Delhi District Court
Rca No.59/13 vs Shri Anand Maheshwari on 14 December, 2015
RCA No.59/13
Sri Chand v. Smt. Neeta Gupta & Anr.
14.12.2015
Present : Shri Manoj i.e. Son of Appellant in person with counsel,
Shri Anand Maheshwari
Respondent no. 2 in person with counsel, Shri Pradip
Chaudhary for both the Respondents.
1. Matter is listed today for arguments on appeal. During the course of arguments, following facts have come to my notice:
i. The plaintiff has filed a suit for permanent injunction alleging himself to be a tenant in respect of entire second floor and terrace floor in property bearing no. 593, Gali Bajajan, Sadar Bazar, Delhi and seeking protection of his possession. As per the case of the plaintiff, the defendant no. 1 is the landlord of the plaintiff having purchased the suit property from its erstwhile owner.
ii. The defendants in their joint WS have not disputed the said facts rather in their WS, para no. 2 of the plaint (wherein the above mentioned pleadings are mentioned) has been not replied to being a matter of record.
iii. Accordingly, from the pleadings of the parties, the tenancy and possession of the plaintiff in the second and terrace floor of the suit property is admitted.
iv. The Ld. Trial Court has examined defendant no. 2 under Order 10 CPC on 03.01.2012 wherein he admitted tenancy of the plaintiff qua second floor of the suit property and his possession in one tin shed on the terrace floor.
v. Thereafter a statement of defendant no. 2 was recorded by Ld. Trial Court on 18.11.2013 wherein he undertook not to dispossess the plaintiff from the suit property without due process of law and not to :1: create any hindrance in the lawful and peaceful enjoyment of tenancy right of the plaintiff.
vi. A statement of defendant no. 1 was recorded before Ld. Trial Court on 21.11.2013 wherein she undertook that she will not dispossess the plaintiff from the second floor of the suit property which is in his possession without due process of law. vii. Vide the impugned order dated 21.11.2013, Ld. Trial Court dismissed the suit of the plaintiff as satisfied as no cause of action remained against the defendants. Ld. Trial Court had given the reference of all the statements recorded before it in the impugned order.
2. During the course of arguments, defendants no. 1 & 2 have disputed the possession of the plaintiff or his tenancy rights over the entire terrace floor of the suit property. It is stated that only one room on the terrace floor is unauthorizedly occupied by the plaintiff. Attention of the Court has also been drawn to a reply dated 08.07.2010 of the plaintiff to the legal notice issued by erstwhile owner wherein the tenancy and possession qua one room on terrace floor only has been claimed. It is submitted by ld. counsel for defendants that due to improper legal advise the WS of the defendants has not been appropriately drafted and the defendants want to amend their WS.
3. I have heard the submissions made on behalf of all the parties.
4. During the course of arguments, it has also been admitted by defendant no. 2 that as on date the defendants have no access to the terrace floor of the suit property and the same is in possession of the plaintiff.
5. In view of the submissions made, I deem it appropriate to set aside the order of final disposal of the suit dated 21.11.2013 which has been impugned herein and remand the matter back for determination on merits.
:2:6. In view of the submissions made and admission qua the possession of the plaintiff in the second as well as terrace floor of the suit property, the defendants are restrained from dispossessing the plaintiff from the said portions without due process of law or to interfere in their peaceful enjoyment therein, till further orders. The interim application filed by the plaintiff along with the suit is disposed of in these terms.
7. The impugned order is set aside. Matter is remanded back to ld. Trial Court for decision on merits after recording of evidence. The defendants are given liberty to move application for amendment of WS before Ld. Trial Court. Ld. Trial Court is directed to decide the said application in case filed without being influenced by any observations made in this order.
8. Nothing expressed herein above shall tantamount to be my expression on the merits of the case.
9. Parties are directed to appear before Ld. Trial Court on 21.12.2015. The appeal stands disposed of accordingly. Appeal file be consigned to Record Room. Trial Court be sent back with copy of this order. Decree sheet be prepared.
(Shivali Sharma) ASCJ (Central)/Delhi 14.12.2015 :3: