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2019 DIGILAW 1208 (HP)

Dayal Sons v. Rai Sahib Puran Mall Trust

2019-08-23

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Notice. Mr. Ashok Sood, learned Senior counsel, on instruction received from Mr. Khem Raj Sharma, Advocate, learned Assisting Counsel, has put in appearance on behalf of the respondents. 2. With the consent of the parties, present petition is taken up for final hearing at this stage. 3. Petitioner was defendant in the learned Court below. Application moved by the defendant under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint, having been rejected by learned District Judge, Shimla in Civil Suit No.9-S/1 of 2018, instant petition has been preferred under Article 227 of the Constitution of India. 4. Factual position, relevant for adjudicating the present petition is:- (a) An eviction petition moved by the plaintiff-landlord against the defendants-tenants was allowed in favour of the plaintiff-landlord by the learned Rent Controller, vide eviction order dated 02.09.2008, on the ground that premises are bona-fidely required by the plaintiff for reconstruction and re-building, which is not possible without vacation of the building as well as on ground of arrears of rent. (b) Appeal preferred by the defendants against the eviction order was allowed by the learned Appellate Authority, vide judgment dated 17.1.2006, thereby, setting aside the eviction order passed by the learned Rent Controller. (c) Plaintiff-trust-landlord, preferred Civil Revision No.49 of 2006, before this Court, which was allowed on 8.7.2013, subject to certain riders including re-induction of the defendants/tenants. Thus the eviction order passed by the learned Rent Controller was upheld and the order passed by the learned Appellate Authority was quashed and setaside. (d) Special leave petition No.37472 of 2013, preferred by the plaintiffs was dismissed by the Hon'ble Apex Court on 13.1.2014. Thus, the eviction order passed by the learned Rent Controller as modified by this Court, attained finality. (e) It is not in dispute that execution petition filed by plaintiff-trust for recovering the possession of the suit premises from the defendants is pending in the Court of learned Rent Controller, Shimla. Thus, the eviction order passed by the learned Rent Controller as modified by this Court, attained finality. (e) It is not in dispute that execution petition filed by plaintiff-trust for recovering the possession of the suit premises from the defendants is pending in the Court of learned Rent Controller, Shimla. Plaintiff instituted Civil Suit No.9-S/1 of 2018, against the defendants before the learned District Judge, Shimla, giving details of the above factual position and submitted therein that the defendants are still occupying the suit premises, even though their such occupation and possession over the suit premises has become completely illegal and un-authorized, after passing of the eviction order against them, as modified by this Court on 8.7.2013, which has attained finality, after dismissal of SLP No.37472 of 2013 on 13.1.2014, by the Hon'be Apex Court. Therefore, plaintiffs in this civil suit have set up a case that defendants are liable to pay for use and occupation of the suit premises on the alleged prevalent market rate of Rs.175 per square foot per month, as worked out by them to Rs.81,900/- per month for 468 sq.ft. of area. Though the claim was allegedly due to plaintiff w.e.f. 8.7.2013, however, it has been restricted to three years prior to filing of the suit. Accordingly, an amount of Rs.29,48,400/- has been claimed in the plaint as use and occupation charges from the defendants for three years, prior to filing of suit with pendent-lit & future interest @ 18% per annum. Additionally, decree for pendent-lit & future use & occupation charges by way of mense profits @ Rs.81,900/- per month from date of filing of suit till restoration of possession of suit premises, was also sought. Additionally, decree for pendent-lit & future use & occupation charges by way of mense profits @ Rs.81,900/- per month from date of filing of suit till restoration of possession of suit premises, was also sought. Relief clause of the plaint is reproduced hereinafter:- "(i) A decree for recovery of 29,48,400/- with pendent-lit and future interest @ 18% P.A. from the date of suit till its actual realization with costs of the suit be passed in favour of plaintiffs trust and against the defendants jointly and severally; (ii) A decree for pendent-lit and future use and occupation charges by way of mense profits @ Rs.81,990/- per month from the date of filing of present suit till possession of suit premises is restored to the plaintiff trust be also passed in favour of plaintiff and against the Defendants; (iii) The cost of the suit be awarded in favour of the plaintiff trust and against the defendants. (iv) Any other relief to which the plaintiffs are found to be entitled in view of the facts and circumstances of the present case may also be granted in favour of the plaintiff