SHRI MANOJ KUMAR  Vs SHRI AMIT GUPTA & ORS.

CM(M) 596/2020 Page 1
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : 28.01.2021

+ CM(M) 596/2020
SHRI MANOJ KUMAR ….. Petitioner
Through Mr.Deepak Agarwal, Adv.

versus
SHRI AMIT GUPTA & ORS. ….. Respondents
Through Ms.Kiran Suri, Sr. Adv. with
Mr.Himanshu Buttan, Adv. for
R-1 to 4.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA , J. (Oral)

CM No.30146/2020
This is an application filed by the petitioner seeking permission
to file the present petition as the petit ioner is not a party to the suit in
which the Impugned Order has been passed.
The application is allowed.
CM(M) 596/2020 & CM No .30143/2020
1. This petition has been filed by the petitioner feeling aggrieved
of the order dated 23.04.2019 passed by the lear ned Commercial Civil
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CM(M) 596/2020 Page 2
Judge (West) , Tis Hazari Courts , in suit , being CS No.47/2019, titled
Amit Gupta & Ors. v. Sunita Verma & Anr.
2. The respondent no s.1 to 4 filed the above suit against the
respondent nos.5 and 6 , who are the wife and father of the pet itioner
herein , making the following averments:
“2. That the plaintiffs are the joint owners of the
property bearing shop Nos.B -14-15-16, total measuring
43.5 sq. mtrs comprising Ground Floor, f irst floor and
second floor with roof rights situated in Main Market,
J.J. Colony, Madipur, New Delhi -110063 which is
specifically shown red in the site plan , and the shops on
the ground floors No. B -14-15 and 16 were let out to the
husband of the defendant No. 1 namely S h. Manoj
Kumar on monthly rent of Rs. 1,50,000 /- with an
increase of 10% after every year, it was further settled
that the defendant shall be responsible to deduct TDS
and give receipt on quarterly basis and the agreement of
the lease was for a period of 36 months starting from
10.01.18 and ending on 09.01.2021.
xxx
9. That since the plaintiffs di d not wish to continue with
the tenancy of the said Manoj Kumar therefore the
plaintiffs requested to vacate and handover the vacant
physical possession of the suit premis es and the Manoj
Kumar confirmed to v acate and handover the vacant
physical possession of the suit premises . However,
despite the assurances and promises given by him he
failed to vacate and handover the vacant physical
possession of the suit premises to the plaintiffs on one
pretext or the other.
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10. That despite the same the plaintiffs have filed an suit
for possession against the said Manoj Kumar which is
pending disposal in the court of Ms. Sughanda Aggarwal
ADJ West Tis Haza ri Court , Delhi vide three suits now
fixed for 4-4-2019 for plain tiffs evidence.
xxx
12. That in the mean time it was reveled that the said
Manoj Kumar was arrested by the police n case FIR No.
296/2018 under section 420/406 IPC with P.S . Punjabi
Bagh Delh i as he had cheated the persons and his bai l
was rejected by the Hon’ble Court and since then he is in
J.C.
xxxx
14. That in counter blast of the orders of the Hon’ble
Court th e defendant No. 1 and 2 on 22 -12-2018 tried to
enter in the first floor of th e property as the ground floor
shops which are in the possession of the husband of the
defendant No. 1 are closed since th e day of arrest of the
said M anoj K umar but failed to enter as the stairs of the
premises were locked by the plaintiffs as the plaintiffs
are in the possession of the entire premises except the
ground floor shops.
15. That on the same day i.e 22 -12-2018 the plaintiff No.
1 received a call from the Punjabi Bagh and the police
officials called the plaintiffs on the complaint of the
defendants who claimed that they are in the possession
of the entire suit property and the plaintiffs had stolen
the articles from the first floor of the property wherein
as a matter of fact the plaintiffs are in the possession of
the entire property except the ground floor shops and
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when the plaintiffs apprised with the facts to the local
police the defendants left the police station.
xxx
19. That the defendants , instead of paying the arrears
and handing over the peaceful and vacant possession of
the suit premises to the plaintiffs, are avoiding th e
plaintiff and even the plain tiff had every apprehension
that the def endants may part with the possessio n of the
suit premises to some third person, hence relief o f
injunction is being prayed for in the present suit.
20. That the cause of action arose in favour of the
plaintiffs and against the defendant when the property
was let out to the husband of the defendant No. 1 by
virtue of lease agreement dated 10.01.2018 , it arose on
various dates wh en the husband of the defendant no.1
time and again failed to pay the rent in time, it furt her
arose on different date when the pla intiffs filed the suit
for possession agai nst Manoj Kumar the husband of the
defendant No. 1 and the son of the defendant No.2 and it
arose on 22 -12-2018 when the defendants tried to enter
in the suit premises and ag ain on 25 -12-2018, the cause
of action arose on 3-1-2019 when the defendant No. 1
tried to enter in the suit premises and threatened the
plaintiff No.1 to involved him in some false criminal
matter. The cause of action is still subsisting as the
defendants are still trying to enter in the suit property to
get the illegal possession of the property of the plaintiffs.
The cause of action is still subsisting. ”
3. In the plaint , the following prayer has been made by the
respondents:
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“a. pass a decree of permanent injunction thereby
restraining the defendant his agents, assignees, servants,
successors or whosoever working on their behalf from
entering, and from taking forceful possession, alienating
or parting with the possession of the suit property
bearing proper ty Nos. B -14-15-16, total measuring 43.5
sq. mtrs comprising Ground Floor, first floor and second
floor with roof rights situated in Main Market, J.J.
Colony, Madipur, New Delhi -110063 which is
specifically shown red in the site plan.
b. Cost of the suit b e awarded to the plaintiff.”

