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2017 Supreme(Del) 2056
IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
Sham Lal Kapoor – Petitioner
Versus
Joginder Lal Kuthiala and Others – Respondents
C.R.P. No. 152 of 2008 & CM Nos. 13597, 13598 of 2008 (for stay)
Decided On : 06-07-2017
For the Petitioners: Mr. Nitin Gupta and Mr. Vikas Singh.
For the Respondent: Mr. Bharat Deepak.
The main legal point established in the judgment is that a suit for future mesne profits unaccompanied by a relief of possession cannot be filed, and the jurisdiction of the Civil Court to grant the relief of eviction is barred by the Delhi Rent Control Act, 1958.
Headnote:
mesne profits - Civil Revision Petition - Delhi Rent Control Act, 1958 - Section 14(1)(b), Order VII Rule 11 of CPC, Section 2(1), Section 50(1) - The court discussed the provisions of the Delhi Rent Control Act, particularly Section 14(1)(b) and Order VII Rule 11 of CPC, and their applicability to the recovery of mesne profits from an unauthorised sub-tenant. The court highlighted the definition of tenant and sub-tenant under the Act and emphasized the jurisdiction of the Rent Controller over matters of eviction and fixation of standard rent, barring the jurisdiction of the Civil Court. The court also emphasized that a suit for future mesne profits unaccompanied by a relief of possession cannot be filed, as per Order XX Rule 12.
Fact of the Case:
The suit was filed by the respondents for recovery of arrears and future mesne profits against the petitioner and other defendants for wrongful use and occupation of immovable property. The petitioner filed an application under Order VII Rule 11 of CPC contending that the suit for mesne profits was not maintainable until an order of eviction from the premises was passed.
Finding of the Court:
The court found that the suit for future mesne profits unaccompanied by a relief of possession cannot be filed, and the jurisdiction of the Civil Court to grant the relief of eviction was barred by the Act. The court also emphasized that the liability for mesne profits would only arise from the date of the eviction order.
Issues: The issues revolved around the maintainability of the suit for future mesne profits, the jurisdiction of the Civil Court in granting the relief of eviction, and the liability for mesne profits of an unauthorised sub-tenant.
Ratio Decidendi: The court held that a suit for future mesne profits unaccompanied by a relief of possession cannot be filed, and the jurisdiction of the Civil Court to grant the relief of eviction was barred by the Act. The liability for mesne profits would only arise from the date of the eviction order.
Final Decision: The court allowed the petition, rejected the plaint in the suit, and set aside the impugned order dismissing the application under Order VII Rule 11 of CPC.
RAJIV SAHAI ENDLAW, J.
1. This Civil Revision Petition under Section 115 of the CPC impugns the order dated 7th March, 2008 of the learned Additional District Judge of dismissal of an application filed by the petitioner under Order VII Rule 11 of the CPC for rejection of the plaint in a suit for recovery of arrears and future mesne profits filed by the respondents.
2. The petition was entertained and notice thereof issued. Vide subsequent order dated 15th October, 2009 which is stated to be continuing in force, further proceedings in the suit from which this petition arises were stayed.
3. The counsels have been heard.
4. The respondents No. 1 to 3 namely Joginder Lal Kuthiala, Jitender Lal Kuthiala and Late Smt. Harvansh Kumari Kuthiala instituted the suit from which this petition arises against the respondents No. 4 & 5 namely Tilak Kumar and Baldev Kumar and the petitioner for recovery of Rs. 10,80,000/- on account of damages/mesne profits for wrongful use and occupation of immovable property and for recovery of future mesne profits/damages for use and occupation of the immovable property till the date of delivery of possession thereof, pleading (i) that Sh. Fakir Chand Wadhera father of the respondents No. 4 & 5 Tilak Kumar and Baldev Kumar was a tenant under the respondents No. 1 to 3 in property No. B-2, Connaught Place, New Delhi at a monthly rent of Rs. 60/-; (ii) that on demise of Sh. Fakir Chand Wadhera, the respondents No. 4 & 5 namely Tilak Kumar and Baldev Kumar did not take any care of the demised premises and abandoned the same and allowed the petitioner to occupy the same exclusively; (iii) that the petitioner since the demise of the tenant Sh. Fakir Chand Wadhera is in unauthorised use and occupation of the premises; (iv) that the petitioner alleges himself to be a partner of M/s Tilak Hosiery business of the deceased tenant Sh. Fakir Chand Wadhera; (v) that the respondents No. 4 & 5 filed a suit for accounts against the petitioner and in which a collusive decree was obtained; (vi) that the respondents No. 1 to 3 had filed a petition for eviction of respondents No. 4 & 5 namely Tilak Kumar and Baldev Kumar from the aforesaid tenancy premises on the ground of subletting under Section 14(1)(b) of the Delhi Rent Control Act, 1958 i.e. of respondents No. 4 & 5 having unauthorisedly sublet, assigned or parted with possession of the tenancy premises to the petitioner and which was pending consideration; (vii) that the petitioner and the respondents No. 4 & 5 thus being in wrongful possession of the premises are liable to pay mesne profits to the respondents No. 1 to 3 therefor.
5. The respondents No. 4 & 5 did not contest the said suit and the petitioner only contested the same.
6. The petitioner filed an application under Order VII Rule 11 of CPC for rejection of the plaint contending that till an order of eviction from the premises was passed, the suit for mesne profits was not maintainable.
7. The learned Additional District Judge has vide the order impugned in this petition dismissed the said application of the petitioner observing as under:
“4. So far as the plaint is concerned, the plaintiff has described the defendant as unauthorized occupant and has claimed mesne profits in the form of use and occupation charges. The pendency before the Addl. Rent Controller, which being not a civil Court otherwise can not be any ground for maintaining an application under Order 7 Rule 11 CPC. Moreover, the mesne profits is being asked for use and occupation charges and it can not be said that the plaintiff can ask for the use and occupation charges only after the decision by the Court of Addl. Rent Controller in as much as if the petition is decided say after two years from now an appeal can be preferred and still the same ground can be taken which will bar the claim of the plaintiff by limitation for mesne profits in case the eviction proceedings are decided in his favour. The Court can not be a party by rejecting the pe
