Judgment under Order VIII Rule 10 should not be passed without requiring the plaintiff to prove the facts pleaded in the plaint, and disputed questions of fact warrant a trial rather than a summary judgment.

JUDGMENT

Mini Pushkarna, J.

I.A. No. 15947/2019 (Application on behalf of plaintiffs under Order VIII Rule 10 read with Section 151 CPC for handing over peaceful, vacant and physical possession) in CS(OS) 226/2019

I.A. No. 3965/2022 (Application on behalf of the plaintiffs under Order 39 Rule 10 CPC read with Section 94 and 151 of CPC seeking direction against the defendant to deposit the arrears of licence fee, pendente-lite and future till final adjudication of the present suit) in CS(OS) 226/2019

1. I.A. No. 15947/2019 is an application filed on behalf of plaintiffs under Order 8 Rule 10 read with Section 151 of Civil Procedure Code, 1908 (CPC) for handing over peaceful, vacant and physical possession of the premises in question.

2. I.A. No. 3965/2022 is an application under Order 39 Rule 10 CPC wherein the plaintiffs have sought directions against the defendant to deposit the arrears of licence fee, pendente-lite and future, till final adjudication of the present suit.

3. The present suit has been filed on behalf of the plaintiffs for possession, recovery of arrears of licence fees and mesne profits/damages and permanent and mandatory injunction. It is the case on behalf of the plaintiffs in the suit that they are the true and lawful owners of land admeasuring 12 bighas and 16 biswas in khata khatauni number 49/421, bearing mustatil no. 14, killa no. 26 (5-4), mustatil no. 16, killa no. 26 (3-4) and mustatil no. 17, killa no. 26(4- 8), with boundary wall, tubewell, electric connection and built up structure standing thereon, situated in the Revenue estate of Village Kapasera, Tehsil Vasant Vihar, New Delhi.

4. The suit property is jointly owned by the plaintiffs.

5. The relevant facts as stated in the plaint are that in the year 2017, by way of registered licence deed, the plaintiffs had licensed the suit property land to the defendant for banquet hall/party lawn purposes. A registered licence deed dated 29.08.2017 was duly executed between the parties. The suit property was licensed to the defendant for a period of 9 years with effect from 01.11.2017 till 31.10.2026.

6. It was agreed between the plaintiffs and defendant that there shall be 15% escalation after expiry of every 3 years of the licence period as per Clause B of the License Fee Agreement dated 29.08.2017. In terms of the said clause, licence fees of the suit property was initially set at a sum of Rs. 13,34,000/- per month with effect from the month of November, 2017, which was to be paid on or before 7th day of each English calendar month during the licence period.

7. It was also agreed that besides the licence fees, the defendant shall also be liable to pay GST or any statutory taxes of whatsoever nature to the plaintiffs. As such, in terms of the licence deed, an amount of Rs. 14,40,720/- was to be paid every month by the defendant after deducting TDS towards the payment of licence fees equally in favour of both the plaintiffs i.e. Rs. 7,20,360/- to each plaintiff.

8. As per Clause 26 of the licence deed, it was agreed between the plaintiffs and the defendant that the defendant shall handover 12 post dated cheques every year, towards the licence fee for the next 12 months during the term of the licence. In terms of the said clause, the defendant issued 24 cheques in favour of each of the plaintiffs in the month of November, 2017 i.e. 12 cheques in favour of plaintiff no. 1 and 12 cheques in favour of plaintiff no. 2.

9. The defendant had assured the plaintiffs and further undertook that the said cheques will be duly honoured by the drawee bank on presentation. It is the case on behalf of the plaintiffs that since May, 2018, the cheques issued by the defendant in discharge of their monthly liability have been dishonoured with the remarks "funds insufficient". As such, since the month of May, 2018, the defendant has failed to pay the said licence fee payable in respect of the suit property. Thus, it is submitted on behalf of the plaintiffs that the def