DARSHAN LAL Vs. AMIT DHIGANI & ANOTHER

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908(CPC) is filed by the defendant no.1 in the suit impugning the Judgment of the Trial Court dated 21.10.2006 by which trial court has decreed the suit for possession and mesne profits filed by the respondent no.1/plaintiff with respect to the suit property being one shop bearing no.488/12/13-B situated at R Block Market, Dilshad Garden, Delhi-95 shown in red colour in the site plan Ex.PW1/1.The following is the relief/operative para of the impugned judgment dated 21.10.2006:-

(2.) The only issue which arises for determination before this Court, and which was argued on behalf of the counsel for the appellant/defendant no.1, was that the appellant/defendant no.1 is entitled to the sum of Rs. 3 lacs which was given as security, and only on such amount being returned to the appellant/defendant no.1 would the respondent no.1/plaintiff be entitled to possession and with the consequence that the mesne profits would not be payable till the amount of Rs. 3 lacs is paid by the respondent no.1/plaintiff to the appellant/defendant no.1. To this extant, the relief para 23(iv) of the impugned judgment is prayed to be set aside and it was stated by the counsel for the appellant/defendant no.1 that appellant/defendant no.1 will hand over physical possession of the suit property to the respondent no.1/plaintiff on the amount of Rs. 3 lacs being paid to the appellant/defendant no.1 and simultaneously the appellant/defendant no.1 will return the three post dated cheques which were issued by the respondent no.1/plaintiff to the appellant/defendant no.1 and as stated in para 23(iii) of the impugned judgment.

(3.) At this stage, it is required to be noted that counsel for the appellant/defendant no.1, after arguing the appeal took a pass over, and after pass over, counsel for the appellant/defendant no.1 has not appeared. Appellant/defendant no.1 however appears in person and states that he wants to change his counsel. I fail to understand as to why there arises a need to change the counsel after hearing has been completed and more so when there is no dispute as regards the fact that there exists a relationship of landlord and tenant between the parties being appellant/defendant no.1and respondent no.1/plaintiff, the rate of rent was the interest payable on the security deposit of Rs. 3 lacs paid by the appellant/defendant no.1 to the respondent no.1/plaintiff (which is above Rs. 3500/- per month so premises are outside the protection of Delhi Rent Control Act, 1958), and that when possession had to be returned, the appellant/defendant no.1 was entitled to be paid a sum of Rs. 3 lacs which was paid by the appellant/defendant no.1 to the respondent no.1/plaintiff as security.