Delhi High Court
Batliboi & Co. Ltd. vs N.K. Verma on 1 January, 1993
Equivalent citations: 50(1993)DLT443
JUDGMENT S.C. Jain, J.
(1) Briefly stated the facts giving rise to these two applications being LA. 9737/92 and 10514/92 are that Batliboi & Co., herein,after called the applicant took on rent property 142, Golf Links New Delhi consisting of first floor with terrace, barasti, one servant quarter and garage together with fixtures and fittings for a period of three years on a monthly rent of Rs. 1500.00 vide lease agreement dated 1.3.1977 from Shri N.K. Verma,owner-landlord. After expiry of three years, the applicant continued to be tenant in the said property on the same terms and conditions, except that rate of rent was increased from Rs. 1500.00 to R.s.2,200.00. Rent of these premises stands paid up to August, 1993. These premises have been used as guesthouse of the applicant.
(2) As per the averments made in the plaint, on 15.7.1992 at 2 p.m.the owner-landlord brought 30 bad elements/gondas to the tenanted premises and started throwing the furniture and other valuable belongings of the applicant by taking law in their hands. The caretakers of the plaintiff who objected to the illegal actions of the defendant and his accomplices, were also thrashed and thrown out of gates on the road. The defendant has taken away/removed most of the costly furniture, almirahs and valuable articles costing over Rs. 3 lakhs to some unknown place and the same are not trace-able. The plaintiff has been forcibly and illegally dispossessed from the tenanted premises on 15.7.92 without recourse to the legal proceedings under the provisions of the Delhi Rent Control Act.
(3) On these grounds this suit for possession under Section 6 of the Specific Relief Act for restoration of possession of the tenanted premises has been filed by the plaintiff company.
(4) In this suit these two applications have been filed seeking interim relief for restoration of the possession of the tenanted premises and restraining the defendants from selling, transferring or alienating or parting with possession of these premises to anyone else. Prayer has also been made to appoint a receiver with direction to take into his charge, custody and possession the tenanted premises including the goods/articles lying and/or fixed therein and to keep the premises under lock and key till the disposal of thecase.
(5) A Local Commissioner was appointed on 21.7.92 for making an inventory of the goods lying in the disputed premises. The Local Commissioner submitted his report after inspecting the premises in the presence of the Counsel for the parties and the defendant. As per the report of the Local Commissioner, among the articles like air-conditioner, stabiliser, chair,almirah, etc., were found in the tenanted premises and most of these articles were found belonging to the applicant-plaintiff.
(6) Learned Counsel for the plaintiff submitted that though the applicant has been physically dispossessed from the tenanted premises out they are still in legal possession. The plaintiff is a limited company and question of voluntary surrender of the tenancy rights without any resolution of the company could not have taken place. He also pointed out that the rent of these premises stood paid up to August, 1993 i.e., on the request of the defendant vide letter dated 17.8.90 the plaintiff paid Rs. 79.200.00i.e., three years rent in advance, as according to the defendant he was going to USA for bye pass surgery. Receipt of rent up to August, 1993 stands admitted by the defendant. The story of surrender of the premises on 15.7.92 as alleged is cooked up. The report was lodged with the police on the next day after taking instructions from the company, the fact that the air conditioner and other fixtures are still fitted in the premises disproves the story of surrendering of the tenancy. He also drew my attention to the affidavits of Shri B.M.Lal, Director of the plaintiff company, affidavit of Nirmal Bhogi Lal Managing Director of the plaintiff', affidavit of Shri S.K.. Tandon, Regional Commercial Manager of the plaintiff, Jassi Ram caretaker and Jagdish Chand Arya another employee of the plaintiff in support of his contention that there was no surrender of the tenancy on 15.7.92 or at any other time.
(7) In view of these facts the Counsel submitted that the defendant cannot be allowed to forcibly dispossess the plaintiff from the suit premises when their costly items like air conditioners etc are still lying there.
(8) Learned Counsel for the defendant countered the argument of the Counsel for the plaintiff and stated that this is a case of voluntary surrender of tenancy rights. He admitted that the rent was paid up to August, 93 but pleaded that the possession was handed over to the defendant and a cheque for Rs. 40.500.00 drawn on Union Bank of India was handed over to the representative of the plaintiff. According to him no written document was executed regarding the surrender of tenancy right but it was under the instructions of all the responsible officers of the plaintiff.
(9) He drew my attention towards an interim order passed by DB-I in appeal No., Fao (OS) 116/92 S.N. Khosla v. Metal Box wherein accepted possession of the appellant/landlord of the tenanted premises, status quo was ordered to be maintained.
(10) Learned Counsel also argued that neither the provisions of Order39 Rules 1-2 Civil Procedure Code Order 40 Civil Procedure Code are not attracted in the present case inasmuch as the defendant is admittedly in possession of the tenanted premises. Some of his goods are also lying there. The plaintiff himself alleges to be out ofpossession. Therefore, order of status quo should be maintained. However,learned Counsel concedes. that his client is prepared to give an undertaking that he would not transfer, alienate or part with possession of these premises and will maintain status quo of this property but he strongly opposed the prayer made by the plaintiff applicant that possession of the premises be restored to him or a receiver be appointed or these premises may be sealed till the disposal of this suit.
