Full Judgment Text
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 10.08.2011
+ CS(OS) 2213/2003
SANJEEV KUMAR JAIN ..... Plaintiff
Through: Mr Ankit Jain, Adv.
versus
RAGHUBIR SARAN CHARITABLE TRUST ..... Defendant
Through: Mr Simran Mehta, Adv.
CORAM:-
HON’BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a suit for grant of permanent and
mandatory injunctions. It is alleged in the plaint that the
plaintiff is a tenant in respect of shop No. 11-E (Mezzanine
Floor) forming part of building situated on units No. 13 to
29, Block E-, Circle-D, Connaught Place, New Delhi with
entrance from the inner circle Connaught Place. The
plaintiff also claims to be tenant in respect of Flat No. 4,
CS(OS)No. 2213/2003 Page 1 of 19
which is the first floor immediately above the mezzanine
floor, forming part of the aforesaid building. The case of the
plaintiff is that when late Shri Prem Narain Aggarwal was
approached for the change of tenancy in respect of the
mezzanine floor, he was offered the tenancy of the first floor
and he agreed to the creation of tenancy in respect of the
first floor only on the condition that he will have direct
access to the first floor via staircase leading from the ground
floor of the mezzanine floor, from the front of the building
abutting the inner circle of Connaught Place. This,
according to the plaintiff, could have been possible only by
constructing a staircase leading to the first floor from the
mezzanine floor. It is further alleged that Shri Prem Narain
st
Aggarwal agreed to the proposal and his lease deed dated 1
July, 1986 was accordingly executed. This is also the case
of the plaintiff that he was made to write two letters to the
effect that he would be entitled to construct a staircase
integrating the mezzanine floor with the first floor.
2. It is stated in the plaint that the first floor has
access from the service lane, but that is a common staircase
for two separate buildings No. E-10 and E-11 and,
therefore, it was specifically agreed between the parties that
CS(OS)No. 2213/2003 Page 2 of 19
the access from the mezzanine floor would form integral
part of the tenancy of the first floor. The plaintiff claims to
have accordingly constructed the staircase leading from the
mezzanine floor to the first floor at his own cost with the
approval of the landlord. As regards the access through the
service lane, it is alleged in para 13 of the plaint that the
service lane access to the first floor was closed more than 17
years ago.
3. Eviction proceedings were initiated against the
plaintiff in respect of the mezzanine floor and the suit filed
against the plaintiff for possession of the aforesaid premises
was decreed. It is alleged that though warrant of
th
possessions were sought to be executed on 16 December,
2003, the decree could not be executed on that date and
possession could not be taken.
4. It is specifically stated in para 11 of the plaint that
the plaintiff is still in possession of the mezzanine floor. It is
claimed that defendant No. 2 and his fellows were
attempting to obstruct the right of ingress and egress of the
plaintiff to the first floor. The plaintiff has accordingly
sought mandatory injunction, restraining the defendants
from obstructing the staircase leading from the ground floor
CS(OS)No. 2213/2003 Page 3 of 19
to the first floor via mezzanine floor and preventing access of
the plaintiff and his customers, etc. to the showroom on the
first floor, through the aforesaid staircase. He has also
sought mandatory injunction directing the defendants to
remove the junk and disused furniture which they have put
in the staircase leading to the first floor.
5. Vide IA No. 10153/2010 under Order 6 Rule 16
r/w Order 7 Rule 11 CPC, the plaintiff has sought rejection
of the plaint and dismissal of the suit. It is claimed in the
application that the following averments made in the plaint
are frivolous and vexatious, amounting to an abuse of the
process of the Court and are an attempt to re-litigate issues
which have already been settled between the parties right
up to Supreme Court in several rounds of litigation;
(i) In the first paragraphs of the plaint, the plaintiff
has stated that he is an existing tenant of the mezzanine
floor.
(ii) In paragraph No. 8 of the plaint the plaintiff has
averred that the only access to the first floor is from front,
through the mezzanine floor.
(iii) In paragraph No. 11 of the plaint, the plaintiff has
categorically asserted that he is in possession of the
CS(OS)No. 2213/2003 Page 4 of 19
mezzanine floor.
th
It is further stated in this application that on 30
December, 2003, when the suit was filed, the plaintiff was
not a tenant in the mezzanine floor and was not in its
possession, he having already been evicted and
th
dispossessed on 16 December, 2003 in execution of a
judgment and decree passed by the Civil Judge, Delhi on
rd
23 August, 2003.
6. The admitted facts in this case are as under:
(i) The defendants filed a suit against the plaintiff
seeking possession of the mezzanine floor forming part of
building situated on units No. 13 to 29, Block E-, Circle-D,
Connaught Place, New Delhi, which was decreed by the
rd
learned Civil Judge on 23 August, 2003;
(ii) a warrant of possession of the mezzanine floor was
issued by the learned Civil Judge in execution of the decree
passed by him;
(iii) an appeal was filed by the plaintiff against the
rd
judgment and decree dated 23 August, 2003, which was
dismissed by the learned Additional District Judge vide
rd
order dated 23 April, 2004;
(iv) the order of the learned Additional District Judge
CS(OS)No. 2213/2003 Page 5 of 19
was challenged by the plaintiff by way of CM(M) No.
th
118/2005 which was dismissed by this Court on 13
October, 2006. A Special Leave Petition was then filed by
the plaintiff against that order, which was dismissed by
th
Supreme Court vide order dated 19 February, 2007.
