Delhi District Court
Sh. Naveen Capoor vs Sh. Anil Chopra on 11 March, 2022
IN THE COURT OF ADJ07, SOUTHEAST DISTRICT, SAKET COURTS,
DELHI
Presided By: Mr. Jay Thareja, DHJS
RCA No: 29/2019
Sh. Naveen Capoor
D3, Jangpura Extension,
New Delhi110014.
... Appellant
Versus
1. Sh. Anil Chopra
D3, Jangpura Extension,
New Delhi110014.
2. Sh. Suresh Chopra
D3, Jangpura Extension,
New Delhi110014. ... Respondents
APPEAL UNDER SECTION 96 READ WITH
ORDER XLI RULE 1 OF CPC, 1908
DATE OF INSTITUTION : 02.03.2019
DATE OF RESERVING FOR JUDGMENT : 11.03.2022
DATE OF JUDGMENT: 11.03.2022
JUDGMENT
1. The appellant/defendant/tenant (henceforth 'appellant') has filed this appeal under Section 96 read with Order XLI Rule 1 of CPC, 1908, challenging the judgment and decree dated 28.10.2016, passed by the Court of Ld. Civil Judge01, South District, Saket Courts, New Delhi RCA No.29/2019 Sh. Naveen Capoor v Sh. Anil Chopra & Anr.
Page No.1 of 12(henceforth 'Ld. Trial Court') in Suit No.83066/16, Sh. Anil Chopra & Anr. v Sh. Naveen Capoor (henceforth 'subject suit').
2. By way of the impugned judgment and decree dated 28.10.2016, the Ld. Trial Court has decreed the subject suit and interalia granted to the respondents/plaintiffs/landlords (henceforth 'respondents')
(a) the relief of ejectment/possession qua the tenanted premises viz. barsati floor of property no. D3, Jangpura Extension, New Delhi14, comprising of two rooms, one kitchen, one bathroom, two store rooms and the terrace as shown in the site plan, Ex.PW1/1, (b) the relief of recovery of damages/mesne profits at the rate of Rs.14,000/ per month from the date of filing of the subject suit till the date of handing over of the possession of the tenanted premises along with interest at the rate of 6% per annum and (c) a permanent prohibitory injunction to the effect that the appellant shall not create any third party interest in the tenanted premises.
3. In the impugned judgment dated 28.10.2016, the Ld. Trial Court, after duly noting (a) the pleadings of the parties, (b) the evidence led by the respondents, (c) the failure of the appellant to crossexamine PW1 Sh. Anil Chopra and (d) the failure of the appellant to lead any evidence in his defence, has concluded that the respondents are entitled to the reliefs, as aforesaid.
4. Upon primafacie finding (a) this appeal to be hopelessly barred by the law of limitation, as provided in Section 3 read with Article 116 of the Schedule to the Limitation Act, 1963; (b) the impugned judgment and RCA No.29/2019 Sh. Naveen Capoor v Sh. Anil Chopra & Anr.
Page No.2 of 12decree dated 28.10.2016 to be in accordance with judgment of the Hon'ble High Court of Delhi in Bhupinder Kalra v Paramjit Kaur & Ors., (2016) SCC OnLine Del 53891 and (c) the conduct of the appellant to be falling within the four corners of the observations made by the Hon'ble High Court of Delhi in Jai Gopal Goyal v Bishan Dayal Goyal, 2007 (5) AD (Delhi) 690 and the observations made by the Hon'ble Supreme Court qua dishonest tenants in Gayatri v M. Girish, (2016) 14 SCC 142 and Ishwarlal Mali Rathod v Gopal & Ors., (2021) SCC OnLine SC 921 2, I have requested the Ld. Advocate for the appellant to address the arguments qua the condonation of delay in filing of this appeal and also qua the merits of this appeal. In response thereto, the Ld. Advocate for the appellant has made the following submissions.
