Delhi High Court
Constellate Consultants Pvt. Ltd. & ... vs Shammi Jain on 3 September, 1998
Equivalent citations: 77(1999)DLT65
Author: Arun Kumar
Bench: Arun Kumar, Manmohan Sarin
JUDGMENT Arun Kumar, J.
1. This case provides a good example of abuse of the process of Court by a party to the suit. A simple suit for recovery of possession of a premises located in South Extension Part II, New Delhi after termination of tenancy of the tenant under Section 106 of the Transfer of Property Act has been successfully dragged on by the tenant for almost ten years and that too without paying a penny towards rent. The premises subject matter of the present appeal comprising three bed rooms with three attached bath rooms, a drawing-cum-dinning room, garrage, servants quarter and courtyard, was let out to the appellant by the respondent on 2nd April, 1985 at a rental of Rs. 3,500/- per month Another servant quarter was let out to the tenant in the year 1986 and the rent was enhanced to Rs. 4,000/- per month. The appellant/tenant continued to pay the rent @ Rs. 4,000/- per month till 31st August, 1988 whereafter in view of the introduction of Legislation in the Parliament for amendment of the Delhi Rent Control Act. So as to take the tenancies where rent was above Rs. 3,500/- per month out of the purview of the said Act, the tenant sent two cheques towards rent in the month of September, 1988 to the landlady-one for Rs. 3,500/- while the other for Rs. 500/- The rent was sought to be split in order to make out a case that the rent was not above Rs. 3,500/- per month so that the premises would remain covered under the Delhi Rent Control Act. The landlady naturally refused to accept the rent sought to be paid in this manner. Vide letter dated 6th October, 1988, the landlady formally refused to accept the two cheques and demanded payment of rent by one cheque as before. The tenant did not comply with this and a notice of termination of tenancy was issued on behalf of the landlady on 24th December, 1988 terminating tenancy of the appellant w.e.f. 31st January, 1989 and demanding arrears of rent w.e.f. 1st September, 1988. Earlier also the landlady had got a notice of termination of tenancy dated 30th January, 1988 issued to the appellant which is Ex. PW-1/39. The appellant replied to the notice through Advocate vide Ex. PW-1/40 dated 28th March, 1988. It is significant to note that in this reply it was admitted that the rent of the entire premises was Rs. 4,000/- per month w.e.f. the year 1986. The appellant also got a notice issued to the respondent landlady on 6th June, 1988 Ex. PW-1/41, wherein the appellant specifically stated that the rent of the tenanted premises was Rs. 4,000/- per month. Ultimately the landlady filed the present suit for recovery of possession of the tenanted premises and for arrears of rent w.e.f. 1st September, 1988 to 31st January, 1989 @ Rs. 4,000/- per month. The landlady further claimed damages for use and occupation of the premises w.e.f. 1st February, 1989 @ Rs. 4,400/- per month along with interest.
2. With the filing of the suit started the real misery of the respondent landlady because w.e.f. 1st February, 1989 till today she has neither received a penny by way of rent or use and occupation charges from the appellant/tenant nor she has been able to obtain possession of the premises. The learned Addl. District Judge has in the impugned judgment given the entire history of how the proceedings in the suit were dragged on at the instance of the appellant, who was the defendant in the suit before the Trial Court. In this connection, the following observations of the trial Court are worth reproduction:
"9. The present case shows the patent, blatant, wanton misuse of the judicial process by the defendants. The plaintiff's evidence was complete in 1991. The defendant thereafter kept on enjoying the premises without making payment of single paisa to the defendant and used all the tricks, modes and methods for delaying the case."
3. The learned trial Judge has devoted nearly seven pages in the impugned judgment giving long history of how the proceedings were dragged on by the tenant. We do not intend to reproduce all the details for sake of brevity. However, we consider it important to note that the plaintiff/respondent completed her evidence on 11th July, 1991 whereafter the case was fixed for the evidence of the defendant on 12th August, 1991. The defendant did not produce any evidence till the last. Ultimately the Trial Court had to strike off the defense of the appellant whereafter it proceeded to judgment. During the course of this approximately seven years period, the defendant/appellant was proceeded ex-parte thrice and every time on applications moved by the appellant in this behalf, the ex-parte orders were recalled subject to payment of costs. On first restoration, the cost was Rs. 50/-. The second restoration was subject to costs of Rs. 400/- while the third restoration was subject to payment of Rs. 20,455/- and the entire arrears of rent @ Rs. 3,500/- per month which was the admitted last paid rent according to the appellants. This the tenant did not comply with. The Trial Court while disposing of the application under Order 9, Rule 7, CPC on 16th May, 1997 also disposed of another application under Order 1, Rule 10 moved by another company controlled by the appellant No. 2. The application under Order 1, Rule 10, CPC was dismissed while the application under Order 9 Rule 7 CPC was allowed as stated above. The order on the application under Order 1, Rule, CPC was challenged by the appellants by way of a revision petition in this Court. The revision petition was dismissed in limine on 21st July, 1997. Besides, the appellants being proceeded ex-parte and the ex-parte orders being recalled by the Trial Court on three occasions, the appellants were granted adjournment for producing evidence on various dates and sometimes subject to payment of costs. The appellants also twice moved transfer applications the object whereof was only to protract the Trial Court of the suit while there was no genuine reason for transfer of the case. The appellants also moved application under section 9 and Order 7, Rule 11, CPC for rejection of the plaint. The said application was dismissed with costs on 4th November, 1995. The revision petition filed against the said order in this Court was also dismissed in limine. Ultimately, the defense of the appellants was struck off on account of their failure to comply with the conditions contained in the order dated 16th May, 1997 regarding payment of entire arrears of rent.
