Delhi District Court
Bibi Alape Kaur vs M/S Punchip Associates Pvt. Ltd on 12 April, 2021
IN THE COURT OF MS. SUNENA SHARMA: ADDL.
DISTRICT JUDGE- 04: PATIALA HOUSE COURTS: NEW
DELHI
CS no.59197 of 2016
Date of institution of Suit : 22.07.2013
Date of final arguments : 01.04.2021
Date of judgment : 12.04.2021
1. Bibi Alape Kaur
w/o Sh. G.F.Pauro
r/o 2, Kasturba Gandhi Marg,
New Dehli-110001
2. M/s Atma Ram Properties Pvt. Ltd.
Through its Directors Sh Ashvin Chadha
Regd. Office at 8, First Floor, Atma Ram Mansion
Scindia House, Connaught Circus
New Delhi -110001.
3. S. Indrave Singh Mann,
S/o Sh. Shivinder Pal Singh
r/o 10, Sardar Patel Marg,
New Delhi.
....Plaintiffs
Versus
1. M/s Punchip Associates Pvt. Ltd.
E-12, Connaught Circus
New Delhi.
2. Ms. Bimla Malik
E-12, Connaught Circus
New Delhi.
3. M/s Moorni Investments and Finance Company Ltd.
E-12, Connaught Circus
New Delhi.
4. Madhu Mehra
E-12, Connaught Circus
New Delhi.
5. State Bank of Bikaner and Jaipur
Through its
General Manager (Delhi Network)
Zonal Office, Ahinsa Bhawan,
Shanker Road, New Rajinder Nagar,
CS no.59197 of 2016 Page no.1 of 32
Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
New Delhi.
Also At :
State Bank of Bikaner and Jaipur
at its Head Office
Tilak Marg, Jaipur 302005. ....Defendants
JUDGMENT
1. By way of this suit, declaration has been sought to the effect that plaintiffs are entitled for release of amount of Rs. 1,29,11,700/- (Rupees One Crore Twenty Nine Lakh Eleven Thousand and Seven Hundred only) or any other amount deposited by Defendant no. 5 (hereinafter referred as D-5) as per the records maintained by Registry of Hon'ble High Court alongwith interest accrued or earned on said amount.
2. As set out in the plaint, the plaintiffs' case in nutshell is that : -
(a) Plaintiffs are the owners of the property bearing no.
G72, Connaught Circus, New Delhi ad-measuring approx. 7063 sq. feet (herein after referred as suit premises). The suit premises was let out by plaintiffs and/or their predecessor in interest to defendant no. 1 M/s Punchip Associates Pvt. Limited (hereinafter referred as D-1) vide lease deed dated 18.09.1986 registered on 20.09.1986 on monthly rent of Rs. 189.50p. D-1 is alleged to have assigned or parted with the possession of an area measuring 1280 sq. feet to defendant no. 5 State Bank of Bikaner and Jaipur (hereinafter referred as D-5) and entire remaining area to defendant no. 2 to 4 (hereinafter referred as D-2 to D-4) without the consent of the plaintiff. It is alleged that D-2 to D-4 had also further sub-let the premises to D-5 and resultantly, the whole of the premises came to be in the possession of D-5. It is stated that on the expiry of lease period, the tenancy of D-1 became month to month tenancy terminable under Section 106 of Transfer of Property Act. It is further stated that the suit premises was sub-let to D-5 at CS no.59197 of 2016 Page no.2 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors monthly rent of Rs. 2,09,330/-. It is further stated that by virtue to notice dated 09.04.1995 under Section 106 of Transfer of Property Act, plaintiffs terminated tenancy of D-1, on 31.05.1995. But despite said notice, premises was not handed over to plaintiffs or their predecessor-in-interest.
(b) Plaintiffs filed a suit against the defendants before the Hon'ble High Court bearing no. CS (OS) no. 2842/1995 seeking recovery of possession of the suit premises from defendants. Said suit was decreed vide judgment and decree dated 19.09.2007, passed by Hon'ble Single Judge of Delhi High Court and a decree of possession was passed in favour of plaintiffs. D-1 to D-4 preferred an appeal RFA (OS) no. 84/2007 before Hon'ble Division Bench against said judgment and decree dated 19.09.2007, but the same got dismissed vide order dated 11.01.2011. However, during pendency of said appeal upon an application moved by D-5, Hon'ble Division Bench vide order dated 14.11.2008 permitted D-5 to deposit the arrears of rent in the Court without prejudice to the rights and contentions of the parties and Registry was directed to invest said amount in a short term Fixed Deposit. Thereafter, on application (bearing CM no. 4745 of 2008) of D5, vide order dated 21.04.2009 Hon'ble Division Bench permitted D-5 to deposit the admitted amount of arrears of rent from December, 2008 till the date of order and D-5 was also permitted to deposit the future rent on contractual rate as well every month in the court.
(c) While dismissing said appeal RFA (OS) no. 84 of 2007 on 11.1.2012, it was ordered that the amount deposited by D-5 shall continue to remain deposited with the Registrar of High Court till the parties have their rights to the same, if any, determined by an appropriate Forum. It is stated that pursuant CS no.59197 of 2016 Page no.3 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors to orders dated 14.11.2008 and 21.04.2009 a sum of Rs. 83,15,955/- was deposited by D-5 and as per directions of Hon'ble Division Bench said amount has been invested in various FDRs by the High Court Registry from time to time.
(d) Against the order of dismissal of appeal, D-1 to D- 4 preferred a Special Leave Petition bearing SLP (C) no. 14174/2011, which also met with the same fate and got dismissed vide order dated 08.11.2011. It is further stated that since the possession of the said premises was not handed over to plaintiffs, plaintiffs filed an execution petition no. 33 of 2012 for execution of Judgment and Decree dated 19.09.2007. In said execution petition vide order dated 09.05.2012, statement of D-5 was recorded to the effect that all the arrears for use and occupation of said premises from December, 2011 till 30.04.2012 shall be deposited in the court and D-5 will handover the peaceful, vacant physical possession of the said premises to the plaintiffs before the Ld. Joint Registrar of the court on 31.08.2012. However, vide order dated 21.05.2012, it was clarified that period for depositing the arrears for use and occupation of the premises shall be read as December, 2010 till 30.04.2012 and further D-5 was permitted to deposit the rent (use and occupation charges) for the months of May to August, 2012 as and when it became due and payable.
