Delhi District Court
Dr. Rajeev Arora vs Sh. Paritosh Chandiok on 18 March, 2017
IN THE COURT OF ADDITIONAL DISTRICT JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS: DELHI.
Presided by :SH. RAVINDER SINGH
MCA No.44/2016
Unique I.D No. 02402C00160102016
Dr. Rajeev Arora
S/o late Sh. Bhimsen Arora
R/o H. No. 342, First Floor,
Gagan Vihar, Delhi110051.
............... Appellant
Versus
Sh. Paritosh Chandiok
S/o late Sh. Kailash Chandra Chandiok
R/o 342, Gagan Vihar, Delhi110051.
........ Respondent
Date of Institution : 03/03/2016
Order reserved on : 10/03/2017
Order passed on : 18/03/2017
Appeal against the order dated 30/01/2016 whereby plaintiff application
U/O XXXIX Rule 10 r/w Order XV A & Section 151 CPC was allowed.
JUDGMENT
1. This is an appeal filed by Sh. Rajeev Arora (defendant in suit) for setting aside the order dated 30/01/2016 (for short 'the impugned order') passed in Suit bearing no. 176/2013 titled as 'Sh. Paritosh Chandiok V/s. Sh. Rajeev Arora' by Ld. ACJ/CCJ/ARC (Shahdara), Delhi, whereby Ld. trial court allowed the MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 1 of 8 application of Sh. Paritosh Chandiok (plaintiff in suit) under Order XXXIX Rule 10 r/w Order XV A & Section 151 CPC.
2. For the sake of convenience, the appellant has been referred to as "defendant" and the respondent as "plaintiff" as per their ranks before the trial court.
3. The facts set out by the plaintiff in his suit are that he is the absolute owner of First Floor of house bearing no. 342, Gagan Vihar, Delhi measuring 130.53 sq. yds. (herein after referred as 'suit property') as same was succeeded by him from his mother Smt. Sharda Chandiok who expired on 05/10/2012. Plaintiff alleged that the suit property was let out to the defendant on 18/06/2007 on a monthly rent of Rs.15,000/ excluding water and electricity charges. Plaintiff claimed that defendant was in arrears of rent w.e.f. 18/10/2012 so he terminated the defendant's tenancy vide legal notice dated 16/04/2013 but he did not vacate the suit property, so he filed the suit for possession, damages, recovery of arrears of rent and for permanent injunction.
4. Defendant contested the suit by filing written statement stating therein MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 2 of 8 that late mother of plaintiff Smt. Sharda Chandiok was the absolute owner of the free hold built up residential property i.e. Plot no. 342, measuring area 130.35 sq. yds., Gagan Vihar, Delhi (herein after referred as 'suit plot'). He alleged that late Sharda Chandiok for her legal, bonafide needs and requirements sold him the roof rights of the first floor i.e. entire roof of the first floor of suit plot and above alongwith rights to use common staircase upto first floor, common entrance main gate parking vide a registered sale deed 18/01/2007 to him and his wife Ms. Gitanjali Arora for a total consideration of Rs. Ten lacs. Further defendant alleged that the site plan of the portion which is to be constructed i.e. the Second Floor and above and also the addition/altercation on the ground and first floor of the suit plot was signed by Smt. Sharda Chandiok alongwith sale deed but the other documents which were required to be submitted alongwith the site plan for sanctioning was not prepared by Smt. Sharda Chandiok and he was assured that the other documents required by the MCD for sanctioning of the site plan i.e. the affidavits, applications etc. would be submitted to the MCD alongwith the site plan later on. Defendant further alleged that plaintiff and his mother on one pretext or the other avoided to execute/sign the documents as and when presented to them for signing the same, due to which considerable time was MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 3 of 8 being wasted and the same was brought to the notice of the mother of plaintiff by him, upon which the mother of plaintiff asked and allowed him and his family in the month of June 2007 to occupy the first floor of the suit plot I.e suit property till the construction on his portion in the capacity of a coowner of his proportionate share in the property as per the document. Hence, defendant claimed that he was/is occupying the suit property not as a tenant but as a co owner of the proportionate right in the property. Defendant further claimed that he again prepared the requisite documents in the month of August 2012 and approached the mother of the plaintiff, as also the plaintiff seeking their signatures thereon but the mother of the plaintiff did not sign the same on the pretext that she would signed them after recovering from her illness. Further defendant claimed that during the life time of the mother of the plaintiff everything was normal and there was no such dispute as falsely raised by the plaintiff in the present proceedings. Accordingly, defendant prayed for dismissal of suit.
