Order 12

Order Details: COPY OF ORDER
Pdf Text: EX. CIVIL 217/23
KISHAN KUMAR Vs. PREM NARAIN
16/08/2024
Present : Sh. Nitin Kumar, Ld. Counsel for DH.
Sh. Sahil Chauhan, Ld. Counsel for the
JD.
Vide this order, the objections moved by the JD
under Section 47 r/w Section 151 CPC shall be adjudicated.
The factual backdrop leading to the filing of the present
objections is that the DH had filed a suit for possession,
recovery of arrears of rent, permanent injunction, damages
and mesne profits against the JD. During the course of
proceedings of the civil suit, on 24/03/2023 the Ld.
Predecessor of this Court while he was in
seisin of the
matter, observed that the parties could not settle their
dispute before the Mediation Centre. On the very same day,
the Defendant was examined by the Ld. Predecessor under
Order 10 Rule 2 (2) CPC. During his examination under
Order 10 Rule 2(2) CPC, the Defendant unambiguously
admitted that the Plaintiff /DH is the owner of the suit
property i.e. G – 6/246, Second Floor, Sector – 16, Rohini,
Delhi – 110085. He also admitted that he was the tenant in
the suit property since the year 2012 and also admitted to be
paying the monthly rental of Rs. 7,500/- excluding Rs. 200/-
as water charges. The Ld. Predecessor in exercise of his
powers and keeping in view the categorical admissions
made by the Defendant, passed a preliminary decree of
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possession in favour of the Plaintiff/DH and against the
Defendant/JD vide order dated 24/03/2023.
Pursuant to the passing of the preliminary
decree, Plaintiff/DH filed the present execution petition and
it is in this execution proceedings that the JD has challenged
the execution by filing objections under Section 47 r/w
Section 151 CPC. It is further relevant to note that the order
dated 24/03/2024 has been challenged by the JD before the
Ld. Appellate Court and the Ld. Appellate Court vide its
order dated 20/01/2024, specifically recorded that there is
no stay on the execution proceedings and directed the trial
court to proceed further with the execution proceedings.
However, since objections had been raised by JD in the
execution proceedings, this court is mandated to decide the
same before passing any further orders.
Falling back to the objections raised by JD, the
same are enumerated as under:
Firstly, that the preliminary decree passed by
the Court is non-executable because the civil suit filed by
Plaintiff is not properly valued and Court fees has not been
properly filed alongwith the suit. Secondly, that the civil suit
was filed without having filed any supporting affidavit
alongwith it, as the affidavit is important for the verification
of the facts of the case pleaded in the plaint. Hence, for non-
filing of the affidavit supporting the plaint, the suit is liable
to be dismissed and the preliminary decree passed in the suit
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is also null and void and
non est. Thirdly, that the Ld.
Predecessor while passing preliminary decree vide order
dated 24/03/2023, had failed to appreciate that the Plaintiff
had not placed any ownership documents evincing his
ownership of the suit property, hence in the absence of the
ownership of plaintiff being clearly shown during the trial, it
was legally incorrect on the part of the court to have passed
a preliminary decree in favour of plaintiff/DH and against
the defendant/JD. Fourthly, that vide order dated
24/03/2023, the examination of the Defendant was
conducted by the Ld. Predecessor in the absence of the
advocate of Defendant which is against the principles of
natural justice as the examination should have been done in
the presence of his counsel.
Ld. Counsel for the JD vehemently argued that
keeping in view the above-stated objections in mind, the
preliminary decree passed vide order dated 24/03/2023
becomes
non est and hence non executable.
Ld. Counsel for DH
per contra argued in favour
of legality of the preliminary decree dated 24/03/2023. It
was pointed out by him that DH has paid proper court fees
and has also valued the suit as per the reliefs claimed by
him. He further argued that although complete court fees
has been paid by DH, but even assuming that the court fees
is deficient, the DH shall pay the same whenever the same is
directed by the court to be paid. But according to him,
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merely on the ground of non-payment of deficient court
fees, the plaintiff’s execution petition cannot be dismissed.
Further, as regards the second objection that plaintiff has
failed to file the supporting affidavit with the plaint, it was
vehemently denied on behalf of DH that supporting affidavit
was not filed. The counsel for DH submitted that the
affidavit was filed and stated that even assuming for the
sake of argument that the DH has inadvertently failed to file
the same, then such a deficiency is merely a curable defect.
He additionally urged that the Ld. Predecessor lawfully
exercised the powers conferred on him by the salutory
provision of Order 10 Rule 2(2) CPC and it is in the course
of exercising those powers, the preliminary decree was
passed. He further urged that there is no illegality in the
order dated 24/03/2023, hence the objections filed by the JD
are merely aimed at causing delay in conclusion of the
execution proceedings. Ld. Counsel for DH hence prayed
for outright dismissal of the objections filed by JD.
I have heard the submissions from Ld. Counsel
for both parties and have also thoroughly examined the
record of the present execution petition.
