Delhi District Court
Ved Prakash Bhutani vs . Nishu Shukla on 20 October, 2015
Ved Prakash Bhutani vs. Nishu Shukla
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS No. 1/15
Ved Prakash Bhutani
.............Plaintiff
Versus
Nishu Shukla
..............Defendant
ORDER
1. Vide this order, I shall dispose off two applications, one under Order XXXVIII Rule 5 CPC and another under Section 151 CPC filed by plaintiff.
2. Arguments on application under Order XXXVIII Rule 5 CPC heard.
3. This is a claim of a landlord for possession of tenanted premises and recovery of rent which was allegedly accumulated to Rs.3,49,000/ on the date of filing of the suit. As on today, the arrears of rent have allegedly accumulated to more than Rs. 5,00,000/.
4. The tenanted premises as shown in site plan consist of two bedrooms, toilet and kitchen alongwith one temporary room situated at ground floor of property No. B3/29, Safdarjung Enclave, Residential Scheme, New Delhi.
5. According to plaintiff, premises were let out to defendant on 01.05.2013 on the monthly rent of Rs.25,000/. Prior thereto, premises were let out to different tenants since the year 2004 at different rates of rent including Rs.10,000/, Rs.12,000/ and Rs.
CS No.1/15 Page 1 of 5Ved Prakash Bhutani vs. Nishu Shukla 25,000/.
6. It is stated that defendant defaulted in payment of rent since 01.01.2014. Thereafter, plaintiff terminated her tenancy and sought vacation of the premises but to no avail. Hence, the suit for possession and recovery of alleged arrears of rent w.e.f. 01.01.2014 to 30.11.2014 as well as for payment of damages/occupation charges @ Rs.2000/ per day w.e.f. 01.12.2014.
7. In the written statement, defendant took various objections including the preliminary objection that suit is bared under Delhi Rent Control Act, 1958 stating that the premises were inhabitable when plaintiff proposed to let out the same. Plaintiff stated that defendant could incur expenses of Rs. 2,00,000/ to repair the premises and thereafter, plaintiff would let out the same @ Rs.2500/ per month. It is further stated in the written statement that defendant had to incur more than Rs. 3,00,000/ in order to make the premises habitable and therefore, plaintiff agreed to accept the rent of Rs.2000/ per month. Defendant has therefore, stated that her tenancy is protected under Delhi Rent Control Act, 1958.
8. Paragraphs 5 and 6 of the application under Order XXXVIII Rule 5 CPC are reproduced hereinbelow for the purpose of convenience:
"5. That the defendant just to obstruct and delay the execution of the decree which is expected to be passed against her in the present suit has not only removed all her belongings from the suit property by putting her locks on the suit property in the month of January 2015 itself but is also in process to shift herself along with her entire CS No.1/15 Page 2 of 5 Ved Prakash Bhutani vs. Nishu Shukla belongings from the jurisdiction of this Hon'ble Court.
6. That in these circumstances mentioned herein above it is imperative that the defendant may be directed to furnish security of the expected dereetal amount which is more than Rs.5 Lacs including interest as of now as if the defendant succeeds in shifting her belongings beyond the territorial jurisdiction of this Hon'ble Court, it would be very difficult for the plaintiff to get the decree executed, hence the present appellation" (wrongly written appellation instead of application).
9. Application is supported by an affidavit.
10. It is stated by Learned Sh. Singh, counsel for defendant that application is not maintainable because defendant had raised the issue which goes to the root of the jurisdiction of this court.
11. Learned Sh. Singh submits that this court has no jurisdiction and defendant has already invoked the jurisdiction of Learned Rent Controller and has filed a petition for Deposition of Rent and is depositing the monthly rent of the premises before Learned Additional Rent Controller.
12. He submits that without adjudicating on the issue of jurisdiction of this court, which has to be decided on the basis of evidence required to be led by both the parties, this court is not competent to pass any direction under Order XXXVIII Rule 5 CPC.
13. Arguments considered.
14. During the course of arguments, it is also stated by CS No.1/15 Page 3 of 5 Ved Prakash Bhutani vs. Nishu Shukla Learned Sh. Singh that due to continuous harassment of plaintiff, defendant has to shift to nearby tenanted premises. The court has put a specific query to Learned Sh. Singh about the address of said property. He submits that he is not having the exact address of said property where defendant has shifted. He further submits that in the memo of parties filed by plaintiff, two addresses of defendant are mentioned. Plaintiff submits that the first address of defendant was the tenanted premises, which have been vacated by her by putting her lock on the same and removing her articles. Plaintiff also submits that even the second address of defendant was temporary work place.
15. Considering the averments in the application duly supported by affidavit and submissions of Learned counsels for parties, this court is satisfied that defendant with intent to delay the payment to plaintiff in a decree, which may be passed against her, is removing her articles from the tenanted premises. There is no permanent address of defendant. The address where the defendant has shifted, has been concealed from the court.
16. It is rightly submitted by Learned Sh. Mukherjee that if tomorrow, a decree for recovery is passed against defendant after a full blown trial, plaintiff may not be able to execute the said decree as the other premises taken by defendant are again on rent and further defendant has already locked the premises of plaintiff.
17. In such circumstances and further considering that the tenanted premises are situated in a prime locality of Delhi, this court is of the opinion that defendant be directed to deposit the entire arrears of rent at the alleged rate of rent i.e. Rs.25,000/ CS No.1/15 Page 4 of 5 Ved Prakash Bhutani vs. Nishu Shukla per month w.e.f. 01.01.2014 till date, as claimed by plaintiff.
18. This security amount be deposited in the form of auto renewable FDR of one year duration. Compliance of order be made by defendant within 30 days from today. Application under Order XXXVIII Rule 5 CPC disposed off, accordingly.
19. Now coming to the second application under Section 151 CPC moved by plaintiff. In the application under Section 151 CPC, plaintiff has claimed for immediate handing over of possession of the suit premises to him.
20. It is rightly submitted by Learned Sh. Singh that grant of relief in the application would amount to decreeing the suit of the plaintiff without trying the issues raised by defendant. Accordingly, application under Section 151 CPC dismissed.
21. Ordered accordingly.
22. Matter be put up for filing of replication, if any, documents, admission/denial and framing of issues on 30.11.2015.
Announced in the open (AJAY PANDEY) Court on 20.10.2015 ADJ05 (SOUTH DISTRICT) (Order contains 5 pages) SAKET COURTS, NEW DELHI CS No.1/15 Page 5 of 5 Ved Prakash Bhutani vs. Nishu Shukla CS No. 1/15 Ved Prakash Bhutani vs Nishu Shukla 20.10.2015 Present: Plaintiff with Sh. S. K. Mukherjee, Advocate.
Sh. Harshbir Singh Kohli, Advocate for defendant.
Vide separate order of even date, application under Order XXXVIII Rule 5 CPC filed by plaintiff disposed off with direction to defendant to deposit the entire arrears of rent at the alleged rate of rent i.e. Rs.25,000/ per month w.e.f. 01.01.2014 till date, as claimed by plaintiff. The security amount be deposited in the form of auto renewable FDR of one year duration. Compliance of order be made by defendant within 30 days from today.
Vide same order, another application under Section 151 CPC filed by plaintiff for immediate handing over of possession of the suit premises to him is dismissed.
Matter be put up for filing of replication, if any, documents, admission/denial and framing of issues on 30.11.2015.
(Ajay Pandey) ADJ05/South/Saket 20.10.2015 CS No.1/15 Page 6 of 5