Delhi High Court - Orders
Cement Corporation Of India vs Ashok Parwanda on 24 November, 2022
Author: Rekha Palli
Bench: Rekha Palli
$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 5/2011, CM APPL. 14684/2021 (directions), CM APPL.
22535/2022 (directions) & CM APPL. 41163/2022 (tagging)
CEMENT CORPORATION OF INDIA ..... Appellant
Through: Ms.Tanu Priya Gupta, Adv.
versus
ASHOK PARWANDA ..... Respondent
Through: Dr.Arun Mohan, Sr. Adv. with
Ms.Shantha Devi Raman, Mr.Arihant Jain,
Ms.Ritika Choubey, Ms.Swastika Singh, Advs.
+ RFA 164/2022, CM APPL. 19453/2022 (delay of 4168 days), CM
APPL. 19455/2022 (additional documents), CM APPL. 19456/2022
(exemption ) & CM APPL. 19457/2022 (impleadment)
SH. ASHOK KUMAR PARWANDA (DECEASETD) THROUGH
LRS ..... Appellant
Through: Dr.Arun Mohan, Sr. Adv. with
Ms.Shantha Devi Raman, Mr.Arihant Jain,
Ms.Ritika Choubey, Ms.Swastika Singh, Advs.
versus
M/S CEMENT CORPORATION OF INDIA ..... Respondent
Through: Ms.Tanu Priya Gupta, Adv.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 24.11.2022
1. The present two Regular First Appeals under Section 96 CPC seek to assail the judgment and decree dated 12.08.2010 passed by the learned Additional District Judge, South-II, Patiala House Court, New Delhi in CS No.492/2009. Vide the impugned judgment, the learned Trial Court, while decreeing the suit of lessor/plaintiff in RFA 5/2011 Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.11.2022 17:30:57 under Order XII Rule 6, directed the Cement Corporation of India (CCI) to hand over vacant possession of the suit property to the lessor.
2. The grievance of the lessor as articulated by Mr.Arun Mohan, learned Senior Advocate, is that while passing the impugned judgment, the learned Trial Court did not even deal with the aspect of payment of mesne profits till the date of handing over vacant possession of the suit property to the lessor. He submits that once a decree for possession was passed, as a necessary corollary, order for payment of mesne profits till the date of handing over possession of the suit property ought to have been passed by the learned Trial Court. In support of his plea, he seeks to place reliance on some decisions of the Apex Court which have been set out in detail in the written note filed by the learned counsel for the lessor.
3. On the other hand, Ms.Tanu Priya Gupta, learned counsel for the CCI submits that the impugned judgment in itself is liable to be set aside as the same overlooks the fact that the suit property, which was taken on the basis of two lease deeds, comprised of two flats i.e. Flat Nos.203-A, and 203-B, CCI Building, Nehru Place, New Delhi with the monthly rent of each flat being Rs.2,722/-. Consequently, the suit for possession, as filed by the lessor, was clearly barred by Section 50(1) of the Delhi Rent Control Act (the Act). She, therefore, submits that once the impugned judgment itself is liable to be set aside on this ground alone, the mere fact that the CCI continued in possession of the suit property till 22.04.2022 when vacant possession thereof was handed over to the lessor, would be immaterial. In the event the impugned judgment is set aside, and it is held that no suit for Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.11.2022 17:30:57 possession was maintainable on account of the bar under Section 50(1) of the Act, the CCI would be deemed to have continued in possession as a protected tenant under the provisions of the Act and would, therefore, be liable to pay only the agreed rent.
4. In response, learned senior counsel for the respondent/lessor seeks to place reliance on a decision dated 17.05.2017 of a Coordinate Bench of this Court in RFA 457/2017. In support of his plea that a similar false stand taken by the appellant in the said matter to the effect that the suit property was leased under two different lease deeds with the monthly rental of both being less than Rs.3,500/- was rejected by the Court. He, therefore, contends that similar stand being taken by the CCI before this Court deserves to be rejected.
5. When faced with this decision in RFA 457/2017, learned counsel for the appellant/CCI, while praying for time to examine the said decision, submits that even otherwise the lessor, having approached this Court after 10 years and that too having led no evidence on the question of mesne profits before the leaned Trial Court, would even otherwise be barred from raising any claim of mesne profits at this belated stage.
6. In my view, these aspects would be required to be considered only after this Court determines as to whether the impugned judgment is liable to be set aside on the basis of the pleas as raised by the CCI.
7. List on 23.01.2023.
REKHA PALLI, J NOVEMBER 24, 2022/kk Signature Not Verified Digitally Signed By:GARIMA MADAN Signing Date:25.11.2022 17:30:57