Delhi High Court
Kiran Kapoor vs Ashok Kumar Sharma on 1 January, 1997
Equivalent citations: 1997IIAD(DELHI)671, 65(1997)DLT662, 1997(40)DRJ624
Author: Lokeshwar Prasad
Bench: Lokeshwar Prasad
JUDGMENT Lokeshwar Prasad, J.
(1) The present appeal, filed by the appellants, is directed against the order dated 13.3.96, passed by the learned Additional District Judge, Delhi in Suit No. 267/95 - entitled Ashok Kumar Sharma Vs. Kiran Kapoor and others, allowing the application of the respondent Shri Ashok Kumar Sharma, filed by him under Order Xxxix Rule 10 read with Order Xii Rule 6 and Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC').
(2) The facts relevant for the disposal of the present appeal, briefly stated, are that the respondent Shri Ashok Kumar Sharma filed a suit for adjustment/ recovery of possession, for the recovery of Rs 1,00,650.00 (on account of arrears of rent and interest thereon) and Rs 25,000.00 on account of damages for use and occupation/manse profits of a portion of property bearing No. 82, Sukhdev Vihar, Mathura Road, New Delhi against the appellants/defendants. The claim of the respondent/plaintiff in the above suit was resisted by the appellants who filed a written statement taking certain preliminary objections with regard to the maintainability of the suit. The appellants, in the written statement filed by them in the suit, while not denying the execution of the lease deed dated the 31st December, 1986, contended that the same relates to three different tenancies and not to a single tenancy. The appellants, in the written statement, have admitted their continuance as tenants under the respondent/ plaintiff but their plea is that the tenancy in question was not one but there were three separate and distinct tenancies and that the figure of Rs 4,000.00 , mentioned in the lease deed dated 31.12.86 pertained to consolidated rent in respect of the three tenancies mentioned therein. The appellants have also denied their liability to pay arrears of rent, interest and mesne profit as claimed by the respondent/plaintiff.
(3) The respondent/plaintiff in the above said suit, pending in the Court of learned Additional District Judge, Delhi, also filed an application under Order Xxxix Rule 10 read with Order Xii Rule 6 and Section 151 Civil Procedure Code praying that the appellants/defendants be directed to pay the arrears of rent w.e.f. 1.5.93 @ Rs 4,000.00 per month and future rent at the above said rate month by month till the disposal of the suit subject to the decision of the rights of the parties in the above noted case. The learned Additional District Judge, Delhi vide impugned order has allowed the above mentioned application of the respondent and directed the appellants to pay arrears of rent from 1.5.93 to 29.2.96 @ Rs 4,000.00 per month within a period of 30 days from the date of the order and also directed that future rent at the above said rate be deposited month by month according to English Calender by the 15th of the each month with the respondent/plaintiff.
(4) Feeling aggrieved the appellants have preferred the present appeal. Notice of the appeal was issued to the respondent.
