Delhi District Court
Parwati Devi vs Madhu Manak Lata on 13 April, 2009
1
In the court of Ashwani Sarpal, Addl. District Judge-05,
West District, Tis Hazari Court Delhi.
Parwati Devi
-------Appellant/Defendant
vs.
Madhu Manak Lata
------Respondent/Plaintiff
(MCA no. 4/09)
Date of institution-13-2-2009
Date of decision-13-4-2009
(Appeal against order of Civil Judge dated 17-1-2009)
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ORDER:-
Respondent/plaintiff in her suit bearing no. 431/06 pending in court of Civil Judge for recovery of possession, arrears of rent and mesne profits moved an application for giving directions to the appellant/defendant to pay arrears and future damages apparently under Order 39 Rule 10 CPC. This application was firstly dismissed on 30-1-2008 but in appeal matter was remanded back to the trial court for fresh decision on this application. Ld. ADJ vide order dated 30-4-2008 also directed trial court to consider plea of suspension of rent being raised by the appellant/defendant.
The matter again came back before Trial Court who in its order dated 17-1-2009 on basis of admissions made by the defendant in her written statement directed her to pay Rs. 3000/- per month from September, 2005 till 2 date and continue to pay this much amount to plaintiff till the disposal of the suit or further orders. Defendant was also directed to make the payment of arrears of rent within three months from the date of order. However, the order of ld. Civil Judge does not show anywhere that plea of suspension of rent was ever considered despite directions of appellate court dated 30-4-2008. Defendant in this appeal also showed grievance of non consideration of her plea of suspension of rent on account of disconnection of electricity and sealing of tenanted premises by MCD and requested for remanding back the matter for fresh decision. However instead of remanding back the case again, I deem it appropriate to consider the plea of suspension of rent as raised by defendant in this appeal itself.
Defendant in her written statement admitted relationship of landlord and tenant. She also admitted her liability to pay rent at the rate of Rs. 3000/- per month. There is also an admission in her written statement that rent was paid only upto August, 2005 and there is no dispute that thereafter no rent was paid. There is also no dispute of the fact that during the pendency of the suit, MCD sealed the premises on 16-10-2007. Other disputed facts what was the exact rate of rent, whether rent deed was got signed from the defendant by playing fraud, whether civil court has jurisdiction or not etc. are matters which are to be decided after the trial. But at this stage, admissions made by the parties in their pleadings are sufficient to decide the application moved. I have heard counsel for both parties. Counsel for appellant cited case law Kailash Ch. Jain vs. Gyatri Devi 1973 RLR (Note) 81.
Under Order 39 Rule 10 CPC, court is competent to order for making payment of arrears of admitted rent and future use and occupation charges. However such orders must be based upon only on admissions and that is also to an extent of admissions. Now whether plea of suspension of rent is available to the defendant or not and if is available then to what an extent is being considered below.
3Suspension of rent on ground of disconnection of electricity:- In the plaint, it is specifically stated that rent does not include electricity charges and this fact is nowhere disputed by the defendant in her written statement. Defendant alleged that electricity of her tenanted premises was disconnected by plaintiff illegally so she is not liable to pay any rent. However this submission itself is contradictory from her own written statement and thus cannot be accepted. In the written statement, defendant has alleged that in the tenanted premises no facility including electricity was supplied. When no facility of supply of electricity was given then how it could be withhold or disconnected is not clarified. In the written statement itself no ground of seeking suspension of rent due to alleged deprivation of electricity is taken. In a legal notice dated 5- 9-2005 sent on behalf of defendant to plaintiff, it is mentioned that electricity was disconnected just after handing over the possession of the shop which took place in 10th June, 2004. It means that electricity was disconnected in the June, 2004 itself, then why defendant continued to pay rent till August, 2005 is not explained. Moreover in reply of the application of the plaintiff, nowhere it is disclosed on which date or month electricity was disconnected. However in the present appeal, it is alleged first time that electricity was disconnected in the month of September, 2005. Taking of contradictory plea regarding disconnection of electricity disentitle the defendant to claim any suspension of rent on this account.
When defendant herself is repeatedly saying in her written statement that no electricity was provided in her tenanted premises by the plaintiff then it can be inferred that either she herself got electricity connection or made other arrangements for supply of power. Defendant also stated that she was running manufacturing unit in the tenanted premises. The running of such type of unit without any electricity connection is impossible. Defendant has not placed on record any document to show that she had made payments of electricity bills. No suspension of rent is permissible if defendant had committed default in making payments of her electricity bills. Plaintiff cannot be blamed for disconnection of electricity due to non payment of electricity 4 bills. Defendant has thus prima facie failed to show that disconnection of electricity was even remotely due to act or conduct of the plaintiff, so in such circumstances, no suspension of rent can be allowed to the defendant in this regard.
Suspension of rent due to sealing of premises:- The version of defendant made in this appeal that MCD had sealed the premises on 16-10-2007 due to violation of Master Plan during pendency of the suit is nowhere denied by the plaintiff. The question whether the premises was got sealed by the plaintiff by making complaints in order to harass the defendant or defendant herself got the premises sealed to put some pressure upon the plaintiff is a disputed fact which is not required to be looked into in this proceedings. However it is clear that a govt. agency had sealed the tenanted premises and deprived the defendant to use the same. None of the parties have approached MCD for opening of seal till date. Defendant is not able to use the tenanted premises and to run her business from there due to its sealing and that make out a ground for suspension of rent. In such situation, I am of the view that suspension of rent can be allowed to the defendant with effect from 16-10-2007 till the premises is de-sealed and she is put into possession of the tenanted premises again.
In view of the above discussions, this appeal is partly allowed. Decision of ld. Civil Judge dated 17-1-2009 is modified to an extent that now defendant shall pay arrears of rent at the rate of Rs. 3000/- per month with effect from September 2005 till 15-10-2007. This amount shall be paid to the plaintiff against proper receipt or deposited in court now within 7 days from the date of this order. The liability of defendant to pay future rent/use and occupation charges at the rate of Rs. 3000/- per month would start only after the tenanted premises is de-sealed by MCD and defendant is put into possession of the tenanted premises again. Either of the party can take steps before appropriate authority for getting the seal opened as per law. If any dispute arises after de-sealing of the premises whether defendant got 5 possession of tenanted premises or not, then trial court may be approached in this regard for putting defendant into its possession subject to final decision of the suit on merits. Appeal is disposed off. Trial court record be returned along with the copy of this order and appeal file be consigned to record room.
(Ashwani Sarpal)
Dt. 13-4-2009 Additional District Judge