Sonia Singh vs Manmohini Kaur and Others

Valmiki J Mehta, J.

CM No. 614/2011 (Exemption)

Exemption allowed subject to just exceptions.

Application stands disposed of.

CM No. 613/2011 (Delay)

The delay in filing the appeal ordinarily would not have been condoned as the delay is of 238 days without sufficient cause. Considering the peculiar facts of this case, however the delay is condoned subject to just exceptions.

Application stands disposed of.

RFA No. 21/2011 1.

The present appeal is filed against the impugned judgment and decree dated 27.1.2010 decreeing the suit for possession and mesne profits of the Respondents No. 1 to 3 landlords. The peculiar aspect however is that the Appellant is not the tenant and the Appellant was not even a party to the suit. In fact, the Appellant sought impleadment under Order 1 Rule 10 CPC in the suit which application was dismissed by the trial court and whereafter this Court vide its order dated 22.3.2010, in CM (Main) 42/2010, dismissed the challenge thereto. The present Appellant also was unsuccessful before the Supreme Court which dismissed the SLP vide its order dated 19.4.2010 against the order of this Court dated 22.3.2010. It is, therefore, quite clear that first of all, the Appellant has absolutely no locus standi to file this appeal. She was neither a party to the suit and nor at any time the landlord acknowledged her as the tenant. Merely because, the Appellant is an estranged wife of an employee of the company which employee was residing in the property let out to the company would not mean that any legal right will accrue to the Appellant to claim any rights in the tenanted premises.

The company/Respondent No. 4 appeared in the trial court and prayed that decree for possession be passed because the Appellant was illegally refusing to vacate the property. In fact, the consequence of the Appellant refusing to vacate the premises has been that the Respondent No. 4 company which was the original tenant, has been fastened with monetary liability for payment of mesne profits with respect to the suit premises.

In order to decree a suit for possession and mesne profits, the landlord has to prove the relationship of landlord and tenant and the fact that the tenancy has been terminated by an appropriate notice u/s 106 of the Transfer of Property Act, 1882, the premises falling outside the protection of the Rent Act as the rent is more than 3,500/- per month. The facts are that there was a relationship of landlord and tenant between the Respondent No. 4 company herein and the Plaintiffs/Respondents No. 1 to 3/landlords. The monthly rent was Rs. 15,000/-. The tenancy of the Respondent No. 4 company was terminated by legal notice and in fact company appeared in the trial court and prayed that the decree for eviction be passed. Clearly, there were no disputed questions of fact which required a trial and the suit has therefore rightly been decreed for possession. In fact, the suit has also been decreed against the Respondent No. 4 company for arrears of rent at Rs. 15,000/- per month w.e.f. 1.11.2008 along with interest at 10% per annum, although, the company was not occupying the premises and the property was being occupied by the Appellant, that too against the wish of the tenant/company.

Learned Counsel for the Appellant sought to place reliance upon B.P. Achala Anand Vs. S. Appi Reddy and Another, to canvass the proposition that an estranged wife has a right to residence in the property of the husband. This judgment in my opinion has no application because even the husband in the present case has no right to stay in the property, firstly because the tenant was the company and not the husband of the Appellant and secondly, the tenancy being outside the Rent Act, the same was appropriately terminated and therefore no rights remain in the property either of the Respondent No. 4 company, and assuming the husband has any rights, or of the husband. In view of the above, there is no merit in the present appeal. The present appeal is therefore dismissed leaving the parties to bear their own costs.