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2010 DIGILAW 2526 (PNJ)

Sumit Sachdeva v. Rajinder Singh

2010-09-06

HEMANT GUPTA

body2010
Judgment Hemant Gupta, J. 1. This order shall dispose of C.R. No. 5393 of 2009 directed against an order passed by the learned trial Court on 16.02.2009, whereby an application filed by the petitioner directing the plaintiff- respondents to pay licence fees at the rate of Rs. 5 lac per month from 01.05.2006 till 31.03.2007 and Rs. 10 lac per month from 01.04.2007 till the vacation of the premises was dismissed; and C.R.No. 6699 of 2009 filed by the plaintiff aggrieved against the orders passed by the Courts below, declining an application under Order 39 Rule 1 & 2 for ad interim injunction against the defendant to protect his possession as tenant. 2. The plaintiff-respondent was owner of property bearing No. B-XX-3355, Gurdev Nagar, Near Aarti Cinema, Ludhiana. He executed five different sale deeds in favour of defendant Nos. 1 to 3 i.e. two sale deeds on 01.02.2006 and three sale deeds on 01.05.2006. As per the recitals in the sale deeds, the possession of the property in dispute was delivered to the defendants. The plaintiff filed the present suit for injunction on 29.03.2007 claiming himself to be tenant in the premises on a monthly rent of Rs. 10,000/- per month and sought a decree for permanent injunction. Alongwith the said suit, an application for grant of ad interim injunction was filed, which has been declined by both the Courts. 3. In the written statement, the defendant not only controverted the plea of tenancy, but filed a counter claim claiming damages at the rate of Rs. 5 lac per month from 01.05.2006 till 31.03.2007 and Rs. 10 lac per month from 01.04.2007. The defendant has affixed ad valorem Court fee on the valuation of the damages amounting to Rs. 65 lac. The defendants filed an application to direct the plaintiff to pay for the use and occupation of premises as per licence deed dated 01.05.2006, whereas the plaintiff filed an application to protect his possession. 4. Both the Courts have declined the application for ad interim injunction, inter alia, holding that the plea of tenancy raised by the plaintiff is untenable and that the plaintiff has not disclosed the factum of execution of the licence deed. 4. Both the Courts have declined the application for ad interim injunction, inter alia, holding that the plea of tenancy raised by the plaintiff is untenable and that the plaintiff has not disclosed the factum of execution of the licence deed. The application for payment of damages has been declined by the learned trial Court for the reason that the question of payment of mesne profits cannot be decided at the interim stage without calling upon the parties to lead evidence. 5. It is not disputed by Mr. Arun Jain, learned counsel for the plaintiff that the plea of tenancy raised by the plaintiff is not based upon any document. The plaintiff relies upon an oral agreement by which the defendant has purportedly leased the premises to him on 01.05.2006, though by virtue of five separate sale deeds, the property was conveyed to the defendant for a total sale consideration of Rs. 23 lac. On the other hand, as per the defendant, a licence deed was executed on a stamp paper on 01.05.2006, witnessed by two witnesses by which the plaintiff was permitted to remain in possession of the suit property till 31.03.2007 on payment of Rs. 5 1ac per month as the licence fee. Since the plaintiff was permitted to use the premises for a limited period, therefore, deterrent licence fee of Rs. 10 lac was contemplated so as to compel the plaintiff to vacate the premises in all eventualities on or before 31.03.2007. The plaintiff filed the present suit for injunction on 29.03.2007 just before the stipulated agreed period of 31.03.2007. With this background, the arguments raised by the learned counsel for the parties need to be examined. 6. Mr. Jain, learned counsel for the plaintiff has vehemently argued that the licence deed is a forged and fabricated document got executed on 01.05.2006 under the garb of execution of the sale deed. It is further argued that since the validity of the licence deed itself is in dispute, therefore, till such time the legality and validity of the licence deed is examined, the plaintiff cannot be called upon to pay licence fee as is claimed by the defendant. It is also argued that on 01.05.2006, three sale deeds were executed in favour of the defendant. There is no reason as to why such licence deed could not be got registered on the said date. It is also argued that on 01.05.2006, three sale deeds were executed in favour of the defendant. There is no reason as to why such licence deed could not be got registered on the said date. Non-registration of the document of licence, throws a serious doubt about the veracity of the licence deed. It is further argued that the plaintiff has filed an application for deposit of rent in terms of the provisions of Punjab Relief of Indebtedness Act, 1934. The plaintiff has deposited the monthly rent of Rs. 10,000/-, which shows the bona fides of the plaintiff. Lastly, it is argued that the plaintiff has almost led his evidence and the case is now fixed for 06.10.2010 for the evidence of the plaintiff, therefore, no case is made out for any payment of the damages at this stage of proceedings. It is also argued that since admittedly the plaintiff is in possession of the suit property, he is entitled to protect his possession. 