(e) In pursuance to above statement made on behalf of D-5 and orders of Hon'ble High Court of Delhi, a total sum of Rs. 45,95,745/- was deposited by D-5. Thus a total sum of RS. 1,29,11,700/- has been deposited by D-5. As per the order of Hon'ble Division Bench, the said amount shall continue to remain deposited with the Registrar of the Court till the rights of the parties are determined by appropriate Forum.
CS no.59197 of 2016 Page no.4 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
(f) A legal notice dated 18.01.2013 was served through speed post upon defendants to provide their no objection to plaintiffs to get the aforesaid amount released in their favour. D-5 filed reply dated 18.02.2013 to said notice stating that it is a matter between the plaintiffs and the other defendants as D-5 has already deposited a sum of Rs.1,29,11,855/- for the period w.e.f. 01.10.2007 to 31.08.2012. D-1 to D-4, however, did not reply to the abovesaid notice. As a consequence, plaintiffs filed the present suit for seeking determination of their rights and entitlement to release of said money deposited in the Hon'ble Court.
(g) A separate notice dated 18.01.2013 was also served upon D-5 for claiming a sum of Rs.15,14,32,135/- and all applicable taxes including service tax, alongwith prevailing rate of interest, on account of their illegal and unauthorized possession and occupation of said premises. D-5 replied said notice vide reply dated 18.02.2013 stating that D-1 and other defendants have already filed a suit bearing CS (OS) no. 2195 of 2012 for recovery of Rs. 5,08,53,600/- for mesne profits alongwith interest against D-5. It is stated that plaintiff was also impleaded as a party in the abovesaid suit.
(h) It is further stated that since the judgment and decree for possession dated 19.09.2007 was passed in favour of plaintiff, therefore, plaintiffs are entitled to get the amount deposited by D-5 by way of orders passed in RFA (OS) no. 84 of 2007 and Ex. Petition no. 33 of 2012. It is stated that as per the judgment dated 19.09.2007 passed in CS (OS) no. 2842 of 1995, plaintiffs are held to have validly terminated the tenancy of D-1 vide notice dated 09.04.1995 w.e.f. 31.05.1995 and in view thereof, defendants had no right to occupy said CS no.59197 of 2016 Page no.5 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors premises and D-5 also became an illegal and unauthorized occupant. It is stated that D-1 to 4 have no right or entitlement to get said amount deposited by D-5 released as the lease deed dated 18.09.1986 between plaintiffs and D-1 was only for five years and after expiry of five years it became month to month tenancy. Since there was no protection of Delhi Rent Control Act, 1958, for rent being more than Rs. 3500/- per month, said tenancy was terminated vide notice dated 09.04.1995 on the expiry of 31.05.1995. Resultantly, the right of D-1 to occupy the suit premises became illegal and in view thereof, plaintiffs are entitled for release of said amount deposited by D-5 alongwith the interest accrued thereon.
(i) The cause of action is stated to have arisen in favour of plaintiffs when the lease deed dated 18.09.1986 came to an end and when the sub-tenancy was created in the premises without permission of the plaintiffs. It further arose when notice of termination of tenancy dated 09.04.1995 was served upon D-1 and when the D-1 failed to hand over the possession of said premises to plaintiffs and on all different dates when plaintiffs filed suit for possession, when judgment and decree dated 19.09.2007 for possession of suit premises was passed, when judgment dated 11.01.2011 dismissing appeal of D-1 to D-4 was passed, when SLP was dismissed by Hon'ble Apex court vide order dated 08.11.2011, when D-5 deposited the amount as per the directions of the court and when legal notice dated 18.01.2013 was issued to defendants seeking no objection from them for release of amount deposited by D-5.
(j) Since both parties reside and work for gain in New Delhi, this court is stated to have territorial jurisdiction. For the purpose of pecuniary jurisdiction, the suit has been CS no.59197 of 2016 Page no.6 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors valued at Rs.1,29,11,700/-on which court fees of Rs.5,16,500/- has been paid.
3. Pursuant to the summons of the suit, defendants appeared in the matter. D-1 to 4 and D-5 filed their written statement separately.
4. D-1 to D-4 took preliminary objection that suit is not maintainable as plaintiffs are not entitled to relief as claimed in the suit. It is stated that the suit is liable to be rejected under provisions of Order 2 rule 2 r/w Order 7 rule 11 CPC. Further Order 2 rule 2 CPC enables plaintiff to seek all reliefs in respect of same cause of action and omission to sue for all such reliefs in the earlier suit precludes the plaintiffs from suing for such omitted reliefs unless specific leave of the court has been obtained in the earlier suit. Whereas, plaintiffs have not sought any leave of the court to recover damages for the use and occupation of the suit property, therefore, the plaintiffs are not entitled for the relief claimed. It is further stated that the first suit was instituted on 05.11.1995 and at that time, plaintiffs had the right to recover damages for use and occupation of the suit premises from termination of the tenancy till the vacation and handing over of peaceful and vacant possession. The claim of damages for use and occupation of the said premises for the period starting from 01.06.1995 till 31.08.2012 stands legally foreclosed to the plaintiffs as no leave of the court was sought for in the first suit. Plaintiffs are thus not entitled to claim any amount towards rent as they have failed to claim the same at the time of filing of eviction suit in the year 1995. Further, the suit is barred by law of limitation and liable to be dismissed u/O 7 rule 11 (d) of CPC.
CS no.59197 of 2016 Page no.7 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
5. Further that plaintiffs have no legal right to claim release of said amount deposited by D-5 for lack of privity of contract between plaintiffs and D-5. Further that only D-1 to D-4 are entitled to said amount as there was a landlord tenant relationship between them and D-5. It is further stated that the amount claimed in the present suit was deposited with Registry of Hon'ble High Court in CS (OS) no. 2842 of 1995 and only D-1 to D-4 can claim said amount as it was part of rent due for the period w.e.f. 01.10.2007 to 31.08.2012.
