Delhi District Court
Sh. Sajal Banerjee vs Smt. Seema Kumar on 9 March, 2011
IN THE COURT OF MS. SEEMA MAINI :
ADDITIONAL DISTRICT JUDGE3 (NORTH) : DELHI
M.C. Appeal No. : 13/10
Unique Case I.D. No. : 02401C0382902010
In re:
Sh. Sajal Banerjee
S/o Late Sh. Nandlal Banerjee
R/o C105, First Floor,
New Rajinder Nagar, New Delhi110060. Appellant
Versus.
Smt. Seema Kumar
W/o Sh. Gurdev Raj Kumar,
R/o 31/13, Old Rajinder Nagar,
New Delhi110060. Respondent
Date of filing of the appeal : 27.08.2010
Date on which order was reserved : 09.03.2011
Date of Judgment : 09.03.2011
APPEAL AGAINST THE JUDGMENT DATED 01.07.2010
PASSED BY THE COURT OF LD. CIVIL JUDGE (NORTH), DELHI
AND
R.C. Appeal No. : 40/10
Unique Case I.D. No. : 02401C0318882010
In re:
Sh. Sajal Banerjee
RCA No. 40/10 & MCA No. 13/10 1 / 23
S/o Late Sh. Nandlal Banerjee
R/o C105, First Floor,
New Rajinder Nagar, New Delhi110060. Appellant
Versus.
Smt. Seema Kumar
W/o Sh. Gurdev Raj Kumar,
R/o 31/13, Old Rajinder Nagar,
New Delhi110060. Respondent
Date of filing of the appeal : 24.07.2010
Date on which order was reserved : 09.03.2011
Date of Judgment : 09.03.2011
APPEAL AGAINST THE JUDGMENT DATED 01.07.2010
PASSED BY THE COURT OF LD. CIVIL JUDGE (NORTH), DELHI
APPEARANCE:
Sh. Ramesh Kumar, Counsel for the appellant.
Sh. Gaurav Mahajan, Counsel for the respondent.
JUDGMENT :
1. Vide this common judgment, I shall dispose off appeal bearing RCA No. 40/10 titled Sajal Banerjee Vs. Seema Kumar instituted against the judgment / decree dated 01.07.2010 u/O 12 Rule 6 CPC and appeal bearing MCA No. 13/10 titled Sajal Banerjee Vs. Seema Kumar instituted against the order of Ld. Civil Judge dated 01.07.2010 vide which an application u/O 39 Rule 10 CPC was allowed in favour of the plaintiff. RCA No. 40/10 & MCA No. 13/10 2 / 23
2. The brief facts of the case, necessary for the disposal of the appeal, are that the plaintiff / respondent herein filed a suit for recovery of possession, damages and future mesne profits / damages against the defendant / appellant Sajal Banerjee bearing suit no. 250/2008 before the Ld. Civil Judge, on 05.04.2008. It was stated that the plaintiff is the owner and landlady of property bearing no. C105, New Rajender Nagar, New Delhi60 and the defendant was a tenant of the plaintiff in respect of the Mezzanine Floor (First Floor) of the property no. C105, New Rajender Nagar, New Delhi60 (hereinafter referred to as the suit property) for the last about 30 years. The agreed rate of rent of the tenanted premises was Rs. 3802/ per month excluding water and electricity charges. The defendant had neither paid nor tendered the arrears of rent w.e.f. 01.11.2006 to the plaintiff @ Rs. 3802/ per month despite repeated requests and reminders. Since the plaintiff no longer, wanted to keep the defendant as her tenant, she served a legal demand notice dated 12.02.2008 upon the defendant, through speed post, registered AD, courier and UPC, terminating the tenancy of the defendant in respect of the suit property, giving him 15 days time, till midnight of 29.02.2008, to vacate the suit premises and handover the peaceful and vacant possession of the suit property to the plaintiff. Vide said notice, the defendant was also informed that failure to handover the possession of the suit property to the plaintiff, would make him further liable to pay RCA No. 40/10 & MCA No. 13/10 3 / 23 damages / mesne profits for the unauthorized use and occupation of the premises @ Rs. 25,000/ per month, which was the prevalent market rate of rent for similarly situated premises, from the date of termination of tenancy till the possession was handed over. The plaintiff also alleged that the defendant was liable to pay arrears of rent from 01.11.2006 till 29.02.2008 @ Rs. 3802/ per month and as such a sum of Rs. 60,382/ was due and payable by the defendant to the plaintiff. A sum of Rs. 7752/ was also due and payable by the defendant to the plaintiff towards interest, upon the arrears of rent w.e.f. 01.11.2006 till 31.03.2008 @ 18% per annum and thus a total sum of Rs. 68,584/ towards arrears of rent and interest thereon was due, besides the payment of user charges at the market rate of Rs. 25,000/ per month.