(11) According to the learned Counsel for the defendant a receiver can be appointed only where the property is likely to be wasted and circumstances are of such a nature as to make it just and convenient to appoint areceiver. According to him. it is a case where the plaintiff handed over vacant possession of the premises to the defendant himself after surrendering tenancyrights.
(12) He relied upon two decisions, one of Ajmer High Court reported in Air (36) 49 Ajmer page 11 and the other of Sind High Court, Air 1937SIND 161 in support of his contention that in a suit under Section 9 of the Specific Relief Act no receiver can be appointed for collection of the mesneprofit. According to the learned Counsel, this suit has been filed under Section 6 of the Specific Relief Act for possession and it is not on the basis of title and therefore no receiver should be appointed in this case.
(13) As far as the facts of the present case are concerned, it is not in dispute that the plaintiff applicant was inducted as a tenant in the suit premises by the defendant vide lease agreement dated 1.3.1977 on a monthly rent of Rs. 1500.00 and the lease continued and the rate of rent was increased tors. 2200.00. It is also not disputed that on the request of the defendant three years advance rent of the tenanted premises was given up to August,1993. There is no written document showing that the tenancy was surrendered as alleged. On the prima facie ground, from the circumstances,which are on the record, it is very difficult to presume that the plaintiff voluntarily surrendered the possession of the premises on 15.7.92. The affidavits filed by the plaintiff in support of its case clearly establish that it is not a case of voluntary surrender of tenancy right.
(14) The contention of the learned Counsel for the defendant that a cheque for Rs. 40,500.00 towards the balance unutilised amount of rent was handed over to the Chief Manager has not been proved on record. It has not been stated that this cheque was ever encashed or credited to the account ofthe plaintiff. Shri S.K. Tandon, Chief Manager of the plaintiff has stated in his affidavit that no such cheque was received by him. Such a plea does not help the defendant in any way. The other fact which goes against the defendant is that as per the report of the Local Commissioner most of the goods found in the tenanted premises were that of the plaintiff meaning thereby that had it been a case of surrender of tenancy, the goods belonging to the plaintiff would not have been there. These premises were used by the company as a guesthouse and nobody was residing in these premises except the caretakers who used to look after the premises. The caretakers were thrown out by the defendant along with some of the articles belonging to the plaintiff.
(15) Without going into the merits of the case in detail and without arriving at any definite conclusion, on prima facie grounds, I am not inclined to hold at this stage that it is a case of voluntary surrender of tenancy right ofthe plaintiff. No doubt it is true and it is also on the record that the plaintiff has been physically dispossessed from the disputed premises, but this fact alone does not mean that the defendant should be allowed to take advantage of his own wrong.
(16) Interim order passed by DB-I in S.N. Khosla v. Metal Box relied upon by the defendant, does not help him in the present circumstances of thecase. There is no dispute about the legal proposition that every case is decided on the facts of that very case. The facts of the case before DB-I were different from the facts of the present case. That case was for permanent injunction and this case is for possession under the Specific Relief Act. In the premises in question goods of the plaintiff/applicant were admittedly found lying. The plaintiff might have been dispossessed physically but this cannot be said that his legal possession has also been disturbed. Tenancy rights are legal rights and cannot be snatched away in such a way. This order of DB-I does not help the defendant in this case.
(17) Regarding the other two decisions relied upon by the learned Counsel for the defendant, these are also not helpful to the defendant. In those cases question was regarding collection of mesne profit and in those circumstances it was held that no Court can appoint any receiver or commissioner. There cannot be any dispute regarding the legal proposition that under the existing circumstances an order appointing receiver can be made or that injunction order can also be passed. In the case of Meghji Jetha Shallv. Kalyanji Nanji Shah, Air 1987 B 273 in a suit under Section 6 of the Specific Relief Act, appointment of the receiver was upheld as legal.
(18) Keeping in view the circumstances on record, on the prima facie ground I am of the view that in such circumstances the defendant cannot be allowed to make use of the tenanted premises in which valuable articles belonging to the plaintiff are still lying.. In these circumstances. I find it a fit case where the tenanted premises comprising of first floor with terrace. Thebarasti. one servant quarter and garage in 142 Golf Links. New Delhi together with fixtures and fittings and articles lying therein can be sealed with the seal of the Registrar of this Court during the pendency of the suit with option that if either of the parties wants to take out any article be can do so after getting permission from the Court. I fix Rs. 5000.00 as fee of the Registrar to be paid by the plaintiff in the first instance. The Registrar shall keep the premises under lock and key with the Seal of the Court and the key shall be kept in the custody of the Court till further orders.
(19) The defendants are also restrained From transferring, alienating or parting with possession in any manner or from creating third party interest in the tenanted premises till the disposal of the suit. Both the Indian Administrative Service are disposed of accordingly.
(20) Pleadings are complete. To be listed before the Deputy Registrar for filing documents, admission/denial on 15.1 1.1992 and thereafter the matter to be listed in the Court for framing of issues on 7.12.1992.
(21) Keeping in view the nature of the suit under Section 6 of the Specific Relief Act. it is ordered that the suit shall be completed within six months from today.