(v) objections were filed by the plaintiff in Execution
No. 74/2003 which the defendants had filed seeking
rd
execution of the judgment and decree dated 23 August,
2003. A perusal of the order passed by the learned Civil
Judge on the objections of the plaintiff would show that one
of the pleas taken by him was that the defendant could not
deprive him from access to the first floor through the
staircase leading from the ground floor from the front. The
th
objections were dismissed vide order dated 20 September,
2004.
(vi) order of the learned Civil Judge dismissing the
objections was challenged by the plaintiff before this Curt
th
vide CRP No. 469/2004 which came to be dismissed on 25
October, 2004. While dismissing CRP No. 469/2004, this
Court, inter alia, observed as under:
“On 30th September, 2003, the
Respondent initiated execution
proceedings and on 16th December, 2003
CS(OS)No. 2213/2003 Page 6 of 19
the decree was executed. The report of
the Bailiff shows that the representative
of the Petitioner, Ram Sukhani, Manager,
wanted one month's time to vacate the
suit premises but the Respondent did not
agree to give time to the Petitioner.
Accordingly, the Petitioner removed its
goods and handed over vacant possession
of the suit property to the Respondent.
However, certain fixtures in the wall,
some a r-conditioners and three counters
were kept in the premises for being
removed a little later. There is no dispute
that possession of the suit premises was
peacefully handed over to the Respondent
but the items above-mentioned were kept
back…..In this regard, it was pointed out
that both the Bailiff as well as the
Executing Court have specifically
recorded that the Respondent has
received possession of the suit property
through the Bailiff and only some goods
are lying in the suit premises. As already
mentioned above, it appears that the
Petitioner could not immediately take
away those goods and had arranged with
the Respondent to have them removed at
a mutually convenient time. The
Respondent could very well have thrown
out the goods but did not do so perhaps
out of humanitarian considerations. The
Petitioner cannot be permitted to take
advantage of this situation. In fact,
apparently realizing this, even the
Executing Court gave fifteen days time to
the Petitioner to remove its goods failing
which they would be dispatched to the
Malkhana of the concerned police station.
There is more than sufficient material on
record to reach the conclusion that
possession of the suit property was
peacefully handed over by the Petitioner
to the Respondent and it was in this
CS(OS)No. 2213/2003 Page 7 of 19
spirit that the Respondent permitted the
Petitioner to leave some goods in the suit
premises for being removed on a later
date at a mutually convenient time.”
The order dated October 25, 2004 was challenged
before Supreme Court by filing SLP(C) No. 23325/2004
th
which was dismissed on 25 November, 2004.
7. During the pendency of the suit, this Court vide
order dated November 8, 2004, vacated the ad interim order
th
dated 30 December, 2003, whereby the defendants were
restrained from obstructing or preventing access of the
plaintiff to the showroom on the first floor through the
staircase leading to the opening on the inner circle and
leading the mezzanine shop and first floor. During the
course of the order, this Court, inter alia, observed as
under:-
“…As has already been mentioned above
the Lease Deed dated 1.7.1986 makes no
mention which staircase is to be used for
ingress and egress to the suit premises.
The annexed plan, however, shows the
rear and not front staircase. Since the
Mezzanine and First Floor were not
interconnected at the inception of the
tenancy of the suit premises the Lease
Deed could not have conceivably granted
the right of use of the front staircase
which does not lead to the suit premises.
Logically, the Lease Deed could also not
have made any mention of this fact for
CS(OS)No. 2213/2003 Page 8 of 19
the simple reason that it had not been
anticipated that the Plaintiff would be
evicted from the Mezzanine Floor only……
….If it was already within the
contemplation of the parties that the
Mezzanine and First Floor would be
interconnected they could easily have
mentioned it in the Lease Deed itself,
thereby rendering this controversy
completely otiose. It would then not have
been dealt with separately in the two
letters dated 4.7.1986...”
8. An appeal was filed by the plaintiff against the
th
order dated 8 November, 2004 which was dismissed by a
th
Division Bench of this Court on 20 January, 2010. During
the course of its decision, the Division Bench, inter alia,
observed as under:
“Be that as it may, learned counsel for
the parties have shown to us the plan
attached to the lease deed dated 1 st
July, 1986 as well as various
photographs, which form a part of the
record, which very clearly suggest that
the Appellant has independent access
from the service lane in the ground level
to the leased premises on the first floor.
