Interim Order 9

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DISTRICT JUDGE-05, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Civil Suit No. 195/24
Queenie Sharma
.......... Plaintiff
Versus
P.K. Vats & Associates & Anr.
.......... Defendants
O R D E R : -
1. Vide this order I shall dispose of three applications
i.e. two applications moved by the defendant under Order 8
Rule 1 CPC and under Section 114 read with Section 151
CPC and one application moved by the plaintiff under
Order 15A CPC.
Order on the application under Order 8 Rule 1 CPC
2. It is stated in the application that the Counsel for the
defendants entered appearance on 29.05.2024 and he
submitted that he had not received complete paperbook of
the plaint and documents, thus the Court directed the
plaintiff to supply deficient documents to the defendants
and the defendants were granted 30 days time to file the
written statement. The deficient documents were supplied
to the defendants on 25.07.2024 which fact was informed to
the court on 31.07.2024, however the Counsel for the
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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plaintiff disputed the same and claimed that the same were
supplied on 30.05.2024. It transpired that the Counsel for
the plaintiff malafidely and intentionally instead of serving
copy of deficient documents to the Counsel for the
defendant chose to send the same to the defendants who
made available the said documents to their Counsel on
25.07.2024. Thereafter, due to prior professional
commitments, the defendant no. 2, who is director of
defendant no. 1 company, could not approve the draft
written statement and he signed the written statement only
on 31.08.2014 and thereafter the written statement was filed
on 05.09.2024 and as such there is 06 days delay in filing
the written statement which is sought to be condoned by
way of present application.
3. The plaintiff has contested the application by filing
the detailed reply contending that there is delay of more
than 60 days in filing the written statement. It is stated that
along with the summons, complete copy of plaint and
documents were sent to the defendants. The plaintiff again
supplied complete set of the plaint and documents on
30.05.2024 at 8.30 pm at email address of the defendants
and again supplied the same on 25.07.2024, though the
Counsel for the plaintiff was not bound to supply the copy
of plaint and documents again. It is further stated that the
written statement filed by the defendants is time barred and
cannot be taken on record. The plaintiff has prayed for
dismissal of the application.
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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4. Perusal of the record shows that the summons of the
suit were directed to be served to the defendants vide order
dated 16.04.2024 for 29.05.2024. On 29.05.2024, the
Counsel for the defendants appeared and submitted that he
has not received the copy of some of the documents filed
along with the plaint. The Counsel for the plaintiff
undertook to supply the copy of deficient documents to the
Counsel for the defendant. The case was fixed for
31.07.2024 and on the said date, Counsel for the defendants
submitted that copy of deficient documents were supplied
to him on 25.07.2024 only and, therefore, he was not able
to file the written statement. The defendants have filed the
written statement on 03.09.2024.
5. The plaintiff has placed on record the email dated
29.05.2024 to show that her counsel has sent the copy of
complete plaint along with all its annexures to the
defendants. The said fact is not disputed by the defendants,
but it is contended that the Counsel for the plaintiff
malafidely and intentionally served the copy of deficient
documents to the defendants instead of Counsel for the
defendants. I do not find any justifiable ground to take an
umbrage on sending the copy of deficient documents to the
defendants by the Counsel for the plaintiff instead of
Counsel for the defendants. The defendants cannot claim
that copy of deficient documents were not supplied to their
counsel in time or that there was any malafide on the part of
the Counsel for the plaintiff in serving the copy of deficient
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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documents to them instead of sending the same to their
counsel. The defendants could very well have sent the copy
of documents to their counsel once they received the same
on 29.05.2024. It is not a sufficient ground to contend that
the deficient documents were made available to the Counsel
for the defendants only on 25.07.2024. It shows the manner
in which the proceedings are being taken by the defendants.
6. Be that as it may. Since the Ld. Predecessor vide
order dated 31.07.2024 has directed the defendants to file
the written statement within 30 days from 25.07.2024 and
the written statement has been filed on 03.09.2024, there is
delay of 08 days. The same is hereby condoned. The written
statement filed by the defendants is taken on record. The
application stands disposed of.
