Delhi District Court
Nakul Singh vs Kailash Yadav on 2 September, 2024
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE - 02, SOUTH WEST DISTRICT, DWARKA
COURTS, DELHI
MCA DJ ADJ No. 41/2023
CNR No. DLSW010079642023
IN THE MATTER OF:
NAKUL SINGH
S/o Sh. Lakhan Singh,
R/o H. No. E-452, Shiv Vihar,
JJ Colony, Hastsal,
Uttam Nagar, New Delhi-110059. ... Appellant
vs
KAILASH YADAV
S/o Sh. Moji Ram Yadav
R/o H. No. RZ-105B, Nursing Garden,
Khyala, New Delhi-110059 .... Respondent
Date of institution of Appeal 14.08.2023
Date of order reserved: 12.08.2024
Date of pronouncement: 02.09.2024
JUDGMENT
Application Under Section 5 Limitation Act
1. The impugned order is dated 31.01.2023 and as per the e- filing history, the memorandum of appeal was first submitted on 24.07.2023. Thus, there is a delay of nearly 147 days beyond the prescribed period of 30 days.
2. It is stated in the application that the appellant belongs to an economically weaker section of society and suffers from paranoid schizophrenia. It is submitted that the appellant could not take timely steps for filing the appeal against the order and MCA DJ ADJ 41/2023 Nakul Singh vs. Kailash Yadav page 1/6 he applied for certified copies on 07.03.2023. It is stated that the copies could be collected by him only on 17.07.2023 and immediately thereafter, the present appeal was filed. It is stated that the delay has occasioned due to the medical condition of the appellant and it is prayed that the delay in filing of the appeal be condoned.
3. Ld Counsel for the respondent submits that the appellant did not deliberately collect the certified copies before 17.07.2023 and he should not be given the benefit of his own wrongs.
4. Considered.
5. The memorandum of appeal is accompanied by a copy of the medical certificate of the appellant, as per which he suffers from paranoid schizophrenia and has 60% temporary disability. In view of his mental health condition, I deem it fit to condone the delay in filing of the appeal in the interest of justice.
6. Delay is condoned. Application allowed. Application for stay
7. The application for stay is disposed of having become infructuous as the appeal is being decided on merits.
Appeal MCA DJ ADJ 41/238. The challenge by means of this miscellaneous appeal under Section 104 CPC is to the impugned order of Ld Civil Judge-03, South-West, Dwarka Courts, New Delhi dated 31.01.2023 whereby the Ld. Trial Court had allowed the application moved by the respondent/plaintiff under Order XV-A CPC and directed the appellant/defendant to pay Rs 7,000 per month during the pendency of the suit. For the sake of avoiding any confusion, the parties will now be referred to their status before the Ld Trial Court.
MCA DJ ADJ 41/2023 Nakul Singh vs. Kailash Yadav page 2/6
9. The case of the plaintiff before the Ld. Trial Court was that he is the sole owner/landlord of E-452, Shiv Vihar, JJ Colony, Hastsal, Uttam Nagar, New Delhi (hereinafter referred to as "the suit property.") It is stated that the plaintiff purchased the suit property from the defendant for a sale consideration of ₹2 lakhs vide customary chain of documents dated 05.08.2017.
10. It is stated that after the plaintiff executed a rent agreement dated 05.08.2017 whereby it was agreed that the defendant would pay a monthly rent of ₹6,000 excluding electricity and water charges for the next 11 months and thereafter, there would be an increase of 10% in the rent. It is stated that as per the agreement, the rent became ₹7,000 per month from January 2019 onwards.
11. It is stated that the defendant last paid rent for the month of April 2020 and that was also not paid in full, but he had paid only ₹6400. It is stated that the defendant has not paid any rent since May 2020. Hence, the suit was filed for a decree of eviction, mandatory and permanent injunction as well as arrears of rent.
12. The defendant filed a written statement stating that the plaintiff was a stranger to him and that he was the allottee of the suit property under the re-allocation scheme of the DDA. It is stated that the defendant is the rightful owner and is in possession of the suit property. It is stated that one Devraj has connived with the plaintiff to grab the suit property, for which the defendant has also filed a complaint with the police. It is denied that the defendant has ever executed any document in favour of the plaintiff or entered into a rent agreement with him.
13. The plaintiff filed a replication reiterating the contents of MCA DJ ADJ 41/2023 Nakul Singh vs. Kailash Yadav page 3/6 the plaint and denying the averments in the written statement.