6. It is further stated that the suit of the plaintiffs is without any cause of action and deserves dismissal under Order 7 rule 11 (a) CPC. Further that not even a single document has been filed for establishing relationship between plaintiffs and D-5 to claim the amount deposited by D-5.
7. In para-wise reply, D-1 to 4 have denied that the suit has been filed by a duly authorized person on behalf of plaintiff no.2. They have categorically denied that D-1 had illegally sub-let, assigned or parted with the possession of area measuring 1280 sq. feet to D-5 or illegally sub let/parted with possession of remaining area to D2 to D4, without obtaining written consent from the landlords as alleged in the plaint. They further denied that after expiry of lease period, the tenancy of D-1 became month to month tenancy, terminable by a notice under Section 106 of Transfer of Property Act or that the tenancy of D-1 was terminated by virtue of plaintiffs' notice dated 09.04.1995. It is further denied that tenancy stood determined w.e.f. 31.05.1995 or in view thereof, possession of suit premises was liable to be handed over to plaintiffs.
CS no.59197 of 2016 Page no.8 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
8. D-1 to D-4 admitted to have filed a suit bearing CS(OS) 2195 of 2012 for recovery arrears of rent/mesne profits outstanding due against D-5 and also having therein moved an application IA no. 5470 of 2013 for release of amount in question. D-1 to D-4 denied the service of plaintiffs' notice dated 18.01.2013 for seeking their no objection for release of amounts deposited by D-5 in favour of plaintiffs. D- 1 to D-4 categorically denied that any cause of action ever accrued in favour of plaintiffs.
9. D-5 took the preliminary objection that the suit is not maintainable against D-5 as the issue of release of amount of Rs.1,29,11,855/- is to be determined between plaintiffs and D-1 to D-4 in terms of judgment in RFA (OS) no. 84 of 2007. D-5 further averred that D-5 has already handed over the possession of premises to plaintiffs in terms of order dated 09.05.2012 and deposited the amount in terms of orders of the court dated 14.11.2008, 21.04.2009, 09.05.2012 and therefore, stands discharged from any liability towards rent up to 31.08.2012 and as such, there is no cause of action against D-5 and suit is bad for misjoinder and liable to be dismissed.
10. In para-wise reply, D-5 denied that Sh Ashvin Chadha has been authorized vide alleged resolution dated 23.05.2013 passed by Directors of P-2. D-5 admitted that plaintiffs were the landlord of the said premises and executed a lease deed dated 18.09.1986 and its registration on 20.09.1986. It is also admitted that the premises was sub-let by D-1 however, denied that the subletting was illegal and not in the knowledge of plaintiffs. Judicial orders passed by the court in the applications, suit, appeals and SLP are however, not denied by D-5 as they are matter of record. D-5 also admitted service of notice dated 18.01.2013 upon it by CS no.59197 of 2016 Page no.9 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors plaintiffs and stated that notice was duly replied vide reply dated 18.02.2013. D-5 has denied all other allegations levelled by plaintiffs as wrong and incorrect.
11. In replications to respective WS of defendants, plaintiffs reiterated their stand taken in the plaint as true and correct. In replication to WS of D-1 to 4, plaintiff denied the objections taken by D-1 to D-4 as bald, vague and baseless. It is further stated that the prayer clause and para 10 of the plaint in suit no. CS(OS) 2842 of 1995 be read alongwith other paras of plaint for harmonious construction. It is stated that genesis of the suit lies from the judgment of Hon'ble Division Bench dated 11.01.2021 and in view thereof, suit is well maintainable and is not barred by provisions of Order 2 rule 2 CPC. It is stated that the relief claimed herein could not have been claimed in said previous suit as this suit has been filed after the directions of the Hon'ble Division Bench and both the suits are based on different cause of actions. It is denied that the relief was omitted in the earlier suit. It is stated that plaintiffs are entitled as per law to claim the amount deposited in the Court. The contents of WS are denied being meritless and stated to be wrong. It is stated that the fact that D-5 was illegally inducted as sub-tenant does not bar the plaintiffs to claim the amount. Plaintiffs denied that they are entitled to claim the amount deposited by D-5 for lack of privity with D-5.
12. In replication to WS of D-5, plaintiffs state that the issue of entitlement to the amount deposited by D-5 is to be determined in the presence of D-5 and therefore, D-5 is also a necessary party for its effectual disposal and that suit is not bad for mis-joinder of D-5. It is stated that though there was no relationship of landlord and tenant between plaintiffs and D-
5, but D-5 is liable to pay on account of mesne CS no.59197 of 2016 Page no.10 of 32
Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors profits/damages as it was D-5 who failed to vacate the premises despite termination of tenancy of D-1 and subsequent payment of any amount by D-5 to D-1 to D-4 was also illegal. It is stated that the objections of D-5 are barred by principles of estoppel and res judicata.
13. After completion of pleadings following issues were framed on 28.02.2018:-
1. Whether the suit of the plaintiff is liable to be rejected under the provisions of order 2 rule 2 read with order 7 rule 11 CPC ? OPD 1 to 4.
2. Whether the plaint is liable to be rejected u/order 7 rule 11(d) of CPC as the suit has not been filed within the period of limitation ? OPD 1 to 4.
3. Whether the plaint does not disclose any cause of action ? OPD 1 to 4.
4. Whether the suit is bad for mis-joinder of defendant no. 5 ? OPD 5.
5. Whether the plaintiff is entitled to the relief of declaration, declaring that they are entitled to the release of amount of Rs. 1,29,11,700/- or any other amount deposited by the defendant no.5, alongwith the interest accrued or earned on the said amounts, on the FDRs/deposits ? OPP.
6. Relief?
Since all the issues framed in this case were legal issues based on admitted facts and documents, therefore, no evidence was led in case and parties were asked to straightway address their arguments.
14. During course of arguments, it was informed that three more suits details of which are given herein below are CS no.59197 of 2016 Page no.11 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors also pending between the parties before the Hon'ble Delhi High Court and Patiala House Court.
1. CS (OS) 2195 of 2012 filed by D-1 to D-4 against D-5 for seeking damages/mesne profit for period of 2007-2012 pending in Delhi High Court.
2. CS (OS) no 3151/2013 (new CS (OS) no.3430/15) filed by D-5 against D-1 to D-4 for refund of security now pending in Patiala House Courts.