Order on the application under Section 114 r/w Section 151
CPC seeking modification/recall of order dated 31.07.2024
7. It is contended in the application that this Court has
erred in allowing the application filed by the plaintiff under
Order 15A read with Section 151 CPC vide order dated
31.07.2024 without affording an opportunity to the
defendants to either file a reply or of a hearing and without
considering the defence of the defendants which was yet to
be filed. It is stated that the complete set of plaint and
documents were supplied to the defendants only on
25.07.2024 and hence time was sought to file the written
statement which was also granted by the Court. The
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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application under Order 15A was filed on record only prior
to 31.07.2024 and till date no notice has been issued of the
said application to the defendants and thus the defendants
were not granted an opportunity to file their reply to the
said application. It is further contended that the plaintiff has
suppressed the material facts. It is stated that in the year
2014, the defendant no. 2 entered into a lease agreement in
respect of the suit property with the original owners,
namely, Sh. Harish Chander Malhotra and Smt. Usha
Malhotra for a period of 09 years. The said lease was
entered into only on the promise of original owners that the
tenancy of the defendant no. 2 shall not be disturbed for
initial year of 9 years. Further, there was an understanding
that the suit property shall require renovation by the
defendant no. 2 and the cost of the said renovation shall be
adjusted in terms of the prevailing market value on expiry
of lease period. Accordingly, the defendant no. 2 invested
Rs 50 lakhs on renovation work. It is further stated that
Sh. Harish Chander Malhotra passed away on 21.06.2020
and post his demise his son Mr. Rajiv Malhotra and wife
Mrs. Usha Malhotra stepped into the shoes of the original
owner of the suit property and all the communications
regarding the tenancy of the suit property took place with
Mr. Rajiv Malhora who acted on his mother’s behalf on the
strength of a GPA dated 27.10.2020 and his son Sh. Ravish
Malhotra. Further, after the demise of Sh. H.C. Malhotra,
the defendant no. 2 replaced the uncashed post dated
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Queenie Sharma vs. P.K. Vats & Associates & Anr.
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cheques jointly issued in the name of Sh.H.C. Malhotra and
his wife Mrs. Usha Malhotra into the name of Mrs. Usha
Malhotra who informedly had become the sole and absolute
owner of the suit property. The lease over the suit property
was again agreed to be renewed and subsequently, Lease
Agreement dated 11.05.2022 was entered into between the
defendant no. 2 and Mrs. Usha Malhotra through her son as
duly constituted attorney for a period of 3 years upto
28.01.2025. It was also agreed between the parties that the
rent for the months of January and February 2022 shall be
adjusted against the expenses of paint and polish made by
the defendant no. 2 on behalf of the landlord and the
second lease period would commence from the month of
March 2022 onward. It is further averred that the defendant
no. 2 was apprised the demise of Smt. Usha Malhotra on
06.04.2023 and it was also brought to his knowledge that
there was a family dispute between Class I legal heirs of
Late Smt. Usha Malhotra in respect of her assets which
included the suit property, therefore there was no clarity
regarding the ownership of the suit property after demise of
Smt. Usha Malhotra. The defendant no. 2 was also told that
post dated cheques issued by him to Smt. Usha Malhotra
were attempted to be encashed by her son Mr. Rajiv
Malhotra. Subsequently, the defendant no. 2 sent a
WhatsApp text to Mr. Ravish Malhotra who had been
attending the Whats App call regarding the suit property on
behalf of his father Mr. Rajiv Malhotra and grandmother
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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Smt. Usha Malhotra. It is further stated that Sh. Rajiv
Malhotra is already in possession of Rs. 6 lakhs deposited
by defendant no. 2 as interest free refundable security
deposit. It is further averred that till date the defendant no. 2
has invested a sum of Rs.79,90,941.14/- over the
installation of fixtures and furniture over the suit property.
It is further stated that the plaintiff is claiming the
ownership over the suit property but not a single document
has been filed by the plaintiff to prove her ownership nor
any probate of the Will of her deceased mother has been
applied for or granted and the defendant no. 2 is not aware
who is the actual owner of the suit property. It is further
stated that the defendant no. 2 has right to be heard and to
bring his defence on record as well as reply to the
application for a fair adjudication of the dispute between
the parties. Therefore, it has been prayed that order dated
31.07.2024 may be reviewed.