It was also mentioned that an agreement to sell dated 21.08.2006 had been entered into between the plaintiff and the defendant for sale of the suit property but since the defendant failed to honour his part of agreement, the plaintiff had returned the amount of earnest money of Rs.2 lacs to the defendant, by return of the cheque, by way of which the earnest money had been tendered. Hence the suit was filed by the plaintiff seeking recovery of possession, arrears of rent and damages at the rate mentioned above.
3. The Written Statement was filed on behalf of the defendant, in RCA No. 40/10 & MCA No. 13/10 4 / 23 which the preliminary objections were taken that the plaintiff had not approached the court with clean hands and she had suppressed the material facts. It was mentioned that the plaintiff and defendant had entered into an agreement to sell dated 21.08.2006 in respect of the suit property and that the defendant was in possession of the suit property in furtherance and in part performance of the agreement to sell & purchase, therefore the possession of the defendant was protected under the provisions of section 53 A of the Transfer of Property Act and that the status of the defendant after 21.08.2006 was no longer of a tenant but that of a buyer of suit property.
On merits, it was submitted that the defendant was residing on the first floor of the property bearing no. C105, New Rajender Nagar, New Delhi for the last over 30 years, initially as a tenant, and that he had been paying the rent regularly till 21.08.2006, at the time when the agreement to sell dated 21.08.2006 was executed. It was admitted that the defendant was in possession of the suit property for the last about 30 years in the capacity of a tenant and he had been paying rent @ Rs. 3802/ per month. However, it was stated that the suit property was not situated on the mezzanine floor but it was situated on the first floor, of the property in question. It was admitted that the rent had been paid @ Rs.3802/ per month exclusive of water and electricity charges but after October 2006, defendant was not paying any rent nor was he liable to pay RCA No. 40/10 & MCA No. 13/10 5 / 23 the rent because of his changed status from that being a tenant to being a prospective purchaser. He also admitted that the plaintiff served upon the defendant a Legal Notice dated 12.02.2008, whereby the tenancy of the defendant was terminated and he was given 15 days notice to handover the possession of the suit property to the plaintiff, failing which he would be liable to damages / mesne profits for unauthorized use and accommodation of the suit property, @ Rs. 25,000/ per month.
4. The replication was filed by the plaintiff, reiterating the assertions made by him in the plaint, while allegations made by the defendant were denied.
5. By the application u/O 12 Rule 6 CPC dated 01.07.2008, moved on behalf of the plaintiff, the plaintiff prayed for a decree of possession on the basis of the admissions having been made by the defendant, in his written statement, as regards the existence of relationship of landlord and tenant, between the plaintiff and defendant, and the rate of rent being Rs. 3802/ per month exclusive of water and electricity charges, being admitted, as well as the admission of receipt of legal demand notice dated 12.02.2008, vide which the tenancy was terminated and demand of handing over of peaceful and vacant possession of the suit property was made. It was also stated that the defendant was not to be given protection u/S 53 A of the RCA No. 40/10 & MCA No. 13/10 6 / 23 Transfer of Property Act, as mere agreement does not create any interest or charge on the property, in view of section 54 of TPA and section 17 of the Registration Act. It was also stated that even if the section 53 A TPA was applicable, even then, since the agreement to sell, having been executed after the Amendment Act of 2001, vide which section 17 of the Registration Act was amended, the registration of the agreement to sell was mandatory, to be given any effect to, in relation to any transfer of properties. It was prayed that the suit for possession be decreed in favour of the plaintiff and against the defendant and vacant & peaceful possession of the suit property be granted to the plaintiff.