5. Firstly, the Ld. Advocate for the appellant has submitted that the delay in filing of this appeal should be condoned and this appeal should be allowed because the appellant was let down by the Advocate, whom he had engaged for the purpose of defending the subject suit, after filing of the written statement and because the appellant had found about the impugned judgment and decree dated 28.10.2016 only in December 2018, when he had approached his current Advocates and handed them, the file of the subject suit. The said submission of the Ld. Advocate for the appellant is liable to be rejected because in this appeal, the appellant has 1 In the suit resulting in passing of the said judgment by the Hon'ble High Court of Delhi, the defendant/tenant had indulged in conduct similar to the appellant herein and tried every trick to frustrate the plaintiff/landlord. 2 In both the said judgments, the Hon'ble Supreme Court has lamented upon the habit of tenants to protract the disposal of landlordtenant ejectment/possession suits and exhorted the members of the Bar and the citizenry (especially tenants) to not indulge in dilatory tactics.
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Page No.3 of 12nowhere disclosed the name of the Advocate, whom he had engaged for the purpose of defending the subject suit, after filing of the written statement, through Sh. P.K. Ray, Ld. Advocate and who had allegedly let him down by not appearing w.e.f. 16.09.2015 in the subject suit and because as such, the said plea of the appellant appears to be a bogey, pleaded only with a view to mislead this Court. 3 Also, the said submission of the Ld. Advocate for the appellant is liable to be rejected because in view of the judgments of the Hon'ble High Court of Delhi in Jai Gopal Goyal v Bishan Dayal Goyal, 2007 (5) AD (Delhi) 690, Swaran & Anr. v Indu Wahi & Ors., 2017 SCC OnLine Del 1050 and Sanjay Kalra v State, 2021 SCC Online Del 590, this Court cannot accept the the said submission at the mere asking of the appellant or the Ld. Advocate for the appellant.
6. In Jai Gopal Goyal v Bishan Dayal Goyal, 2007 (5) AD (Delhi) 6904, the Hon'ble High Court of Delhi, while dismissing an application filed by the defendant under Order IX Rule 13 of CPC, 1908, has observed as under:
"16. The various stages in the present suit show that 3 It is relevant to note that if the appellant had disclosed the name of the said Advocate, this Court could have summoned the said Advocate and found out if he/she had genuinely let down the appellant or if the situation was vice versa. 4 In the said judgment, the Hon'ble High Court of Delhi has referred to its previous judgment in National Small Industries Corporation Ltd. v Thermosetting Industrial Projects 2001 II AD (Delhi) 857, wherein it was observed that engaging a lawyer does not mean that the party is absolved of his/her duty to diligently pursue the case. Recently a tendency has developed amongst litigants to blame his/her lawyers for adverse orders passed without realizing that a lawyer cannot conduct the case without proper instructions from the party. The lawyer is not expected to write to his client after every date of hearing about the developments in the case unless there is a specific contract about the same.RCA No.29/2019
Sh. Naveen Capoor v Sh. Anil Chopra & Anr.Page No.4 of 12
the case was the at the stage of evidence. It was the bounden duty of the defendant to have made necessary enquiries and the defendant cannot sleep over the matter for years. The excuse of telephonic conversations with the counsel is a convenient one and it would normally be expected that there would be some written communication between the party and the counsel. No affidavit of the earlier counsel has been filed explaining the position nor has any complaint been lodged against the earlier counsel for the negligence of duties in not defending the defendant, if the allegation of the defendant is assumed to be correct. All these facts show that the defendant was either negligent or possibly was deliberately evading the process of this Court to only come now at the belated stage to evade the consequences of the decree passed against the defendant."
7. In Swaran & Anr. v Indu Wahi & Ors., 2017 SCC OnLine Del 1050, the Hon'ble High Court of Delhi, has observed as under:
"6. The counsel for the petitioners / plaintiff has commenced his argument by stating that "the petitioners / plaintiffs have been let down by their earlier advocate".
7. Such grounds which prevailed with the Privy Council and other superior Courts established in RCA No.29/2019 Sh. Naveen Capoor v Sh. Anil Chopra & Anr.
Page No.5 of 12British India, which did not give weightage to and had no faith in the ability of the Indian lawyers, specially in moffusils (sic), to diligently protect the interest of their illiterate clients, ought not to continue to prevail in today‟s date and time in independent India.
8. Perhaps, it is because of the said grounds having been allowed by the Courts to prevail, that perfection and excellence is lacking in the legal profession and mediocrity has set in.