8. The plaintiff has filed reply to the application
contending that the application is malafide and has been
filed to delay the payment of arrears of rent and there is no
ground to review the order dated 31.07.2024. It is stated
that the order was passed in the presence of Counsel for the
defendant no. 2 after hearing his submissions and the
defendants were supplied the copy of plaint and documents
including the application under Order 15A CPC prior to the
hearing on 31.07.2024 and that is why the Counsel for the
defendants did not seek any time to file reply to the
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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application under Order 15A and has argued straightaway.
It is denied that there was an oral understanding regarding
the fixtures and renovation to be carried by the defendants
which was to be adjusted. It is further denied that an
amount of Rs. 50 lakhs was spent by the defendant no. 2 on
renovation. It is stated that after execution of memorandum
recording family settlement dated 06.09.2023, the
defendant no. 2 cannot claim any ownership dispute
between the legal heirs. Further, Mr. Rajiv Malhotra had
already executed an affidavit dated 06.09.2023 in favour of
the plaintiff confirming the execution of memorandum
recording family settlement. It is not denied that the
defendant no. 2 issued 36 post dated cheques in favour of
mother of the plaintiff, however it is stated that after the
death of mother of the plaintiff, she has not presented any
cheque for encashment and the plaintiff is ready to return
the post dated cheques. It is further stated that the plaintiff
is ready and willing to adjust the amount of Rs. 6 lakhs
subject to condition of handing over peaceful and vacant
possession of the suit property. It is stated that there is no
settlement regarding expenses incurred on fixtures and
furniture to be adjusted towards the monthly rent. It is
stated that much prior to filing of the present suit, the
plaintiff has sent a letter and legal notice to the defendant
stating that the plaintiff has become the sole and absolute
owner of the suit property. The other contents of the
application are stated to be wrong and denied and the
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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plaintiff has prayed for dismissal of the application.
9. Perusal of the record shows that the plaintiff has
filed the present suit against the defendants for possession,
recovery of arrears of rent, damages/ use and occupation
charges. The claim of the plaintiff is that her mother
Smt. Usha Malhotra was the owner of the suit property vide
a registered Sale Deed who had inducted the defendants as
tenant in the suit property for a period of 5 years from 2014
to 2019. Thereafter, the lease period was extended from
2019 to 2022 and lastly the lease was extended from
01.03.2022 to 28.03.2025 vide lease deed dated 11.05.2022.
The rate of rent was settled at Rs. 2 lakhs. The defendants
had issued 36 post dated cheques towards rent for 36
months besides deposit of Rs. 6 lakhs as interest free
refundable security to be adjusted at the time of vacating
the suit property. It is further averred that the defendants
had not paid the rent for the months of January and
February 2022 despite repeated requests. It is further
averred that Smt. Usha Malhotra expired on 06.04.2023
leaving behind the plaintiff and Sh. Rajiv Malhora as her
legal heirs. A family arrangement was entered into between
the plaintiff and Sh. Rajiv Malhotra by which the suit
property fell into the share of the plaintiff. Sh. Rajiv
Malhotra also executed NOC in favour of the plaintiff on
the basis of Will executed by their mother in favour of the
plaintiff bequeathing the suit property to the plaintiff. The
plaintiff claims to have written letter dated 14.10.2023 to
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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defendant no. 2 informing him that she has become the
absolute owner of the suit property and asking him to clear
the outstanding rent since May 2023, but the the defendants
have failed to pay the arrears of rent. Hence, the present
suit. The plaintiff is seeking recovery of arrears of rent for
the period from May 2023 to December 2023; recovery of
use and occupation charges/damages/mesne profits from
January 2024 to March 2024 along with interest and
recover of future mesne profits/damages from the month of
April 2024 apart from other reliefs.
10. It is a matter of record that on 31.07.2024,
Mr. Karan Sharma, Ld. Counsel for the defendants was
present and there was issue of supply of deficient
documents and he sought time to file the written statement.
