Delhi District Court
Aditi Dham vs . Rajiv Kapoor & Ors. on 6 June, 2016
CS No. 319/15
Aditi Dham Vs. Rajiv Kapoor & Ors.
06.06.2016
(Order on the application u/o 15A CPC moved by the plaintiff).
Present: Sh. Ravi Krishan Chandna, Counsel for the plaintiff.
None for the defendants.
1.By way of this application, the plaintiff seeks striking off defence of defendant no. 1 on the ground that defendant no. 1 has failed to comply with directions of the court vide order dated 27.01.2016 by which he was directed to deposit the arrears or rent within 30 days from 27.01.2016.
2. The defendant no. 1 filed reply to the application contending that suit of the plaintiff is based upon a purported Leave and License Agreement dated 22/23.11.2013 and as such provisions of Order 15 A are not applicable to the case in hand. It is further contended that defendant no. 1 is a bachelor and physically handicapped person having no source of income and present application has been moved to harass him. It is stated that defendant no. 1 is the owner of House No. E214, Sarita Vihar, New Delhi which has been illegally sold by defendant no. 2 and 3 who are real brothers of defendant no. 1 to a third party by cheating for which an FIR was registered. The defendant no. 1 was thrown out from the CS No. 319/15 Aditi Dham Vs. Rajiv Kapoor & Ors. Page 1 of 6 aforesaid property and was forced to reside in the suit property by defendant no. 2 and 3 who claimed to be the owner of the same. It is contended that signatures of defendant no. 1 on Leave and License Agreement dated 22/23.11.2013 has been forged. It is denied that defence of defendant no. 1 is liable to be struck off. The defendant no. 1 has prayed for dismissal of the application.
3. I have heard the Ld. Counsel for the parties and perused the record carefully.
4. Perusal of the record reveals that plaintiff has filed the present suit for possession, arrears of rent, mesne profits and damages against the defendants. The plaintiff also moved an application u/o 39 rule 10 CPC seeking directions to the defendants to pay monthly rent along with arrears of rent. The said application was allowed vide order dated 27.01.2016 by which defendant no. 1 was directed to pay the arrears of rent @ Rs. 19,000/ per month w.e.f April 2014 to 31.01.2016 within a period of one month after making adjustment of Rs. 34,000/ which has been paid by him to the plaintiffs. The defendant no. 1 was further directed to continue to pay future rent @ Rs. 19,000/ per month w.e.f February 2016 till pendency of suit by 7th of each succeeding calender month.
5. Admittedly, the defendant has not deposited the arrears of rent nor paid the future rent as directed vide order dated 27.01.2016. CS No. 319/15 Aditi Dham Vs. Rajiv Kapoor & Ors. Page 2 of 6 Naib Nazir has also reported that no amount has been deposited by defendant no. 1 in compliance of the order dated 27.01.2016.
6. Hon'ble Delhi High Court in Raghubir Rai Vs. Prem Lata & Anr. 211 (2014) DLT 516 (DB) held that, "We are of the view that the Court, in exercise of powers under Order 15A of the CPC is empowered to direct deposit at such rate as the erstwhile tenant/defendant may on the basis of material on record be found to have agreed to pay to the landlord for the said period even if the tenant before the Court may not have admitted the same or disputed/controverted the same. Similarly, in a suit between the owner of immovable property and an unauthorized occupant, Order 15A empowers the Court to direct the defendant who though may not be liable to be ejected/dispossessed immediately without trial but who, on preponderance of probabilities may not be found to have a right to continue in possession of the property, to deposit during the pendency of the suit such amount as may appear to be reasonable, to safeguard the right of the owner of the property and to ensure that such owner is compensated at least for the time taken in adjudication of a false defence taken up by the defendant in unauthorized occupation. This, in our view is necessary to avoid the process of the Court being abused by unscrupulous litigants and to curb the growing tendency of using the process of litigation as a tool of oppression."
7. Similarly, in V.N. Behal & Ors. Vs. Gurmeet Singh Wadalia, CS (OS) No. 7/2005 decided on 17.04.2015 the Hon'ble High Court of Delhi relied upon the judgment of Prakash Arts Vs. Mohammed Refiuddin, 2011 (1) ALT 467 in which it has been held CS No. 319/15 Aditi Dham Vs. Rajiv Kapoor & Ors. Page 3 of 6 that, "From a reading of the provision, it becomes clear that it is intended to protect the interests of the owner, lessor or licensor of an immovable property, whenever proceedings are initiated for eviction of the tenant, lessee or licensee. The necessity for incorporating that provision arose, on account of the fact that in suits filed for eviction of the tenants or licensee of whatever description, payment of rent or license fee was not being made, taking advantage of the very pendency of the suit. Section 151 was found to be inadequate to clothe the Court with the power to pass necessary orders. Therefore, Order XVA C.P.C., was added, which empower the court to pass orders directing deposit of rent or license fee by the defendant in a suit for eviction. The power is also conferred on the Court to decide the dispute as to the quantum of rent, though for the limited purpose of the I.A. In case the rent or license fee, as directed by the court, is not deposited, the defendant is exposed to the forfeiture of defence."
8. Having relied upon this judgment, the Hon'ble High Court observed that, "All these judgments clearly show that in case order of payment of rent is not complied with there is sanction provided by striking off the defence of the tenant under Order 15A. This sanction as on date at lease is available in metropolitan towns of Delhi and Bombay where there is lot of litigation between the landlords and tenants where the latter try to enjoy the premises, yet not pay any amount to the landlord".
9. The contention of the defendant that provision of Order 15A of the CPC are not attracted in the present suit which is based on Leave and License Agreement is not tenable in view of the observation of the Hon'ble High Court of Delhi in V.N. Behal case CS No. 319/15 Aditi Dham Vs. Rajiv Kapoor & Ors. Page 4 of 6 (cited supra).
10. The other contentions raised by the defendant no. 1 that he has been cheated by defendant no. 2 and 3 who are his real brothers and have fraudulently sold his house and further that his signatures on Leave and License Agreement has been forged or that he was forced to live in the suit premises by defendant no. 2 and 3 who claimed to be owner of the same have already been dealt with vide order dated 27.01.2016 while deciding the application u/o 39 rule 11 CPC moved by the plaintiff. After taking into consideration all these contentions, since the defendant no. 1 was found in possession of the suit property, he was directed to pay the arrears of rent and future rent so that plaintiff/landlord is compensated and is not deprived of rentals of the suit property who is admittedly owner of the suit property. All these contentions reagitated by the defendant no. 1 have no bearing to the present application.
11. As it has come on record that the defendant no. 1 has not complied the order dated 27.01.2016 and is occupying and enjoying the suit property without paying user charges, therefore in view of law laid down in the judgments cite supra, the defence of the defendant is liable to be struck off. Accordingly, application is allowed and defence of the defendant no. 1 is struck off. CS No. 319/15 Aditi Dham Vs. Rajiv Kapoor & Ors. Page 5 of 6
Now to come up on 11.08.2016 for admission/denial of documents and framing of issues.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 06.06.2016 CS No. 319/15 Aditi Dham Vs. Rajiv Kapoor & Ors. Page 6 of 6