(5) I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. On behalf of the appellants the matter was argued by Shri Ramesh Chandra, Sr. Advocate who was assisted by Ms. Geeta, Advocate. On behalf of the respondent arguments were advanced by Shri Ishwar Sahai, Sr. Advocate who was assisted by Shri C.P. Aggarwal, Advocate. The learned counsel for the appellants, while arguing the case on behalf of the appellants, submitted that the application in question of the respondent/plaintiff was not maintainable as no such order, as has been passed and is being assailed in the present appeal, could have been passed by the learned Additional District Judge under Order Xxxix Rule 10 read with Order Xii Rule 6 and Section 151 CPC. His second limb of argument was that as the property in suit consisted of three different tenancies, each having rent less than Rs 3,500.00 per month, the Civil Courts had no jurisdiction to entertain, much less to try and decide the suit for ejectment and recovery of mesne profit and that the learned Additional District judge by passing the impugned order, assumed the jurisdiction in the matter in which it had none and the impugned order, passed by him is, therefore, without jurisdiction, suffers from material irregularity and is liable to be set aside. The learned counsel for the respondent on the other hand submitted that the application of the respondent, filed by him, under Order Xxxix Rule 10 read with Order Xii Rule 6 and Section 151 Civil Procedure Code was maintainable and the learned Trial Judge was well within his powers to pass an order under Order Xxxix Rule 10 read with Order Xii Rule 6 and Section 151 CPC. He further submitted that the tenancy in favour of the appellants was a single tenancy for Rs 4,000.00 in respect of the front portion of house bearing No. 82, Sukhdev Vihar, New Delhi consisting of basement, ground floor and first floor. In support of his contention that the tenancy was a single tenancy the learned counsel for the respondent placed reliance on a decision of the Supreme Court in case Subhash Kumar Lata Vs. R.C. Chhiba and another and a decision of this Court in case State Bank of Patiala Vs. Chandermohan [1996 Rlr 404]. It has been submitted by him that the appellants, in any case, are liable to pay arrears of rent from 1st May, 1993 to 28th February, 1995 which they have failed to pay regularly and in time to the respondent and also future rent at the above said rate i.e. @ Rs 4,000.00 per month in terms of the lease deed dated 31.12.86, in respect of the suit premises which are in the possession, occupation and use of the appellants even now. It was submitted by him that the present appeal, filed by the appellants, is devoid of substance and the same deserves to be dismissed with costs.
(6) As already stated, the learned counsel for the appellants, while arguing the case, submitted that the impugned order suffers from material irregularity as no such order could have been passed by the learned Additional District Judge under Order Xxxix Rule 10 read with Order 12 Rule 6 and Section 151 Cpc, as has been passed by him, I consider it appropriate to deal with the above contention in the first instance. For the purpose of effectively dealing with the above aspect I deem it appropriate to first of all examine the ambit and scope of Order Xxxix Rule 10 CPC. The above mentioned Rule reads as under:- @SUBPARA = "Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last- named party, with or without security, subject to the further direction of the Court."
(7) It is apparent upon an analysis of the provisions of Rule 10 that an interlocutory order in respect of the subject matter of a suit can be passed by the Court under certain conditions and the conditions are (i) that the subject matter of the suit must be money or some other deliverable thing including, therefore, any moveable property; (ii) the party thereto must admit that he holds such money or deliverable thing for another party; and (iii) such party must admit either that it belongs to the other party or is due to that other party. If the above conditions are fulfillled the Court would be entitled to pass an interim order in that behalf. It will thus be seen that where the subject matter of the suit is money or any deliverable thing and it is admitted by any party to the suit that it either belongs where it is money, or is due to that other party, then the Court has a power firstly to order it to be deposited in the Court or deliver it to such party with or without security, subject to such further directions which the Court may pass.
(8) The first question which may, therefore, arise in a suit between a landlord and a tenant, as in the present case, whose tenancy, according to the landlord, stands terminated, is what is the subject matter of a suit of this kind. It is true that where the landlord also sues for possession, the subject matter of the suit is not only rent money and/or compensation for use and occupation but also possession of immoveable property. In such a suit where there is a dispute as to the termination of the tenancy the finding of the Court may result either in holding that the tenancy is not terminated or that the tenancy is terminated, depending upon the finding of the question of termination of tenancy, rent will be due from the tenant to the landlord or mesne profits subsequent to the termination of tenancy. Mesne profits may not be synonymous or equal to the rent which is payable but it is difficult to presume that the same would be in any way less than the rent which was agreed to be paid. Where the same premises are continued in the occupation of the tenant, in the same situation, as in the present case, then it is almost impossible that the mesne profits could be less than the agreed rent. It will thus be seen that the determination of the contractual status or the rights of the parties would merely have the effect of the change of the label relating to the amount recoverable by a landlord from his tenant or ex- tenant, as the case may be. The character and the nature of that right remains the same. Facts giving rise to that right and the circumstances also remain the same. During the contractual status of such occupier, the law prescribes it as rent and subsequent to the termination of the contractual relationship it is compensation for use and occupation. The fundamental character of the claim and the circumstances giving rise to such a claim do not however undergo any change and continue to be the same. In a suit, therefore, by a landlord against his tenant, the subject matter of the suit, where he sues for delivery of possession and the claim relating to the use and occupation of that property, may be as a tenant in his contractual capacity or on account of his being in fact in his possession and occupation, is the very property itself and also the money, recoverable for use and occupation thereof, be it labelled as rent, compensation, or mesne profits, as the case may be.