6. The said application was opposed by the defendant / appellant on the ground that there was no clear and unambiguous admissions made on behalf of the defendant, which would entitle the plaintiff to a decree of possession on the basis of admissions. It was reiterated that the status of defendant was no longer that of a tenant but he was a prospective purchaser of the suit property after the execution of the agreement to sell dated 21.08.2006 and also since there was no mezzanine floor in existence in New Rajender Nagar properties and that the defendant was not a tenant of mezzanine floor but was occupying the first floor of the property no. C105, New Rajender Nagar, New Delhi, for the last 30 years. It was stated that the application was devoid of merits because there were RCA No. 40/10 & MCA No. 13/10 7 / 23 no clear cut admissions on behalf of the defendant. It was prayed that the application be dismissed.
7. Vide the appeal bearing RCA No. 40/10, the judgment / decree dated 01.07.2010 passed by Ld. Civil Judge, vide which the suit of the plaintiff was decreed in respect of recovery of possession, has been challenged, on the ground that the judgment was not based on the facts of the case and was liable to be setaside. It was alleged that the judgment was based from surmises and conjectures and upon presumptions, which were wholly unwarranted. It was stated that the Trial Court has not passed the decree of possession but without passing the decree of possession, the appellant had been directed to handover the possession of the suit property to the plaintiff. It was also contended that the application u/O 12 Rule 6 CPC has been moved by one Sh. Anil Bedi, attorney holder of the plaintiff but the application was not signed by the plaintiff and therefore the attorney was a stranger to the suit and therefore the application was not maintainable. The facts mentioned in the Written Statement were reiterated. It was again stated that the plaintiff had entered into an agreement to sell dated 21.08.2006 to sell the suit property and had received Rs. 2 lacs as part sale consideration, but pursuant to a misunderstanding, she had returned the part sale consideration of Rs. 2 lacs. However, the said cheque was not accepted RCA No. 40/10 & MCA No. 13/10 8 / 23 by the appellant / defendant, who had returned back the cheques to the plaintiff. The suit for specific performance of agreement to sell dated 21.08.2006 had already been filed by the appellant. It was stated that since the appellant / defendant, after the execution of agreement to sell dated 21.08.2006, no longer continued to be in possession of suit property as a tenant but rather a prospective purchaser, thus his possession was protected u/S 53 TPA. It was stated that the Trial Court has wrongly appreciated the relevant provisions of Registration Act. The legal notice dated 12.02.2008 for termination of alleged tenancy was also misconceived. Since there was no clear cut and unambiguous admissions of his tenancy by the appellant / defendant, the impugned order was not based on correct provisions of facts and law and, therefore was liable to be setaside.
8. I have heard Sh. Ramesh Kumar, Ld. counsel for appellant / defendant and Sh. Gaurav Mahajan, counsel for respondent / plaintiff, and perused the trial court record, scrutinized and considered the rival contentions of parties and have also gone through the relevant case laws.
9. At the outset, since the thrust of arguments of the parties was based upon the provisions of Order 12 Rule 6 CPC, Section 53 A TPA, Section 54 TPA, Section 17 of the Registration Act, it would not be out of RCA No. 40/10 & MCA No. 13/10 9 / 23 place to reproduce the said sections for ready reference. Order 12 Rule 6 CPC "O 12 R 6. Judgment on admissions.(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under subrule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
Section 53A Transfer of Property Act, 1882.
53a. Part performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be RCA No. 40/10 & MCA No. 13/10 10 / 23 ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, ....................
....................
Section 54 Transfer of Property Act, 1882.
54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only be a registered instrument.
....................
RCA No. 40/10 & MCA No. 13/10 11 / 23
Contract for sale. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Section 17 of Registration Act, 1908
17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which tehy relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,
(a) instrument of gift of immovable property;
(b) other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable RCA No. 40/10 & MCA No. 13/10 12 / 23 property;
(c) nontestamentary instruments which acknowledge the receipt of payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title of interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
......................
[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement, then they shall have no effect for the purposes of the said section 53A.] So far as the impugned judgment dated 01.07.2010 of the Ld. Trial Court is concerned, vide the said judgment, the application u/O 12 Rule 6 CPC which was moved by the plaintiff / respondent was allowed. It has been urged by the Ld. counsel for the defendant / appellant that the Ld. RCA No. 40/10 & MCA No. 13/10 13 / 23 Trial Court had failed to appreciate that there was no admission at all, by the defendant / appellant in his Written Statement, which would merit the passing of the impugned judgment on the basis of purported admissions on behalf of defendant / appellant.
