Delhi District Court
Y.P. Gugnani vs Ennee Pharma & Anr on 18 February, 2008
1
IN THE COURT OF MS. CHARU AGGARWAL : CIVIL JUDGE :
DELHI
M.No.12/2007
Y.P. Gugnani ............Plaintiff
Versus
Ennee Pharma & Anr. ............Defendants
O R D E R :-
1. By this order, I shall decide three applications out of which two have been filed by JDs/defendants ( hereinafter referred to as "JDs") and one by Sh. Tarun Kandhari under order 1 Rule 10 of the Civil Code of Procedure ( hereinafter referred to as " CPC") and they are as follows :-
i)- an application under order 9 Rule 13 CPC filed by Judgment Debtors;2
ii)- an application under section 47 and 144 CPC filed by Judgment Debtors ; and
iii)- an application under order 1 Rule 10 CPC filed by Sh.
Tarun Kandhari.
2. The brief facts of the case are as follows :-
The present suit was filed by the plaintiff against the defendants for recovery of possession and mesne profit. It is averred that the plaintiff company is the owner of property no. 22-A, Janpath, New Delhi-11001 ( hereinafter referred to as "suit property" ) by virtue of Sale Deed dated 2.6.2005. It has been further submitted that the previous owners namely Shri Madhukar Passi, Shri Atul Passi, Ms. Neena Arora, Ms. Rumy Kapoor Nee Vaswani and Ms Niti Vedi, are legal heirs of Smt. Santosh Passi who sold the above said property to the plaintiff company. It has also been further claimed that Smt. Santosh Passi expired on 5.6.2004 and after the death of Smt. Santsoh Passi the property was 3 inherited by Shri Madhukar Passi, Shri Atul Passi, Ms. Neea Arora, Ms. Rumy Kapoor Nee Vaswani and Ms. Niti Vedi. It has been further claimed that as the plaintiffs company is rightful owner of the above said property by virtue of Sale Deed dated 2.6.2005, therefore, they have right to claim possession of the suit property. The plaintiffs has also claimed damages from the defendants on account of the unauthorized use and occupation of the suit premises. It ha been further stated that the suit property was let out to the defendants by virtue of by virtue of lease deed dated 09.9.1984 for a period of nine and a half years commencing from 9.9.1984 till 8.3.1994. The lease deed for the suit property stand expired by efflux of time on 08.3.1994. It is averred that lease deed dated 9.9.1984 has not been renewed after its expiry on 08.3.1994. It is also averred that earlier owner Smt. Santosh Passi of the suit property filed eviction petition under the provisions of Delhi 4 Rent Control Act vide eviction case no. 119/1996 titled as Santosh Passi Vs. Ennee Pharrma Ltd. & Others and the said eviction petition was withdrawn with the leave and liberty to file the fresh one. Thereafter, the petitioner filed the eviction petition under section 14(b) of Delhi Rent Control Act, 1958 ( hereinafter referred to as "DRC Act" ) vide eviction petition no. 249/98 titled as Santosh Passi Vs. Ennee Pharma and the same eviction petition became infructuous on the death/expiry of Smt. Santosh Passi. It is also submitted by the plaintiff that the petitioners under the bonafide belief and faith that the DRC Act is applicable invoke the jurisdiction of Rent Controller but somehow at a later stage realise that as a tenancy stands expired by efflux of time, therefore, provisions of Transfer of Property Act are applicable and the possession can be claimed in a civil proceedings. The previous owner filed a suit for possession and damages in 2006 titled as Madhukar Passi 5 Vs. Ennee Pharma Ltd. but subsequently as they sold the premises in question to the plaintiff company therefore they had not proceeded with earlier suit. The plaintiff has also submitted that the defendants were served with the a legal notice dated 14.1.1995 and by virtue of the said notice the defendants were called upon to hand over the possession of the suit premises to the plaintiff. A further notice dated 7.3.2005 was served upon the defendant calling upon them to hand over the possession of the suit premises but the defendants have not handed over the possession of the suit property even after the service of the notice dated 7.3.2005. The plaintiff has also alleged that the possession of the defendants in the suit property is unlawful , illegal and unauthorised as the defendants are continuing their possession over the suit property. The valuation for the purpose of court fees and jurisdiction is being assessed at Rs. 11400/- for the suit of possession and 6 for relief of damages at Rs. 2,12,550/-. Hence the present suit for recovery of possession and mesne profit.
3. The present suit was filed by the plaintiff on 5.8.2006 and summons of the suit were issued on the defendants for 21.8.2006. The defendants were served on dasti service and on 21.8.2006 when defendants despite service of summons of the suit did not appear they were proceeded ex parte by my learned predecessor vide his order of even date. The matter was adjourned for ex parte PE for 05.9.2006. After leading the ex parte evidence and after hearing the final arguments the suit was decreed ex parte by my learned predecessor on 16.11.2006. Accordingly, the decree of possession and mesne profit was passed in favour of plaintiff and against the defendants. In pursuance to decree dated 16.11.2006 the execution was filed by the plaintiff on 21.12.2006. On 14.3.2006 the decree of possession was executed and the possession of 7 the suit property was taken by the plaintiff with the assistance of this court.
