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High Court Of Delhi
SURJIT SACHDEV - Appellant
Versus
KAZAKHSTAN INVESTMENT SERVICES PRIVATE LIMITED - Respondent
First Appeal (OS) 353 of 1996
Decided On : 02/01/1997
ORDER 12 RULE 6 - POSSESSION - ADMISSION - LEASE - RENEWAL - HOLDING OVER - MESNE PROFITS - SUMMARY JUDGMENT - TRANSFER OF PROPERTY ACT, 1882 - SECTIONS 106, 116 - SUMMARY JUDGMENT FOR POSSESSION GRANTED - MESNE PROFITS TO BE DETERMINED BY LOCAL COMMISSIONER.
Fact of the Case:
Plaintiff-appellant filed a suit for ejectment/possession of property No. S-54, Panchsheela Park, New Delhi, along with a decree for recovery of Rs. 5,05,000.00 towards mesne profits and future mesne profits @ Rs. 1,50,000.00 p.m. or at such higher rate as may be prevalent in future and pendente lite and future interest at the rate of 18% p.a. against defendant-respondents 1 and 2. Defendant No. 3 was also held liable for mesne profits and if necessary in respect of other reliefs as well. Along with the Suit IA 4639/95 was filed under Order 40 Rule 1 read with Order 39 Rules 1 and 2 and Order 38 Rule I and Section 151 of the Code of Civil Procedure (CPC) praying that a Receiver be appointed forthwith, who should take possession of the property in suit and hold the same till further orders, defendants 1 and 2 be restrained from using the property for any commercial purpose or by any one else other than defendant No. 2 and in case defendant No. 2 happens to come to India, he be restrained from leaving the country till possession has been handed back to the plaintiff-appellant and dues cleared.
Finding of the Court:
The Court held that the plaintiff was entitled to a decree for possession since no issue could be said to be arising for determination in so far as the claim for possession was concerned. On this score alone, the plaintiff would be entitled to a decree on the admission contained in the written statement. The Court also held that the plaintiff was entitled to a decree for mesne profits from 15.1.1996 onwards, and it would be open for the learned Single Judge to appoint a local Commissioner for determination of the amount of mesne profits payable to the plaintiff from 15.1.1996 till the date of delivery of possession.
Issues: 1. Whether the plaintiff is entitled to a decree for possession on the basis of the admissions contained in the written statement of the defendants? 2. Whether the plaintiff is entitled to a decree for mesne profits?
Ratio Decidendi: 1. The Court held that the plaintiff was entitled to a decree for possession since there was no question of any prejudice to the defendants caused, and the relief legitimately sprang from the case set up by them. The lease having come to an end even on the defendants' plea on 14.1.1996, the defendants having no right, the plaintiff definitely was entitled to a decree for possession since no issue could be said to be arising for determination in so far as the claim for possession was concerned. 2. The Court held that the plaintiff was entitled to a decree for mesne profits from 15.1.1996 onwards, and it would be open for the learned Single Judge to appoint a local Commissioner for determination of the amount of mesne profits payable to the plaintiff from 15.1.1996 till the date of delivery of possession.
Final Decision: The appeals were allowed. The impugned order was set aside. The plaintiff's application, IA 4639 of 1995, was allowed to the extent that the appellant-plaintiff was held entitled to a decree for possession in respect of the suit premises. Defendants were accordingly directed to put the plaintiff-appellant in possession of the suit property within a period of two months from the date of the order. Decree would be drawn in accordance with law. The plaintiff was also held entitled to a decree for mesne profits from 15.1.1996 onwards. It would be open for the learned Single Judge to appoint a local Commissioner for determination of the amount of mesne profits payable to the plaintiff from 15.1.1996 till the date of delivery of possession.
( 1 ) THE appeals are against a common order passed by the learned Single Judge of this Court on 10. 5. 1996 - 23. 5. 1996 deciming the plaintiff-appellant s prayer to pass judgment on admission under Order 12 Rule 6 of the Code of Civil Procedure and to appoint a Receiver, as prayed under Order 40 Rule 1 of the Code of Civil Procedure (for short code ) with respect to the suit property.
( 2 ) THE facts in brief are that in the suit instituted on 24. 5. 1995 a decree for ejectment/possession in respect of property No. S-54, Panchsheela Park, New Delhi along with a decree for recovery of Rs. 5,05,000. 00 towards mesne profits and future mesne profits @ Rs. 1,50,000. 00 p. m. or at such higher rate as may be prevalent in future and pendente lite and future interest at the rate of 18% p. a. has been claimed by the plaintiff-appellant against defendant-respondents 1 and 2. It is also prayed that defendant No. 3 be also held liable for mesne profits and if necessary in respect of other reliefs as well. Along with the Suit IA 4639/95 was filed under Order 40 Rule 1 read with Order 39 Rules 1 and 2 and Order 38 Rule I and Section 151 of the Code praying that a Receiver be appointed forthwith, who should take possession of the property in suit and hold the same till further orders, defendants 1 and 2 be restrained from using the property for any commercial purpose or by any one else other than defendant No. 2 and in case defendant No. 2 happens to come to India, he be restrained from leaving the country till possession has been handed back to the plaintiff-appellant and dues cleared.
( 3 ) AFTER the defendants were served and written statement was filed/the suit and the application came up before Court on 29. 2. 1996, when a prayer was made by learned Counsel for the plaintiff that on the basis of an admission contained in the written statement filed by defendant No. 1 the plaintiff is entitled to a decree for possession of the suit property. This prayer was opposed by learned Counsel for defendant No. 1 stating that no admission has been made by defendant No. 1 in its written statement. It was also stated by the learned Counsel for the plaintiff that since the written statement does not contain an admission for passing a decree for the remaining prayer for mesne profits, as such the plaintiff was not praying for a decree on admission for mesne profits at this stage. Direction was made by the learned Single Judge on that day to defendant No. 2, the Chairman of defendant No. 1, to remain present in Court on the adjourned date along with his passport, for verifying as to for whatperiod he stayed in India since the pendency of the suit. Case was adjourned to 10. 5. 1996, on which date the application of the plaintiff was disposed of. The Court declined to pass decree on admission for possession at this stage or to appoint a Receiver. The defendant-respondents were restrained from changing the user of the suit property from residential to commercial. It is this order, which is under challenge in this appeal.
( 4 ) WE have heard learned Counsel for the parties and also been taken through the entire record and the pleadings.
( 5 ) THE suit is founded on the allegation that the plaintiff is the owner of the property, which is a single unit (duplex) Luxury residential house built on sub leasehold plot. The terms of perpetual sub lease provide for residential user and even the zonal plan of D. D. A. makes that provision. Colony is residential and neighbours are also residents. Defendants 1 and 2 approached the plaintiff for taking on rent the property in favour and in the name of defendant No. 1 for residence of defendant No. 2 only for a period of 12 months commencing from 15. 2. 1994 at a monthly rent of Rs. 18,000. 00. Plaintiff accepted to the proposal and accordingly on 24. 2. 1994 a lease deed was executed which was registered with the Sub Registrar III, New Delhi. Rent was received in advance from defendant No. 1 by means
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