3. Suit no. 1417/2013 filed by plaintiff herein against all the defendants i.e. tenant and sub-tenant in Delhi High Court for seeking damages for three years prior to getting possession of the suit property.
15. It is informed that in aforementioned suit no.1417/13 filed by plaintiffs, the amount lying deposited in the Registry by the sub-tenant D-5, for release of which present suit has been filed, has been excluded from the suit amount. It is also informed that in CS (OS) 2195 of 2012, D-1 to D-4 herein, had moved IA no. 22281 /2014 under Section 24 of CPC seeking two directions-firstly that CS(OS) 3151/2013 titled State Bank of Bikaner and Jaipur Vs. M/s Punchip Associates P. Ltd. And Ors. pending before the Addl. District Judge-02, Patiala House Courts, New Delhi be transferred and consolidated with the suit CS(OS) 2195/2012 and secondly, directions be issued to consolidate CS(OS) 1416/2013 and CS(OS) 1417/2013 with the CS(OS) 2195/2012. Vide order dated 22.04.2015 Hon'ble Delhi High Court was pleased to club only two cases i.e. CS (OS) no. 3151/13 and CS (OS) no. 2195/12 but declined the second prayer for consolidation of CS(OS) 2195/2012, CS(OS) 1416/2013 and CS(OS) 1417/2013.
CS no.59197 of 2016 Page no.12 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
16. It is further informed that vide order dated 01.02.2016 passed in CS (OS) no. 2195 /12, said suit CS(OS) no. 2195/12 and CS (OS) no. 3151/2013 were ordered to be adjourned sine die with liberty to the plaintiffs to get the same revived subject to outcome of present suit and the other suit no. 1417/13 filed by plaintiff herein for seeking damages. However, said order dated 01.02.2016, was set aside by Hon'ble Division Bench vide order dated 29.08.2016 and liberty was given to defendants herein to seek consolidation of CS (OS) no. 2195/2012, CS(OS) no. 1416/2013 i.e. present suit (new no. 59197/16) and CS(OS) no. 1417/2013. Subsequent to said order, defendant D-1 to D-4 herein again moved an application before Hon'ble High Court for transfer of this case to Hon'ble High Court for its consolidation with the other pending cases, but said application was also dismissed by Hon'ble High Court vide order dated 04.10.2016.
17. In the present case, plaintiff is seeking recovery of the amount which is lying deposited with the Registry of Hon'ble High Court. Said amount was deposited by D-5 pursuant to the directions of the Hon'ble Division Bench in RFA no.84 /07 and passed in Execution no. 33/2012.
18. It is argued on behalf of the plaintiffs that the D-1 has no right to claim above amount because under the lease deed dated 18.09.86 executed between plaintiffs and D-1, the right to create sub-tenancy was created in favour of D-1 only for the period of five years (18.09.86 to 17.08.91). Therefore, after termination of lease by efflux of time, D-1 was issued notice of termination and subsequent thereto, suit for possession was filed against all the defendants wherein, decree of possession was passed in plaintiffs favour vide judgment CS no.59197 of 2016 Page no.13 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors dated 19.09.2007.
19 It is further submitted that said judgment dated 19.09.2007 was challenged in appeal before Hon'ble Division Bench wherein vide order dated 11.01.2011, the appeal was dismissed and order of Hon'ble Single Bench was upheld. The said order of Hon'ble Division Bench was further challenged by the D-1 to D-4 in SLP before Hon'ble Apex Court but said SLP was also dismissed vide order dated 08.11.2011. It has been argued on behalf of plaintiffs that once the judgment of Hon'ble High Court decreeing the suit for possession in favour of plaintiffs has attained finality, it does not lie in the mouth of the D-1 to D-4 to say that they are entitled for release of said amount because said money was paid towards arrear of rent/use and occupation charges for the period w.e.f 01.10.07 till 31.08.2012 i.e. for the period subsequent to passing of decree of possession in plaintiffs' favour.
20. It is further argued that tenancy of D-1 got determined on 17.08.1991 by efflux of time but, the suit for possession CS (OS) no. 2842/1995 was filed by plaintiffs only in the year 1995. It is further argued that considering the fact that vide judgment dated 19.09.2007, suit was decreed in favour of plaintiffs and said judgment has already attained finality, D-1 to D-4 are left with no right over said amount deposited by D-5 towards arrears of rent/use and occupation charges, especially when D-1 herein has already enriched itself illegally by receiving the rental from sub-tenant w.e.f. 1991 till 1995.
21. Counsel for defendants has argued that in view of pendency of CS (OS) no. 2195/12 filed by D-1 to D-4 against D-5 before Hon'ble High Court for recovery of amount of CS no.59197 of 2016 Page no.14 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors mesne profit for the period w.e.f. 2008 to 2012 said amount deposited by D-5 for the period w.e.f. 2007 to 2012 cannot be released in plaintiffs' favour.
22 Counsel for D-1 to D-4 further argued that, plaintiffs' claim was even otherwise not maintainable on account of bar of Order 2 rule 2 CPC, because in CS (OS) no. 842/1995, plaintiffs had claimed only the relief of possession and did not pray for mesne profit either from the tenant or from sub-tenant and nor the plaintiffs even sought for any leave/liberty from the Hon'ble High Court for seeking said relief subsequently. It is further argued that plaintiffs having intentionally omitted/relinquished said claim of damages in the earlier suit cannot be allowed to sue subsequently in respect of said claim so omitted or relinquished. Here, I may note that Issue no.1 farmed in this suit pertains to said objection only.
23. The other legal objection is pertaining to bar of limitation for which Issue no.2 has been framed. It has been argued on behalf of D-1 to D-4 that the sub-tenant (D-5) had deposited said amount towards arrears of rent for the period w.e.f. 1.10.2007 to 31.08.2012 but, the present suit for seeking release of said money was filed by plaintiffs only in July, 2013. Whereas, as per Article 52 of Limitation Act, plaintiffs are entitled for recovery of only last three years dues immediately preceding the date of institution of present suit. As per D-1 to D-4, the claim for arrears for the period prior to July, 2010 is barred by limitation.
