JUDGMENT (Oral)

1. This petition assails order dated 24th February, 2022 passed by the learned Civil Judge in CS SCJ 756/2020, dismissing the objection raised by the petitioner, as the defendant before the learned Civil Judge under Order XXIII Rule 1(3) read with Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 (CPC).

2. The respondent had filed an eviction petition against the petitioner under Section 14(1)(e) of the Delhi Rent Control Act, 1958. The petitioner, as the respondent in the said eviction petition, contested, in its reply to the eviction petition, the factum of tenancy and claimed that the petitioner was not a tenant of the respondent.

3. The respondent, thereupon, withdrew the eviction petition filed by it and proceeded to file CS SCJ 756/2020, from which the present proceedings emanate. The earlier Eviction Petition No. E-15/19, filed by the respondent against the petitioner under Section 14(1)(e) of the DRC Act asserted that the petitioner had been inducted as a tenant in the property forming subject matter of the petition (hereinafter "the suit premises") vide a rent agreement dated 23rd May, 1989. Apart from alleging default in payment of rent on the part of the petitioner, the respondent further asserted, in the eviction petition, that the suit premises were required by the respondent in order to carry out his business and that he had no alternative premises which were suitable for the said purpose. The respondent claimed title over the suit property on the basis of a will executed in his favour by one Shri Moti Lal on 26th April, 1985.

4. In his application for leave to defend the eviction petition, the petitioner contested the claim to title and ownership as set up by the respondent. Doubts were also raised by the petitioner regarding the genuineness and veracity of the will dated 26th April, 1985, on the basis of which the respondent was claiming title. Additionally, the petitioner also claimed ownership of the suit premises, while disputing the ownership of the respondent.

5. In these circumstances, the respondent, on 28th February, 2020, submitted that he did not intend to pursue the eviction petition and sought permission to withdraw the eviction petition. The eviction petition was accordingly dismissed as withdrawn by the learned ARC.

6. The respondent, thereafter, proceeded to file CS SCJ 756/2020, out of which the present proceedings emanate. This suit sought (i) a decree of possession in favour of the respondent and against the petitioner in respect of the suit premises, (ii) a decree for recovery of arrears of rent stated to be due from the petitioner for three years alongwith mesne profits and damages and (iii) a decree of permanent injunction against the petitioner, restraining the petitioner from creating any third party interest in respect of the suit premises. While candidly acknowledging the fact that the respondent had indeed earlier filed an eviction petition under Section 14(1)(e) of the DRC Act which was withdrawn consequent to the filing of the application for leave to defend by the petitioner thereto, the respondent contended that the suit would be maintainable in view of the law laid down by this Court in S. Makkhan Singh v. Amarjeet Bali, (2008) 154 DLT 211 (DB). In view of the contest in the application seeking leave to defend the eviction petition by the petitioner, to the title of the respondent, as well as the claim to ownership of the suit premises set up by the petitioner itself against the claim set up by the respondent, the respondent contended that the suit would be maintainable.

7. The petitioner filed objections to the maintainability of the suit under Order XXIII Rule 1(3) read with Order XXIII Rule 1(4) of the CPC.