Sham Lal Kapoor v. Joginder Lal Kuthiala & Ors

RAJIV SAHAI ENDLAW, J. JULY 06, 2017 "gsr/bs"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th July, 2017. + C.R.P. 152/2008, CM No.13597/2008 (for condonation of 82 days delay in filing the petition) & CM No.13598/2008 (for stay) SHAM LAL KAPOOR ..... Petitioner Through: Mr. Nitin Gupta and Mr. Vikas Singh, Advs. Versus JOGINDER LAL KUTHIALA & ORS. ..... Respondents Through: Mr. Bharat Deepak, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Civil Revision Petition under Section 115 of the CPC impugns the order dated 7th March, 2008 of the learned Additional District Judge of dismissal of an application filed by the petitioner under Order VII Rule 11 of the CPC for rejection of the plaint in a suit for recovery of arrears and future mesne profits filed by the respondents. 2. The petition was entertained and notice thereof issued. Vide subsequent order dated 15th October, 2009 which is stated to be continuing in force, further proceedings in the suit from which this petition arises were stayed. 3. The counsels have been heard. 4. The respondents No.1 to 3 namely Joginder Lal Kuthiala, Jitender Lal Kuthiala and Late Smt. Harvansh Kumari Kuthiala instituted the suit from which this petition arises against the respondents No.4&5 namely Tilak Kumar and Baldev Kumar and the petitioner for recovery of Rs.10,80,000/- on account of damages/mesne profits for wrongful use and occupation of immovable property and for recovery of future mesne profits/damages for use and occupation of the immovable property till the date of delivery of possession thereof, pleading (i) that Sh. Fakir Chand Wadhera father of the respondents No.4&5 Tilak Kumar and Baldev Kumar was a tenant under the respondents No.1 to 3 in property No.B-2, Connaught Place, New Delhi at a monthly rent of Rs.60/-; (ii) that on demise of Sh. Fakir Chand Wadhera, the respondents No.4&5 namely Tilak Kumar and Baldev Kumar did not take any care of the demised premises and abandoned the same and allowed the petitioner to occupy the same exclusively; (iii) that the petitioner since the demise of the tenant Sh. Fakir Chand Wadhera is in unauthorised use and occupation of the premises; (iv) that the petitioner alleges himself to be a partner of M/s Tilak Hosiery business of the deceased tenant Sh. Fakir Chand Wadhera; (v) that the respondents No.4&5 filed a suit for accounts against the petitioner and in which a collusive decree was obtained; (vi) that the respondents No.1 to 3 had filed a petition for eviction of respondents No.4&5 namely Tilak Kumar and Baldev Kumar from the aforesaid tenancy premises on the ground of subletting under Section 14(1)(b) of the Delhi Rent Control Act, 1958 i.e. of respondents No.4&5 having unauthorisedly sublet, assigned or parted with possession of the tenancy premises to the petitioner and which was pending consideration; (vii) that the petitioner and the respondents No.4&5 thus being in wrongful possession of the premises are liable to pay mesne profits to the respondents No.1 to 3 therefor. 5. The respondents No.4&5 did not contest the said suit and the petitioner only contested the same. 6. The petitioner filed an application under Order VII Rule 11 of CPC for rejection of the plaint contending that till an order of eviction from the premises was passed, the suit for mesne profits was not maintainable. 7. The learned Additional District Judge has vide the order impugned in this petition dismissed the said application of the petitioner observing as under: "4. So far as the plaint is concerned, the plaintiff has described the defendant as unauthorized occupant and has claimed mesne profits in the form of use and occupation charges. The pendency before the Addl. Rent Controller, which being not a civil Court otherwise can not be any ground for maintaining an application under Order 7 Rule 11 CPC. Moreover, the mesne profits is being asked for use and occupation charges and it can not be said that the plaintiff can ask for the use and occupation charges only after the d