Delhi District Court
Madhukant Sapra vs Nirbhay Kumar on 2 November, 2012
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE :
TIS HAZARI COURTS : DELHI
Suit No. 11/2011
Madhukant Sapra .......... Plaintiff
VERSUS
Nirbhay Kumar .........Defendant
O R D E R
1. Vide this order ,I shall dispose off the application filed by the plaintiff under order 15A r/w section 151 CPC seeking direction against defendant for deposit of Rs. 4500/ p.m as arrears of rent w.e.f Feb 2006 to 31.12.2006 with further direction for deposit of charges/mesne profits at least @8000/ p.m w.e.f 01.01.2007 till date and till the decision of the suit.
2. Brief facts necessary for the disposal of the present application as averred by the plaintiff in the application are that the plaintiff had filed the present suit for recovery of possession of second floor of property bearing no. 24,LIG DDA Flats,Gayatri Enclave,RPS Colony (herein afterwards referred as suit property)and recovery of arrears of rent amounting to Rs. 55000/ w.e.f 01.02.2006 to 31.12.2006 and future damages @10,000/w.e.f 01.01.2007 . It was averred Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 1/6 that defendant had occupied the suit property illegally without paying any user charges since 01.02.2006. It was further averred that on third floor of the suit property the defendant had trespassed and against the same, the plaintiff had filed the suit which had been decreed by the court of Ld. ADJ on 20.09.2011 and the decree had been executed as satisfied and in that suit the defendant herein was directed to pay damages @4000/p.m w.e.f April 2006 to the plaintiff and since the accommodation on third floor is half of accommodation available on second floor, therefore the plaintiff had filed the present application for recovery of user charges till the disposal of the suit.
3. Reply to the application was filed by the defendant wherein it was stated that though they are tenants in the suit premises but the rate of rent is Rs. 1200/ p.m and that too with respect to second as well as third floor and they have been regularly sending the rent at this rate to the plaintiff but the plaintiff had not been accepting the same due to malafide reasons. It was averred that the contention of the plaintiff that the order of Ld. ADJ had attained finality is false ,as against the same the defendant had contended to have had preferred an appeal which had been have been accepted by the Hon'ble H.C of Delhi, thus it was averred that the reliance cannot be placed on the same.
4. Arguments were addressed by Ld. Counsel for both the parties Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 2/6 and Ld. Counsel for the plaintiff had relied on following judgments in support of his application:
Motor General Finance Ltd. vs. M/S Nirulas &Ors. 92(2001)DLT 97 whereby while deciding interim application for deposit of mesne profits the defendants were directed to deposit a sum of Rs.
15000/ p.m from the date of filing of suit.
SCJ Plastics Ltd. Vs. Creative Wares Ltd. 2012 VII AD (Delhi)447 However the said decision is based on admission made by the defendant, but by way of present application the plaintiff is not claiming rent/user charges at agreed rate, but the same is claimed under order 15A CPC.
Sky Land International Pvt. Ltd Vs. Kavita P lalwani RFA No. 697/2010 date of decision 25 May 2012 wherein it was observed that in proceedings relating to possession of an immovable property against an erst while tenant the court should broadly take into consideration the prevailing market rentals in the locality for similar premises and fix ad hoc amount which the person continuing in possession should deposit as security and if such amount is not paid the court may strike out defence as it is important exercise for balancing equities.
5. Arguments heard, records perused and perusal of records of the case in the light of rival contentions of both the parties ,this court is of considered opinion that order 15A CPC was incorporated by the legislature in order to avoid undue hardhips to the landlord who Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 3/6 had rented out his premises to the tenant and who had stopped paying rent , and after the termination of tenancy either by notice or otherwise he is retaining the possession of the suit premises, in that case the court in order to do justice and in order to avoid hardships to the landlord have the discretion to direct the defendant /tenant to deposit interim user charges taking into consideration prevalent market rentals.
6. In the present case, the defendant had admitted relationship of landlord and tenant between the parties , but he had denied that his tenancy had expired by notice, as he had denied receipt of notice ,but the notice was served at the suit premises and the plaintiff had placed on record the postal receipts, regd AD etc. to show that the same was served on the defendant and even if the contention of the defendant is accepted ,the filing of suit for possession by the plaintiff is sufficient notice of termination of tenancy, thus the said defence is not tenable, and the tenancy stood determined and the defendant is still in possession of the suit premises without payment of any user charges/rent. Further it was defence of the defendant that he was not the tenant in one portion but it was averred that he was tenant in respect of second as well as third floor of suit property and he used to pay consolidated rent of Rs. 1200/ p.m, thus the defendant had raised the objection as to bar of Section 50 of Delhi Rent Control Act by disputing the rate of rent, but as of now the position as to third floor of property is Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 4/6 that , the defendant was declared to be tresspasser and decree for possession and damages was awarded against the defendant by the court of Ms. Savita Rao Ld. ADJ ,dated 20 september 2011 , and the decree had been satisfied by handing over the possession and mesne profits by the defendant to the plaintiff,the certified copy of the said decisions were placed on record , further the defendant had preferred an appeal against the said decision of LD. ADJ , but as of now the position is that the plaintiff had obtained user charges @4000/ p.m for third floor from the defendant and the area of third floor is half of the area of second floor. Further perusal of judgment passed by Ld. ADJ court reveals that in evidence that came on record in that case, it was proved that in respect of same property, tenant whose tenancy is prior in time to the date of alleged tenancy of the plaintiff , rent is @5000/ p.m. Therefore taking into consideration the present scenario between the parties and further taking judicial notice of prevalent conditions in Delhi where market rentals had increased many fold over past years ,this court is of opinion,the defendant cannot retain the possession of suit premises without payment of user charges,therefore defendant is directed to deposit in court Rs. 4500/ p.m as user charges from the date of filing of suit till the date of order and further the defendant is directed to continue to deposit the same amount month by month in each suceeding month till the disposal of the suit, but as to prayer of damages @8000/ p.m since the same requires evidence, and for the same Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 5/6 prima facie view cannot be taken, hence the said prayer is declined.
7. In view of aforesaid discussions, the application of the plaintiff under order 15 A CPC,1908,is partly allowed and defendant is directed to deposit in court user charges @4500/ p.m from the date of filing of suit till date of order, on or before next date of hearing and further directed to deposit the same amount in the court month by month by 10th of each succeeding month till the disposal of the suit.
8. Nothing stated herein above shall prejudice the rights of the parties to prove their respective contentions .
Announced in the open court today i. e. on 02.11.2012.
(SHAMA GUPTA) CIVIL JUDGEN05/THC DELHI /02.11.2012 Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 6/6 CS No.11/2011 Madhukant Sapra Vs. Nirbhay Kumar 02.11.2012 Present: None.
Vide separate order of even date, the application of the plaintiff under order 15 A CPC,1908,is partly allowed and defendant is directed to deposit in court user charges @4500/ p.m from the date of filing of suit till date of order, on or before next date of hearing and further directed to deposit the same amount in the court month by month by 10th of each succeeding month till the disposal of the suit.
Put up for PE on 03.01.2013.
(SHAMA GUPTA) CIVIL JUDGEN05/THC DELHI /02.11.2012 Suit no. 11/2011 Madhukant Sapra Vs. Nirbhay Kumar 7/6