellant qua the tenanted premises, a month to month tenancy.2

7. Thirdly, the Ld. Advocate for the appellant had submitted that impugned Order dated 09.09.2021 is perverse because the appellant was not supplied the copies of the applications filed by the respondent under Order XVA of CPC, 1908 and Order XXXIX Rule 10 of CPC, 1908. In my view, the said submission of the Ld. Advocate for the appellant is liable to be rejected because a perusal of the record of the Ld. Trial Court, which I have summoned for the purpose of deciding this appeal, reflects that the appellant had not appeared before the Ld. Trial Court, during 20.03.2020 to 15.12.2021 and never informed the Ld. Trial Court that she has not received the copy of the applications filed by the respondent under Order XVA of CPC, 1908 and Order XXXIX Rule 10 of CPC, 1908 and because in such circumstances, it is not open for the appellant to hold a gripe regarding the non­supply of the copies of the applications filed by the 2 In this regard, reference is craved to the judgment of the Hon'ble High Court of Delhi in Inderjeet Singh Cheema & Anr. v Next World Immigration Service Associates, (2014) 214 DLT 694 where the tenancy between the parties was treated as a month to month tenancy because the lease deed of 3 years executed between the parties was not registered as per the provisions of the Registration Act, 1908.

Smt. Sarita v Sh. Gyan Chand Page No.6 of 11 respondent under Order XVA of CPC, 1908 and Order XXXIX Rule 10 of CPC, 1908.

8. Lastly, the Ld. Advocate for the appellant had submitted that impugned Order dated 09.09.2021 should be set­aside because the appellant was let down/misguided by her previous Advocate, Sh. Rakesh Kaushal, who had failed to appear before the Ld. Trial Court, during 20.03.2020 to 15.12.2021. In my view, the said submission of the Ld. Advocate for the appellant is liable to rejected in view of the judgments of the Hon'ble High Court of Delhi in Swaran & Anr. v Indu Wahi & Ors., 2017 SCC OnLine Del 1050 and Sanjay Kalra v State, 2021 SCC Online Del 590, wherein the Hon'ble High Court of Delhi has identified the mischief/malaise of parties/Advocates falsely blaming the previous Advocates and seeking indulgence of the Court, without any legal protest/complaint against the previous Advocate or without any affidavit or statement of the previous Advocate, admitting or denying the alleged mistake and thereafter, observed that in order to improve the judicial system, such mischief/malaise has to be dealt with a 'heavy hand'.

9. The relevant observation made by the Hon'ble High Court of Delhi in Swaran & Anr. v Indu Wahi & Ors., 2017 SCC OnLine Del 1050, is reproduced below:

"6. The counsel for the petitioners / plaintiff has commenced his argument by stating that "the petitioners / plaintiffs have been let down by their earlier advocate".

Smt. Sarita v Sh. Gyan Chand Page No.7 of 11

7. Such grounds which prevailed with the Privy Council and other superior Courts established in British India, which did not give weightage to and had no faith in the ability of the Indian lawyers, specially in moffusils (sic), to diligently protect the interest of their illiterate clients, ought not to continue to prevail in today‟s date and time in independent India.

8. Perhaps, it is because of the said grounds having been allowed by the Courts to prevail, that perfection and excellence is lacking in the legal profession and mediocrity has set in.

9. It further appears that if the Courts and the legal process were to demand excellence and perfection, certainly the legal profession would reciprocate and mediocrity will give way to meritocracy. It is time to send a strong signal that mediocrity will not be tolerated in Courts. This will improve the legal system and help it achieve the targets. It is often said, bar is the mother of bench also.

10. I have in several orders dealing with petitions under Article 227 of the Constitution of India in this Roster been observing that the practice of a new counsel engaged, blaming earlier counsel, has become rampant and without the new MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.8 of 11 counsel even checking up with the earlier counsel, whether the default was of the earlier counsel or of the litigant's own.

11. In the present case also, the petitioners / plaintiffs though blame their earlier counsel, have not even complained to him, least take any action against him and the counsel for the petitioners / plaintiffs also has not taken the trouble of ringing up the earlier counsel to find out as to what had transpired."

10. The relevant observation made by the Hon'ble High Court of Delhi in Sanjay Kalra v State, 2021 SCC Online Del 590, is reproduced below:

"10. No ground for review is made out. Unless the litigants before the Court, who always appear though Advocates, are bound by the actions of their Advocates, no effective proceedings can be taken before the Court, with the litigant replacing one Advocate with another, one after another, always taking the ground of mistake of the earlier Advocate. Admittedly, no proceedings have been taken against the earlier Advocate who is now sought to be blamed. No reason has been given, why the earlier Advocate could not prepare to argue the applications on 19th December, 2019. In fact, with Mr. Gaurav Dua, Advocate for the MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.9 of 11 review applicant Payal Kapoor arguing on this basis only, the possibility of his successor Advocate blaming him in future, cannot be ruled out. The reasoning, of litigants being not made to suffer for the mistakes of their Advocates is of an era when litigants were unaware and the Advocates not so qualified. The position today is entirely different and such pleas, especially when found to be taken for oblique purposes, cannot be entertained today."

11. In light of the aforesaid, all the submissions made by the Ld. Advocate for the appellant, on 17.02.2022 are rejected and this appeal is dismissed as per Order XLI Rule 11(1) of CPC, 1908.

12. Before parting with this judgment, it is clarified that the meaningful reading of the pleadings of the parties, as has been done by the Ld. Trial Court before passing the impugned Order dated 09.09.2021, is absolutely in accordance with the judgments of the Hon'ble High Court of Delhi in Bhupender Jit Singh v Sonu Kumar, 2017 SCC OnLine Del 11061 and A.N. Kaul v Neeraj Kaul & Anr., 2018 (3) CLJ 374 Del wherein it has been held that before passing an Order, a Court should read the pleadings of the parties meaningfully and not entertain pleas, which are per se untenable. Also, it is clarified that this appeal has been entertained under Order XLIII Rule 1(r) of CPC, 1908 because the Ld. Trial Court has passed the impugned Order dated 09.09.2021 under Order XVA of CPC, 1908 as well as Order XXXIX Rule 10 of CPC, 1908. Lastly, it is clarified MCA No.03/2022 Smt. Sarita v Sh. Gyan Chand Page No.10 of 11 that in this appeal, the appellant should have described the respondent as Late Sh. Gyan Chand, being sued through his LRs and that the failure of the appellant to do so, technically makes this appeal, a nullity ab­initio.3

13. The Reader is directed to prepare a decree sheet, as per this judgment. Also, the Ahlmad is directed to send a certified copy of this judgment and the consequent decree to the Ld. Trial Court for record. After compliance of the said directions by the Reader and Ahlmad, the file shall be consigned to record room. Digitally signed by JAY JAY THAREJA THAREJA Date:

2022.02.21 16:17:06 +0530 Announced in open Court (Jay Thareja) today on 21.02.2022 Ld. ADJ­07, South East District, Saket Courts/Delhi 3 In this regard, reference is craved to the judgment in C. Muttu v Bharath Match Works, AIR 1964 Kant 293.

Smt. Sarita v Sh. Gyan Chand Page No.11 of 11