I shall now be dealing with each and every
objection raised by the JD individually and separately
hereunder. Insofar as the first objection of the JD is
concerned, where the JD has urged that the suit of the
Plaintiff is liable to be dismissed because it has not been
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properly valued and proper court fees has not been paid, it is
first and foremost observed that even though JD has raised
the objection about deficient court fees and for not valuing
the suit properly, but he has failed to specify the relief for
which the court fees is deficient and how the valuation of
suit is incorrect. During arguments, a query was raised to
the Ld. Counsel for JD requiring him to pin-pointedly state
how the Court fees is deficient and in response to the query
it was submitted by him that at the inception of the tenancy
between parties, the DH had been paid a security deposit by
the JD and it is on this security deposit that DH ought to
have filed the court fees. This argument raised on behalf of
JD is absolutely baseless, because it is an admitted fact that
the plaintiff is required to pay the court fees only on the
reliefs which are incorporates in the plaint. If the DH being
the landlord has prayed for the reliefs of possession,
recovery of arrears of rent, permanent injunction, damages
and mesne profits, it would be imprudent to direct him to
pay court fees on the security deposit taken by him from the
JD at the inception of tenancy. In case JD aims for refund of
the security deposit, he would have to institute a separate
proceedings for refund of the same and cannot seek the
relief of recovery of security deposit in the civil suit.
Moreover, dismissal of the suit on these grounds is wholly
untenable. Lastly concurring with the submissions of the Ld.
Counsel for JD, even assuming for the sake of arguments
that court fees is found to be deficient or suit is not found to
be properly valued, then the court may anytime direct the
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DH to deposit the same during the proceedings as this is
merely a procedural issue and it is the settled principle of
civil jurisprudence that procedure is handmaid of justice not
its mistress. Further, court can also frame an issue regarding
the same in the main suit, but an outright dismissal of the
civil suit as contemplated by JD, is beyond the settled
principles of civil jurisprudence. Further, even the present
execution proceedings cannot be stalled merely for this
reason. Hence, the first objection raised by JD stands
declined, for being baseless and untenable.
With regard to the second objection of the JD,
wherein the JD has argued that the suit of the Plaintiff was
not accompanied by the affidavit verifying the pleadings of
the Plaint and hence, the suit is liable to be dismissed. It is
pertinent to note that Rule 15 (4) of Order 6 CPC deals with
the verification of pleadings. Rule 15 (4) of Order 6 CPC
further specifies that the person verifying the pleadings shall
also furnish an affidavit in support of his pleadings. But the
said provision nowhere empowers the court to either reject
the plaint or dismiss the suit merely on the ground of non-
filing of the affidavit contemplated under Order 6 Rule 5(4)
CPC. In this regard, it would be profitable to refer to the
decision of the Hon’ble Delhi High Court in the judgment
titled
Alka Kasana Vs. Indian Institute of Technology,
(2015) 222 DLT 473 wherein while dealing with a similar
situation the Hon’ble Court had observed as under:-
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“12. When the aforesaid provisions are read conjointly,
what clearly emerges is that a suit is instituted upon
presentation of the plaint or in such a manner as maybe
prescribed in the CPC and the facts stated in the plaint are
to be proved by affidavit. On presentation, the plaint is
expected to comply with the requirements that are specified
in sub- rules (1) and (2) of Order IV Rule 1 CPC, i.e., a suit
shall be instituted by presenting a plaint in duplicate to the
Court and every plaint shall comply with the rules contained
in Order VI and Order VII insofar as they are applicable.
Order VI deals with pleadings generally, which includes the
plaint and the written statement and Rule 15 contemplates
that every pleading has to be verified at the foot by the party
pleading or by a person, who is acquainted with the facts of
the case and not only shall such a person, who verifies the
pleading, specify by referring to the numbered paragraphs
of the pleading as to what information is within his
knowledge, what information has been verified upon
information being received and heard to be true, the said
verification is required to be signed by the person making it,
indicating inter alia the date and place on which it was
signed. The last requirement under Rule 15 of Order VI that
was introduced by virtue of the Amendment Act, 1999 is
that the person verifying the pleading is also required to
furnish an affidavit in support of the said pleading.
13. A glance at the aforesaid provisions would clearly
demonstrate that sub-rule (4) of Rule 15 of Order VI relied
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upon by the counsel for the defendant does not empower the
Court to reject a plaint on the ground that the same is not
supported by an affidavit duly attested by the Oath
Commissioner on the date when it was presented in the
Registry.
14. Courts have repeatedly held in a string of decisions that
if there is any defect in the institution of a suit, the plaintiff
must be afforded an opportunity to cure such a defect and
only in circumstances, where inspite of granting
opportunities, the plaintiff fails to cure the same, would the
Court proceed to reject the plaint. In the case of
Rajeshwarha vs. Sushma Govil reported as AIR 1989 Delhi
144, the High Court had gone to the extent of holding that
even when a plaint has been signed and verified by a
person, who is not duly authorized by the plaintiff, the
plaintiff is still entitled to rectify the said action subsequent
to the institution of the suit. It may be emphasized that
wherever there is a provision made in the Code of Civil
Procedure for dismissing a suit/rejecting a plaint or for
withdrawal of a suit, a resultant/consequential provision
exists to clarify as to whether the plaintiff is entitled to sue
or be non-suited on the very same cause of action.