9. It further appears that if the Courts and the legal process were to demand excellence and perfection, certainly the legal profession would reciprocate and mediocrity will give way to meritocracy. It is time to send a strong signal that mediocrity will not be tolerated in Courts. This will improve the legal system and help it achieve the targets. It is often said, bar is the mother of bench also.
10. I have in several orders dealing with petitions under Article 227 of the Constitution of India in this Roster been observing that the practice of a new counsel engaged, blaming earlier counsel, has become rampant and without the new counsel even checking up with the earlier RCA No.29/2019 Sh. Naveen Capoor v Sh. Anil Chopra & Anr.
Page No.6 of 12counsel, whether the default was of the earlier counsel or of the litigant's own.
11. In the present case also, the petitioners / plaintiffs though blame their earlier counsel, have not even complained to him, least take any action against him and the counsel for the petitioners / plaintiffs also has not taken the trouble of ringing up the earlier counsel to find out as to what had transpired."
8. In Sanjay Kalra v State, 2021 SCC Online Del 590, the Hon'ble High Court of Delhi, has observed as under:
"10. No ground for review is made out. Unless the litigants before the Court, who always appear though Advocates, are bound by the actions of their Advocates, no effective proceedings can be taken before the Court, with the litigant replacing one Advocate with another, one after another, always taking the ground of mistake of the earlier Advocate. Admittedly, no proceedings have been taken against the earlier Advocate who is now sought to be blamed. No reason has been given, why the earlier Advocate could not prepare to argue the applications on 19th December, 2019. In fact, with Mr. Gaurav Dua, Advocate for the review applicant Payal Kapoor arguing on this basis only, the possibility of his successor RCA No.29/2019 Sh. Naveen Capoor v Sh. Anil Chopra & Anr.Page No.7 of 12
Advocate blaming him in future, cannot be ruled out. The reasoning, of litigants being not made to suffer for the mistakes of their Advocates is of an era when litigants were unaware and the Advocates not so qualified. The position today is entirely different and such pleas, especially when found to be taken for oblique purposes, cannot be entertained today."
9. In view of the aforesaid, the first submission of the Ld. Advocate for the appellant, as noted in paragraph 5 of this judgment, is rejected.
10. Secondly, the Ld. Advocate for the appellant has submitted that the delay in filing of this appeal should be condoned and this appeal should be allowed because the appellant has a good defence qua the subject suit. The said submission of the Ld. Advocate for the appellant is liable to be rejected because a meaningful reading of the written statement filed by the appellant in the subject suit, as was required to be done by the Ld. Trial Court and as is required to be done by this Court, on account of the judgment of the Hon'ble High Court of Delhi in Bhupender Jit Singh v Sonu Kumar, (2017) SCC OnLine Del 11061 5, clearly reflects that the appellant has no tenable defence qua the subject suit. I say this because 5 In the said judgment, which was passed in relation to a landlordtenant ejectment/possession suit, the Hon'ble High Court of Delhi has observed (a) the Court is to read the pleadings of the parties meaningfully; (b) issues are to be framed on 'material' and not on all propositions of law and fact and (c) a plea, which on the face of it is found by the Court to be untenable, does not require framing of any issue.
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Page No.8 of 12in the written statement filed in the subject suit, the appellant has admitted
(a) that initially he was inducted as a tenant qua the tenanted premises by Late Sh. Nanak Chand Chopra (father/predecessor in interest of the respondents); (b) that despite an alleged oral agreement to sell entered between him and Late Smt. Raj Chopra (mother/predecessor in interest of the respondents) in 2001, his status qua the tenanted premises had not changed and he had last paid rent at the rate of Rs.7,500/ per month qua the tenanted premises till October 20126 and (c) that the oral agreement to sell allegedly entered between him and Late Smt. Raj Chopra (mother/predecessor in interest of the respondents), in 2001, had not matured into execution of a sale deed in his favour by Late Smt. Raj Chopra. In my view, with the said admissions on record, the appellant cannot claim to have changed his status qua the tenanted premises, from a tenant to an owner of the suit property and consequently, the appellant has no defence qua the subject suit. In respect of this observation, reference is craved to the judgment of the Hon'ble High Court of Delhi in Jiwan Dass Rawal v Narain Dass & Ors., AIR 1981 Del 291 (quoted in Sanjeev Pathak v Somnath & Ors, (2013) 204 DLT 647) wherein it has been categorically held by the Hon'ble High Court of Delhi that in case of an agreement to sell of an immovable property, the agreement purchaser has no ownership rights in the immovable property, not only till a decree of specific performance of the agreement to sell is passed but also till the conveyance/sale deed, in pursuance of the decree of specific 6 In this regard, reference is craved to the judgment of the Hon'ble High Court of Delhi in M.R. Sahni v Doris Randhawa AIR 2008 Delhi 110 (quoted with approval in Hari Gopal Manu v B.S. Ojha 2016 SCC Online Del 985) wherein it has been held, "Once a tenant, always a tenant unless the status changes by contract or by law."
