TARESH CHAND JAIN Vs. TARAWATI

JUDGEMENT

(1.) THIS is a civil revision and has been directed against the order dated 23.10.2000 passed by Civil Judge (Sr. Division), Panchkula who dismissed the application of the plaintiff/petitioner under Order 15 Rule 5 CPC.

(2.) SOME facts can be noticed in the following manner:- Plaintiff/petitioner Taresh Chand Jain filed a suit for possession by ejectment of the defendants in respect of basement and ground floor of SCO/SCF No. 76, Sector 7, Panchkula for recovery of Rs. 90,640/-. He also made an application under Order 15 Rule 5 read with Section 151 CPC for striking off the defence of the defendants on account of non-payment of arrears of rent from 1.7.1998 onwards. It was alleged by the petitioner that in paras 3, 5 and 8 of the written statement it had been admitted by the defendants that they have not paid the arrears of rent from 1.7.1998 and, therefore, their defence is liable to be struck off under Order 15 Rule 5 CPC. Notice of the application was given to the respondents/defendants who filed the reply and alleged that relationship of landlord and tenant has ceased between the parties with the execution of agreement to sell in respect of the suit property i.e. SCO No. 76 Sector, 7, Panchkula. It was further submitted by the respondents that the petitioner after having received a major chunk of sale consideration of Rs. 30 lacs and after putting defendant No. 2 in possession of the entire SCO in pursuance of the agreement of sale is now debarred by the provisions of Section 53-A of the Transfer of Property Act from enforcing any right in respect of the suit property by way of filing the present suit as well as the application under Order 15 Rule 5 CPC. It was also submitted by the respondents that it was mutually agreed between the parties that no rent would be payable w.e.f. July, 1998 as the petitioner had agreed to adjust the amount of rent in the sale consideration and for this reason the petitioner did not demand any rent from the respondents after June, 1998. Moreover, as per the operation of law, the lesser rights of tenancy are now merged with larger rights accrued under the agreement to sell and thus there is no question of payment of any rent in the suit. With this background the respondents prayed for the dismissal of the application. The learned trial Court, after hearing the learned counsel for the parties and for the following reasons as given in para 6 of the impugned order, dismissed the application of the petitioner :-

(3.) THE learned counsel for the petitioner submitted that in this case the premises were let out to M/s Saran Chaudhary Traders and respondents No. 1 to 3 i.e. Smt. Tarawati, Bishamber Dayal and Smt. Suman, are the partners of the said firm. The agreement of sale has been executed between the petitioner and respondent No. 2 Bishamber Dayal in his individual capacity and, therefore, the observations made by the trial Court as contained in para No. 6 are erroneous. He further submitted that the possession of the property was never delivered to Bishamber Dayal, respondent/defendant No. 2. Since the rent has been paid to the plaintiff/petitioner w.e.f. 1.7.1998, therefore, the defence of the respondents/defendants is liable to be struck off.