4. On 01.02.2019 , the learned Trial Court was pleased to pass the
following order in the suit:
“01.02.2019
Present: Sh. Vijay Kr. Sehgal, Ld. Counsel for the
plaintiff.
Defendants no. 1 & 2 in person.
Perused the file.
Defenda nts seek time to file the Written Statement as
well as reply to the application U /o 39 rule 1 & 2 CPC.
Heard. Perused. Allowed in the interest of justice.
Advance copy of W.S. as well as reply to the application
U/o 39 rule 1 &2 be supplied to the opposite party
atleast two weeks before the next date of hearing.
Be listed for reply and arguments on the application U /o
39 rule 1 &2 CPC for 21.02.2019 .
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At this stage, both the defendants submit that they will
not enter the suit property till next date of heari ng.
Heard. In view of the submissions made by the
defendants, both the parties are directed to maintain
status -quo till the next date of hearing.”

5. Thereafter , the respondent nos.1 to 4 f iled an application under
Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC)
inter -alia alleging as under:
“5. That suddenly, on 07.04.2019 around 12:30 PM , the
plaintiff namely Sh.Amit Gupta received an information
from the local shop keepers that Smt Sunita Verma and the
husband of the contemnor/Defendant No.1 i.e. Sh.Manoj
Kumar alongwith their servant namely Bahadur, are
roaming nearby to the properties/shops of the plaintiffs
and trying to enter into the aforementioned
properties/shops.
6. That thereafter, the plaintiffs reached at their own
properties/sh op at about 1:35 PM and found that the
contemnors /defendants and her husband namely Sh.Manoj
Kumar alongwith their servant namely Bahadur, have
entered into the aforementioned properties/shops and are
standing inside the properties/shops when particularly they
have no locus to enter into the properties/shops and when
the plaintiffs reminded them about the orders dated
01.02.2019 and 21.02.2019 passed by this Hon’ble Court,
they openly told on the face of the plaintiffs that they don’t
care for any such ord er/s and extended threats for dire
consequences and openly told to the plaintiffs to forget the
properties/shops else they will eliminate/kill the plaintiffs
as they have contacts with local Goondas/police
authorities. The Originals photographs taken at t he spot
thereby showing their conduct as well as their presence
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into the property/shops of the husband of the
contemnor/Defendant No.1 i.e. Sh.Manoj Kumar,
alongwith his associates and contemnors/defendants is
produced herewith as Annexure P -4 (Colly). ”

6. The following prayer was also made in the said application:
“a) Take the cognizance into the present matter on the
basis of the facts placed on record against the
contemnors/defendants and the husband of the
contemnor/Defendant No.1 i.e. Sh.Manoj Kumar ,
alongwith their servant namely Bahadur, for committing
contempt with in the meaning of Section 2(b) of the
contempt’s of courts Act.”