…
17. In the appeal preferred against the said decision of the
Calcutta High Court, the Supreme Court had observed that
the requirements of Order VI and Order VII of the CPC are
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procedural in nature and any omission in respect thereof,
shall not render the plaint invalid and that such defects or
omissions will not only be curable, but will also relate back
to the date of the presentation of the plaint. It was clarified
that the expression "duly" used in Order IV Rule 1 CPC
implies that the plaint must be filed in accordance with law.
Reiterating the principle that rules of procedure are made to
further the cause of justice and not to obstruct the same, the
Supreme Court held that the procedural enactment ought
not to be considered in such a manner that it would prevent
the Court from meeting the ends of justice in different
situations.”
A careful reading of the ratio of the above-
mentioned decision, makes it crystal clear that the effect of
non-filing of the affidavit to support the Plaint in terms of
Order VI Rule 15(4) CPC shall not be fatal to the suit. It is a
curable defect which can be made up by the Plaintiff and the
Court may even during the proceedings require the Plaintiff
to submit the affidavit for curing the defect. Hence, it is a
preposterous argument that the suit of plaintiff is liable to be
dismissed merely for this procedural deficiency or the
present execution proceedings should be deferred for the
same reason. Thus the contention of the Ld. Counsel for JD
does not hold water and stands declined. Lastly, DH has
submitted that the affidavit is already filed with the plaint.
For this reason too, the submissions of JD cannot be
accepted.
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Thirdly, the objection raised by JD is that DH did not
file even a single document showing that he is the owner of
the suit property. He argued that when the DH has failed to
file any ownership document of the suit property, the
preliminary decree passed in favour of DH is null and void
and hence is non-executable.
In this regard it is deemed expedient to
reproduce the relevant portion of the order dated 24/03/2023
as under:
“At this stage, the defendant is examined under
Order X rule 2 (2) CPC.
“The defendant has deposed that the plaintiff is
owner of suit property i.e. G-6/246, Second Floor, Sector-
16, Rohini, Delhi-110085. He is tenant in aforesaid suit
property since the year, 2012. He has paid rent amount to
plaintiff till date but he does not have any proof of the same
as it was paid in cash. At present per month rent amount is
Rs.7500/- (Rupees Seven Thousand Five Hundred)
excluding Rs.200/- Water Charges.
The plaintiff has objected stating that the entire
rent amount has not been paid by the Defendant as alleged
by him and he will prove the same during trial.
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Ld. Counsel for the plaintiff submits that the
preliminary decree may be passed against defendant as he
has admitted that he is tenant in the suit premises.”
A careful reading of the Order dated
24/03/2023 amply clarifies that the JD had categorically
admitted the ownership of DH of the suit property and
additionally admitted that he was occupying the property
merely as a tenant since 2012, while he was being examined
by the Court under Order 10 Rule 2 (2) CPC. Once, when
the JD himself admitted the existence of landlord-tenant
relationship between the parties, in the considered opinion
of this Court, it would have been groundless and baseless
for the Court to have summoned the ownership documents
of the suit property from the DH. Hence, in view of the
specific and unambiguous admissions made by
JD/Defendant in the proceedings conducted on 24/03/2023
in the civil suit bearing no. CS SCJ 118/22, the objection
raised by JD does not hold water. Hence, it too stands
rejected outright.
Lastly, it has been the objection of JD that the
examination of JD under Order 10 Rule 2 (2) CPC was
conducted by the Ld. Predecessor in the absence of Ld.
Counsel for JD and the same was against the principles of
natural justice. With regard to these objections of JD, it is
relevant to note that the most crucial principle of natural
justice is
audi alteram partem which means that each party
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to the proceedings should be sufficiently heard before the
court proceeds to decide the dispute between them. This
principle appears to have been duly heeded to and taken
care of by the Ld. Predecessor while examining the JD
under Order 10 Rule 2(2) CPC. Further, It be noted that
Order 10 CPC nowhere makes it mandatory for the Court to
examine the parties only in the presence of their Advocates
or pleaders. With these reasons, the last objection raised by
the JD too, stands declined.
In view of the above-stated reasons, the
objections filed by JD stand declined.
Warrants of possession of suit property as
mentioned in the Site Plan be issued against the JD on filing
of PF, as per rules. Put up for appointment of Bailiff on
21.08.2024 before Ld. ACJ and to Report before this Court
on 28.08.2024
DH is also directed to file an affidavit stating
therein that there is no stay on the execution petition
alongwith the PF. The affidavit be filed one week prior to
the issuance of warrant of possession.
Copy of order be given dasti to the parties.
( Neeti Suri Mishra )
SCJ / RC / North
Rohini Court / 16/08/2024
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