against the defendants." (f) Before filing the written statement to the above referred plaint, the defendant moved an application under Order 7 Rule 11 of the Code of Civil Procedure, praying for rejection of the plaint on the ground that;- (i) arbitrary use and occupation charges were claimed by the plaintiffs. (ii) use & occupation charges were not fixed by the learned Rent Controller in the earlier round of litigation, therefore, the same cannot be fixed in the instant case. (iii) Plaintiffs have not sought any declaration to the effect that the defendants were liable to pay use and occupation charges and not the agreed rent. (iv) No building plan for construction on suit premises has been sanctioned by Municipal Corporation, therefore, rebuilding & re-construction cannot be undertaken. Filing of the instant suit was claimed to be an abuse of process of the Court and plaint was sought to be rejected under provisions of Order 7 Rule 11 of the Code of Civil Procedure. (g) Plaintiff opposed the application by filing reply to it, contending therein that defendants have lost their status of tenant over the suit land. Filing of the instant suit was claimed to be an abuse of process of the Court and plaint was sought to be rejected under provisions of Order 7 Rule 11 of the Code of Civil Procedure. (g) Plaintiff opposed the application by filing reply to it, contending therein that defendants have lost their status of tenant over the suit land. Eviction order having attained finality, the possession of the defendant over the suit premises is un-authorized and they are liable to pay use and occupation charges and not the rent. It was asserted that no declaration is required for law to take effect. It was denied that use & occupation charges were arbitrarily claimed. It was denied that use & occupation charges could not be claimed in the instant suit. Plaintiff relied upon judgment of Hon'ble Apex Court in, titled Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd, (2005) 1 SCC 705 to contend that status of tenant after passing of eviction order becomes that of un-authorized occupant & he is liable to pay use & occupation charges. In the instant case, eviction order passed by learned Rent Controller, was though reversed by the Appellate Authority, but was affirmed by this Court, subject to certain riders including right of re-entry, vide order dated 8.7.2013, therefore, use & occupation charges accrued thereafter are required to be determined by the Civil Court as the defendants have failed to hand over the possession despite filing of execution petition. Therefore, plaint was not abuse of process of the Court. 5. After hearing the parties, learned Additional District Judge, Shimla, dismissed the application vide order dated 28.6.2019. Aggrieved against this order, defendant has preferred the instant petition. 6. I have heard Mr. Naresh Sharma, learned counsel for the petitioners and Mr. Ashok Sood, learned senior counsel, for the respondents, who have reiterated their respective submissions in the pleadings. I have also carefully gone through the appended record. 7. (I) In my considered view, application under order 7 Rule 11 of the Code of Civil Procedure has been rightly rejected by learned Court below. The grounds submitted in the application for rejecting the plaint, do not fall under any of the parameters stipulated in the provisions of Order 7 Rule 11 of the Code of Civil Procedure. 7. (I) In my considered view, application under order 7 Rule 11 of the Code of Civil Procedure has been rightly rejected by learned Court below. The grounds submitted in the application for rejecting the plaint, do not fall under any of the parameters stipulated in the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Plaintiff has detailed in plaint, a bundle of facts, which according to him, entitle him to claim use & occupation charges from the defendant, who is occupying suit premises even after the eviction order passed against him, attained finality. It is not in dispute that eviction order passed by learned Rent Controller on 1.8.2003, was set aside by the learned Appellate Authority on 17.1.2006. In a revision petition, this court on 8.7.2013, affirmed the eviction order passed by learned Rent Controller with certain riders including that of re-entry. The decision of this Court was maintained by Hon'ble Apex Court in SLP No.37472 of 2013. Execution petition preferred by plaintiff is pending. Defendant has not vacated the suit premises. Plaintiff in instant civil suit has though claimed use & occupation charges w.e.f. 8.7.2013, i.e. subsequent to decision by this Court, however, restricted the actual recovery to three years prior to filing of the suit. Additionally, he is praying for future use & occupation charges by way of mense profits @ 175 per square foot, per month, from date of filing of suit till restoration of possession. 