24. It is further submitted that said money lying deposited in the Registry of Hon'ble High Court cannot be released in plaintiffs' favour prior to disposal of suit CS(OS) no 2125/2012 filed by D-1 to D-4 against D-5 for seeking CS no.59197 of 2016 Page no.15 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors recovery of mesne profit presently pending in Hon'ble High Court.
25. The only argument put forth on behalf of D-5 was that in case said money is ordered to be released in favour of plaintiffs or D-1 to D-4, D-5 may be discharged of any liability in respect of said amount.
26. I have given my thoughtful consideration to respective arguments raised from both the sides and also carefully perused the entire record including written submissions filed by the parties.
27. My issue-wise findings are as under:
Issue no.2 Whether the plaint is liable to be rejected under order 7 rule 11(d) of CPC as the suit has not been filed within the period of limitation ? OPD 1 to 4.
For the sake of convenience this issue has been taken up first. The onus of proving said issue was upon D-1 to D-4 because, this issue has been framed in the wake of preliminary objection taken in their WS.
Present suit has been filed for declaration of plaintiffs' entitlement for release of amount of Rs.1,29,11,700/- lying deposited with the Registry of Hon'ble High Court. Out of above total amount of Rs.1,29,11,700/-, amount of Rs.83,15,955/- was deposited pursuant to the order dated 14.11.2008 and 21.04.2009 passed by Hon'ble Double Bench in RFA (OS) no. 84/2007 on D-5's application vide which D-5 had sought permission to deposit arrears of rent. Vide CS no.59197 of 2016 Page no.16 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors order dated 14.11.2008, D-5 was allowed to deposit amount payable in the court while order dated 21.04.2008, D-5 was permitted to deposit the admitted amount of arrears of rent from December, 2008 till date of order and was also permitted to deposit future rent on contractual rate every month in the court.
28. As already noted above, RFA (OS) no. 84/2007 was filed by D-1 to D-4 against the judgment dated 19.09.2007 of Hon'ble Single Judge vide which suit filed by plaintiffs herein for seeking possession of suit property was decreed. Admittedly, in said suit no relief of arrear of rent or mesne profit / damages was sought by the plaintiffs. Said RFA no. 841/2007 however, came to be dismissed on 11.01.2011. While dismissing the appeal, Hon'ble Division Bench ordered that the amount deposited by respondent no.5 i.e. D-5 herein by virtue of order dated 21.04.2009, in CM no. 4745/2008 shall continue to remain deposited with the Registrar of Hon'ble High Court till the parties have their right to the same, if any determined by an appropriate forum.
29. The remaining amount of Rs. 45,95,745/- was deposited by D-5 in Ex. Petition no. 33/12 filed by plaintiffs herein for seeking execution of judgment/decree dated 19.09.2007. Said amount was deposited towards arrears for use and occupation of suit premises w.e.f December, 2011 till 31.08.2012.
30. From above factual position on record, it is clear that amount lying deposited in the registry of Hon'ble High Court for release of which present suit has been filed is the amount of arrears of rent/charges for use and occupation of suit property deposited by D-5 for the period w.e.f. 1.10.2007 CS no.59197 of 2016 Page no.17 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors till 31.08.2012. Said amount was deposited by D-5 on its own though of course with the permission of the court but not upon any claim raised in said suit either by plaintiffs or D-1 to D-4.
31. A plea has been raised by D-1 to D-4, that in the instant suit, the claim raised by plaintiff for declaration of his entitlement is time bared. As far as the relief of declaration of plaintiffs' entitlement to release of said amount is concerned, the same in my view is well within time for the reason that cause of action for the same arose only on 11.01.2011, when the Hon'ble Division Bench, while dismissing the appeal ordered that said amount shall continue to deposit till parties get their right to said amount if any, determined by an appropriate forum. Till passing of said order by Hon'ble High Court, there was no cause of action existing in favour of plaintiffs to approach any court for seeking declaration of his entitlement for release of said amount.
32. Another plea, which D-1 to D-4 seems to have taken is that declaration sought by plaintiffs cannot be granted in their favour unless the plaintiffs prove that their claim for recovery of said amount from D-5 is within limitation. It is vehemently contended on behalf of D-1 to D-4 that present suit has been filed by plaintiff on 22 nd July, 2013, whereas, the suit amount which is the money deposited towards payment of arrears of rent is for the period w.e.f. 01.01.2007 till 31.08.2012. Therefore, in view of limitation prescribed in Article 52 of Limitation Act, plaintiff is entitled to claim arrears due only for the period of last 3 years immediately preceding the date of institution i.e. arrears due for period w.e.f. 22 July 2010 till 31.08.2012. As a result, plaintiffs claim only to the extent of arrears w.e.f. 22.07.2010 till 31.08.2012 is within time whereas, rest of the claim for money deposited for the CS no.59197 of 2016 Page no.18 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors period w.e.f. 01.10.2007 till 21.07.2010 is barred by limitation.
33. The above arguments has been refuted by the opposite side by submitting that since D-5, who was in illegal possession of suit property at the relevant time had deposited the arrears due w.e.f. 1.10.2007 till 31.08.2012 in the Delhi High Court, there was no occasion for plaintiff to file any suit for said recovery before any court. It is further argued that cause of action to file present suit for getting the claim of entitlement to said deposited amount firstly arose only on 20.10.2017, when the appeal RFA (OS) no. 84/2007 filed by D- 1 to D4 got dismissed by Hon'ble Division Bench and parties were directed to get their claim adjudicated through appropriate forum for release of said amount.
34. I have given my thoughtful consideration to the arguments raised from both the sides. First of all a distinction has to be made between two factual situations. First situation is where the landlord by filing a suit seeks to recover arrears of rent from the tenant/sub-tenant. In such a situation, I totally agree with the arguments that in the light of Article 52 of Limitation Act, arrears of last three years from date of institution of suit shall be legally recoverable and any claim of dues beyond three years shall be barred by time. The second situation is when in a pending suit filed by landlord against tenant and sub-tenants, where landlord has nowhere sought any relief of recovery of arrears of rent or mesne profits, the sub-tenant, being in actual physical possession of tenanted property, seeks to deposit the rent/arrears of rent, recovery of which at that point of time was not barred by limitation i.e. the arrears deposited were never beyond three years from the date of deposit in the court.
