Shri V.P. Puri and Others vs Union of India (UOI) and Others

Pradeep Nandrajog, J.—Reliefs claimed in the suit are as follows:

(a) decree for possession in respect of premises bearing No. 6 & 7, in Block E, Saraswati Bhawan, inner Circular road, Connaught Place, New Delhi-110 001, more specifically shown in red colour in the plan filed alongwith the plaint.

(b) Decree for mesne profit @ Rs. 4,56,510/- from 1st May, 1995 till such time the plaintiff is able to obtain possession of the premises alongwith interest at the rate of 18 per cent per annum on the amount of mesne profits found due which interest is to form part of mesne profit.

(c) Decree for a sum of Rs. 15,627.50 being the arrears of rent as shown in the schedule to the plaint alongwith interest at the rate of 18% per annum from the time the amount fell due till such time that payment is received.

(d) Costs of the suit be awarded to the plaintiffs.

At the outset I may note that in prayer ''C'' amount actually claimed is Rs. 15,62,750/- as would be evident from para 8 of the plaint. There is obviously a typographic error in prayer ''C''.

Cause set up in the plaint is that the plaintiffs are the owners of property bearing No. 6 & 7, Saraswati Bhawan, Block E, Saraswati Bhawan, Inner Circular Road, Connaught Place, New Delhi-110001. That the same comprises of a basement, a ground floor, a first floor and a second floor. That the property was let out to the Union of India i.e. defendant No. 1 vide agreement dated 1st August, 1994 at a monthly rent of Rs. 2,28,255/-. That the lease period was commencing from 11th November 1993 and was to expire on 11th November 1995. That Union of India was irregular in paying the rent and arrears in sum of Rs. 15,75,627/- had accumulated. That vide notice dated 6.3.1995 the tenancy was determined and since possession was not handed over, plaintiffs had no option but to file the suit. That since the rent was more than Rs. 3500/- per month, Union of India did not have the protection of the Delhi Rent Control Act.

When the plaint was filed, only Union of India was impleaded as a defendant. It filed a written statement questioning the notice determining the lease. It was pleaded that under the lease, Union of India had an option to extend the lease period and that the option was exercised. It was denied that Union of India was in arrears of rent.

For unexplainable reasons, a simple suit lingered on without any meaningful progress. Interim orders were passed directing Union of India to pay the agreed monthly rent till disposal of the suit.

Noting that Union of India had not complied with the interim orders passed directing that agreed monthly rent would be paid each month till suit was disposed of, vide order dated 5.2.2001, defence of Union of India was struck of.

On 16th July, 2001, the Counsel for the plaintiffs stated that without prejudice to the right of the plaintiffs they would like to lead evidence so that the suit could be disposed of.

Pursuant to the said statement, the plaintiffs were permitted to lead evidence. On 11.12.2001 part statement of Shri V.P. Puri (plaintiff No. 1) was recorded as statement of PW-1. Further statement of PW-1 by way of examination in chief was recorded on 26th February 2002. He was cross examined on 14th February 2002.

That no further evidence was recorded thereafter. On 11th April 2002, Learned Counsel for the plaintiffs made a statement that evidence of the plaintiffs may be treated as closed.

That as per the Clause ''4'' of the agreement dated 1st August 1994, without the consent of the plaintiffs, the defendant i.e. Union of India was entitled to sublet the whole or any part or parts of the demised premises. The said clause reads as under:

The Government shall have the right to sublet the whole or any part or parts of the said premises without the consent of the Lessor but shall be responsible for the full payment of rent.

That pursuant to the power vested in it under Clause 4 of the agreement a major portion of the tenanted premises was let out to Delhi State Financial Corporation (in short DFC).

That DFC was of the opinion that it should be impleaded as a party in the suit since it could possibly be affected by a decision in the suit, for if a high mean profits was awarded, the money would ultimately go out of its coffers. DFC filed an application seeking impleadment. Order 1 Rule 10 of the CPC was relied upon. The application was registered as IA No. 3574 of 2002.