(9) In view of the above discussion, in my opinion, it cannot be disputed that both these things, namely, right to recover money for use and occupation as well as rent, where it is due or claimed, is capable of delivery. It also cannot be disputed and denied that where a tenant admits that he was a tenant, he admits his liability to pay for his use and occupation of that property. He may dispute his liability to deliver the property where he claims that his tenancy has not been validly and legally terminated. But it cannot be said that such an amount, call it either rent or call it compensation for use and occupation, is not due to the landlord. In other words, therefore, in terms of the provisions of Rule 10, in a suit between a landlord and a tenant, the subject matter of the suit is money claim for use and occupation of property before the termination of the contract and after the termination of the contract which the tenant does not dispute belongs to the landlord. It is quite clear that such a situation may not be available where a suit is brought against a trespasser. However, in the present case this Court is not concerned with such cases in as much as the question before this Court is whether there is no provision in the Civil Procedure Code at an interim stage to direct delivery of money or payment or deposit of any sum in the Court which is admittedly due to another party and is the subject matter of that suit. Properly speaking and upon a natural and a liberal construction of the words occurring in Rule 10, the "subject matter of a suit" between a landlord and a tenant is money and immoveable property. Though immoveable property may not be a 'thing' 'capable of delivery' the money on account of the use and occupation of the property, admittedly, belonging to another is undoubtedly one such and, therefore, in my opinion, the Court decidedly has a power in a given case to direct such party to deposit it in the Court or to deliver it to the landlord. It would be, therefore, wrong to say that there is no provision in Civil Procedure Code by which such an order could be passed. Where a defendant admits that he is a tenant, he impliedly admits that the property belongs to the landlord (plaintiff) and money for use and occupation thereof is due to him. He may dispute the nomenclature of that due which he is liable to pay. He may dispute the quantum. But the principle of liability cannot be denied. If the principle of liability is not denied then it is obvious that the Court has the power to decide and direct the extent of the quantum which may be ordered to be deposited. Thus, in my opinion, in exercise of powers under Rule 10 Order Xxxix Cpc, a tenant can, therefore, always be directed, subject to the other circumstances and conditions, to deposit rent due or becoming due from him to his landlord during the pendency of a suit call it either compensation for use and occupation or rent, depending upon whether the tenancy is or is not terminated. Order Xxxix Rule 10 Civil Procedure Code by itself does not impose any conditions or limitations upon the exercise of that power. It follows, therefore, that to prevent the abuse of the process of the Court and in order to subserve the ends of justice, the powers conferred upon a Court under Order Xxxix Rule 10 Civil Procedure Code can be invoked by any party. The question whether the Court will exercise that power in his favour is entirely a different question. But it cannot be denied that such a power exists and if the power exists then there is jurisdiction to pass an order of the kind indicated above. This Court in earlier decisions in case Brig. S.S. Puri (AVSM) (Retd.) Vs. R. Chandershekar ; Smt. Adarsh Chugh Vs. Smt. Jaya Dixit Paralata [1996 Ii Ad (Delhi) 560] and Surjit Singh Vs. H.N. Pahilaj(Decd.) has consistently taken the above view with regard to the scope of Order Xxxix Rule 10 Civil Procedure Code and I see no reason to deviate from the same in the present proceedings.