4. Out of the three application, first I shall decide the objections/application filed by Judgment Debtors under section 47 read with 144 CPC. In the application under section 47 CPC, the JDs have stated that the ex parte judgment and decree dated 16.11.2006 passed by this court for recovery of possession and money decree for recovery of Rs. 2,12,550/- alongwith interest @ 12% per annum as damages is null and void and nonest on the ground that JDs are protected by DRC Act. The JDs have further stated that the plaintiffs in the plaint have themselves admitted the lease deed dated 09.9.1984 according to which the rate of rent of the suit property was Rs. 950/- i.e. below Rs. 3500/- per month. Hence the defendants /JDs are protected by Delhi Rent Control Act. In nutshell the JDs have stated that the rate of rent of the 8 suit property was Rs. 950/- per month by virtue of lease deed dated 09.9.1984, therefore, the defendants are protected by Delhi Rent Control Act. Hence the decree for possession and mesne profit passed by this court is null and void and is nonest, therefore, the plaintiff be directed to restore the possession of the suit property to the defendants/JDs.
5. The present suit was filed by the plaintiff for recovery of possession and mesne profit alleging that the defendants are the tenants of the plaintiff by virtue of lease deed dated 09.9.1984 for nine and a half year commencing from 09.9.1984 to 08.3.1994. The lease deed was expired by efflux of time, therefore, the plaintiff filed the present suit making the above said prayers. The lease deed dated 09.9.1984 is the documents relied by the plaintiff in their plaint and a perusal of this document shows that the rate of rent of the suit property is Rs. 950/- per 9 month even otherwise also during arguments plaintiff has not disputed the rate of rent of Rs.950/- per month. The rate of rent has also been admitted by the plaintiff in various documents which are filed by plaintiff alongwith plaint at the time of filing of the suit and which are follows :-
a)- The lease deed dated 9th September , 1984 which has been filed by the plaintiffs as their documents states the rent of suit premises to be Rs. 950/- per month.
b)-Notice dated 14th January 1995 which has been filed by the plaintiff as their document states the rent to be Rs. 950/-
per month.
The said fact of the rate of rent of the suit property to be Rs. 950/- is also substantiated by valuing the present suit by the plaintiff for possession at Rs. 11,400/- which is the 10 annual rent of the suit property.
In view of above said documents filed by the plaintiff alongwith the suit it has been admitted by the plaintiff that the rent of the suit premises is Rs. 950/- i.e. below Rs. 3500/-, therefore, the defendants/ JDs are the tenants protected by DRC Act. Since admittedly rate of rent is less than Rs. 3500/- per month, the defendants/JDs are protected by the DRC Act and cannot be evicted except on the ground mentioned in section 14 of the Act. The contentions of the plaintiff, that, since the lease deed has expired by efflux of time, therefore, the provisions of Transfer of Property Act,1882 are applicable and possession can be claimed in the civil proceedings also has no merits. Since, even if, lease deed has expired by efflux of time then also the defendants/JDs became the statutory tenants protected by DRC Act and Civil Court had no jurisdiction to pass any order or decree when the 11 DRC Act is applicable to any proceedings in view of section 50 of DRC Act. Since, the rate of rent of the suit property is admittedly Rs.950/-, therefore, I hereby hold that the decree dated 16.11.2006 passed by my learned predecessor is null and void and nonest without jurisdiction. Hence, the objections filed by the JDs are maintainable. Reference can be made to Kiran Singh Vs. Chaman Paswan, AIR 1954 SC 340 in which it has been held :-
"It is fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."
6. I revert back to the application of JDs filed by them 12 under order 9 Rule 13 CPC. Since, the objection filed by the JDs are maintainable and the decree dated 16.11.2006 of my leaned predecessor is without jurisdiction and nonest, there is no need to go into the merits of the instant application. Hence, the decree is hereby set aside. Accordingly, the application under order 9 rule 13 CPC is hereby allowed.
7. Now , I will take up the application filed by Sh. Tarun Kandhari under order 1 Rule 10 CPC praying that he be impleaded as necessary party in the execution proceedings i.e. objections, application under section 47 and 144 CPC and in the application under order 9 Rule 13 CPC.
8. Sh. Tarun Kandhari is not a necessary party to be impleaded in the application under order 9 Rule 13 CPC, since in the suit the controversy was between the plaintiff and the defendants and the applicant of application 13 under 1 Rule 10 CPC was not the party to the suit , therefore , he cannot be impleaded in the proceedings or in the application under order 9 Rule 13 CPC. The applicant can become party only in the application under section 144 CPC since he has already been inducted as tenant in the suit property and if any order is passed on the application under section 144 CPC, he will be the person effected by that order. Therefore, I hereby impleased Sh. Tarun Kandhari party to the present proceedings.
