Delhi High Court - Orders
Jagdish Kumar vs Ankur Aggarwal on 12 September, 2022
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~56(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 945/2022 & CM APPL. 40084/2022, CM APPL.
40085/2022
JAGDISH KUMAR ..... Petitioner
Through: Mr. R.K. Sharma, Adv.
versus
ANKUR AGGARWAL ..... Respondent
Through: Mr.Sandeep Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 12.09.2022 CM APPL. 40085/2022 (exemption)
1. Exemption allowed, subject to all just exception
2. The application stands disposed of.
CM(M) 945/2022 & CM APPL. 40084/2022 (stay)
3. This petition under Article 227 of the Constitution of India assails order dated 5th September 2022 passed by the learned Additional District Judge (the learned ADJ) in RCA 36/22 (Jagdish Kumar v. Ankur Aggarwal) in an application filed by the petitioner, as the appellant in the said appeal, under Order XLI Rule 5 of the Code of Civil Procedure, 1908 (CPC). By the said application, the petitioner sought stay of operation of the order dated 12 th May 2022, passed by the learned Additional Civil Judge in Civil Suit 1415/19 Signature Not Verified Digitally Signed CM(M) 945/2022 Page 1 of 6 By:SUNIL SINGH NEGI Signing Date:12.09.2022 18:40:11 (Ankur Aggarwal v. Jagdish Kumar).
4. The only ground on which the petitioner, as the defendant in the aforesaid suit, contested the suit, was with respect to its maintainability. The suit was filed by the respondent seeking dispossession of the petitioner, who was a tenant, from the suit property. The respondent pleaded, in the plaint, that the rent of the suit property was ₹ 6,000/- per month. Reliance was placed, in that regard, on certain rent receipts allegedly signed by the petitioner and reflecting payment of rent by the petitioner to the respondent at the said rate.
5. The petitioner, in his written statement, contested the validity of the aforesaid rent receipts and alleged that they were fabricated. He placed on record, by way of response to the rent receipts filed by the respondent, other rent receipts, which the respondent was alleged to have suppressed and which reflected the rent payable in respect of the suit premises as being ₹ 1100/- per month. Mr. Sharma, learned Counsel for the petitioner submits that, as the rent for the suit premises was less than ₹ 3,500/- per month, the dispute fell within the purview of the Delhi Rent Control Act, 1958 ("the DRC Act") by operation of Section 3(c) thereof and, by application of Section 50 of the DRC Act, the suit was barred.
6. The learned ARC has decreed the suit under Order XII Rule 6 of the CPC, on the basis of the rent receipts on which the respondent places reliance. Though the learned ARC has noted the reliance, by Signature Not Verified Digitally Signed CM(M) 945/2022 Page 2 of 6 By:SUNIL SINGH NEGI Signing Date:12.09.2022 18:40:11 the petitioner, on the rent receipts reflecting the rent to be ₹1100/- per month there is no finding thereon, in the order dated 12 th May 2022 passed by the learned Civil Judge. The learned Civil Judge has merely proceeded on the premise that, as the petitioner had not disputed his signature on the rent receipts on which the respondent placed reliance, the suit was liable to be decreed under Order XII Rule 6.
7. The petitioner is presently in appeal against the said decision.
8. The interlocutory application filed by the petitioner for stay of the operation of the judgment dated 12th May 2022 passed by the learned Civil Judge stands rejected by the impugned order dated 5 th September 2022 of the learned ADJ. In rejecting the petitioner's appeal, the learned ADJ has also relied on the aforesaid rent receipts, reflecting the rent as ₹ 6000/- per month on which the learned Civil Judge relied.
9. Ordinarily, this Court would not interfere with an interlocutory order passed by the Appellate Court, while exercising jurisdiction under Article 227 of the Constitution of India. Though Article 227 jurisdiction is limited, it has however to be exercised where the interests of justice so warrant.
10. The rejection of the petitioner's interlocutory application would effectively result in the petitioner having to vacate the suit property, in which event the appeal would not survive for further consideration.
Signature Not Verified Digitally Signed CM(M) 945/2022 Page 3 of 6 By:SUNIL SINGH NEGI Signing Date:12.09.2022 18:40:1111. As the petitioner has relied on rent receipts reflecting the rent in respect of the premises to be ₹ 1100/- per month on which there is no finding by the learned Civil Judge, the issue is arguable. Even otherwise, where there were mutually contradictory rent receipts relied upon by both parties, there may be substance in the contention of learned Counsel for the petitioner that a triable issue arose and that, the suit ought not to have been decreed under Order XII Rule 6 of the CPC.
12. It is made clear that these observations are not meant to influence the exercise of jurisdiction by the learned ADJ in adjudicating RCA 36/22 and are being returned only for the purposes of justifying the order which is being passed today. The learned ADJ would, while adjudicating RCA 36/22, proceed uninfluenced by any observation contained in the present order.
13. Nonetheless, in view of the somewhat intricate nature of the dispute, issue notice, returnable on 14th February 2023.
14. Notice is accepted on behalf of the respondent by Mr. Sandeep Kumar.
15. Reply, if any, be filed within four weeks, with advance copy to learned Counsel for the petitioner who may file rejoinder thereto, if any, within four weeks thereof.
16. Mr. Sandeep Kumar, learned Counsel for the respondent at this juncture submits that, applying the law laid down by the Supreme Signature Not Verified Digitally Signed CM(M) 945/2022 Page 4 of 6 By:SUNIL SINGH NEGI Signing Date:12.09.2022 18:40:11 Court in Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd.1, once, in proceedings under the DRC Act - as the petitioner seeks to contend that these proceedings were amenable to the DRC Act, a decree of eviction is passed, the tenancy of the tenant stands terminated and the tenant, if he continues in the premises thereafter, has to pay rent at the market rate. The landlord in such event would not be bound by the contractual rate of rent.
17. No evidence regarding the market rent which the suit property would command has been placed on record, though Mr. Sandeep Kumar, learned Counsel for the respondent would seek to contend that the suit property would command around ₹ 25,000/- per month. No evidence to that effect being on record, it is not possible for this Court to accept the said figure as a basis to fix mesne profits.
18. That apart, there is a dispute regarding whether the suit property is governed by the DRC Act or by the Transfer of Property Act. The respondent has filed the suit under the Transfer of Property Act. The petitioner contends that the DRC Act would be applicable.
19. In these circumstances, I am of the opinion that the interests of justice would be subserved if the petitioner is directed to pay rent in respect of the suit property @ ₹ 6,000/- per month, which was the rate of rent stipulated in the plaint filed by the respondent. The petitioner would continue to pay rent at the said rate to the respondent during the currency of this petition. The petitioner would also pay, to the respondent, arrears of rent @ ₹ 6,000/- per month within a period of 1 (2005) 1 SCC 705 Signature Not Verified Digitally Signed CM(M) 945/2022 Page 5 of 6 By:SUNIL SINGH NEGI Signing Date:12.09.2022 18:40:11 eight weeks from today.
20. Subject thereto, the operation of the order dated 12 th May 2022 of the learned Civil Judge shall stand stayed pending disposal of the present petition.
21. It is made clear that this Court is not interdicting continuance of proceedings in RCA 36/22.
22. Re-notify on 14th February 2023.
23. Dasti C. HARI SHANKAR, J SEPTEMBER 12, 2022/kr Signature Not Verified Digitally Signed CM(M) 945/2022 Page 6 of 6 By:SUNIL SINGH NEGI Signing Date:12.09.2022 18:40:11