CS no.59197 of 2016 Page no.19 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
35. In 2nd fact situation, which is the fact situation of present case, the two questions which fall for consideration are as that: -
1. Can the landlord's claim to said amount be declined on the ground that his claim pending before the court when said amount was deposited, did not include the claim of arrears of rent or mesne profits?
2. Will it be a valid argument to say that landlord shall be entitled to said deposit of arrears only to the extent of arrears falling due in last three years from the date when landlord first approached the court for raising claim for release of said amount.
36. The 1st question mentioned above is relating to bar of Order 2 rule 2 CPC, while the 2 nd question is touching the question of limitation.
37. Before answering above points of consideration one by one, we must first need to understand the purpose of law of limitation. Limitation is a rule of procedure that states that remedy can be available only within a limited time and not subsequently. It prescribes the duration of time within which an aggrieved person can approach the court for any relief. So the purpose is to ensure that plaintiff does not resort to dila- tory tactics and seeks his remedy within stipulated time. One of the purposes is also to prevent the rights of parties to get defeated for lack of evidence because, with passage of time memory may fade, evidence may get destroyed or become stale which may lead to miscarriage of justice. It is for this reason only, law of limitation merely bars the remedy, but not the right. The right continues to exist notwithstanding that CS no.59197 of 2016 Page no.20 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors remedy is barred by limitation. Hence, if the debtor pay a time barred debt to the creditor, he cannot claim it back on the plea that it was a time barred debt. Likewise, a creditor can adjust a payment made by a debtor who owes several debts, towards debt which had become time barred.
38. Under Section 25 (3) of Contract Act,1872, an agreement in writing undertaking to pay a time barred debt is valid and binding. In view of above, it is firstly established rule of law that debt does not cease to be debt because its recovery is barred by law of limitation.
39. In the instant case, plaintiffs are not seeking re- covery of arrears of rent from the defendants, as such plaintiffs are not seeking adjudication of their claim against defendants as debtors of their dues. Rather the dues of arrears of rent stand already deposited by D-5, who was in actual physical possession of suit property, and money was deposited by D-5 on its own sweet will. Even otherwise, said amount of arrears when it was deposited in the court registry was due and legally recoverable and not time barred, although there was no claim filed by plaintiffs pending in any court with regard to recovery of said amount.
40. Position would have been different if D-5 had not deposited said amount in the court and plaintiff had filed the instant suit for recovery of said arrears of rent from the defendants. In that eventuality, plaintiffs' claim beyond period of three years preceding the date of institution of suit, would have been certainly barred by limitation. But here, D-5 has already deposited said amount in the court much prior to filing of this suit and only point of adjudication before this court is whether plaintiffs are entitled for release of said amount espe-
CS no.59197 of 2016 Page no.21 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors cially in the light of the claim staked by D-1 to D-4 on said amount.
41. In the light of aforementioned discussions, I am of the considered view that limitation for filing the present suit for seeking declaration of entitlement for release of said amount arose in plaintiffs' favour only on 11.01.2011, when Hon'ble Division Bench while dismissing the appeal ordered the parties to take legal recourse to prove their entitlement for release of said amount. From said date of 11.01.2011, this suit is well within time. In the light to legal principle that bar of limitation only bars the remedy and not the right, even the other argument that plaintiffs cannot claim recovery of arrears for the period beyond last three years, is also not tenable and suit does not warrant rejection under Order 7 rule 11 (d) CPC on this count.
42. In view of above discussion, issue no.2 is decided in favour of plaintiffs and against D-1 to D-4.
43. Issue no. 1 Whether the suit of the plaintiff is liable to be rejected under the provisions of O 2 rule 2 read with O 7 rule 11 CPC ?
OPD 1 to 4.
The above issue was also framed in view of pre- liminary objection taken by D-1 to D-4 in para no. 2 and 3 of their WS, wherein said defendants have come up with the plea that Order 2 rule 2 CPC mandates every suit to include whole of plaintiff's claim subject to plaintiff's right to relinquish part portion of his claim. Further Order 2 rule 2 CPC, precludes the plaintiffs to subsequently sue in respect of any portion of his CS no.59197 of 2016 Page no.22 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors claim either omitted or relinquished. It is pleaded further that Order 2 rule 2 CPC enables plaintiff to seek all relief in respect of same cause of action in its earlier suit and omission to sue for all reliefs in respect of same cause of action in earlier suit precludes the plaintiff from suing for such relief as are omitted in earlier suit unless specific leave of court has been obtained in the earlier suit with regard to such omitted relief.
44. It is vehemently contended on behalf of D-1 to D- 4 that in plaintiffs' earlier suit CS(OS) no. 2842/95, plaintiffs although reserved their right to claim damages/mesne profits from the date of termination of tenancy till handing over of possession but, plaintiff failed to seek any leave from the court for seeking said omitted relief in a subsequent suit and therefore, present suit is barred under order 2 rule 2 of CPC. In support of above argument, following judgments have been relied upon by defendant's counsel:-
1. Deva Ram and anr. Vs. Ishwar Chand an anr.
1996 AIR 378, 1995 SCC (6) 733 Supreme Court of India.
2. Gurbux Singh Vs. Bhooralal 1964 AIR SC 1810, 1964 SCR(7) 831.
3. Deepa Dua Vs. Tejinder Kumar Muteneja IA No. 19136/2012 in CS (OS) 1363 /2012, Delhi High Court (DOD 22.08.2013).
4. Sucha Singh Sodhi Vs. Baldev Raj Walia and anr in Civil Appeal no. 3777 of 2018 (arising out of DLP (C) no. 13256/2014), Supreme Court of India.
5. Jagmohan Behl Vs. State Bank of Indore CS(OS) 2408/2014 and IA No. 13994/2015 and IA No. 24427/2015 (Delhi High Court) (DOD 22.09.2017) CS no.59197 of 2016 Page no.23 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
45. I have carefully perused the above judgments relied upon by D-1 to D-4. As far as the legal preposition propounded in said judgments is concerned, there is absolutely no fight to said legal position. But, none of said judgments is of any help to defendants as they all are distinguishable on facts.
