Delhi District Court
Sh. Amit Kapoor vs Dr. A.K. Jain on 23 January, 2010
In the court of Ashwani Sarpal, Additional District Judge-05
West District, Tis Hazari Court, Delhi.
Sh. Amit Kapoor
----Appellant/Defendant
vs.
Dr. A.K. Jain
----Respondent/Plaintiff
(RCA no. 24/09)
Date of institution---9-12-2009
Date of decision------23-1-2010
(Appeal u/s 96 CPC against the judgment and decree dated 7-11-2009
passed by ld. Senior Civil Judge, West District)
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Judgment:-
Ld. Senior Civil Judge Sh. Vinod Yadav vide order dated 7-11-2009 passed in civil suit for possession, arrears of rent, damages/mesne profits and injunction bearing no. 98/08 instituted by respondent (herein after referred to as plaintiff) passed a decree of possession in respect of suit property bearing no. 138, A.L. Block, Shalimar Bagh, Delhi against appellant (herein after referred to as defendant) and also directed defendant to pay Rs. 8,000/- per month with effect from the date of decision as mesne profits/damages till the date of delivery of possession along with interest @ 15% p.a. A decree of permanent injunction was also passed against defendant from creating any third party rights in the property in question. Trial Court also granted plaintiff a sum of Rs. 56,000/- towards the arrears of rent. Defendant has come to this court in appeal in which he has not only challenged the decree but also various misc. orders passed during the proceedings before ld. Trial Court from time to time with the help of Order 43 Rule 1-A CPC. I have heard counsel for both parties and gone through the Trial Court record as well as case laws cited.
The relationship between parties as landlord and tenant in respect of suit property is not in dispute. It is also admitted fact that provisions of 2 Delhi Rent Control Act are not applicable to the tenancy as rent of premises was more than Rs. 3500/- per month. The tenancy in respect of suit property commenced through lease deed dated 18-9-2000 for period of one year by way of registered lease deed which expired by efflux of time and thereafter tenancy was not renewed through any written document again. Hence in absence of any subsequent written lease deed, the tenancy in question has to be treated as from month to month. Plaintiff allegedly through legal notice dated 15-12-2007 terminated the lease of the defendant who despite service did not vacate the suit property which compelled the plaintiff to approach the court through suit. Defendant lost the battle in the Trial Court and now has come up in this appeal by raising following grounds;
(A) Non taking of written statement on record:- As per Trial Court record, defendant was served with the summons of the court on 2-2-2008 upon which it was specifically mentioned that written statement be filed within 30 days of service but defendant instead of filing any written statement moved an application under Order 7 Rule 11 CPC which was dismissed by the court vide order dated 9-5-2008. Trial Court vide order dated 9-5-2008 even then granted further time of 30 days to the defendant to file the written statement and fixed the matter for 13-8-2008 but defendant did not comply with that order also and failed to file any written statement within extended time granted so court vide order dated 13-8-2008 was compelled to strike off the defence of the defendant and closed his right to file the written statement after waiting for him till 11.45 a.m. as by that time neither defendant nor his counsel had turned up.
Record shows that after the case had been adjourned on 13-8- 2008, written statement was filed on record but that written statement was not allowed to be taken into consideration by the court vide order dated 6-11-2008. I am of the view that ld. Trial Court was justified in rejecting the written statement of the defendant filed at belated stage. Under law, the written statement is required to be filed within period of 30 days from the date of service and this fact was mentioned in the summons itself received by defendant on 2-2-2008 but defendant did not choose to file any written statement and his written statement came on record only on 13-8-2008 after a lapse of more than 6 months. Even no application was moved to explain the reasons for filing written statement beyond the prescribed time. Though court 3 can take written statement of defendant after expiry of 30 days but the reasons of delay must be explained and a written request must be filed for taking the same on record. Defendant neither filed any application for condonation of delay in filing the written statement nor even did avail the concession of 30 days further time granted by court vide order dated 9-5-2008 so ld. Trial Court was justified in rejecting the belated filed written statement of the defendant and striking off his defence in such circumstances. I find no illegality in the order of the court passed in this regard.
