UNION OF INDIA v. RAJ KUMAR SAWHNEY — 1995 DIGILAW 629 (DEL)

MOHD. SHAMIM ( 1 ) THE petitioners through the present revision petition have taken exception to the judgment and decree dated February 22. 1994 passed by Shri P. K. Bhasin, Additional District Judge. Delhi where by he dismissed the application moved by the petitioners for leave to defend and decreed the suit for recovery of a sum of Rs. 4. 95. 144. 00 against the petitioners, in favour of the respondent with interest at the rate of 10%% per annum from the date of the filing of the suit till the date of realisation of the decretal amount. ( 2 ) BRIEF facts which gave rise to the present petition are as under: that the respondent/plaintiff (hereinafter referred to as the respondent for the sake of convenience) filed a suit under Order XXXVII of the Code of Civil Procedure against the petitioners/ defendants (hereinafter referred to as the petitioners in order to facilitate the reference ). The petitioners herein moved an application for leave to defend under Order XXXVII R. 3 of the Code of Civil Procedure ("the Code" for short ). The said application was dismissed by the learned lower court vide the impugned judgment and order. ( 3 ) AGGRIEVED and dissatisfied with the said judgment and order the petitioners have approached this Court. ( 4 ) LEARNED counsel for the petitioners has vehemently contended that the petitioners raised quite a good number of points which, if accepted by the learned lower court, would have given rise to the triable issues. Thus the court below was under an obligation to grant leave to defend the suit. However, the learned lower court fell into a grave error by not accepting the said points and by dismissing the said application for leave to defend which led to the passing of the decree in the sum, adverted to above, against the petitioners. ( 5 ) LEARNED counsel for the respondent Mr. Mohinder Singh has urged to the contrary. ( 6 ) LEARNED counsel for the petitioners raised a preliminary objection with regard to the maintainability of the suit. According to him the respondent in the instant case claimed a sum of Rs. 5 lacs by way of arrears of rent, hence, he contends, that the said suit was not maintainable under Order XXXVII of the Code as the same was beyond the forte of a Civil Court. According to him the respondent in the instant case claimed a sum of Rs. 5 lacs by way of arrears of rent, hence, he contends, that the said suit was not maintainable under Order XXXVII of the Code as the same was beyond the forte of a Civil Court. The respondent, according to the learned counsel, for the recovery of the said amount should have approached the court of the Rent Controller. I am sorry I am unable to agree with the contention of the learned counsel. ( 7 ) SINCE we are concerned with the construction of Order XXXVII of the Code the provisions of the said Order can be referred to with profit. It is in the following words:- "order XXXVII (1 ). . . . . . . . . 2) Subject to the provisions of sub-rule (1 ). the Order applies to the following classes of suits, namely:- a) suits upon bills of exchange, hundies and promissory notes: (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising.- (i) on a written contract: or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. " ( 8 ) IT is manifest from above that a claim for recovery of money is maintaianble if it is a debt or liquidated demand in money payable by the defendant with or without interest arising on a written contract. Admittedly, in the instant case the respondent claimed a sum of Rs. 5 lacs by way of arrears of rent on the basis of a written contract dated 27/28 May,1988 in between the parties, a copy whereof has been placed on record. The factum of the contract has not been challenged before this Court by the learned counsel for the petitioners during the course of his arguments. ( 9 ) THE above point was also the subject-matter of a decision as reported in Harikrishna Punaroor v. M/s Seaview Tourist Home, Mangalore AIR 1983 Kar 1 . I am tempted here to cite a few lines from the said Judgment. . . . . ( 9 ) THE above point was also the subject-matter of a decision as reported in Harikrishna Punaroor v. M/s Seaview Tourist Home, Mangalore AIR 1983 Kar 1 . I am tempted here to cite a few lines from the said Judgment. . . . . "a suit for arrears of rent due by the tenant under the terms of a lease deed is a suit for a debt "arising on a written contract" within the meaning of 0. 