4. In the first instance, the learned Counsel for the appellant challenged the order of the Trial Court, whereby condition of paying the entire arrears of rent as per the appellant's admitted rate of rent, i.e., Rs. 3,500/- per month was imposed. The learned Counsel submits that the Trial Court had no jurisdiction to impose such an onerous condition on the tenant and, therefore, the order was bad in law. We are unable to accept this contention. This Court has repeatedly held that in such suits for recovery of possession, an order for payment of use and occupation charges of the premises during the pendency of the suit is within the jurisdiction of the Court trying the suit. The direction of the Trial Court vide order dated 16th May, 1997 was to deposit the entire arrears of rent as per the rate admitted by the tenant. There was nothing wrong in such an order being passed and for failure to comply with the same the Trial Court was fully justified in striking off the defense of the tenant/ appellants.
5. We may note here that when this appeal came up before this Court for the first time on 3rd August, 1998, the learned Counsel for the appellant admitted that by now about rupees four lacs had become due to the respondent towards arrears of rent/damages. The learned Counsel agreed that by the next date of hearing he would bring a bank draft for a sum of rupees two lacs in favour of the respondent. The case was adjourned to 10th August, 1998 but the Counsel failed to bring the bank draft or to pay the arrears as promised. However, we proceeded to hear the learned Counsel for the parties.
6. We have also considered the defense of the appellants on merits and are of the view that the appellants have no case. In the written statement the defendants raised only two defenses to the suit which are-(i) one the Delhi Rent Control Act applied because the rent was Rs. 3,500/- per month and civil suit for possession was not maintainable; (ii) the notice of termination of tenancy was invalid.
7. We have considered both the points and we find no merit in either of them. As noticed in the earlier part of this judgment, the tenant admitted that the rent of the entire premises was Rs. 4,000/- per month with effect from the year 1986. This admission is contained in the reply to the notice sent on behalf of the tenant which is dated 28th March, 1988 and is Ex PW-1/40. Besides this, in the notice dated 6th June, 1988 Ex. PW-1/41 sent by the tenant through his Advocate, the appellants set up a definite plea that the rate of rent was Rs. 4,000/- per month. The Trial Court is right in observing that it was only in September 1988 that the applicants sensed that amendment of the Delhi Rent Control Act was in the offing which would take tenancies where rent was above Rs. 3,500/- per month out of the purview of the Act, which led the tenant to start splitting the rent in order to keep the rent within the limits of the Delhi Rent Control Act, i.e., Rs. 3,500/- per month and Rs. 500/- per month. This the landlady rightly re-fused to accept. Therefore, it is not open to the appellants to say that the rent of the premises was Rs. 3,500/- per month and there were two tenancies-one for Rs. 3,500/- per month and the other for Rs. 500/- per month. It is a case of one tenancy @ Rs. 4,000/- per month.
8. Regarding the second point about validity of the notice of termination of tenancy, the only basis for this plea is that the notice was not tendered or served on the Managing Director or the Director or Principal Officer or Secretary of appellant No. 1. It was further stated that registered office of the defendant is at 504, Vishal Bhawan, 45, Nehru Place, New Delhi. It will be seen from the copies of the notices that they have been addressed to appellant No. 1 at the Nehru Place office and to appellant No. 2 who is the Managing Director of appellant No. 1, at the address of the suit premises. We find no merit in the plea that the notice has not been properly served. In fact the learned Counsel for the appellant did not really press this point. The emphasis of the learned Counsel for the appellant during the course of hearing of the appeal was only about the manner in which the Trial Court proceeded to pass the order dated 16th May, 1997. As already observed, we are unable to find any fault with the approach of the Trial Court in passing the said order.
9. The result is that we find this appeal to be absolutely without any merit and the same is dismissed with costs. Counsel fee Rs. 10,000/-.