( 1 ) THE plaintiff, Smt. Guisharan Kaur claims to be the owner of the suit premises No. R-264, Greater Kailash-l, New Delhi comprised of enure Isl floor of 208 sq. yds. of land in posh colony of Greater Kailash. This property was purchased by virtue of Sale Deed dated 21/7/1966 and registered on the same date. Plaint:ff No. 2 her husband was managing the property.

( 2 ) IT is claimed that the defendant being partner of the husband of Smt. Gursharan Kaur was inducted in the premises as licensee on account of friendly relations. However, the defendant refused to vacate the premises. He was called upon to vacate and to pay the licence-fee on the basis of prevailing market rate which was not less than Rs. 10,000. 00 per month for period of three years prior of Filing of the suit. On failure of the defendant to-vacate despite notice, the suit has been Filed for the recovery and possession of First floor of the premises. The plaintiff claims that the defendant is admittedly in occupation and using the suit premises without paying any licence fee to plaintiff No. 1. The plaintiff No. I is widow and her husband died on 10/1/1993. The defendant has delayed in filing the written statement by over five years.

2. 2. The plaintiff moved the above mentioned I. A. No. 1402/97 seeking the following prayer: (1) To pay to or deposit with plaintiff No. I a sum of Rs. 3,60,000. 00 towards the use and occupation charges at the rate of Rs. 10,000. 00 per month, that is for the period of 3 years prior of filing of the suit; (2) To deposit or pay to plaintiff No. I a sum of Rs. 5,70,000. 00 towards occupation charges of the suit premises for the period from 1/5/1992 to 31/1/1997 that is, at the rate of Rs. 10,000. 00 ; (3) To deposit or to pay to plaintiff No. I, month by month, by 7th of each succeeding month a sum of Rs. 10,000. 00 per month with effect from 1st Feb. , 1997.

( 3 ) THE defendant is contesting the suit and the application. In para I of the Preliminary Submissions in Written Statement, it is claimed "that the plaintiffs are not the owners of the property No. R-264, Greater Kailash Part-1, New Delhi-110048" for no documents. showing the claim of the plaintiffs to be the owner/landlord of the demised premises has been filed in the suit. In para 2, however, it is claimed that the demised premises were given on rent on 1/5/1980 to the defendant at a monthly rent of Rs. 300. 00 by (he plaintiff No. 1. The rent still remains the same. However, it is denied that the plaintiff is entitled to mesne profit @ Rs. 10,000. 00 per month. The present suit for possession is not maintainable in view of bar under Section 50 of the Delhi Rent Control Act, 1958, the rent being paid Rs. 300. 00 per month. The rent of the demised premises has been attached by the MCD under Section 162 (2) of the DMC Act vide order dated 29/5/1982 passed by the Asst. Assessor and Controller (Recovery), Central Recovery Cell-1 and subsequent orders. Accordingly, the defendant has been depositing the rent of Rs. 300. 00 per month with the MCD and the rent upto January, 1997 stands deposited. The defendant has not held any money or thing as a trustee of the plaintiffs and no amount is due from the defendant to the plaintiffs by way of rents or otherwise. It is also claimed that after the death of plaintiff No. 2 on 10/1/1993 the suit stands abated. The present application is an attempt to get the use and occupation charges determined without the parties going through trial which is impermissible under the law. The parties have a vested right to lead evidence on their respective issue. In case plaintiff was allowed to maintain the present application i. e. under Order 39, Rule 10, it would amount to a piecemeal trial and the defendant would be put to extreme prejudice in the trial as a result. It would amount the pre-judging the matter hence this application I. A. No. 1402/97 is liable to be dismissed. The application under Order 39, Rule 10 was not maintainab