For a decree of possession to be passed u/o 12 Rule 6 CPC, there has to be an admission of :
(i) Relationship of landlord and tenant.
(ii) Rate of rent.
(iii) Service of notice of the termination of tenancy.
To tackle the contentions and assertions made on behalf of appellant / defendant, the Written Statement which has been filed by the appellant / defendant before the Ld. Trial Court has been scrutinized. There is a categorical admission by the defendant / appellant that he had been residing on the first floor of the property no. C105, New Rajender Nagar, New Delhi60 for the last 30 years in the capacity of a tenant and had been paying rent regularly till the execution of the agreement to sell dated 21.08.2006. It was admitted in para no.1 of reply on merits, about the plaintiff being the owner of the property in question and possession of the suit property by the defendant / appellant in the capacity of a tenant, by the defendant, though as per him his status changed from that of a tenant to that being a prospective purchaser w.e.f. 21.08.2006. Leaving this issue aside, relationship of landlord and tenant between the plaintiff RCA No. 40/10 & MCA No. 13/10 14 / 23 and defendant, therefore stand admitted. In para no. 3 of the reply on merits in the Written Statement, it is also categorically admitted by the defendant that he was paying a rent of Rs. 3802/ per month excluding water and electricity charges but since October 2006 he had not been paying any rent.
The third vital ingredient as required for a decree to be passed u/o 12 Rule 6 CPC, about the service of notice terminating the tenancy, is also admitted by the defendant in para no. 5 of the reply on merits in his Written Statement, wherein, it was categorically admitted by the defendant / appellant that legal notice dated 12.02.2008 averring therein that the tenancy of defendant was terminated and 15 days time had been given to defendant to handover the possession of the premises, failing which the defendant would be liable to pay damages / mesne profits @ Rs. 25,000/ per month, was received by him. Therefore, all the three vital ingredients of Order 12 Rule 6 CPC stand satisfied.
In the first ingredient about the relationship of landlord and tenant, the basic dispute lies. As per the appellant / defendant, once the agreement to sell dated 21.08.2006 was executed between the plaintiff / respondent and the defendant / appellant, the relationship of landlord and tenant came to an end and that the defendant became a prospective purchaser and his capacity of possession of suit property changed from being in possession as tenant to that being in possession of prospective RCA No. 40/10 & MCA No. 13/10 15 / 23 purchaser, after part performance of contract of sale of suit property and therefore the defendant / appellant was not liable to pay any further rent to the plaintiff. For this purpose, attention was drawn to the agreement in question but the Ld. Trial Court vide the impugned judgment did not give any weight to the assertions of the defendant on the ground that the defendant had merely filed the photocopy of the agreement to sell and that no original documents had been produced and moreover the agreement to sell and purchase was not a registered document.
The contention of the Ld. counsel for defendant / appellant was that the said agreement to sell was not necessary to be registered as per section 17 of the Registration Act since his case was covered u/s 53A TPA which carved out an exception to section 17 of the Registration Act. However, I do not find any force in the contention of Ld. counsel for defendant / appellant especially since his case is not covered under provisions of section 53A of TPA. The appellant / defendant was not handed over the possession of the premises in question, or any part performance of the agreement to sell, if any. Rather he was in possession, in the capacity of a tenant under the landlordship of the plaintiff / respondent as admitted by him in the Written Statement. Further more, in the wake of amendment having been carried out in section 17 of the Registration Act in the year 2001, which would therefore be applicable to the agreement to sell in question which was executed in the year 2006. RCA No. 40/10 & MCA No. 13/10 16 / 23 As per amended section 17 (b) of the Registration Act as well as section 17 (1) A of the Registration Act, the agreement to sell in question required a compulsory registration and therefore since the agreement in question was an unregistered document, it cannot be looked into by the Court, as per law.
