FAO 37/2020

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IN THE HIGH COURT OF DELHI AT NEW DELHI

FAO 37/2020 & CM. APPL. No.3126/2020

Reserved on

: 20/05/2022

Date of Decision : 29/08/2022

IN THE MATTER OF:

RATTAN MEHTA & ANR.

..... Appellants

Through:

Mr. Harish Malhotra, Sr. Advocate

with Mr. Lalit Gandherva, Advocate

versus

GAYATRI SHAH & ORS.

..... Respondents

Through:

Mr. Rajesh Yadav, Sr. Advocate with

Ms. Ruchira V. Arora & Mr.

Dhananjay Mehlawat, Advocates for

respondent Nos.1 and 2.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

MANOJ KUMAR OHRI, J.

1. By way of present appeal filed under Order XLIII Rule 1(f) read with

Section 151 CPC, the appellants have assailed the order dated 23.12.2019

passed by the learned ADJ-04, Patiala House Courts, New Delhi in CS

No.55540/2016, whereby the appellants’/defendants’ defence was struck off

and the written statement filed by them was directed to be taken off the

record.

2. Brief facts, in nutshell, to appreciate the challenge are that the

respondents/plaintiffs preferred a suit for possession, mesne profits and

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damages. In the plaint, the respondents claimed themselves to be owners of

property bearing No. 25-A, C Block, Vasant Vihar Market (Local Shopping

Centre-1), New Delhi (hereinafter, referred to as 'the suit property'). It was

further claimed that a shop on the ground floor of the suit property was

leased to Smt. Anju Mehta and appellant No.1 vide Lease Deed dated

15.05.1984 at a monthly rent of Rs.1,500/-, whereafter the defendants

created a sub-tenancy in favour of M/s Mahima Caps (P) Ltd. by entering

into an Agreement dated 15.07.2004 (hereinafter, referred to as 'the

Agreement'). The Agreement, a copy of which was filed alongwith the

plaint, was statedly executed on behalf of defendants’ partnership firm M/s

Under the said Agreement, M/s Mahima Caps (P) Ltd. was required to pay

Rs.1 lac per month as minimum guaranteed proceeds towards the profit/sale.

3. It was pleaded before the Trial Court that the defendants having

created sub-tenancy were no longer entitled to protection under the Delhi

Rent Control Act, 1995. In support of the averment, they had placed on

record a copy of the Agreement and averred that the original Agreement was

in possession of the defendants.

4. While the alleged sub-tenants were proceeded ex-parte, the appellants

appeared and filed a written statement, wherein they admitted the

partnership of their firm M/s Rain with M/s Mahima Caps (P) Ltd., but not

the execution, existence and possession of the Agreement. On 30.01.2018,

the issues were framed by the Trial Court and those relevant to the present

controversy are extracted below:-

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(a)? OPP.”

5. An application came to be filed on behalf of the plaintiffs under Order

11 Rule 1 read with Section 151 CPC seeking leave to deliver following

interrogatories to defendant Nos.1 and 2:-

6. The defendants filed a reply to the said application and did not admit

the existence or their possession of the Agreement. The relevant portion of

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the reply is extracted below :-

7. The aforesaid application filed on behalf of the plaintiffs came to be

allowed vide order dated 01.08.2019, whereby the defendants were directed

to answer the interrogatories. The defendants challenged the said order

before this Court by way of CM Main 1738/2019. This Court, vide judgment

dated 06.12.2019, dismissed the challenge by concluding as under:

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8. The Special Leave to Appeal (C) No. 8279/2020 filed on behalf of the

defendants against the aforesaid judgment dated 06.12.2019 was dismissed

as withdrawn vide order dated 27.11.2020.

9. Before the Trial Court, the plaintiffs made a submission that the

defendan