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Page No.9 of 12performance, is executed. Also, reference is craved to the judgments of the Hon'ble Supreme Court in Shyam Narayan Prasad v Krishna Prasad & Ors., (2018) 7 SCC 646 and H. K. Sharma v Ram Lal, (2019) 4 SCC 453, wherefrom it emerges that if a tenant continues to pay rent qua the tenanted premises, after execution of an agreement to sell with the landlord, then the status of the tenant qua the tenanted premises does not change and the tenant continues to remain a tenant qua the tenanted premises.
11. In view of the aforesaid, the second submission of the Ld. Advocate for the appellant, as noted in the preceding paragraph, is also rejected.
12. As a net result of the rejection of both the submissions made by the Ld. Advocate for the appellant, this appeal is dismissed, on account of the law of limitation, as provided in Section 3 read with Article 116 of the Limitation Act, 1963 and alternatively, on merits.
13. Before parting with this judgment, it is clarified that the plea of the appellant that the respondents had not properly valued the subject suit for the purpose of courtfees and jurisdiction and as a consequence thereof, the Ld. Trial Court did not have the pecuniary jurisdiction to hear the subject suit does not merit any consideration by this Court (a) because as stated earlier, this appeal is barred by the law of limitation, as provided in Section 3 read with Article 116 of the Limitation Act, 1963, (b) because the appellant should have duly pressed upon the said plea before the Ld. RCA No.29/2019 Sh. Naveen Capoor v Sh. Anil Chopra & Anr.
Page No.10 of 12Trial Court (re: Section 21(2) of CPC, 1908), (c) because even if the respondents had properly valued the relief of ejectment/possession as per Section 7(xi)(cc) of the Courtfees Act, 1870, the combined value of the reliefs of possession and permanent prohibitory injunction, sought by the respondents by way of the subject suit, would have been Rs.1,68,130/ (which was well within the pecuniary jurisdiction of the Ld. Trial Court.); (d) because the respondents, being unaware of the damages/mesne profits likely to be awarded to them by the Ld. Trial Court, were entitled to put a tentative valuation qua the said relief with an undertaking to later pay the courtfees, as per the damages/mesne profits awarded to them by the Ld. Trial Court; (e) because the Ld. Trial Court, is still entitled to recover the requisite courtfees from the respondents qua the relief of recovery of damages/mesne profits at the rate of Rs.14,000/ per month granted to them, as a precondition for executing the said part of the impugned decree dated 28.10.2016 and most importantly (f) because the appellant has been unable to show that any 'failure of justice', as mandated by Section 21(2) of CPC, 1908, has occurred on account of the trial of the subject suit by the Ld. Trial Court.7
14. The Reader is directed to prepare a decree sheet, as per this judgment. Also, the Ahlmad is directed to send a certified copy of this judgment and the consequent decree to the Ld. Trial Court for record. After compliance of the said directions by the Reader and Ahlmad, the file shall 7 Section 21(2) of CPC, 1908, was inserted by the legislature in 1976 to deal precisely with defendants like the appellant herein, who wish to skirt decrees passed against them, without ever seriously pressing upon their objection qua the pecuniary jurisdiction of the Trial/Suit Court.
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Page No.11 of 12be consigned to record room.
Digitally signed by JAY JAY THAREJA
THAREJA Date:
2022.03.11
16:06:38 +0530
Announced in open Court (Jay Thareja)
today on 11.03.2022 Ld. ADJ07, South East District,
Saket Courts/Delhi
RCA No.29/2019
Sh. Naveen Capoor v Sh. Anil Chopra & Anr.
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