14. The plaintiff filed an application under Order XV-A CPC stating that the defendant was enjoying the occupation and possession of the suit property belonging to the plaintiff and therefore, he should be directed to pay monthly rent of ₹7,000 per month during the pendency of the suit.
15. The said application was opposed by the defendant on grounds similar to those mentioned in his written statement.
16. By the order dated 31.01.2023, the said application was allowed and aggrieved by the said order, the defendant has filed the present appeal taking several grounds which may be largely categorised into two grounds.
17. I have perused the record and heard the Ld Counsels for the parties.
18. The first ground raised by the defendant in the appeal is that the impugned order is based on conjectures and surmises. It is stated that the Ld Trial Court did not appreciate that the documents in favour of the plaintiff were unregistered chain of documents and they did not confer any title on him. It is further stated that the Ld Trial Court wrongly stated that the defendant had not filed any document to show his title over the suit property whereas the defendant had filed a copy of the allotment letter issued in his favour by the DDA.
19. I find substance in this argument.
20. Indeed the copy of a letter asking the defendant to pay the licence fee is on the record of the Ld Trial Court. Moreover, it is the plaintiff's own case that he had purchased the suit property from the defendant, therefore, the title of the defendant, at least till 05.08.2017 was not disputed.
MCA DJ ADJ 41/2023 Nakul Singh vs. Kailash Yadav page 4/6
21. Further, the unregistered documents such as GPA, agreement to sell, receipt, possession letter, Will etc. are not documents of transfer of immovable property within the meaning of Section 54 of the Transfer of Property Act. Therefore, the Ld Trial Court could not have recorded in the impugned order that the plaintiff has filed "ownership documents."
22. The second ground of appeal is that the defendant had never acknowledged the fact that the plaintiff was the owner/landlord and had rather, taken a plea that the documents of the plaintiff were not genuine. It is that by directing the defendant to pay rent to the plaintiff, the Ld Trial Court has already decided before the trial that the plaintiff is the landlord and the defendant is a tenant in the suit property.
23. On the other hand, Ld Counsel for the respondent has argued that he had not moved an application under Order XXXIX Rule 10 CPC, but under Order XV-A CPC, which did not require any admission of the amount of rent or even the relationship of landlord-tenant before passing of the directions.
24. I have considered the rival submissions.
25. Indeed Order XV-A CPC does not require the defendant to admit the landlord-tenant relationship and the Court may direct an unauthorized occupant or a lessee to pay occupation charges/rent during the trial. It is also correct that by merely denying the title of the plaintiff or relationship of landlord- tenant/lessor-lessee, a defendant of the suit cannot enjoy the property during the pendency of the suit without depositing the rent/damages. However, it has to be borne in mind that for this provision to apply, the Court will at least satisfy itself that the MCA DJ ADJ 41/2023 Nakul Singh vs. Kailash Yadav page 5/6 defendant is an unauthorised occupant or a tenant.
26. The defendant, in the present suit, asserts ownership of the suit property. The plaintiff has also acknowledged the defendant's title up to a certain date, as the plaintiff claims to have "purchased" the suit property from the defendant.
27. In these circumstances, the Ld Trial Court should have afforded the defendant an opportunity to substantiate his defence. The directions issued by the Ld Trial Court effectively imply that the defendant has been adjudged an unauthorized occupant or tenant, while the plaintiff is regarded as the owner or landlord. This inference, in effect, preempts the final outcome of the suit.
28. Therefore, the Ld Trial Court erred in directing the defendant to pay a monthly amount before making a determination on the defence presented in his written statement. Such directions, at this stage of the suit, are neither fair nor just.
29. For the aforesaid reasons, the impugned order dated 30.01.2023 cannot be sustained in law and is hereby set aside.
30. The appeal is allowed with parties to bear their own costs.
31. Decree sheet be prepared accordingly.
32. File be consigned to record room only after due completion and necessary action.
33. A certified copy of this judgment be sent to the Ld Trial Court forthwith. Trial Court record be sent back. Digitally signed by RICHA RICHA GUSAIN GUSAIN SOLANKI Date: 2024.09.02 SOLANKI 17:29:08 +0530 Pronounced in the open court (RICHA GUSAIN SOLANKI) on 02nd September 2024 District Judge-02, South West Dwarka Courts Complex New Delhi MCA DJ ADJ 41/2023 Nakul Singh vs. Kailash Yadav page 6/6