Otherwise also the written statement filed by the defendant on record on 13-8-2008 is not proper and legal as it is not signed either by defendant or by his counsel. Even the affidavit accompanying this written statement is unsigned. (This court has now made endorsement on the last page of written statement and affidavit filed on 13-8-2008 in this regard to rule out possibility of any manipulations in it). Moreover the contents of unsigned affidavit accompanying this written statement shows that it was prepared on 10-7-2008 but why it was not filed in the court at the earliest and why defendant waited till 13-8-2008 to file it is not explained even in the present appeal. Hence in such situation, I hereby hold that ld. Trial Court was justified and correct in striking off defence of defendant and ignoring his written statement. By adopting this method, ld. Trial Court has not committed any illegality in this regard nor has violated any procedure of law.
(B) No opportunity to cross examine PW-1:- There is no dispute of the proposition that even if defence of defendant is struck off, he still holds right to cross examine the plaintiff and his witnesses though is not entitled to lead his own evidence as per law laid down by Supreme Court in case Modula India vs. Kamakshya Singh Deo AIR 1989 Supreme Court 162. However this opportunity is required to be given to defendant only if he attends the court hearing and chooses to cross examine the witness. When the plaintiff was examined in the court on 13-1-2009 as PW-1 then on that day neither defendant nor his counsel appeared in the court. There is no dispute of the fact that defendant knew all the dates of hearings of the suit. Record shows that no one appeared for defendant continuously for four dates i.e. on 13-8-2008, 6- 11-2008, 13-1-2009 and 27-1-2009. It is not the duty of the court to call the defendant from his house and to his lawyer from his chamber and request them with folded hands to attend the hearings. Court is under obligation to 4 issue notice of the suit only once and thereafter party himself is required to attend the hearings. The party and his counsel are required to appear in the court as and when the case is called and cannot presume that on each and every date the matter shall be passed over and defendant shall be waited till after 2 p.m. If a party despite having knowledge of the date of hearing opts to remain absent from the court and chooses not to appear on several dates then he cannot blame the court lateron by saying that he should have been waited till 2 p.m. before proceeding with the matter and case should have been passed over after lunch. Opportunity to cross examine in this matter was required to be given to the defendant only if he had attended the court but when he remained away from the court on the day when PW-1 was examined then there was no obligation on the part of the court to postpone the matter for cross examination even to some another date of hearing. The record even did not show that defendant or his counsel attended the court on those above mentioned four dates even after 2 p.m. Neither any application was moved on any date to mark presence nor any request was made to court to take up the file again and to mark presence, so in such situation it can be held that defendant or his counsel even did not appear after lunch on these four dates. Mere fact that court did not formally proceeded exparte against defendant on any date of hearing or did not treated cross examination as nil due to absence of defendant is of no consequences. Infact there was deemed exparte order against defendant. As the defence of the defendant had already been struck off, so there was no requirement to fix the matter for his evidence. I am of the view that ld. Trial Court was correct in its approach not to adjourn the matter for cross examination of plaintiff in absence of any attendance on behalf of defendant. It has also not acted in haste in the present circumstances of the case after taking note of the negligent and casual approach being followed by the defendant. Otherwise also record shows that lateron when defendant appeared at final arguments stage, he did not move any application for permission to cross examine the plaintiff. He filed review application against order of striking off defence but never made any request for grant of permission to recall PW-1 for his cross examination. Ground now being taken that notice of termination was never served and signatures on AD card are not identified by plaintiff is without any force because it was for the defendant to impeach the credibility of the PW-1 by conducting cross examination but he choose not to ask any question to him by coming to court so when PW-1 in his statement 5 given on oath is specifically saying about service of the notice of termination of tenancy then that has to be relied upon in absence of any cross examination. Ld. Trial Court in such situation was justified in relying upon the unrebutted testimony of the plaintiff in decreeing the suit.
(C) Dismissal of review application of defendant:- Defendant at final arguments stage moved an application under section 114 of CPC on 27-1-2009 for review of order dated 13-8-2008 striking of his defence. Ld. Trial Court had dismissed that application vide order dated 9-9-2009 by holding it without any merits and being time barred. Keeping in view the conduct of the defendant and his casual and negligent approach in defending the matter as well as fact that review application filed was beyond period of limitation of 30 days, ld. Trial court was correct in rejecting the same. I find no ground to interfere in that order also on any ground.