It was noted that an application under Section 15A CPC
(wrongly mentioned as it should have been under Order
15A CPC) for directing the defendants to pay the arrears of
rent and to pay the future rent @ Rs. 2 lakhs per month is
pending consideration. On a query put to the Counsel for
the defendants, he admitted that the monthly rate of rent is
Rs. 2 lakhs which has not been paid since 01.05.2023. The
Counsel for the plaintiff has also admitted that the rent has
not been paid since 01.05.2023. The Counsel for the
defendants further submitted that the rent has not been paid
since 01.05.2023 as there was no clarity to whom the rent is
to be paid. He further stated that Smt. Usha Malhotra was
the owner and landlady and she has died and after her
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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demise, the defendants are not aware to whom they have to
pay the rent. The Counsel for the plaintiff submitted that the
rent for the month of January and February 2022 has also
not been paid. The said contention was denied by the
Counsel for the defendants.
11. After hearing these submissions and perusing the
record, the Ld. Predecessor observed that since it is in
dispute whether the rent for the month of January and
February 2022 has been paid or not, the Court cannot at
this stge direct the defendants to pay the rent for these two
months, however it was noted that since the defendant no. 2
is in possession of the property in the capacity of tenant and
that he has not paid the rent @ Rs. 2 lakhs per month w.e.f.
01.05.223, the directions can be given to defendant no. 2 to
pay the rent at this rate and from this period onwards. It
was also observed that,
“The plaintiff is daughter of the
earlier owner and landlady. No other person came forward
to claim the rent. Even if there is an inter se dispute later on
between the legal heirs of Smt. Usha Malhotra, it is a
matter between the legal heirs and it does not absolve the
defendant no. 2 from paying the rent”. Accordingly, the
defendant no. 2 was directed to pay the rent w.e.f.
01.05.2023 till 31.08.2024 @ Rs. 2 lakhs per month to the
plaintiff within 15 days form the date of order i.e.
31.07.2024 and further to continue to pay the rent for the
period starting on 01.09.2024 @ Rs. 2 lakhs per month to
the plaintiff not later than the 7th day of each succeeding
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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month.
12. Now, the defendant no. 2 by way of present
application is seeking review of order dated 31.07.2024 on
the ground that this Court has erred in allowing the
application without affording an opportunity to him to file
reply to the application moved by the plaintiff under Order
15A CPC and without considering his defence which was
yet to be filed. I do not find any merit in this contention.
The defendants were served with the copy of plaint and
documents on 22.05.2024 including the application under
Order 15A CPC, though there was some issue of supply of
copy of deficient documents which was also removed when
the Counsel for the plaintiff has sent the copy of plaint and
documents to the defendants through email on 30.05.2024.
Even as per own submission of the Ld. Counsel for the
defendants on 31.07.2024, the documents were supplied to
the defendants on 30.05.2024 and to him on 25.07.2024 and
he requested for some time to file the written statement. As
such, it is apparent that even the Counsel for the defendants
had received the copy of plaint and documents on
25.07.2024 and the defendants as well as their Counsel
have notice of the application under Order 15A CPC moved
by the plaintiff. Further, on 31.07.2024, the Counsel for the
defendants did not ask for an adjournment to file reply to
the application under Order 15A CPC. He only sought time
to file the written statement. It is also a fact that after
hearing the arguments of the Counsel for the plaintiff and of
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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the Counsel for the defendants on the application under
Order 15A CPC, the order dated 31.07.2024 was passed.
Therefore, it does not lie in the mouth of the defendant
no. 2 to state that the order was passed without giving an
opportunity to file reply to the application under Order 15A
or of hearing.
13. With regard to other contention raised in the
application seeking review that the defendant no. 2 has
incurred expenses of Rs 50 lakhs towards renovation which
was to be adjusted on the expiry of lease period towards the
rentals is concerned, there is no such covenant in the lease
deed placed on record. Moreover, the same is a matter of
trial and further as per own case of the defendant no. 2, the
same is to be adjusted on the expiry of lease period and
handing over the possession of the suit premises to the
landlord.