(10) After having discussed the ambit and scope of Order Xxxix Rule 10 Civil Procedure Code I may also advert to the provisions of Order Xii Cpc, permitting judgments on admission. The principle underlying the provisions of Order Xii Cpc, empowering the Courts to make orders on the basis of admitted parts of the claim, can be extended even to a case where a suit is brought against a tenant, who is in occupation of the premises, for possession and a claim for past and future mesne profit. In my opinion, it is implicit in the circumstances that the liability on the part of the person, in occupation, for payment on account of use and occupation of the premises, is admitted. If it is admitted, then the form which the order will take directing him to make that payment will vary and may depend upon the circumstances and the situation. It may be an amount of 'rent' claimed as due and admitted. It may be an amount equivalent to rent where the claim is for 'mesne profits' before the institution of the suit and also subsequent to the institution of a suit until the decision of the suit and delivery of property. The nature of the claim and the label with which it would be described would not change the character or the principle, governing the orders in that behalf. On the basis of the principle as contained in Order Xii Cpc, empowering the Courts to pass orders and decrees on admission, it is a mere extension of that principle to make an order relating to delivery of an amount claimed as due prior to the institution of the suit, pending trial and decision of the suit.
(11) In case Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal the Supreme Court has observed that the provisions of Civil Procedure Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all circumstances which may arise in future litigation. The Supreme Court held that a temporary injunction could be issued by the Court in the exercise of inherent powers under Section 151 Civil Procedure Code when a case was not covered by the provisions of Order Xxxix CPC. In my opinion the combined result of the provisions of Section 151 Cpc, the principle underlying the provisions of Order Xii Civil Procedure Code and the provisions made for passing an interlocutory order under Order Xxxix Rule 10 Cpc, in a case of this kind, decidedly permit the Court to pass an order for deposit of money pending decision of a suit filed by landlord against the tenant for recovery of arrears of rent and mesne profits for the use and occupation of the premises after the statutory relationship between the landlord and tenant has ceased to exist.
(12) The provisions of Cpc, it is common knowledge, are either modelled or borrowed from the provisions of the English Rules of Practice, the Supreme Court Rules, and the Rules framed under the Judicature Acts. Order Xxxix Rule 10 Civil Procedure Code was, formerly, word for word, Section 502 of the 1882 Code. It has been retained intact thereafter in the 1908 Code as Order Xxxix Rule 10. The analogous provisions under the English Supreme Court Rules, known as Rules of Supreme Court are to be found in Order 29 and Order 50 Rule 8. Order Xxxix Rule 10 of our Civil Procedure Code appears to be a combination of the powers conferred therein limited to the purpose and extent specified in Rule 10. Instances of exercise of those powers before decree are not wanting. In Hollis Vs. Burton (LR 1892 Cd 226) Kay L.J. observed:- @SUBPARA = "the Court has for many years been in the habit of directing a defendant who has made such an admission to pay the amount in Court not that it decides the case against him, but it orders him to pay that money (which he admits is in his hands and which the admission shows is really money upon which the plaintiff has a claim) to abide by the result of the action."
(13) The power to make an order to deposit in court moneys which were the subject matter of the suit under Section 502 of the Civil Procedure Code, 1882, was recognised by the Full Bench of Madras in case Rajah Parthasaradhi Appa Row Vs. Rajah Rengiah Appa Row (ILR 27 Madras 168). In case Bai Jamna Bai & Haridas Naranji (ILR 36 Bombay 20) the English Practice and Principle of the Cestui Que Trust, having a right Ex Debito Justitiae to have the fund brought to Court was expressed to be embodied in the provisions of Order Xxxix Rule 10 CPC. That was a case under the Guardians and Wards Act, 1890 to which the provisions of Civil Procedure Code applied.
