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2023 DIGILAW 359 (JK)

Naresh Gupta v. Ravinder Kour Sethi

2023-08-08

RAHUL BHARTI

body2023
JUDGMENT : 1. This civil miscellaneous appeal is being maintained by the appellant under Order 43 rule 1(r) of the Code of Civil Procedure, 1908 against an order dated 25.05.2022 passed by the trial court of learned Principal District Judge, Jammu in a civil suit titled “Ravinder Kour Sethi Vs. Naresh Gupta”. The appellant is the defendant and the respondent is a plaintiff in the said suit. 2. The respondent, as plaintiff, has filed a suit seeking a decree of eviction against the appellant/defendant from an alleged leased premise comprising of four rooms, two toilets and a kitchen situated at 1st Floor of a building known as Post Office Building situated at Ambphalla Road, Jammu, and for recovery of land compensation for use and occupation of the alleged leased premises until a decree is passed in favour of the respondent/plaintiff. 3. In the civil suit, the respondent/plaintiff has set up a case that she is the owner of the suit premises which is forming part of one 3rd of the building housing the suit premises. The ownership of the respondent/plaintiff is by virtue of a registered Memorandum of Family Settlement dated 27.04.2018. It is a case set up that upon becoming owner by virtue of said Memorandum of Family Settlement, the respondent/plaintiff apprised the appellant/defendant about the fact of the respondent/plaintiff becoming the owner of the suit premises. 4. It is pleaded in the suit that before her becoming the owner of the suit premises, the respondent/plaintiff’s father was reckoning the appellant/defendant as a trespasser quo the suit premises whereas the appellant/defendant was claiming himself to be tenant of the suit premises at the rate of rent of Rs. 6,000/- per month. 5. The respondent/plaintiff has averred that even she was following the same stand of her father vis-à-vis the appellant/defendant that he was a trespasser quo the suit property but later on acknowledged the appellant/defendant to be tenant of the suit property which tenancy came to be determined by virtue of a notice dated 10.02.2020 asking the appellant/defendant to vacate the premises on 31.03.2020 and demanding payment of arrears of rent of an amount of Rs. 1,08,000/- upto 01.01.2020 to which the appellant/defendant did not come in compliance thereby affording cause of action to the respondent/plaintiff to file a civil suit seeking vacation of the suit premises from the appellant/defendant. 1,08,000/- upto 01.01.2020 to which the appellant/defendant did not come in compliance thereby affording cause of action to the respondent/plaintiff to file a civil suit seeking vacation of the suit premises from the appellant/defendant. Termination of the tenancy of the appellant/defendant quo the suit premises is referred to the operation of the Transfer of the Property Act. 6. In the plaint, the respondent/plaintiff also sought a decree for payment of Rs. 6,000/- per month as compensation for use and occupation of the suit property by the appellant/defendant till its vacation. 7. The appellant/defendant in his written statement came forward to deny any relationship of lessor/landlord and lessor/tenant between the respondent/plaintiff and himself. The appellant/defendant even denied the claim of the ownership of the respondent/plaintiff quo the suit premises. The appellant/defendant in his written statement has taken a position that even by reference to the Memorandum of Family Settlement so cited by the respondent/plaintiff, the tenancy of the suit premises has not been passed on so as to make the respondent/plaintiff as lessor/landlady. 8. The appellant/defendant has submitted in his written statement that in fact even in the Memorandum of Family Settlement, he has been identified to be a trespasser quo the suit property. 9. In light of the aforesaid facts and circumstances of the case, the appellant/defendant questioned the very right to sue of the respondent/plaintiff. 10. It is in the backdrop of said state of pleadings that the respondent/plaintiff came up forward with an application under Order 39 rule 10 Code of Civil Procedure, 1908 for seeking a direction unto the appellant/defendant to immediately deposit the arrears of rent of Rs. 1,62,000/- and vacate the premises which is presently sublet and in a dilapidated condition. 11. To this application, the appellant/defendant registered his objections stating that the application is not maintainable in light of the position taken by the appellant/defendant in his written statement, particularly, in the face of the stand that the respondent/plaintiff was neither the owner of the suit premises nor the landlady of the suit premises quo the appellant/defendant. 12. It is this application which has earned acceptance from the court of learned Principal District Judge, Jammu resulting in a direction to the appellant/defendant to deposit the amount of Rs. 1,62,000/- as rent arrears payable by him at the time of filing of the suit. 12. It is this application which has earned acceptance from the court of learned Principal District Judge, Jammu resulting in a direction to the appellant/defendant to deposit the amount of Rs. 1,62,000/- as rent arrears payable by him at the time of filing of the suit. It is this order which is now suffering challenge in the present appeal filed by the appellant/defendant. 13. Heard learned counsel for the parties and perused the memo of appeal and the record therewith which includes copy of the plaint/written statement/application/objections. 14. The very fact that for seeking said direction for payment of an amount of Rs. 1,62,000/- as being an arrears of rent, the respondent/plaintiff cited Order 39 rule 10 Code of Civil Procedure, 1908 (CPC in short) as the legal basis for the trial court of learned Principal District Judge, Jammu to pass an order, so first Order 39 rule 10 CPC needs to be noted. 15. Order 39 rule 10 reads as under: “Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court”. 