37, Rule 1 (2) (b) (1 ). The merger of the contractual terms and obligations agreed upon in the lease deed is a merger. if any, only in a limited sense. It does not wholly obliterate the terms and conditions of the lease. ( 10 ) FAILURE to pay rent will give rise to a cause of action to the landlord to claim rent and that claim should be taken as having arisen, out of the stipulation made in the contract between the parties, and this is an obligation arising under the contract. Unless there is that privity of contract the landlord cannot enforce that claim against the tenant ( 11 ) A claim for arrears of rent arising under a written lease is covered in clause (b) (i) of sub-rule (2) of Order XXXVI I. Hence, the suit filed by the plaintiff under Order XXXVII C. P. C was held maintainable". ( 12 ) IT has next been contended for and on behalf of the petitioners that the respondent was under an obligation to maintain the disputed property in a fit and suitable condition in order to enable the petitioners to use the same for office purposes. The respondent was further required to make arrangement for the Water. The respondent neither made any arrangement for the water nor repaired the disputed premises nor spent a single shell on the white washing of the same as a corollary whereof the petitioners were compelled and impelled to carry out the necessary repairs. They also got done the white washing of the disputed property. They also expended a lot of money in making arrangement for the water. Thus the petitioners are entitled to recover the said amounts from the respondent. Hence it gives rise to a triable issue. They also got done the white washing of the disputed property. They also expended a lot of money in making arrangement for the water. Thus the petitioners are entitled to recover the said amounts from the respondent. Hence it gives rise to a triable issue. ( 13 ) SURPRISINGLY enough the petitioners for the best reasons known to them did not give any detail of the amounts alleged to have been spent on the said things. They also did not mention specific dates on which the said repairs were carried out and the white washing was done. Thus in the absence of the said particulars this Court feels that the pleas raised by the petitioners are too vague to be entertained, It appears that the said pleas have been raised by way of defence in order to seek leave to defend. ( 14 ) THERE is another side of the picture. It is a well settled principle of law that a counter-claim is not maintainable in a case under Order XXXVII of the Code. ( 15 ) THE underlying idea behind the enactment of Order XXXVII of the Code is to provide a summary procedure for the disposal of certain suits. Consequently, the defendant is. not as in an ordinary suit entitled to a right to defend as a matter of right. He must apply for leave to defend within ten days from the date of service of the summonses and leave to defend is to be granted only in those discerning few cases where the defendant shows and discloses such facts which the courts deem sufficient enough in the circumstances of a given case for granting leave to defend. In other words, the defendant is required to show by way of his defence that the defence put forward by him gives rise to triable issues. Thus. a counter-claim if allowed to be raised by way of defence in a summary suit it is likely to obstruct and delay the trial of the suit. Hence the very purpose of the enactment of Order XXXVII is liable to be defeated Had the intention of the legislature been to entertain counter- claims they would have provided so in the provisions of Order XXXVII itself. Hence the very purpose of the enactment of Order XXXVII is liable to be defeated Had the intention of the legislature been to entertain counter- claims they would have provided so in the provisions of Order XXXVII itself. The presentation of a counter-claim cannot by any stretch of imagination be said to be by way of defence inasmuch as the party whosoever puts forward a claim has got a cause of action and can file a suit on the basis of the same. Furthermore, a counter claim under Order VIII Rule 6a of the Code is to be filed before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Rule 6a which deals with the counter-claim by the defendant is reproduced below for appreciation of the said point:- 6a. (1) A defendant in a suit may in addition to his right of pleading a set-off under rule 6. set up by way of counter-claim against the claim of the plaintiff, and right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. . . . ". ( 16 ) IT has already been observed above, that a defendant in a suit under Order XXXVII is not entitled to defend the claim of the plaintiff unless he raised certain triable issues by way of defence in his application for leave to defend. Thus the counter-claims are beyond the scope of Order XXXVII of the Code and cannot be entertained thereunder. The same view was also given vent to by a Single Judge of this Court as reported in Bramec Suri (P) Ltd. v. Shri Smith Chem, 1981 R. L. R. 60. . . . . "it is the defence with regard to course of dealings and cause of action set up in the plaint which has to be taken into account while granting such permission. Extraneous controversies and different causes of action cannot justify enlargement of the scope