Delhi District Court
Praveen Kumar vs Gopi Dargan on 31 October, 2012
In the court of Ms. Ina Malhotra, Additional District JudgeI
New Delhi District: Patiala House Courts, New Delhi
Suit No. 207/11
Praveen Kumar .....Plaintiff.
VERSUS
Gopi Dargan ....Defendant.
O R D E R
The plaintiff's suit is for recovery of Rs.18,04,418/ as damages/mesne profits in respect of unauthorised use and occupation of his premises by the defendant.
2. Brief background of this case is that the plaintiff had filed another suit for possession and recovery of the House Tax hereinafter referred to as the "First Suit". The same was decreed in his favour taking into consideration that the enhanced House Tax calculated under the Unit Area Method is recoverable as Rent from the tenant. It was also decided by the Ld. Trial Court that the addition of the House Tax to the rent made the composite amount more than Rs. 3,500/ per month, thereby taking it out of the purview of Delhi Rent Control Act.
3. The decision of the Ld. Trial Court was impugned Suit No. 207/11 Page ....1 of 7 by the defendant in an appeal which was dismissed. During the pendency of the first suit, the plaintiff filed the present suit seeking recovery of mesne profits and damages of Rs. 18,04,418/ for the unauthorised use of the suit premises after termination of the tenancy in which the following issues were framed on 03.05.2012.
i. Whether the property tax can be recovered as rent?OPP ii. Whether the suit of the plaintiff is liable to be stayed under Section 10 CPC?
iii. In view of issue no. 1, is the rent of the suit property more than Rs. 3,500/ per month? OPP iv. Whether the suit of the plaintiff is barred under Section 50 of the Delhi Rent Control Act? OP Parties v. Whether plaintiff is entitled to damages as claimed? If so, at what rate and from when? OPP v. Relief.
4. Ld. Counsel for the plaintiff has pointed out that in view of the decree passed by the Ld. Trial Court and upheld by the first Appellate Court, Issues 14 are now redundant and the only issue that remains for adjudication is the issue in respect of mesne profits and damages i.e Issue No. 5.
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5. The defendant has filed an application under Section 10 CPC. Notice of the same was accepted by the Ld. Counsel for the plaintiff, who wishes to argue out his resistance to this application straightaway.
6. Ld. Counsel for the defendant has relied upon the order of the Hon'ble High Court of Delhi in RSA No.168/2012 arising from the decision of the first Appellate Court in the "First Suit". While issuing notice, the Hon'ble High Court of Delhi has directed the Ld. Trial Court not to take any coercive steps for execution of the impugned Order. The defendant/applicant has stated that the outcome of the present suit would depend upon the decision of the Hon'ble High Court of Delhi in the RSA and therefore prays that the present suit be stayed pending its disposal.
7. Ld. Counsel for the plaintiff has repudiated this contention and has submitted a two fold resistance to the same. His first argument is that there is no Stay of Operation of the impugned decision, judgment or decree. What has merely been directed by the Hon'ble High Court of Delhi is that coercive steps be not taken towards recovery of possession and recovery Suit No. 207/11 Page ....3 of 7 of the House Tax pending consideration by the Hon'ble High Court of Delhi on the point of law.
8. His second submission is that the provision of Section 10 CPC are not applicable to the facts of this case.
9. The present suit is distinct from the earlier case filed by him. While the first suit was for recovery of the property tax and for possession of the property, the present suit is for damages. The provision of Section 10 state that:
"a Court shall not proceed with a trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties".
10. Ld. Counsel therefore reiterates his arguments that the prayers made in the two suits are substantially different. The First suit has already been decided and there is no order passed in the RSA that warrants stay of the present suit. Reliance is also placed upon the decision of the Hon'ble High Court of Delhi in the matter of Virender Kumar Garg V. Manju Garg being CM (M) No. 409/2012. Vide the said decision, the Hon'ble High Court of Delhi has very clearly observed that a suit for possession and the claim for mesne profits are two distinct causes Suit No. 207/11 Page ....4 of 7 of actions. Though, it may be open to a party to join in the claim on both counts, but the provisions of Section 10 of the CPC would not be applicable when two separate cases are filed for possession and mesne profits.
11. Given the facts of this case, I find merit in the arguments advanced by the Ld. Counsel for the plaintiff. He has pointed out that the Hon'ble High Court of Delhi has only directed that coercive steps shall not be taken to give effect to the decree for possession and recovery of property taxes and No Stay has been granted. Till a superior court sets aside the decision of the subordinate Courts, the said decree cannot be declared as being illegal or void. Under such circumstances, there is no ground for the plaintiff to have the trial of his case stayed indefinitely. Mere filing of an appeal should not be a ground to stay the trial of the present case.
12. The defendant's other application under Order 7 Rule 11 CPC is also on the ground that jurisdiction of this Court is barred under Section 50 of the DRC Act and should be rejected accordingly. This issue has already been decided in the First Suit by the Trial Court and upheld by the First Appellate Court. The Suit No. 207/11 Page ....5 of 7 submission has already been adjudicated upon and rejected. Therefore there is no substance in the prayer made in this application for rejection of the plaint.
13. Both the applications are dismissed.
Announced.
(Ina Malhotra)
Addl. District JudgeI
New Delhi District : PHC
New Delhi 31.10.2012
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Suit No. 207/11
Present : Counsel for the parties
Vide separate order both the applications of the defendant are dismissed. List this case for crossexamination of the plaintiff's witness on 20.11.2012.
(Ina Malhotra)
Addl. District JudgeI
New Delhi District : PHC
New Delhi 31.10.2012
Suit No. 207/11 Page ....7 of 7