JUDGMENT :

Prathiba M. Singh, J.

CAV 128/2020

1. Caveat is discharged as the Caveator has entered appearance.

CM APPL. 5274/2020 (exem. from filing dim annexures)

CM APPL. 5275/2020 (exem. from filing complete TCR)

CM APPL. 5277/2020 (exem. from filing certified copies of annexures)

2. Exemptions are allowed, subject to all just exceptions. Applications are disposed of.

CM APPL. 5276/2020 (125 days' delay in re-filing)

3. This is an application for condonation of delay in re-filing the petition. For the reasons stated in the application, the delay is condoned.

4. Application is disposed of.

CM(M) 166/2020 and CM APPL. 5273/2020

5. The present petition has been filed challenging the impugned order dated 5th August, 2019, by which the Petitioners'/Defendants' (hereinafter, "Defendants") application under Order VII Rule 11 CPC has been rejected by the Trial Court. Mr. Amit Sethi, ld. counsel for the Respondent, appears on advance notice. Ld. counsel for the parties have been heard.

6. The present petition arises out of a suit for possession and recovery of mesne profits, filed by the Respondent/Plaintiff-M/s. Atma Ram Builders (P) Ltd. (hereinafter, "Plaintiff") against the Defendants-M/s. Embassy Restaurant and Mr. Sunil Malhotra, in respect of property bearing Plot No. 3, Block D, Connaught Place, New Delhi (hereinafter, "suit property") from where the Defendants are running an eating joint. The suit was filed in 2014. On 11th March, 2016, the following issues were framed in the suit:-

"1. Whether suit is hit by Section 50 of Delhi Rent Control Act, 1958? OP Parties.

2. Whether Plaintiff had admitted in the past that the Property Tax is not part of the rent being paid by the defendant to the plaintiff? OPD.

3. Whether the plaintiff is well within its rights to include the Property Tax as the rent of the suit property by invoking Section 67 of NDMC Act, 1994 apart from New Delhi Municipal Council Determination by Annual Rent Bylaws 2009? OPP.

4. Whether this petition hit by res judicata? OPP.

5. Whether plaintiff is entitled to recovery of possession of suit property i.e. Property No. 11-D, D Block, Connaught Place, New Delhi where defendant is running a Embassy Restaurant which is admeasuring 232.25 Sq.m shown in red in the site Plan? OPP.

6. Whether plaintiff is entitled to decree of mesne profit @ Rs. 1,000/- per Sq.ft per month from the date of filing of the suit till the date of actual vacation and is also entitled to receive Rs. 5,83,333/- as mesne profit for the week i.e. 1.10.2014 to 07.10.2014? OPP.

7. Relief."

7. One of the contested issues in the suit is whether the house tax component would be considered a part of the rent or not. The suit was based on the premise that the house tax payable would have to be computed within the rent and hence, the tenancy is not covered by the Delhi Rent Control Act, 1958. As can been seen from the issues above, specific issues have been framed as to whether the Court has jurisdiction and whether the property tax is part of the rent or not. The Defendants, however, chose to file an application under Order VII Rule 11 CPC. The application under Order VII Rule 11 CPC is again premised on the plea that the property tax payable in respect of the suit property is not part of the rent. The said application was heard from time to time and was considered in the orders dated 12th February, 2018, 26th July, 2018 and by the impugned order.

8. In the impugned order, the Trial Court has considered the judgment of the Supreme Court in NDMC v. Association of Concerned Citizens of New Delhi & Ors. [Civil Appeal No(s) 903-930/2019, decided on 22nd January, 2019] and has held that in view of the fact that for parties, like the Defendants who were already assessees under the byelaws of 2009 and would continue to pay house tax under the then extant regime, since the tax amount is not refundable, the application under Order VII Rule 11 CPC is not maintainable. The relevant observations of the Trial Court are as under:-

"Reas