9. Sh. Tarun Kandhari has been heard on the application under section 144 CPC. It is stated by Sh. Tarun Kandhari that since he has already been inducted as a tenant in the suit property by the plaintiff by virtue of lease deed 16.3.2007 , therefore, if this decree is set aside or restoration is ordered on the instant application he will suffer irreparable loss as he is paying regular rent to the plaintiff. This arguments of Sh. Tarun Kandhari has no force 14 in view of judgment of Hon'ble High Court of Punjab & Haryana in Basant Ram Vs. Smt. Devi, 2001(1) RCR 138. The relevant portion of which is as under :-
"In fact the peculiar facts clearly show that petitioners have stepped into the shoes of original landlord-owner. Consequently, if the original landlord was duty bound for restoration of possession, so would be the petitioners. They cannot be placed in a better position that the original landlords. They cannot reap the harvest of any wrong that has been done. Reference in this connection can well be made to the decision of the Supreme Court in the case of Gurjoginder Singh v. Jaswant Kaur, 1994(1) Rent control Reporter 517. In the cited case the landlord got possession in pursuance of an ex parte order of eviction. He had again let out the premises. The ex parte order of eviction was set aside. It was held that the landlord is bound to re store the possession and so the new tenant is also liable to vacate the premises. The Supreme Court held :-
" We are unable to share the view expressed by 15 the High court as in our considered opinion the status of a bona fide purchaser in an auction sale in execution of a decree to which he was not a party stands on a distinct and different footing from that a a person who is inducted as a tenant by a decree-holder-landlord. A stranger auction-purchaser does not derive his title from either the decree holder or the judgment-debtor and therefore restitution may not be granted against him but a tenant who obtained possession from the decree holder landlord cannot avail of the same right as his possession as a tenant is derived from the landlord. Even in the case of Binayak Swain ( Supra) which the High Court relied upon, this court has drawn a distinction between purchase made by a decree-holder and a stranger in auction -sale by quoting with approval the following observation made in the case of Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan, 1988 ILR All. 166( PC). Same was the view that prevailed to the Karnataka High Court in case of Chanda Sab v. Jamshed Khan, 1994(2) Rent Law Reporter 292 ; ( Karnatka) 1994(1) RCR 4. In which it 16 has been held :-
"Herein also an ex parte order of eviction was passed. The landlord took possession in execution. The ex parte order of eviction was passed. The landlord took possession in execution. The ex parte order of eviction was set aside. Meanwhile the landlord had transferred the property. It was held that tenant is entitled for restitution not only against the landlord but also against the transferee. The conclusions drawn by the said Court are :-
a) Whenever an ex parte order/decree for possession/eviction is set aside, the party who has been dispossessed evicted in pursuance of such an ex parte decree or order, is entitled to restitution forthwith in spite of the fact that ultimately on merits, he may lose the cause and may have to yield back possession. This is in view of the salutary principle embodied in section 144 of CPC that no party to lis should suffer or be prejudiced on account of an erroneous action or decision of the Court ;
(b) The order for restitution, if not complied with can be enforced as a decree, not only against the person who obtained the ex parte decree/order 17 and caused the dispossession, but against his representative-in-interest, assigns, transferees, including tenants of transferees, irrespective of the fact whether such transferee or person in possession , is a party to the suit or the restitution proceedings.
(c) No person who has entered into possession through the party obtaining the ex parte decree/order can resist or obstruct restitution on the ground that he is bonafide transferee or tenant without notice, neither bonafides nor notice is relevant to the principle of lis pendens which is principle of public policy that neither party to a litigation can alienate the property in dispute, pendente lite, so as to affect his opponent ;"
Further reference can be made to Binayak Swain Vs. Ramesh Chandra Panigarhi and Another, AIR SC 1966 948, in which Hon'ble Supreme Court has held :-
" We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was 18 made. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carried with it the right to restoration of all that has been done under the erroneous decree ; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from."
10. In view of above discussion and well settled principle of law as laid down by Hon'ble Apex Court and Hon'ble High Courts the conclusions are obvious. The principal of doctrine of restitution is applicable in the facts of the case. Once the ex parte order of eviction has been set aside the law is under obligation to restore the 19 possession to the party entitled for it. The person entitled to restoration of the possession will have the right to get back the property in the same condition as it was. Since, the decree dated 16.11.2006 passed by my Ld. Predecessor is null, void, nonest and without jurisdiction, the same is hereby set aside. Accordingly, the plaintiff/landlord is bound to restore back the possession to the JDs/defendants and so the new tenant i.e. Sh. Tarun Khandari is also liable to vacate the premises. Hence, the objections filed by the JDs are maintainable and decree dated 16.11.2006 is set aside, the defendants/JDs are entitled for restoration of the suit property. Hence the plaintiff/ Sh. Tarun Kandhari is hereby directed to restore the suit property to the defendants/JDs within three months from today. No order as to cost.
11. In view of above discussion, as the rate of rent of the suit property is less than Rs. 3500/- this court has no 20 subject matter jurisdiction to try the present suit , therefore, the plaint is hereby rejected.
Announced in the open court on 18.02.2008. ( Charu Aggarwal) Civil Judge/Delhi 18.02.2008