Defendant also alleged that he was compelled to make payment of damages before entertaining of his review application vide order dated 19-2- 2009 and that approach of Trial court was infact a pressure tactics and caused miscarriage of justice. Admittedly defendant in the capacity of tenant remained in possession of the suit property without making payment of even admitted rent. Court had powers to order tenant to make payment of admitted last paid rent as use and occupation charges till the controversy is decided whether defendant is liable to pay rent or damages. This power can be exercised by the court even without any written request of plaintiff to do justice to him. Mere fact that litigation has come before court does not entitle tenant to use the suit property free of cost till the dispute is decided. I find no ground to interfere in the order of the court dated 19-2-2009 directing defendant to pay arrears at the agreed rate before his review application is considered. No prejudice had been caused to the defendant due to this order as he was otherwise also under obligation to pay the last paid rent till the time he occupies the premises during pendency of the suit. The dismissal of review application being time barred and on merits had no concern with this alleged pressure tactics of the court. The use of word 'damages' in the order sheet dated 19-2-2009 instead of 'last paid rent' or 'use and occupation charges' is of no consequence and is not sufficient to set aside that order. I find no ground to set aside that order dated 19-2-2009 also. The dismissal of review application by ld. Trial Court with heavy costs was proper in the circumstances of the case.
6(D) Negligence of counsel:- Defendant in this appeal has put entire blame upon his previous advocate in conducting the proceedings on his behalf in the court in highly negligent manner and took plea that he should not be allowed to suffer due to lapses on the part of his advocate. However I am not convinced with this ground as admittedly no complaint has been filed by defendant against his previous lawyer in Bar Council for his alleged negligence act and conduct till date. Admittedly also no suit or petition for claiming damages has been filed by him against his lawyer in any court or forum. Defendant nowhere in his appeal showed that he was diligently conducting his case and was in regular touch with his advocate and was taking instruction and information from him from time to time. Whole of the appeal nowhere shows any hint about the due diligency on the part of the defendant. It is not the case of defendant that he used to come to the court to attend the hearings despite the fact that he had undertook to appear regularly in the court and to call his lawyer to attend the hearing as per term of vakalatnama executed by him in favour of his lawyer. Otherwise also defendant is debarred to level such type of allegations against his lawyer which contradicts another term of vakalatnama executed by him which is on record in which it is mentioned that he will not hold his advocate responsible for any result of the case. Accordingly it is held that defendant cannot be given any benefit on account of alleged negligence of his counsel when he himself was not acting diligently.
(E) Non framing of issues:- The necessity to frame issues arises only when pleadings of both parties are complete. When the written statement of the defendant was not taken on record and was specifically rejected then no question arose for ld. Trial Court for framing of any issue in absence of complete pleadings. The Trial Court had not committed any irregularity or illegality in not framing any issues before taking evidence of the plaintiff. The argument raised in this regard is without any force.
(F) Reliance of plaintiff upon the written statement of defendant:- Plaintiff in paragraph no. 5 of his affidavit of statement exhibited the written statement of the defendant as Ex. PW1/DX. However if whole paragraph no. 5 is considered in the light of averments made in the written statement of defendant, then I am of the view that reliance put upon written statement by the plaintiff was limited only in respect of nature of relationship between 7 parties, fact of existence of oral tenancy and rate of rent. Mere putting exhibit mark on the written statement of defendant by plaintiff in his statement does not draw an inference that contents of whole of written statement were admitted by plaintiff as correct. If this ground of defendant is accepted then it would create not only absurd situation but also would go contrary to unrebutted testimony of the plaintiff. Mere putting reliance upon the written statement of defendant in the affidavit of plaintiff does not mean that plaintiff had also accepted other defences of the defendant as correct and treated his own case as false one. Defendant cannot be given any benefit merely on the ground that his written statement was exhibited by the plaintiff in his own statement.
(G) Arbitration Clause of lease deed:- The tenancy initially started on basis of registered lease deed dated 18-9-2000 for a period of one year with effect from 11-8-2000. It is also admitted fact that thereafter no written deed was executed to extend the lease but tenancy was renewed mutually by oral agreement on increase of rent. The tenancy continued till it was terminated with effect from 1-1-2008 by virtue of legal notice under section 106 of Transfer of Property Act dated 5-12-2007. The original lease deed contained an arbitration clause. The question had arisen whether this arbitration clause continued to govern the future relationship of parties despite the fact that lease deed had expired by efflux of time.