16. For the legal provision of Order 39 rule 10 CPC to get attracted and applied in reference to the application filed by the respondent/plaintiff, the court of learned Principal District Judge, Jammu was supposed to see first whether the facts of the case as it is fit in within the scope of said rule 10 of Order 39 CPC. 17. The court of learned Principal District Judge, Jammu has allowed the application of the respondent/plaintiff by doing an edited reading of the facts of the case and which is the purported stand of the appellant/defendant that he was tenant of the suit premises at the rate of Rs. 6,000/- per month payable to the father of the respondent/plaintiff. Nothing more than this has been said by the appellant/defendant in his written statement whereas with respect to respondent/plaintiff, the appellant/defendant has denied and disputed the very right to sue of the respondent/plaintiff quo the suit premises. 6,000/- per month payable to the father of the respondent/plaintiff. Nothing more than this has been said by the appellant/defendant in his written statement whereas with respect to respondent/plaintiff, the appellant/defendant has denied and disputed the very right to sue of the respondent/plaintiff quo the suit premises. The appellant/defendant in his written statement has no where admitted or meant to admit the liability of being in arrears of payment of rent of any period whatsoever and in fact has put forth in very bold letters his stand that it is the respondent/plaintiff”s father who was holding the appellant/defendant as trespasser quo the suit property and same remained the stand point of the respondent/plaintiff only to change later with a different script introduced by way of so called Memorandum of Family Settlement made solely to come out of the said stand point of the declaring and holding the appellant/defendant to be trespasser quo the suit property. 18. Now in light of this, there was no fitness of facts on record for the court of learned Principal District Judge, Jammu to hold that Order 39 of rule 10 CPC was attracted and applicable so as to direct the appellant/defendant to deposit the so called arrears of rent of an amount of Rs. 1,62,000/-. 19. Before this Court comes to reason to how Order 39 rule 10 CPC was not attracted and applicable in the case, the reasoning process spared by the court of learned Principal District Judge, Jammu in its impugned order needs to be appreciated and said reasoning is simply this that the appellant/defendant has not disassociated himself from the status of being a tenant quo the suit premises. 20. The court of learned Principal District Judge, Jammu has registered the fact that the appellant/defendant does not acknowledge the respondent/plaintiff to be his landlady and in fact claimed her father to be the landlord. 21. 20. The court of learned Principal District Judge, Jammu has registered the fact that the appellant/defendant does not acknowledge the respondent/plaintiff to be his landlady and in fact claimed her father to be the landlord. 21. It is on this state of facts that the court of learned Principal District Judge, Jammu has stretched itself to meant to say that once the appellant/defendant is acknowledging himself to be tenant of the suit premises, it does not matter as to who is the landlord/landlady of the appellant/defendant quo the suit premises and as such the appellant/defendant becomes the trustee of the amount which he has to pay on account of use and occupation of the suit property which trust he is required to discharge in terms of the Order 39 rule 10 CPC. 22. It is this reasoning of the court of learned Principal District Judge, Jammu which this Court has observed to be born out of an edited reading of the facts and circumstances of the case in the context of Order 39 rule 10 CPC. 23. Rule 10 of Order 39 CPC proceeds on the premise that parties to the suit have to be on the same page either with respect to the money or other thing capable of delivery of thing which is the subject matter of the suit or that one of party admits holding such money or other thing as a trustee for another party or that it belongs or due to another party. 24. The expression “party” in rule 10 Order 39 CPC is of importance and that expression “party” means party to the suit and not a third party because in a civil suit no interest or claim of any third party in any manner whatsoever can become subject matter of any proceeding be it proceeding in the civil suit or supplement proceedings under section 94 CPC. 25. Now, in this case while the appellant/defendant admitted himself to be tenant quo the suit property but never ever meant to admit the status of the respondent/plaintiff quo the suit property in any capacity whatsoever muchless that of being the landlady. 26. For holding the appellant/defendant to be trustee for the rent amount in arrears, the court of learned Principal District Judge, Jammu was expected to refer to the fact as to whom the appellant/defendant was trustee. 26. For holding the appellant/defendant to be trustee for the rent amount in arrears, the court of learned Principal District Judge, Jammu was expected to refer to the fact as to whom the appellant/defendant was trustee. Surely, the respondent/plaintiff is not the person to whom the appellant/defendant declared or held himself to be a trustee for the so called amount of arrears of rent of Rs. 1,62,000/-. 27. When the appellant/defendant in most loudest tone and term is declaring in its written statement that the respondent/plaintiff is nobody quo the suit premises as well as quo appellant/defendant, then to hold that the appellant/defendant is holding the amount of arrears of rent as belonging to or due to the respondent/plaintiff is nothing but literally granting a decree by backdoor in favour of the respondent/plaintiff of bestowing the status of the owner as well as lessor/landlady vis-à-vis the suit premises against the appellant/defendant as being tenant. 28. Therefore, there was no legal basis available with the court of learned Principal District Judge, Jammu to allow the application of the respondent/plaintiff filed under Order 39 rule 10 CPC for directing the appellant/defendant to pay an amount of Rs. 1,62,000/- during the trial of the suit itself as being the alleged arrears. 29. Therefore, the order passed by the court of the learned Principal District Judge, Jammu is held to be bad both on facts and in law and deserves to be set aside. Resultingly, the application filed by the respondent/plaintiff under Order 39 rule 10 CPC deserves dismissal and is, accordingly, dismissed. 30. Nothing observed herein shall be reckoned to be bearing any effect on the merits and demerits of the case from either side in the main suit. The observations are only specific to the present case in its given context.