7. The learned Trial Court by its Impugned Order dated
23.04.2019 passed the following injunctions:
“23.04.2019
Present: S h. Himanshu, Ld. Counsel for plaintiff along
with plaintiff.
Sh. Pulkit Kaushik, Ld. Counsel for defendant.
Perused the file.
Advance cop y of reply to the application U/ O 39 R 2A
CPC supplied today. Defendant seeks time to file reply
on record.
Heard.
Be awaited at 10.45 a.m.
At 11.00 a.m.
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Present: Sh. Himanshu, Ld. Counsel for plaintiff along
with plaintiff.
Sh. Pulkit Kaushik, Ld. Counsel for defendant.
Perused the file.
Part arguments heard at length.
One of the Stenographers has been withdrawn.
Status quo be maintained against Sh. Manoj Kumar also
till the next date of hearing. Both the Ld. Counsel
submits that copy of this order be given dasti.
Heard. Perused. Allowed.
Put up on 03.06.2019 for reply and further arguments on
application.”

8. The presen t petition has been filed being aggrieved of the above
order.
9. The learned counsel for the petitioner submits that even as per
the case of the respondent nos.1 to 4 , the petitioner is a tenant with
respect to the shops on the ground floor of the proper ty bearing no.B –
14-15 and 16 , Main Market, J.J. Colony, Madipur, New Delhi -110063 .
The said respondents have in fact , filed suits seeking possession of the
said premises from the petitioner , being CS Nos.861/2018, 862/2018
and 863/2018, which are pending adjudication and no order of
possession has been passed in favour of the said respondents herein.
10. The learned counsel for the petitioner submits that in any case,
the petitioner has not been impleaded in the suit in question till date.
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In fact, the le arned senior counsel appearing for the respondent nos.1
to 4 admits that only after filing of the present petition , an application
under Order I Rule 10 of CPC has been filed seeking impleadment of
the petitioner herein in the suit, on which application , admittedly , no
order has been passed by the learned Trial Court. The learned counsel
for the petitioner submits that therefore, the Impugned Order cannot
be sustained having been passed in absence of the petitioner being a
party to the suit and further dispossessing the petition er when the suit
for eviction is pending before another Court.
11. The learned senior counsel appearing for the respondent nos.1
to 4, on the other hand, submits that merely a status quo order has
been passed by the learned Trial Cour t. She submits that the said
status quo order will not inure towards the shops on the ground floor
of the property , which the said respondents admit to be in possession
of the petitioner as a tenant and for which the Eviction suits have been
filed. She s ubmits that the status quo order will only inure towards the
first and second floor of the property which are in possession of the
said respondents.
12. I do not find any merit in the submission made by the learned
senior counsel for the respondent nos.1 to 4. The Impugned Order
does not reflect what has been contended by the learned senior counsel
appearing for the said respondents. There is no dispute that the suits
seeking eviction of the petitioner from the shops on the ground floor
of the property ha ve been filed by the respondent nos.1 to 4. On
01.02.2019 , the statement of the respondent nos.5 and 6 w as recorded
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to the effect that they will not enter into the suit property , including
these shops , and on basis thereof , the status quo order was passed by
the learned Trial Court. This order of status quo has now been
extended to the petitioner , which clearly means that the petitioner
cannot enter into these shops. In any case, the Impugned Order does
not reflect that the same is not to inure towards th e shops.
13. As far as the suit is concerned, it is premised on the basic
averment that the petitioner has been imprisoned in some criminal
case and the respondent nos.5 and 6 are trying to enter into the
possession of the property. There is no averment i n the suit with
respect to the entitlement of the petitioner to the suit property.
14. The learned counsel for the petitioner submits that in fact, the
petitioner has filed suits challenging the documents on the basis of
which the respondent nos.1 to 4 ar e claiming title to the suit property
being CS No.123/2020, Shri Manoj Kumar & Anr. v. Shri Amit
Gupta & Ors.
15. In any case, the petitioner not being a party to the suit ha d no
opportunity to defend the claim in the said suit before the Impugned
Order was passed as there was not even an application filed by the
respondent nos. 1 to 4 seeking impleadment of the petitioner in the
said suit.
16. In view of the above, the Impugned Order dated 23.04.2019
cannot be sustained and is accordingly , set aside. It is made clear that
this Court has not expressed any opinion on the entitlement of the
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parties to the suit property which shall be open for adjudication in an
appropriate proceeding. It is further clarified that all proceedings ,
including applications filed in the present suit , shall be determined by
the learned Trial Court in accordance with law remaining
uninfluenced by any observation on merit of such claim made in the
present order .
17. In view of the above, the present petition is allowed . There shall
be no order as to cost.

NAVIN CHAWLA, J
JANUARY 28, 2021/Arya
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