The court highlighted the discretion of the court to issue directions for deposit of a reasonable amount under Order XV-A to safeguard the rights of the property owner and ensure compensation for the time taken in adjudication of a false defense taken by the defendant in unauthorized occupation.

JUDGMENT

Manoj Kumar Ohri, J. By way of the present appeal filed under Order 43 read with Section 151 CPC, the appellant/plaintiff has assailed the order dated 28.08.2018 passed by the Trial Court in Suit No.13886/2016 to the extent that his application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC was dismissed.

2. The appellant filed the underlying suit for declaration, possession, damages, permanent and mandatory injunction, wherein he claimed himself to be the absolute and lawful owner of property bearing No. T-57 (C), Tokri Walan, near Azad Market, Delhi-110006 admeasuring 42 sq. yards and comprising of its entire ground floor and second floor with roof/terrace rights alongwith common staircase and superstructure. It was further claimed that the aforesaid portions were purchased by him and his brother from respondent No.2/Munni Devi by way of registered GPA and Will both dated 08.06.1998. The first floor of the property was sold by respondent No.2 to respondent No.1 (her brother). Allegedly, after sale of the aforesaid portions to the appellant, somewhere in the first week of November, 2006, respondent No.1 started raising unauthorized construction of a tin shed on the roof of the first floor of the property (i.e. second floor).

In the above facts, the appellant prayed for a decree of declaration in his favour declaring him to be the sole and absolute owner of second floor with the superstructure built thereupon and roof/terrace rights alongwith common staircase (hereinafter, the `suit property'); of permanent injunction restraining the respondents/defendants from parting with the suit property; of mandatory injunction against the respondents to remove the tin shed constructed at the suit property; alongwith possession. Ancillary reliefs in the form of damages/compensation for use and occupation charges were also sought. Along with the suit, the appellant had also filed an application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC. The suit as well as the application were resisted by the respondents.

3. Learned counsel for the appellant contended that though the Trial Court found a prima facie case in favour of the appellant and directed the respondents not to dispose of the suit property or to create any encumbrance on it till the disposal of the suit, it erred in dismissing the application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC. It was further contended that prior to filing of the aforesaid application, the appellant had also issued a legal notice thereby asking the respondents to pay Rs.10,000/- per month towards the use and occupation charges with respect to their illegal possession at the roof of the first floor, but no reply was given by the respondents. In support of his submissions, learned counsel referred to the decisions in Metropolis Travels & Resorts (I) Pvt. Ltd. v. Sumit Kalra & Anr. reported as 2002 SCC OnLine Del 521; Raghubir Rai v. Prem Lata & Anr. reported as 2014 SCC OnLine Del 3045 and Dil Bahadur v. Arya Samaj Mandir reported as 2018 SCC OnLine Del 12194.

4. Mr. Shiv Charan Garg, learned counsel for the respondents, on the other hand, defended the impugned order by contending that as the respondents never admitted any amount, no application under Order 39 Rule 10 read with Order XV-A and Section 151 CPC could have been filed. It was submitted that the appellant has not placed any material on record to claim the amount of Rs.10,000/- per month towards the use and occupation charges. In support of his submissions, learned counsel placed reliance on the decision in Gujarat Co-operative Milk Marketing v. Jawahar Mal & Sons and Others reported as 2002 SCC OnLine Del 1224.

5. I have heard the learned counsels for the parties and perused the material placed on record.

6. From the material placed on record, it is discernible that on 08.06.1998, two sale transactions took place. The first transaction was between the appellant and respondent No.2,