Clause 2 of the lease deed specifically mentions that extension of lease shall depend on the mutual consent of the parties and at the rate of rent agreed by the parties through the separate registered agreement. In absence of any other registered deed, it cannot be held that terms of the original lease was agreed upon by the parties for governing their future relationship also. The lease deed expired due to efflux of time and defendant continued to be in possession of the suit property upon increased rent with the consent of the plaintiff and thus status of the defendant had become of a tenant holding over under section 116 of Transfer of Property Act. Tenancy of defendant had become month to month terminable by 15 days notice. When the lease deed had expired by efflux of time then in absence of any other written deed the further relationship between tenant and landlord created through oral agreement is to be governed by the provisions of Transfer of Property Act. Thus in my view the arbitration clause in original lease deed had come to an end 8 with the expiry of lease deed by efflux of time.
The lease period under written lease deed had expired on 11-9-2001 and by that time no dispute between parties had arisen on any account. Even the relationship between parties remained smooth for several years thereafter and tenancy used to be extended from time to time on basis of oral agreement by increase of rent. It is not the case of the defendant that oral subsequent tenancy was on the same terms and conditions as mentioned in the original written lease deed or it was followed at any subsequent time. Thus the dispute infact had arisen between the parties on the basis of subsequent oral agreement of tenancy and not on basis of original expired written lease deed. Accordingly arbitration clause of original lease deed could not be made applicable upon the subsequent new oral tenancy.
The case laws cited by counsel for defendant Hindustan Petroleum vs. M/s Pinkcity midway AIR 2003 Supreme Court 2881, Vimoni India (P) Ltd. vs. Ritu Gupta 139 (2007) DLT 647 and Roshin Lal Gupta vs. Delhi Tourism 2009 (109) DRJ 456 are distinguishable from the facts of the present case. Here in these cases, even after the expiry of the main contract, the further transactions or relation between parties continued to be governed in accordance with the terms and conditions of the original written agreement containing arbitration clause which is not so in the present case. In the present case dispute has not arisen on basis of original written lease deed but is based upon the subsequent fresh oral agreement.
Even if for the sake of arguments, it is held that arbitration clause continued to govern the future relationship of the parties then also I am of the view that dispute of termination of tenancy through notice under section 106 of Transfer of Property Act was not falling within the purview of the arbitration clause. The oral tenancy is to be treated as month to month tenancy which is terminable by giving notice under section 106 of Transfer of Property Act and this statutory provision cannot be curtailed, contradicted and circumvented through any written agreement to contrary including through invoking arbitration process.
Though it is for the arbitrator to decide whether he has jurisdiction to decide the reference or not and arbitration agreement is to be treated as a separate agreement from the main agreement due to principles of separability but Supreme Court in Rashtriya Ispat Nigam Ltd. vs. Verma Transport Co. (2006) 7 SCC 275 is of the view that the court can see whether the subject 9 matter of the dispute is covered by the arbitration agreement or not. After considering the nature of dispute regarding termination of tenancy by issuing notice under section 106 of Transfer of Property Act, I am of the view that the dispute in question was not falling within the subject matter of arbitration clause so appeal cannot be allowed on this ground. Defendant was under
obligation to vacate the suit property himself after expiry of lease period and if he was allowed to continue in possession by the plaintiff thereafter then that would not have amounted to the extension of original lease but amounted to creation of fresh tenancy due to acquisition of status of holding over tenant under section 116 of Transfer of Property Act by the defendant. Hence arbitration clause otherwise also was not applicable upon the fresh oral agreement of tenancy. The arbitration clause could govern the terms of first written tenancy but when fresh and new agreement has come into picture through oral agreement then the arbitration clause was not applicable to subsequent agreement. Plaintiff has admitted in his plaint only the renewal of lease but nowhere stated that this renewal was on the same terms and conditions as was mentioned in the original written lease deed. Ld. Trial Court was justified in rejecting the application of defendant under Order 7 Rule 11 CPC vide order dated 9-5-2008.
In view of the above discussions, I am of the view that there is no merit in the appeal of the defendant so same is hereby dismissed with costs of Rs. 10,000/- payable by the defendant to the plaintiff. Judgment and decree of ld. Trial Court is hereby confirmed. Defendant is hereby directed to immediately vacate the suit property failing which plaintiff is entitled to get it recovered through execution proceedings. Keeping in view the manner of conducting the proceedings by defendant in the Trial Court, I also hereby direct that he should not be allowed any time to vacate the suit property. Plaintiff is also allowed to collect the amount of Rs. 56,000/- deposited in court by the defendant in compliance of order dated 11-12-2009. Decree be prepared and Trial Court record be returned with copy of this order. Appeal file be consigned to record room.
(Ashwani Sarpal)
Dt. 22-1-2010 Additional District Judge