7(ii) It is settled law that for decision of application under Order 7 Rule 11 of the Code of Civil Procedure, only the contents of the plaint are germane. For that purpose, it is apt to refer to the judgment passed in titled Chhotanben and another vs. Kiritbhai Jalkrushnabhai Thakkar and others, (2018) 6 SCC 422 relevant segments are reproduced hereinafter:- "12. What is relevant for answering the matter in issue in the context of the application under Order VII 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. .. 15. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. .. 15. The High Court has adverted to the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), which had occasion to consider the correctness of the view taken by the High Court in ordering rejection of the plaint in part, against one defendant, on the ground that it did not disclose any cause of action qua that defendant. The High Court has also noted the decision relied upon by the contesting respondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), which had restated the settled legal position about the scope of power of the Court to reject the plaint under Order VII Rule 11(d) of CPC. 16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d)." The points taken by the defendants in the application under Order 7 Rule 11 of the Code of Civil Procedure, have also been taken by way of defence in the written statement. Whether facts detailed in plaint would actually provide the plaintiff a cause of action or not for maintaining the civil suit, will have to be proved by him in accordance with law. No provision of law has been brought to my notice that such a civil suit has to be treated as barred at this stage itself & not maintainable. It cannot be said at this stage that such a suit is not maintainable. No provision of law has been brought to my notice that such a civil suit has to be treated as barred at this stage itself & not maintainable. It cannot be said at this stage that such a suit is not maintainable. In this regard, it is profitable to refer to, titled Raptakos Brett and Company Ltd. Vs. Ganesh Property, (2017) 10 SCC 643 relevant segment is reproduced hereinafter:- "24. From a reading of the provisions of Order 2 Rule 2 and Rule 4 of the Code and also the principles laid down in the aforementioned cases, it is clear that under Order 2 Rule 2 read with Rule 4, the plaintiff can also claim mense profits or arrears of rent in a suit filed for ejectment of the tenant. The plaintiff can further file a fresh suit for claiming mesne profit or arrears of rent for the period subsequent to the decree passed in the earlier suit having become final. But in a case where the plaintiff has claimed mesne profit or arrears of rent in a suit filed for ejectment of the tenant and has relinquished his rights, viz-a-vis mesne profits or arrears of rent in the suit proceedings itself, the provisions of Order 2 Rule 2 will come into play and in comparison to the second suit for mesne profits or arrears of rent till the decree, the earlier suit will attain finality.(Emphasis supplied) It is also beneficial to refer to a decision of Hon'ble High Court of Delhi in, titled Jayant Kumar Trehan Vs. HDFC Bank Ltd, (2015) LawSuit(Del) 892 relevant portion is reproduced hereinafter:- "16.The submissions akin to that as made by the applicant/defendant were rejected by the Division Bench. There is no merit in the present application. None of the ingredients of Order 7 Rule 11 CPC are made out. Normally, the cause of action for ejectment of a tenant and for damages and mesne profits are different. It cannot be said that the present suit is barred by law.(Emphasis supplied) Majority judgment of Full Bench of Hon'ble Punjab and Haryana Court, reported in titled Sadhu Singh & ors. Vs. Normally, the cause of action for ejectment of a tenant and for damages and mesne profits are different. It cannot be said that the present suit is barred by law.(Emphasis supplied) Majority judgment of Full Bench of Hon'ble Punjab and Haryana Court, reported in titled Sadhu Singh & ors. Vs. Pritam Singh & another, (1976) AIR(P&H) 38 has also held that the suit for mesne profit filed subsequent to suit for possession of property is not barred under Order 2 Rule 2 of Code of Civil Procedure, merely because claim for accrued mesne profits had not been included in the earlier civil suit. In the instant suit plaintiff, in addition to use & occupation charges, claimed subsequent to the decision dated 8.7.2013 and confined from three years prior to filing of the civil suit (as quantified by him to Rs.29,48,400/-, till the date of filing the suit), has also claimed future use & occupation charges by way of mesne profits @ Rs.81,990, per month, from the date of filing the suit till recovery of possession. The entitlement to the claims, the case as set up in plaint has to be proved by plaintiff, in accordance with law. Thus, in view of above discussions, there is no merit in the petition and the same is accordingly dismissed. By way of abundant caution, it is made clear that observations made above are only for purpose of deciding instant petition and will have no effect whatsoever on the merits of matter. Pending application(s), if any, shall also stand disposed of.