7. On the other hand, Mr. Sarin has argued that the plea of tenancy is wholly untenable and is a plea of dishonest person. It is argued that after purchasing the property for a sum of Rs. 23 lac, it is unbelievable that the defendant would agree for leasing the property on a partly sum of Rs. 10,000/- per month to none else, but the seller. It is further argued that the defendant agreed to permit the plaintiff to remain in possession as a licencee in view of the representation of the plaintiff to allow some time to make alternative arrangements for shifting of dhaba upto 31.03.2007. The plaintiff has enjoyed the benefit of the agreed period. The plaintiff chooses to seek injunction by way of the suit only on 29.03.2007. The licence deed is a document executed on a stamp paper, witnessed by the witnesses and therefore, such. document is natural and, prima facie, supports the stand taken by the defendant that the possession of the plaintiff was that of a licencee. 8. I have heard learned counsel for the parties and found that the order passed by the learned trial Court declining the application field by the defendants to deposit the amount of licence fee suffers from patent illegality and irregularity, whereas the order declining ad interim injunction to the plaintiff warrants no interference. 9. 8. I have heard learned counsel for the parties and found that the order passed by the learned trial Court declining the application field by the defendants to deposit the amount of licence fee suffers from patent illegality and irregularity, whereas the order declining ad interim injunction to the plaintiff warrants no interference. 9. The reliance of the plaintiff is on oral tenancy at a monthly rental of Rs. 10,000/-. The said stand is, prima facie, untenable. The plaintiff has received a sum of Rs. 23 lac in lieu of execution of five sale deeds i.e. two sale deeds on 01.02.2006 and three sale deeds on 01.05.2006. It is impossible to imagine that any reasonable person would agree to lease the premises purchased for a sum of Rs. 23 lac at a monthly partly rent of Rs. 10,000/-. Still further the timing of filing of the suit i.e. 29.03.2007 supports the case of the defendants that the plaintiff was permitted to use the premises till 31.03.2007. The plaintiff has received the agreed sale consideration for selling his right in the property. The sale deed stipulates that the plaintiff has handed over the possession to the defendants. Thus, it was for the plaintiff to assert his tenancy rights soon after the so-called tenancy was created. But the suit was filed on 29.03.2007 i.e. just two days before the agreed period of licence has to come to an end. 10. The plea of tenancy has been negated by both the Courts. There is no reason to take a different view than what has been taken by the Courts below, whereby the plea of oral tenancy of the plaintiff stand negated. 11. Admittedly, the plaintiff is in possession. The defendants claim such possession was under a licence deed. Though the plaintiff alleges it to be result of fraud and misrepresentation, but the fact remains that the defendants are relying upon a document duly signed by plaintiff and witnessed. Pending examination of question of legality of the aforesaid document, the interest of justice would be met if the plaintiff is directed to deposit the amount recited in the document of licence before the learned trial Court. Such deposit shall abide the final judgment and decree. Pending examination of question of legality of the aforesaid document, the interest of justice would be met if the plaintiff is directed to deposit the amount recited in the document of licence before the learned trial Court. Such deposit shall abide the final judgment and decree. Such deposit will meet the ends of justice and also compensate the defendants in the event, they succeed in proving that the possession of the plaintiff is that of licencee. 12. The argument raised by the learned counsel for the plaintiff that the document of licence was not registered or is a forged and fabricated document or that he has deposited the amount under Punjab Relief of Indebtedness Act, 1934 cannot be conclusively to return a finding that the plaintiff is a tenant. Such aspect has already been discussed in the preceding paragraphs. Similarly, though the case is fixed for the evidence of the plaintiffs on 06.10.2010, but keeping in view the fact that the trial of the case can drag for long time and to facilitate early decision, it would be fair and reasonable, if the plaintiff deposits Rs. 5 lac per month as damages for use and occupation of the premises before the learned trial Court from 01.05.2006. The plaintiff shall also deposit arrears of such amount from 01.05.2006 till 30.09.2010 on or before 06.10.2010 and shall continue deposit such damages by 10th of each month. On failure of deposit, the plaintiff shall not be entitled to prosecute his suit as well as his defence in the counter-claim of the defendants shall be struck off. With the said observations, the revision petitions are disposed of. Petition disposed of.