46 In Deva Ram case (supra) the earlier suit was filed for recovery of sale price of demise land on the ground that the land in question was transferred by the owner to the appellants on the promise to pay the consideration amount by a certain date but, the appellants failed to pay the amount and continued to remain in possession of the suit land. The suit was dismissed by the trial court and said judgment was upheld by the court of Ld. ADJ in an appeal wherein it was held that at no stage the land in question was sold by the plaintiffs to the appellants and consequently, plaintiffs were not entitled to recover the sale price. Later on, plaintiffs/ owners initiated new proceedings by filing a suit for possession against the appellants on the basis of title and said suit was held to be not barred under Order 2 rule 2 CPC as it was held that cause of action of two suits were different.
47. In Gurbax Singh case (supra), no findings were recorded on the issue of Order 2 rule2 CPC because the plaint of the previous suit was not made available to the court for perusal of the case pleaded in the previous suit. In Deepa Dua case (supra), the plaintiff after having executed and registered a relinquish deed, filed the initial suit where her application for injunction was dismissed by the court. Later on, she filed the suit for partition, declaration and permanent injunction by pleading ignorance of having executed the CS no.59197 of 2016 Page no.24 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors registered relinquishment deed and in said fact situation, the second suit was held to be barred under Order 2 rule 2 CPC on the ground that the cause of action in both the suits in substance was identical.
48. In Sucha Singh Sodhi case (supra), the cause of action for permanent injunction relief was held to be different from cause of action for relief of specific performance. In Jagmohan Behl case (Supra), the mesne profits covered in second suit were claimed for the period already covered in the previous suit.
The factual situation in none of abovementioned cases is same as that of the case in hand thus, the reliance placed on above judgments is totally misplaced.
49. Order 2 rule 2 (1) of CPC provides that every suit shall include the whole of claim, which plaintiff is entitled to make in respect of the cause of action. Hence, the sine qua non for invoking order 2 rule 2 (2) CPC against the plaintiff by the defendant is that relief which plaintiff has claimed in second suit was also available to the plaintiffs for being claimed in the previous suit against the defendants and yet not claimed by the plaintiffs.
50. Therefore, what we have to examine is whether the plaintiffs were entitled to claim the relief sought in the instant suit in the previous suit on the basis of action pleaded by the plaintiffs in the previous suit. The previous suit CS (OS) no. 2842/95 was instituted in December, 1995 for seeking relief of possession of suit premises against D-1 to D-5. Admittedly, no relief of mesne profits, arrears of rent/use and occupation charges was prayed for in said suit.
CS no.59197 of 2016 Page no.25 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors
51. However, to my mind on the basis of cause of action pleaded in the previous suit, at the most, plaintiff could have claimed arrears of rent for the period of last three years immediately preceding the date of institution. As such, there was no cause of action to claim arrears of rent/mesne profit for the period in question i.e. w.e.f. 01.10.2007 till 31.08.2012. Here, I may draw support from the judgment of Hon'ble High Court in Syndicate Bank Vs. Raj Kumar Tanwar 154 (2008) DLT 230 (DB), wherein it was held that cause of action to recover damages or mesne profits against person in unauthorized occupation of property accrues each month. It was further observed that the rule enshrined in Order 2 rule 2 CPC is directed at securing the exhaustion of the relief in respect of a cause of action and is not intended to include in one and the same action, different causes of action though they arise from the same transaction. While referring to Order 2 rule 4 CPC, Hon'ble High Court further observed that the CPC itself clarifies that an action for recovery of immovable property is a distinct cause of action vis-a-vis cause of action for a claim for mesne profit.
52. In above judgment, while discussing the ambit of Order 2 rule 2 CPC the Hon'ble High Court also referred to its previous judgment in M/s U.K. Paints Sales Vs. M/s Madho Ram Bhan Singh FAO (OS) no. 350/2001 decided on 24.02.2004, wherein it was held as under :
" The principle enshrined under Order 2 Rule 2 is aimed against a multiplicity of suits in respect of the same cause of action. The Rule is based on the principle that a party should not be vexed twice for the one and the same cause of action.
However, the said rule must be applied with caution. The plea of bar under Order 2 Rule 2 CS no.59197 of 2016 Page no.26 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors defeats, what otherwise may be legitimate claim of a party, and therefore, care must be taken to see that complete identity of cause of action is established. Can it be said that the recovery of damages for unauthorized use and occupation of a premises for different periods constitutes a single cause of action. To our mind it does not. Cause of action to recover rent for a premises or damages for unauthorized use and occupation would arise each month for which possession is retained by the tenant or the person in unauthorized occupation as the case may be."
53. In the light of above law, there is no question of applicability of Order 2 rule 2 CPC in the instant case. The issue is hence, decided in favour of plaintiffs and against D-1 to D-4.
In the light of above findings on issue no.1&2, both the questions mentioned above in para no.35 of this judgment, are answered in negative.
54. Issue no. 5 'Whether the plaintiff is entitled to the relief of declaration, declaring that they are entitled to the release of amount of Rs. 1,29,11,700/- or any other amount deposited by the defendant no.5, alongwith the interest accrued or earned on the said amounts, on the FDRs/deposits ? OPP.'
55. The onus to prove said issue was upon the plaintiffs. In order to prove said issue, plaintiff has drawn attention of this court to the judgment dated 19.09.2007 of Hon'ble Single Judge of Delhi High Court in CS (OS) no. 2842 of 1995, wherein while returning findings of issue no. Issue no.1 framed in said suit, Hon'ble Single Judge held as under :
CS no.59197 of 2016 Page no.27 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors " 21. The result of aforesaid is that the effect of the lease deed dated 18.09.1986 not being renewed or specific performance not being sought by defendant no.1 would be that the lease became a month to month tenancy, which stood terminated in pursuance to the legal notice sent by plaintiffs on 09.04.1995 and duly served on defendants."
56. Admittedly, the above judgment has attained finality after dismissal of appeal RFA (OS) 84/2007 by Hon'ble Division Bench on 11.01.2011 and SLP no. 14174/11 (Civil) by Hon'ble Apex Court on 08.11.2011. Admittedly, the suit property was vacated by D-5 and possession was handed over to plaintiffs on 31.08.2012 pursuant to statement made on behalf of D-5 before executing court in Ex.P-33/12. Arrears against use and occupation of suit property from December, 2011 till August, 2012 were also deposited in the High Court in said execution. It is also an admitted position on record that as on date an amount of Rs.1,29,11,700/- (i.e. Rs.83,15,955/- in RFA (OS) no.84/07 + Rs.45,95,745/- in Ex petition no. 33/12) is lying deposited in the registry of Hon'ble High Court.