and purpose of the summary action brought under Order 37. . . . . "it is the defence with regard to course of dealings and cause of action set up in the plaint which has to be taken into account while granting such permission. Extraneous controversies and different causes of action cannot justify enlargement of the scope and purpose of the summary action brought under Order 37. " ( 17 ) TO the same effect are the observations of a Single Judge as reported in Punjab and Sind Bank v. S. K. Tulshan, 1990 RLR 556 ( 18 ) THE next contention raised by the learned counsel for the petitioners is that a fire broke out in the disputed property as a corollary whereof the petitioners remained out of possession of the abovesaid property during the period from March 2,1990 to August 31,1992. Hence the respondent is not entitled to recover any thing for the abovesaid period. The learned counsel has thus argued that the learned lower court should have granted permission to defend on the said score as the said pleas gave rise to triable issues. The contention of the learned counsel no doubt is an ingenious one but can be brushed aside without any difficulty. ( 19 ) THERE is no dispute with regard to the fact that a tenant is under an obligation to pay rent to the landlord so long as he continues to remain in possession over the tenanted accommodation. Admittedly, the petitioners in the instant case continued to remain in possession over the disputed property till August 31. 1992. Even they continued to pay rent to the respondent. Admittedly, they paid rent for the period from March 1,1990 to June 30. 1990. Thus the said rent was paid after the sealing of the property on account of the fire. No attempt whatsoever was made by the learned counsel for the petitioners to show as to why the said rent was paid if the defence as put forward by the petitioners was that they were under no obligation to pay the rent for the said period. ( 20 ) SECTION 108 (e) of the Transfer of Property Act deals with the rights and liabilities of a lessee. It reads as under:- 108. ( 20 ) SECTION 108 (e) of the Transfer of Property Act deals with the rights and liabilities of a lessee. It reads as under:- 108. (e) If by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the lease shall, at the option of the lessee be void". ( 21 ) IT is amply clear from above that if a particular property is destroyed by fire, wholly or in part, and is rendered thereby substantially and permanently unfit for the purposes for which it was let out, then the lessee has been given the option to declare the lease as void. Thus in view of the above, it was for the petitioners to have informed the respondent that they no more wanted to continue in possession over the disputed property inasmuch as the fire has destroyed the said property and the same has been rendered unfit for the purposes for which it was let out. However. the petitioners for the best reasons known to them did not exercise that option. instead they continued to remain in possession over the disputed property till August 30,1992 and delivered the possession to the respondent only on August 31,1992. Thus I feel they cannot now be allowed to say that they are not liable to pay the rent for the said period. ( 22 ) IT is a well established principle of law that if a particular party is responsible for bringing about a particular situation he cannot be allowed to take advantage of the said situation. Admittedly the petitioners remained in possession over the disputed property for the period alluded to above. Hence how they can turn round now and allege that they are not liable to pay rent as the property in suit was rendered incapabale of being used on account of fire. I am fortified in my above view by the observations of a Single Judge as reported in Dr. Kundan Lal v. Shamshad Ahmad and others ( AIR 1966 Allahabad 225 ). . "clause (e) of S. 108 is based on the principle of frustration of contract,and was enacted to safeguard the rights of the tenant in case of the total destruction of the property leased to him. Kundan Lal v. Shamshad Ahmad and others ( AIR 1966 Allahabad 225 ). . "clause (e) of S. 108 is based on the principle of frustration of contract,and was enacted to safeguard the rights of the tenant in case of the total destruction of the property leased to him. It gives him the right to escape his liability as a tenant by declaring the lease void. It follows that if the tenant does not exercise the option under Cl. (e) that is. does not invoke the doctrine of frustration the lease shall continue for the benefit of both the parties. There is no other provision under the Act providing for a reduction of rent in case of partial destruction of the leased property or for total suspension in case of its complete destruction. " ( 23 ) IN the circumstances stated above I do not see any force in the present petition. It is hereby dismissed.