(14) In my opinion there is yet one more reason why the provision of Section 151 Civil Procedure Code can be properly called in aid in the present situation. It is a matter of common knowledge that the paucity of residential accommodation; the growth of population; reduced number of available houses; increased cost of construction; reduced building activity and various other factors have combined to produce scarcity in the matter of accommodation. As a consequence, disputes between the landlords and the tenants have increased manifold. They have also acquired importance and value out of proportion. As a result, there is a congestion of such causes in Courts, resulting in long drawn out trials and pendency of suits and proceedings. In Delhi it is common knowledge that cases take inordinately long time to come up for trial and during all these times the landlord has to keep on paying taxes and other out goings on the property, maintain it in good condition and repair it so that its life does not shorten. In many cases landlords depend for their livelihood upon the income from these properties. It would thus be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of use and occupation of the premises while the landlord is required to meet his responsibilities and liabilities. The process of the Court, over which neither the landlord nor the tenant, have any control, cannot, therefore, be allowed to be abused and work to the detriment of a person. If it is capable of resulting in a harm then the Courts are not powerless to make orders so as to mitigate that harm. Besides, there is hardly any justification for a tenant to deny his moral and legal responsibility to pay as long as he is in occupation of the premises on the supposed strict words of law or procedure not providing for a situation of this kind. The provisions of Section 151 Civil Procedure Code and the inherent jurisdiction and the powers of the Court are ideally meant and suited to bring relief and redress to meet the ends of the situation and also to meet the ends of justice. If factual circumstances tend to result in operating unjustly against a particular litigant then I do not think that the powers under Section 151 Civil Procedure Code cannot be utilised for his assistance. Courts would undoubtedly and should in such a situation go to his assistance and would not be precluded from doing so merely on formal technicalities which may result in technical tortures which can be avoided in such a situation by virtue of the provisions of Section 151 CPC.
(15) With the above statement of law, I now revert to the facts of the case at hand. In the present case it is not in dispute that the appellants are the tenants in respect of a portion of the ground floor, basement and first floor of property bearing No. 82, Sukhdev Vihar, Mathura Road, New Delhi on a monthly rent of Rs. 4,000.00 . The execution of lease deed dated 31.12.86, registered on 23.1.87, is also not disputed. It is also not disputed that the appellants are in possession of the aforesaid tenanted premises and are using and enjoying the same. The respondent in the suit, which is pending in the Court of Additional District Judge, Delhi, has claimed arrears of rent from 1.5.93 to 28.2.95 amounting to Rs 88,000.00 . In the written statement, filed by the appellants in the above said suit, the appellants have not pleaded any payment for the above said period and, therefore, the bald denial of the appellants that they are not liable to pay the sum of Rs 88,000.00 for the period from 1.5.93 to 28.2.95 legally speaking is of no consequence. In view of the legal position already explained, in my opinion, the appellants are under a moral as well as legal obligation to deposit the amount of the arrears of rent and also future rent as agreed between the parties vide lease deed dated 31.12.1986, the execution of which is not disputed even by the appellants. As regards the contention of the learned counsel for the appellants with regard to the maintainability of the suit on the ground as to whether the tenancy in question was a single tenancy or there were three separate tenancies, I do not consider it necessary to express any views in these proceedings which may have any bearing on the above issue at this stage because the same would be decided by the learned Trial Judge at the appropriate stage in the suit itself.
(16) In the result the present appeal is dismissed being devoid of merit. It is directed that the appellants in terms of the order impugned shall pay to the respondent (landlord) within thirty days from the date of this order the arrears of rent from 1.5.93 @ Rs 4,000.00 per month and future rent month by month by the 15th of each succeeding month according to English Calender. However, it is clarified that any payment made in pursuance of the above orders shall be without prejudice to the rights and contentions of the parties in the pending suit. Nothing stated here-in-above shall amount to expression of any opinion by this Court on the merits of the suit pending trial in the Court of Additional District Judge, Delhi. In the facts and circumstances of the case the parties are left to bear their own costs.