The said application was dismissed vide order dated 7th January, 2003. Appeal was filed against the order dated 7.1.2003. It was registered as F.A.O. (OS) No. 81 of 2003. The appeal was dismissed vide order dated 2nd April, 2003.

DFC challenged the order in appeal before the Supreme Court vide Petition for Special Leave to Appeal (Civil) No. 17685 of 2003.

The petition succeeded. Vide order dated 16th July, 2004, Supreme Court ordered the impleadment of DFC as a proper party. DFC was granted time to file a written statement and further pleadings in the suit.

The order dated 16th July, 2004 reads as under:

CIVIL APPEAL No. 4148 OF 2004

[Arising out of SLP (C) No. 17685/2003]

Delhi Financial Corporation

...Appellant(s)

Versus

V.P. Puri and Ors.

...Respondent(s)

Leave granted.

Heard the Learned Counsel for the parties.

The respondents are the owners of a building in Delhi. The building was let out to the Union of India as per a lease deed dt. 1st August, 1994. The appellant Delhi Financial Corporation claims that they are the sub-lessee in possession of this building under the Union of India by virtue of Clause (4) of the lease deed executed by the Union of India in favour of the respondents. They filed an application to implead themselves in the suit filed by the respondents but the prayer was rejected by the learned Single Judge and that was challenged before the Division Bench and Division Bench too rejected the prayer of the respondents.

The Counsel for the appellant submits that the building has been in occupation of the appellant since it was leased to the Union of India and the appellant Corporation is a proper party for the proceedings for eviction. The Union of India had on earlier occasion filed application to implead this appellant and the same was rejected. Counsel pointed out that the appellant was not a party to that proceedings and the common order was passed therein. It is also submitted that appellant is directly paying rent to the landlords.

Counsel for the respondents seriously objects to the impleadment of the appellant Delhi Financial Corporation and it is contended that the appellant Corporation is not a sub-lessee and may be permissive occupant under the Union of India. It is also submitted that impleadment of the appellant would protract the litigation proceedings and the respondents would not be in a position to recover the possession within a reasonable time.

Having regard to the facts and circumstances of the case, we feel that Appellant Corporation would be a proper party for the proceedings as the disputes between the parties would be effectively settled. The learned Single Judge, before whom the matter is pending, is directed to implead the Delhi Financial Corporation as second defendant in the suit. The appellant shall file the written statement within four weeks from today and the Court is requested to dispose of the Suit at in early date.

(Emphasis supplied)

The appellant Corporation shall not seek adjournment on any flimsy ground. The appeal is disposed of.

Pursuant to the order dated 16th July, 2004 passed by the Supreme Court DFC was formally impleaded as a defendant No. 2 and a written statement was filed by DFC. Thereafter, the matter was listed before the learned Joint Registrar for completion of pleadings and filing documents.

The suit stagnated without any progress in the suit for the reason the plaintiffs filed an application registered as IA No. 3980 of 2005 under Order 12 Rule 6 CPC seeking a decree on admission.

That when said application was being heard, as recorded in the order dated 13th December 2005, DFC which by then came in possession of the entire property as a sub tenant under Union of India stated before the Court, as recorded in the order dated 13th December 2005, that it would vacate the premises.

Before handing over possession of the premises, DFC raked up an issue. It pleaded that the offer to hand over possession was conditional upon the plaintiffs foregoing relief of mesne profits.

By a detailed order dated 7th August 2006 it was held that the suit would proceed for adjudication as regards relief of mesne profits. It was held that offer of DFC to handover possession was unconditional.

DFC and Union of India challenged the order dated 7th August 2006 by way of an appeal. The same was registered as FAO (OS) No. 535/06. The appeal was dismissed vide order dated 31st August 2006.

DFC filed a Petition for Special Leave to Appeal before the Supreme Court laying a challenge to the order dated 31.8.2006. The same was registered as Petition for Special Leave to Appeal (Civil) No. 18722/06. After notice to the plaintiffs, Petition for Special Leave to Appeal was dismissed.