57. It is urged on behalf of plaintiffs and rightly so, that after the tenancy of D-1, by virtue of plaintiffs' legal notice dated 09.04.1995, is held to have been validly terminated by the Hon'ble Delhi High Court in CS (OS) no. 2842 of 1995, the possession of D-1 to D-4 or that of D-5, who was claiming its rights through D-1 to D-4, had become illegal and unauthorized and plaintiff became entitled to claim use and occupation charges from defendants for their illegal occupation in suit premises.
58. In light of aforementioned judgment dated 19.07.2007 passed by Hon'ble Single Bench, upon service of notice of termination dated 09.04.1995, the tenancy of D-1 CS no.59197 of 2016 Page no.28 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors stood terminated and as a consequence, the sub-tenancy created by D-1 in favour sub-tenants D-2 to D-5 also came to an end thereby, making the possession and occupation of D-5 in said property as illegal and unauthorized for which D-1 to D- 4 is liable to pay damages and mesne profits to the plaintiff. As such, after termination of tenancy of D-1 any amount of money deposited by sub-tenant at contractual rate of rent shall be towards use and occupation charges of suit property, for which D-1 to D-4 cannot stake any claim because in the light of the judgment of Hon'ble Single Bench dated 19.09.2007 which has already attained finality, their (D-1 to D-4) tenancy stood already terminated. At the most, in the event of plaintiffs succeeding in their claim raised against D-1 to D-4 in CS (OS) no. 1417/2013 for recovery of mesne profits for the period w.e.f. 2010 till 2013, the amount of rent/occupation charges so paid by D-5 for the overlapping period, shall be adjusted from the amount so decreed in favour of plaintiffs. Though, it has been informed that in said suit CS(OS) no. 1417/13 pending in the Hon'ble High Court, plaintiffs have already excluded the amount so deposited in the Hon'ble Delhi High Court from the mesne profit so claimed in said suit for the overlapping period.
59. The argument raised on behalf of D-1 to D-4 that for lack of privity between plaintiff and D-5, plaintiffs are not entitled to release of said amount deposited by D-5, is fallacious in as much as after termination of tenancy of D-1 in respect of suit property, it is only the landlord i.e. the plaintiffs herein, who shall be entitled for release of said amount deposited by D-5 because, the same was deposited towards arrears of rent/use and occupation charges for the period subsequent to termination of tenancy of D-1, which in any case, all defendants are liable to pay jointly or severally. As CS no.59197 of 2016 Page no.29 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors already noted above, termination of tenancy of D-1 has led to automatic termination of sub-tenancy created by D-1 in favour of other defendants thereby, extinguishing all rights of other defendants to stake claim in the aforementioned amount deposited by D-5. In the light of above discussion, this issue also stands decided in favour of plaintiffs and against defendants.
60. In view of aforementioned facts and circumstances of the case, there is no merit even in the argument that the said amount deposited by D-5 can not be released till the decision of suit no. CS(OS) 2195/2012 filed by D-1 to D-4 against D-5 especially in the light of the fact that all the efforts made by D-1 to D-4 (details of which are noted herein above in Para 15&16) for consolidation of present suit with said suit and other pending suits between the parties have already proved unsuccessful and futile.
61. Issue no.3.
'Whether the plaint does not disclose any cause of action ? OPD 1 to 4.' The onus of proving this issue was upon D-1 to D-
4. 'Cause of action' means a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. In other words, cause of action is the bundle of facts which is material to be proved to entitle the plaintiff to succeed. In wider sense, cause of action means the necessary conditions for the maintenance of the suit, including not only the infraction of right, but also the infraction coupled with the right itself. In the instant case, the plaintiffs have been able to prove all the material facts necessary for proving their entitlement for release of the amount deposited by D-5 in the CS no.59197 of 2016 Page no.30 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors Hon'ble Delhi High Court, which is evident from my finding on issue no. 5 wherein, the plaintiffs are held to be entitled for release of said amount. In view thereof, this issue is also liable to be decided in favour of plaintiffs and against D-1 to D-4.
62. Issue no. 4 'Whether the suit is bad for mis-joiner of defendant no. 5 ? OPD 5.' This issue was framed in view of the objection taken by D-5, who has alleged that the issue involved in the present suit is between plaintiffs and D-1 to D-4 and D-5 is neither necessary nor proper party for the adjudication of present suit. Undoubtedly, D-5 was not the necessary party as he has already deposited the arrears of rent/occupational charges for the relevant period with the permission of the Hon'ble Delhi High Court and it were for the plaintiffs and D-1 to D-4, who are staking their claim on the release of said amount, to have approached the court for proving their entitlement for said amount. However in any case, presence of D-5 was necessary for complete and effective adjudication of the matter. Hence, I am of the view that D-5, if not necessary but was certainly a proper party for the adjudication of the case, therefore, the suit cannot be held to be bad for mis- joinder. The issue is accordingly, decided in favour of plaintiffs and against D-5.
63. Relief.
In view of my findings on aforementioned issues, suit stands decreed in favour of plaintiffs and against D-1 to D- 4 thereby, declaring the plaintiffs to be entitled to the release of amount of Rs.1,29,11,700/- (Rupees One Crore Twenty Nine Lakh Eleven Thousand Seven Hundred Only) or any other CS no.59197 of 2016 Page no.31 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors amount deposited by D-5, as per records maintained by the Registry of Hon'ble High Court of Delhi alongwith the interest accrued or earned on the said amounts, on the FDRs or otherwise. The parties are left to bear their own costs.
64. Decree sheet be prepared accordingly. File be consigned to record room.
(Sunena Sharma) Additional District Judge-04 Judge Code DL00222 Patiala House Courts : New Delhi 12.04.2021 CS no.59197 of 2016 Page no.32 of 32 Bibi Alape Kaur and ors Vs. M/s Punchip Associates Pvt. Ltd. And ors