5. Plaintiff in his application under Order XXXIX Rule 10 r/w Order XV A and Section 151 CPC stated that defendant has not been paying rent @ Rs15,000/ w.e.f. 18/10/2012 and he is enjoying the suit property without MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 4 of 8 paying the rent. Plaintiff claimed that defendant in his written statement pleaded that he is not a tenant but residing as a co owner of the proportionate right in the property, however no document has been filed by the defendant in this regard so defendant cannot be allowed to continue in the possession of the suit property without paying occupational charge till he vacates the suit property. Accordingly plaintiff sought direction against defendant to tender rent /use and occupational charge @ Rs.15,000/ per month w.e.f. 18/10/2012.
6. Defendant contested the aforesaid application of plaintiff by filing detailed reply stating the same facts as stated in his written statement.
7. On the aforesaid pleadings, Ld. Trial Court came to the conclusion vide impugned order that the defendant has admitted that only roof right of the first floor i.e. entire roof of the first floor was sold to him and his wife Ms. Geetanjali Arora vide sale deed dated 18/01/2007 for consideration of Rs. Ten lacs. Defendant has not filed any document to support his status as coowner in the suit property so defendant cannot be said to be the owner of the suit property hene he is directed to deposit Rs.15,000/ in the court as occupational charge from 18/10/2012 till today and further considered to deposit Rs.15,000/ MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 5 of 8 on 7th of each English Calender month.
8. I have heard the arguments of Ld. Counsel for the appellant/defendant and respondent/plaintiff and perused the impugned order, grounds of appeal and material available on record.
9. Dfendant denied the landlordtenant relationship between him and plaintiff stating that roof of the first floor of the suit plot was purchased by him and his wife from the mother of plaintiff in the year 2007 but due to non cooperative attitude of the plaintiff, the construction on the roof of the first floor of suit plot and above could not be carried out hence mother of the plaintiff who was the owner of the suit plot, allowed him during her lifetime to occupy the first floor as the construction on the roof of the first floor and on the ground floor is being delayed. Hence, defendant claimed that he is retaining / occupying the first floor in the capacity of a coowner having proportionate share in the property.
10. Plaintiff has not specifically disclosed in his plaint who had let out the suit property to the defendant on 18/06/2007, however, in his legal notice dated MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 6 of 8 16/04/2013, he claimed that as per mutual consent between him and defendant the tenancy was oral w.e.f. 18/06/2007. It is admitted case of plaintiff that his mother late Smt. Sharda Chandiok executed a registered Will on 29/06/2001 thereby bequeathed ground floor of suit plot to her elder son Sh. Sarvesh Chandiok whereas first floor i.e. suit property to him. It is not in dispute that mother of plaintiff expired on 05/10/2012. So prior to 05/10/2012, plaintiff has no right in the suit property as he claimed right in the suit property on basis of Will dated 29/06/2011.
11. It is pertinent to mention that plaintiff in his complaint to Executive Engineer MCD dated 27/06/2013 claimed that his mother let out first floor of suit plot to Smt. Gitanjali Arora and his husband Sh. Rajeev Arora (defendant) during her life time. Further it is also pertinent to mention that plaintiff pleaded that defendant was regularly paying the rent prior to October 2012 but thereafter he is not paying the rent. Plaintiff has not disclosed to whom, defendant was paying the rent regularly. Admittedly, plaintiff has not claimed that he had ever received the rent from defendant.
12. In view of above discussion, it is clear that plaintiff has not let out the MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 7 of 8 suit property to the defendant. Hence I am of considered view that the plaintiff's application cannot be decided without deciding the issue i.e. whether suit property was let out by the mother of plaintiff to the defendant on monthly rent of Rs.15,000/ or mother of plaintiff allowed the defendant to occupy the suit property without any charge till the formalities of construction on the first floor of suit plot has been completed.
13. In view of aforesaid discussion, I am of considered view that Ld. Trial court committed error while allowing the application of plaintiff under Order XXXIX Rule 10 r/w Order XV & Section 151 CPC hence impugned order is hereby set aside. Appeal stands disposed of as allowed. No order as to costs.
14. TCR be sent back to the court concerned with copy of this judgment.
15. Appeal file be consigned to record room.
(Announced in the (RAVINDER SINGH) open court Additional District Judge:Shahdara on 18/03/2017) District:Karkardooma, Delhi. MCA No.44/2016 Dr. Rajeev Arora V/s. Sh. Paritosh Chandiok Page no. 8 of 8