14. Another contention is that there was
inter se dispute
between the legal heirs of late Smt. Usha Malhotra
regarding the ownership of the suit property and there was
no clarity to whom the rent is to be paid. The said aspect
has been taken care of which was argued by the Ld.
Counsel for the defendants in the order dated 31.07.2024.
15. In view of the aforesaid discussions, there is no error
apparent on the face of the record which calls for review of
order dated 31.07.2024. Hence, the application is hereby
dismissed.
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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Order on the application for striking of defence of
defendant no. 2 under provisions of Order 15 A CPC
16. By way of this application, the plaintiff is seeking to
strike off the defence of the defendant no. 2 for non
compliance of order dated 31.07.2024.
17. The defendant no. 2 has filed reply to the application
contending that it is settled principle of law that the defence
is to be struck off only in extreme cases as last resort where
obstinacy or contumacy on the part of the defendant or a
willful attempt to disregard the order of the court is
established. He reiterated the averments made in the review
application regarding the deposit of security amount of
Rs. 6 lakhs,
inter se dispute of legal heirs of Smt. Usha
Malhotra and investment of Rs.79,90,941.14/- in renovation
etc. He has also relied upon the judgments in
Bimal Chand
Jain vs. Sri Gopal Singh Aggarwal, (1981) 3 SCC 486 and
Rashi Mishra vs. B. Kalyana Raman, 2022 SCC Online Del
4169.
18. It is apparent that the defendant no. 2 has failed to
comply the order dated 31.07.2024 and instead of
complying the said order moved an application under
Section 114 CPC seeking review of the order dated
31.07.2024 on various grounds which are not found
sufficient to review the order dated 31.07.2024.
19. The Ld. Counsel for the plaintiff has vehemently
argued that the sole purpose of the defendant no.2 was to
avoid and delay the payment of arrears of rent as directed
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Queenie Sharma vs. P.K. Vats & Associates & Anr.
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vide order dated 31.07.2024 in the garb of review
application. To some extent, I find substance in this
submission of the Ld. Counsel for the plaintiff, but it is also
a matter of fact that the review application against order
dated 31.07.2024 was pending disposal. Therefore, question
arises as to whether in these circumstances, for non
compliance of order dated 31.07.2024, the defence of the
defendant no. 2 should be struck off.
20. It has been held in
Bimal Chand Jain vs. Sri Gopal
Singh Aggarwal (supra) by the Hon’ble Supreme Court
that:-
“….. An order under sub-rule (1) striking off the
defence is the nature of a penalty. A serious
responsibility rests in the court in the matter and the
power is not to be exercised mechanically. There is a
reserve of discretion vested in the court entitling it not
to strike off the defence if on the facts and
circumstances already existing on the record it finds
good reason for not doing so. It will always be a
matter for the judgment of the court to decide whether
on the material before it, notwithstanding the absence
of a representation of sub-rule (2), the defence should
not be struck off. The word “may” in sub-rule (1)
merely vests power in the court to strike off the
defence. It does not oblige it to do so in every case of
default.”
21. In view of the aforesaid discussions, in my
considered opinion, the striking off the defence of the
defendant no. 2 will be a harsh order. Therefore, the
application moved by the plaintiff is dismissed.
However, the defendant no. 2 is directed to comply the
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Queenie Sharma vs. P.K. Vats & Associates & Anr.
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order dated 31.07.2024 within three weeks from today
i.e. to pay the rent w.e.f. 01.05.2023 till 31.05.2025 @
Rs. 2 lakhs per month to the plaintiff and further to
continue to pay the rent for the period starting on
01.06.2025 @ Rs. 2 lakhs per month to the plaintiff not
later than the 7th day of each succeeding month till the
time the defendants are in possession of the suit
property. The plaintiff is directed to give her bank
account details in which the said amount will be
remitted by the defendant no. 2 to the Ld. Counsel for
the defendants as well as to the defendant no. 2 through
Whats App and email within 05 days.
Announced in the open Court
on 14th May, 2025
(Balwant Rai Bansal)
District Judge-05 (New Delhi District)
Patiala House Courts, New Delhi
CS No. 195/24
Queenie Sharma vs. P.K. Vats & Associates & Anr.
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