Issue which needs to be decided at this stage is whether the suit has to be disposed of on the existing evidence or whether DFC has to be granted an opportunity to cross examine PW-1 and thereafter lead evidence in rebuttal. I may note that issue pertaining to prayer ''A'' has since dissolved as admittedly possession of the suit premises has been restored to the plaintiffs on 5.10.2006. Issue pertaining to prayers ''B'' and ''C'' have to be decided till the date 5.10.2006.

Whereas plaintiffs urged, and indeed this was the submission made by Shri P.V. Kapoor, learned senior Counsel for the plaintiffs that DFC has stepped into the shoes of Union of India and therefore would be entitled to participate in the proceedings from the stage they were when DFC was impleaded as a party. Learned Counsel urged that since DFC was impleaded as a party pursuant to the order dated 16th July 2004 passed by the Supreme Court and evidence of the plaintiffs was closed much earlier i.e. on 11.4.2002, only right available to DFC was to argue the matter. Counsel further urged that in fact DFC had no right to even argue the matter inasmuch as the plaintiffs were not claiming any decree against DFC.

Per contra, Shri Sanjay Poddar, Learned Counsel who appeared for Union of India as also DFC urged that consequences of the order dated 16th July 2004 had to follow and since DFC was impleaded as a defendant No. 2 pursuant to said order, status of the suit got relegated to the stage of pleadings and therefore evidence led prior thereto has to be ignored or at least PW-1 be resummoned for cross examination and right granted to DFC to lead evidence.

The issue between the parties has to be decided with reference to the provisions of Order 1 Rule 10 of the CPC 1908. It reads as under:

Order 1 Rule 10 CPC:

Suit in name of wrong plaintiff - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties - The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend of a plaintiff under any disability without his consent,

(4) Where defendant added, plaint to be amended - Where a defendant is added the plaint shall unless the Court otherwise directs, be amended in such a manner as may be necessary and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 915 of 1877) Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

A perusal of Sub-rule 4 of Rule 10 of Order 1 CPC reveals that when a party is impleaded as a defendant the plaint shall be amended in such a manner as may be necessary and amended copies of the suit summons and of the plaint shall be served on the new defendant, unless the Court otherwise directs.

A perusal of Sub-rule 5 of Rule 10 of Order 1 CPC shows that where a party is impleaded as a defendant proceedings in the suit shall be deemed to have begun only on the service of the summons contemplated by Sub-rule 4 thereof to be served upon the newly impleaded party.

Consequences of law have to follow. on impleadment of a party, the proceedings in the suit get reopened and one has to go back to the stage of completion of pleadings i.e. after granting an opportunity to the newly impleaded defendant to file a written statement, issues have to be re-framed, if required, evidence has to be re-led or at least witnesses who have been examined have to be recalled for cross examination and newly impleaded defendant has to be given a right to lead evidence. I need not note the various authorities which hold that in case of addition of a plaintiff or a defendant the suit shall be deemed to have been instituted when such party was added. Those desirous of looking for precedents may read the AIR Manual (Civil & Criminal) 6th Edition Volume 5 page 483 where note 50 pertaining to Order 1 Rule 10 of the CPC has made a catalogue of a few decisions.

In harmony with the mandate of law, while directing impleadment of DFC as a defendant, vide order dated 16.7.2004 Supreme Court granted a right to DFC to file a written statement. The said right cannot be converted into a meaningless right by denying DFC a right to cross examine PW-1 and lead rebuttal evidence.

I accordingly hold that the suit cannot be disposed of at this stage. I direct that PW-1 shall be recalled to be cross examined by DFC.

Since only issue to be decided is mesne profits and considering that the suit has remained pending for a substantial number of years I direct the parties i.e. the plaintiffs and DFC, if they desire, to file documents on which they rely to establish the market rent of similar properties from the date when the suit was filed till possession was surrendered. Needful be done within 6 weeks. Admission/denial would be recorded before the learned Joint Registrar on 23.7.2007. Matter would thereafter be listed before Court for further proceedings.

List before the Joint Registrar on 23.7.2007.