DV – Eviction from rented Property

Punjab-Haryana High Court

Aman Mehra And Another vs Sambit Mallick And Another on 30 June, 2010
C.R. No. 5863 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. C.R. No. 5863 of 2009 (O&M)

Date of Decision: 30.06.2010

Aman Mehra and another ….Petitioners

Versus

Sambit Mallick and another ….Respondents.

Coram:- Hon’ble Mr. Justice Alok Singh

1.Whether reporters of local news papers may be allowed to see judgement ?
2. To be referred to reporters or not ?
3. Whether the judgement should be reported in the Digest ? Present: Mr. Anshu Mahajan, Advocate

for the petitioner:Mr. N.D. Achint, Advocate

for respondent No.1.Mr. Kunal Dawar, Advocate

for respondent No.2..

Alok Singh, J. (Oral)

Landlords – petitioners have invoked jurisdiction of this Court under Article 227 of the Constitution of India, assailing order dated 8.8.2009 passed by the Civil Judge, Senior Division, Gurgaon, thereby rejecting the application of the plaintiffs – landlords moved under Order 12 Rule 6 CPC, seeking decree for possession on the basis of admission. Brief facts of the present case are that petitioners – landlords C.R. No. 5863 of 2009 2 are owners of residential property in question and have leased out the suit property to M/s. Motorola India Pvt. Ltd. on 29.10.2002 for a period of two years commencing from 1.11.2002. Lease period was further extended for two years. However, M/s. Motorola India Pvt. Ltd. vide letter dated 1.8.2006 notified the plaintiffs that lease shall stand terminated from 31.8.2006 in terms of clause 15 of the lease deed and expressed their willingness to hand over vacant possession of the property to the plaintiffs/landlords on or before 31.8.2006. Defendant No.1/respondent No.1 herein was an employee of M/s. Motorola India Pvt. Ltd. and was occupying the property. He requested the plaintiffs/petitioners to grant him permission to use the property in dispute for a monthly licence fee/use and occupation charges @ Rs.10,000/- per month. Petitioners/plaintiffs executed licence deed dated 1.9.2006 in favour of defendant No.1. Defendant No.1 also signed the licence deed. It was stipulated in the licence deed that licence period shall be over on 31.3.2007. Thereafter, plaintiffs-petitioners served legal notice dated 2.4.2007 on the defendants to vacate the suit property as the licence had expired on 31.3.2007 by efflux of time. Again plaintiffs/petitioners vide legal notice dated 19.4.2007 called upon the defendants to hand over vacant possession of the property in dispute within 15 days from the date of said notice. Meanwhile, matrimonial dispute arose between the defendants. Plaintiffs filed suit for eviction and possession against the defendants. In the matrimonial dispute, wife – defendant No.2 approached the Magistrate concerned under the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Domestic Violence Act) and ultimately that complaint went in Criminal Appeal No.14 of 2007 in the Court of C.R. No. 5863 of 2009 3 Additional Sessions Judge, Fast Track Court, Gurgaon. The Additional Sessions Judge vide order dated 8.8.2007 (Annexure R-2/2) passed the following order: –

“Considering the submissions made by both the sides and also this fact that all these aspects to be considered on merits at the time of evidence, considering prima-facie monthly income of the respondent in my considered opinion maintenance allowance awarded to the petitioner and her son is on the lower side. At least a sum of Rs.15000/- per month should have been awarded to the petitioner/appellant and a sum of Rs.5000/- per month should be awarded to the daughter or son of the petitioner by the learned trial Court and it is further ordered that the respondent shall pay the rent of the premises in question in which the petitioner is residing as tenant.” In a suit for eviction/possession filed by the plaintiffs- petitioners, application under Order 12 Rule 6 CPC to grant decree on the basis of admission was moved. Objections were filed by the defendants/respondents. The trial Court vide impugned judgement dated 8.8.2009 dismissed the application moved by the plaintiffs/petitioners under Order 12 Rule 6 CPC by observing as under: –

“At the time of arguments, it was admitted by learned counsel for the parties that defendant No.2 has filed an application/petition under Domestic Violent Act against defendant No.1.

The applicants/plaintiffs in the instant application have pleaded that Sh. B.L. Singal, learned Additional Sessions C.R. No. 5863 of 2009 4 Judge, Fast Track Court, Gurgaon has directed defendant No.1 to pay the rent of the premises @ Rs.10000/-. On the other hand, respondent/defendant No.2 has pleaded that there is collusion between the plaintiffs and defendant No.1 and Sh. B.L.Singal, learned Additional Sessions Judge, Fast Track Court, Gurgaon, has directed defendant No.1 to pay rent of the premises in question wherein defendant No.2 is presently residing as tenant vide order dated 8.8.2007. The aforesaid order dated 8.8.2007 passed by Sh. B.L.Singal, learned Additional Sessions Judge, Fast Track Court, Gurgaon, has not been placed on record by any of the parties to the suit. In these circumstances and after having heard the rival contentions advanced by the learned counsel for the parties and after going through the instant application, its replies and case file minutely, this Court is of the view that issues as to whether there is collusion between the plaintiffs and defendant No.1 and whether respondent No.2 is liable to be directed to vacate the premises in question can be decided only after leading evidence by both the parties, which is yet to be led. Therefore, at this stage, no direction can be given to respondent No.2 to vacate the flat/property in dispute and to hand over the vacant possession of the same to the plaintiffs.” Feeling aggrieved from the order dated 8.8.2009, plaintiffs/petitioners approached this Court by way of present petition under Article 227 of the Constitution of India.

During the arguments, this Court specifically asked learned C.R. No. 5863 of 2009 5 counsel appearing for both the respondents as to whether they admit licence deed (Annexure 4). Learned counsel for defendant No.2 stated that he admits signatures of husband on the licence deed. That being so, licence deed stands admitted. As per the stipulations made in the licence deed, period of licence was to expire on 31.3.2007. Service of notices sent by the landlords/petitioners on the defendants/respondents is also not denied. Under the provisions of Order 12 Rule 6 CPC, the Court is competent to pass decree on the basis of admission. Once signatures on the licence deed are admitted and service of notices is not denied, it is a fit case where decree on the basis of admission ought to have been granted. Inter se dispute between husband and wife cannot resist landlord to take possession from the tenants/licencees under the law. Any order passed under the provisions of the Domestic Violence Act permitting the wife to occupy the tenanted portion occupied by the husband can remain in force during the subsistence of the tenancy/licence. Order passed under the Domestic Violence Act cannot be enforced against the landlord after the termination of the lease or revocation of the licence. That being so, wife under the order passed under the provisions of the Domestic Violence Act, cannot resist any order being passed in favour of the landlord for possession. In view of the above, present petition deserves to be allowed and the order impugned cannot be sustained in the eye of law. Petition is allowed, order impugned is set aside. Application under Order 12 Rule 6 CPC is allowed. Decree for possession is granted in favour of the landlords and against the defendants. However, defendant No.2 is granted three months’ time to vacate the premises in dispute. It is made clear that suit for mesne profit or occupation charges shall go on and shall be decided, in C.R. No. 5863 of 2009 6

accordance with law.

( Alok Singh )

Judge

30.06.2010

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