In Sunil Kapoor versus Himamt Singh & Ors cited as 2010 (115) DRJ 229, while adjudicating upon a case with similar facts, where a suit for ejectment and recovery of mesne profits had been instituted by the landlord against the tenant and the tenancy had been determined while the tenant had failed to vacate the premises and that tenant had also instituted a suit for specific performance on an oral agreement to sell the property, the Hon'ble High Court of Delhi has held that :
"A mere agreement to sell immovable property does not create any right in the property, save the right to enforce the said agreement. The defendant does not get any right to occupy that property as an agreement purchaser. An unregistered agreement to sell of the immovable property and a plea of part performance of the agreement subsequently, cannot be legal defence available to the defendant in a suit for ejectment nor can the institution of a suit for specific performance of the agreement to sell, instituted by the defendant, can be taken to be of any help RCA No. 40/10 & MCA No. 13/10 17 / 23 to the defendant / tenant."
It has been explained in the said judgment by the Hon'ble High Court that :
"section 54 of the TPA, in specific terms provides that a contract for sale itself does not create any interest in or charge of such property, such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale creates right in personam and not in estate. Such right in personam creates right in favour of the proposed vendee to obtain a decree of specific performance of the agreement to sell but till the decree for specific performance is obtained, the vendor is entitled to full enjoyment of his property. In fact, even if a decree of specific performance is obtained and no sale deed is actually executed, it cannot be said that any interest in the property is passed."
Vide the said judgment, the Courts have been cautioned, wherein a suit for ejectment / eviction is pending, the Court ought not to restrain its hands merely because the suit for specific performance has been filed. In the case in hand, the situation is almost on a similar footing. The RCA No. 40/10 & MCA No. 13/10 18 / 23 defendant, admittedly was in possession of the property in question in capacity of a tenant and execution of agreement to sell, if any, cannot change the said status of tenant to that of a purchaser only because of execution of said agreement to sell. As already guided by the Hon'ble High Court of Delhi above, the execution of an agreement to sell is merely a contract which only creates a right in favour of the vendee to exercise the interest in the immovable property but after the sale is completed. In the instant case, the agreement to sell in question, which was constantly referred to by the defendant / appellant, being an unregistered document cannot be looked into for any purpose and therefore the status of the defendant / appellant, as per law, continued to be that of a tenant.
If the defendant / appellant has preferred filing of a suit for specific performance against the respondent / plaintiff herein, for execution of the sale deed n the basis of the agreement to sell in question, remains a matter out of purview of this court. However, even if the said suit has been instituted and is pending, it would not disentitle the plaintiff / respondent who is the owner of the property in question and is / was the landlord of appellant / defendant herein, to neither enjoy his property himself nor fruits / rent of the said property till the time it was in possession of some other person.
Ld. Trial Court vide impugned judgment has, in my opinion, rightly appreciated the averments made by the defendant / appellant in his RCA No. 40/10 & MCA No. 13/10 19 / 23 Written Statement to be the admissions of relationship of landlord and tenant between the parties in question, not coming to an end of the same by the execution of the agreement to sell, if any, rate of rent and the service of notice vide which the tenancy was terminated. Therefore, the application u/O 12 Rule 6 CPC was rightly allowed.
Ld. counsel for the appellant has also contended that merely a direction was given to the defendant to handover the vacant possession of the suit property to the plaintiff but since no decree of possession was passed, the said directions are of no consequence and are not permissible under the CPC. No doubt, the specific words about passing of "a decree of possession in favour of plaintiff and against the defendant with respect to the suit property" have been mentioned in the judgment and the proceedings sheet dated 01.07.2010 but that in itself does not suffice to undo the order of the Ld. Trial Court dated 01.07.2010. The non use of the specific words aforementioned, to my mind, is only a irregularity which cane be rectified by the Ld. Trial Court. However, the intention and plain meaning of the directions given vide the said judgment / order dated 01.07.2010 are not at all unambiguous or misleading, nor do they create any confusion in the mind of any person. Vide the said order dated 01.07.2010, an application u/O 12 Rule 6 CPC which was moved on behalf of the plaintiff was allowed and a perusal of the said application u/O 12 Rule 6 CPC dated 01.07.2008 clearly makes a prayer to the Court that RCA No. 40/10 & MCA No. 13/10 20 / 23 a decree be passed in favour of the plaintiff and against the defendant for handing over the vacant and peaceful possession of the suit premises. The proceedings sheet and the impugned judgment clearly mention that the said application is allowed and therefore it is deemed that a decree for possession of the suit premises was passed in favour of the plaintiff and against the defendant with clear cut directions to him to handover the vacant and peaceful possession of the suit property to the plaintiff.
