SURINDER KUMAR JHAMB Vs. OM PARKASH SHOKEEN

JUDGEMENT

(1.) The appellant was inducted as a tenant by the respondents in suit property bearing No. 487/31, measuring. 2 bighas 10 biswas within Phirni (extended abadi) of Village Peera Garhi, Delhi. Each of the respondents herein(plaintiffs before the Trial court) is l/3rd share holder of the said property. Their respective shares in the property were let out to the appellant vide three separate lease deeds of the same date i.e. 15th October, 1979. The appellant was to pay separate monthly rent of Rs. 1,167.00 to each of the respondent. The lease was for a period of five years with a right to the appellant to raise temporary structure over the plot in order to carry out his business activities. The appellant, as per the version of the respondents did raise temporary super structure on the plot. However, w.e.f. 15th October, 1983 the appellants failed to pay the monthly rent to the respondents, therefore, notices terminating the tenancy of the appellant were issued by respondents thereby terminating his tenancy from the mid nigh of 14th April, 1985. Beside terminating the tenancy vide said notice, arrears of rent was also demanded. After the expiry of the notice period when the appellant did not vacate the suit property nor paid the arrears of rent, these respondents filed a joint suit for recovery of possession of the suit property as well as recovery of rent amounting to Rs. 56,001.00 beside future rent/damages at the rate of Rs. 3,501.00 per month.

(2.) By the impugned order the learned Single Judge decreed the suit for possession in respect of the suit property and also passed decree for the recovery of Rs. 24,507.00 as arrears of rent. Further granted preliminary decree for recovery of damages/mesne profits till recovery of possession at the rate of Rs. 3,501.00 per month. It is against this judgment and decree that the appellant has preferred this appeal.

(3.) Before we deal with the legal submissions raised by the appellant against the decree, we would like to mention the intervening events happened during the pendency of this appeal and the consequence flowing therefrom. Since the challenge in appeal was also made against money decree of Rs. 24,507.00 and preliminary decree of mesne profit/damages at the rate of Rs. 3501.00 , therefore, directions were given to the appellant to deposit the decretal amounts before appeal could be heard. Directions were given on 17th March, 1999 to the appellant to deposit the user charges/damages for use and occupation of the property payable w.e.f. October, 1984 till the 17th March, 1999 on the basis of agreed rate of rent i.e. Rs. 3,501.00 per month. Counsel for the appellant informed that a sum of Rs. one lakh had already been paid to the respondents as part of arrears of rent. Accordingly, directions were given to the appellant that after adjusting the amount of Rs. one lakhs, balance amount on account of user charges be deposited in Court within two weeks. The case was thereafter adjourned and taken up on 21st April, 1999 when Mr. Ravinder Sethi, Senior Counsel for the appellant stated that arrears of user charges from October, 1984 till date would be deposited in three instalments. Rs. two lakhs would be deposited within four weeks from that date and balance in two equal monthly instalments. On his request matter was adjourned with direction to be listed after four weeks. On 21st May, 1999 counsel for the appellant stated that a sum of Rs. two lakhs had been deposited in the Court. Directions were given to the Registry to take out FDR for that amount from UCO Bank, High Court Branch for a period of 46 days, and in case the appeal was not disposed of by then, the Registry would get the FDR renewed for a further period. Matter was thereafter adjourned and taken up on 13th August, 1994. The appellant by then had not deposited balance two instalments as undertaken to do so vide proceeding dated 21st April, 1999. On the adjourned dale Counsel for the appellant insisted that one last opportunity be granted to the appellant to comply the order of this Court by next date appellant would deposit the balance amount. It was made clean at that time that appeal against a money decree without depositing the same would be deemed to have been dismissed. The money decree including the decree on account of use charges at the rate of Rs. 3501.00 per month from October, 1984 till delivery of possession would become final. On request of counsel for the appellant last opportunity to deposit the amount was granted. The case was adjourned to 31st August, 1999, on which date Mr. S.K. Puri, counsel for the appellant stated that the appellant was not in a position to deposit the decretal amounts and/or the amounts agreed to be deposited by the appellant vide order 21st April, 1999 and 13th August, 1999. Mr. V.P. Singh, Senior Advocate appearing for the respondent pointed out that since the decretal amounts have not been deposited inspite of the undertaking given by the appellant through counsel hence decree on account of recovery of Rs. 24,507.00 and user charges/ damages at the rate of Rs. 3,501.00 per month till recovery of possession became final. There is, therefore, no challenge to the money decree and the decree on account of damages. Appeal against the same deemed to have been dismissed. Mr. S.K. Puri fairly conceded this position but urged that even if the appeal against money decree and decree on account of damages/user charges is deemed to have been dismissed for non-compliance of the Court order, still the appeal against eviction i.e. for recovery of possession is maintainable. It is only against the decree of recovery of possession of suit property that arguments were advanced by counsel for the parties and heard. Thus so far as the decree with regard to recovery of Rs. 24,507.00 and damages/mesne profits at thrate of Rs. 3,501.00 per month from October, 1984 till recovery of possession appeal stands dismissed. The appellant in his written submissions has also conceded this position when stated that the appeal against money decree has been dismissed on account of default in making and/or depositing the decretal amounts. The appellants confined his arguments only against the decree for recovery of possession.