During the course of arguments, Ld. counsel for the appellant did not make any submission about the application u/o 12 Rule 6 CPC being not maintainable, being signed by the plaintiff's attorney. However, I may observe that this contention has been correctly tackled and disposed off by the Ld. Trial Court, and hence does not require any further discussion.
Therefore, in view of my above discussion, I find no infirmity in the order / judgment dated 01.07.2010 of the Ld. Trial Court, which has been passed on sound and correct appreciation of law in question. The appeal bearing RCA No. 40/10 is found to be without merits.
Vide the appeal bearing MCA No. 13/10, the appellant / defendant has also challenged the order dated 01.07.2010 passed by the Ld. Trial Court, vide which the application u/O 39 Rule 10 CPC dated 01.07.2008 moved on behalf of the plaintiff, seeking directions to the defendant to pay the arrears of rent from 01.11.2006 till 29.02.2008 and also from 01.03.2008 till the time of handing over of the suit property, has been RCA No. 40/10 & MCA No. 13/10 21 / 23 allowed.
In view of my discussion, it has already been observed that the Ld. Trial Court had rightly appreciated that there were categorical and unambiguous admissions by the defendant / appellant admitting that relationship of landlord and tenant between the plaintiff / respondent and defendant / appellant, the rate of rent admittedly being Rs. 3802/ per month and admission regarding the service of notice determining the tenancy of the defendant.
Admittedly by the defendant, he had paid rent at the said rate of rent till October 2006, but continued to be in possession of the property till date. In the wake of status of defendant / appellant being held to be that of a tenant in the suit property till 29.02.2008 and thereafter, after determination of the tenancy, being that of an unauthorized occupant, he would definitely be liable to pay arrears of rent at the admitted rate of Rs. 3802/ per month and to continue to pay the user charges, at least, at the same rate, till the issue regarding the damages / user charges is decided by the Court, from the date when his tenancy stood determined till the date of actual handing over of the vacant and peaceful possession of the suit property to the plaintiff / respondent. Since the defendant has admitted that the rate of rent of the suit premises was Rs. 3802/, also being the last paid rent, the defendant is liable to pay the arrears of rent at the rate of Rs. 3802/ per month w.e.f. 01.11.2006 to RCA No. 40/10 & MCA No. 13/10 22 / 23 29.02.2008 and also w.e.f. 01.03.2008 till the handing over of the possession of the suit property to the plaintiff or till further orders, at the same rate.
I, therefore, find no infirmity in the order of Ld. Trial Court dated 01.07.2010, vide which the application u/O 39 Rule 10 CPC dated 01.07.2008 has been disposed off.
Both the appeals; RCA bearing no. 40/10 Sajal Banerjee Vs. Seema Kumar and MCA bearing no. 13/10 Sajal Banerjee Vs. Seema Kumar, are without merits and are dismissed. No orders as to costs. A copy of this order be sent to the Ld. Trial Court for information alongwith the Trial Court Record. Copy of the order be placed in files of both Appeals; RCA bearing no. 40/10 Sajal Banerjee Vs. Seema Kumar and MCA bearing no. 13/10 Sajal Banerjee Vs. Seema Kumar, and be consigned to Record Room.
Announced in open Court (SEEMA MAINI) today i.e. on 09.03.2011 ADJ03(North)Delhi RCA No. 40/10 & MCA No. 13/10 23 / 23 RCA No. 40/10 & MCA No. 13/10 09.03.2011 Present : Sh. Ramesh Kumar, Counsel for the appellant. Sh. Gaurav Mahajan, Counsel for the respondent. Clarificatory arguments heard.
Vide my separate common judgment announced in the open court, both the appeals; RCA bearing no. 40/10 Sajal Banerjee Vs. Seema Kumar and MCA bearing no. 13/10 Sajal Banerjee Vs. Seema Kumar, are have been dismissed. No orders as to costs. A copy of this order be sent to the Ld. Trial Court for information alongwith the Trial Court Record.
Files of the appeals be consigned to Record Room.
(Seema Maini) ADJ (North)/Delhi/09.03.2011 RCA No. 40/10 & MCA No. 13/10 24 / 23