There is, therefore, absolutely no need for
the Appellant to access the leased
premises on the first floor via the internal
staircase. There is also nothing to suggest
in the lease deed dated 1st July, 1986 or
anywhere else, that access to the leased
premises on the first floor could only be
through the shop on the mezzanine floor
or was intended to be only FAO (OS) No.
244/2004 Page 10 of 18 through the
CS(OS)No. 2213/2003 Page 9 of 19
shop on the mezzanine floor. In this
context, it may be noted that the lease
deed for the shop on the mezzanine floor
as well as the deed for the leased
premises on the first floor are self-
regulating documents and they stand
independent of each other. It is nobody's
case before us that the two leases are
intertwined. The only inter- connection
between the two properties is through the
internal staircase which, as we have
noted above, appears to have been
constructed by the Appellant for his
convenience since at the relevant time he
was a tenant of both properties.
We may look at the matter from another
point of view. Since the Respondents are
in possession of the shop on the
mezzanine floor they are entitled to
benefit from it either for their own
purpose or by renting it out to somebody
else. Consequently, it would be rather
odd, if not strange, if the Appellant, its
representatives and customers are made
entitled to walk through somebody else's
shop to access the leased premises on the
first floor. This would not only create an
impossible situation for whoever is in
possession of the shop on the mezzanine
floor but would also create a clear
hindrance to the full commercial
exploitation of that shop.”
9. Since an eviction order had admittedly been
rd
passed against the plaintiff on 23 August, 2003, he was no
more a tenant in respect of the mezzanine floor when this
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suit was instituted on 30 December, 2003. If the definition
CS(OS)No. 2213/2003 Page 10 of 19
of tenant, given under Section 2(l) of Delhi Rent Control Act,
is adopted, a decree for possession having already been
passed against the plaintiff, he was not covered under the
aforesaid definition of tenant. If, however, the definition as
given in Section 2(l) is not adopted since the tenancy was
not governed by the provisions of Delhi Rent Control Act,
the plaintiff would still not be a tenant since a decree for his
dispossession had already been passed much prior to filing
th
of this suit by him on 16 December, 2003. Thus, it cannot
be disputed that the averment made in para 1 of the plaint,
wherein the plaintiff claims to be a tenant in respect of the
mezzanine floor, is totally false and frivolous.
10. Since possession of the mezzanine floor had also
th
been taken from the plaintiff on 16 December, 2003, his
averment claiming to be in possession of the mezzanine
th
floor on 30 December, 2003, when he filed this suit, is also
false and frivolous.
11. The averments made in the plaint claiming tenancy
in and possession of the mezzanine floor being false and
frivolous are liable to be struck off under Order 6 Rule 16 of
Code of Civil Procedure which permits the Court to strike off
pleadings which are frivolous/vexatious or are otherwise
CS(OS)No. 2213/2003 Page 11 of 19
abuse of the process of the Court.
12. The learned counsel for the plaintiff has relied
upon the decision of Supreme Court in Abdul Razak vs.
Mangesh Rajaram Wagle and Others JT 2010 (1) SC 508
and Sathi Vijay Kumar vs. Tota Singh and Others (2006)
13 SCC 353 , in support of his contention that the plaintiff
having not sought striking off pleadings for more seven
years, the application is highly belated and should not be
entertained. In the case of Abdul Razak (supra), Supreme
Court find that additional written statement was filed by the
rd
legal representatives on 03 March, 2004 which had been
taken on record without any objection from respondents No.
1 and 2, who did not even seek the leave of the Court to file
further pleadings in the light of additional written
statement. The Court also felt that respondents No. 1 and 2
had led evidence keeping in view the pleadings contained in
the additional written statement. It was in view of these
facts that the Court noticing the application for striking off
the additional written statement having been filed after gap
of 3½ years, without explaining as to why respondents No. 1
and 2 did not object to the taking on record the additional
written statement and framing of additional issues in 2005
CS(OS)No. 2213/2003 Page 12 of 19
and they having chosen to lead evidence knowing fully well
that after their impleadment the legal representatives had
pleaded that they had become owners of the property, was
of the view that it ought not to have been allowed at that
stage. The facts of this case are altogether different. This is
not a case of filing of additional written statement, but is a
case of making averments which were false and frivolous to
the knowledge of the plaintiff and were made at the very
threshold when this suit was filed. Considering the conduct
of the plaintiff as is evident from the facts and
circumstances noted in the preceding paragraphs, I am of
the view that the application ought not to be rejected on the
ground of delay alone. In the case of Sathi Vijay Kumar
(supra), the Court reiterated the otherwise settled
proposition of law that normally the Court cannot direct the
parties as to how they should prepare their pleadings and if
they have not offended the rule of pleadings while making
averments or raising arguable issues, the Court would not
order striking out pleadings. It was also observed that
power to strike out pleadings is extraordinary in nature and
must be exercised by the Court sparingly and with extreme
care, caution and circumspection. However, it can hardly
CS(OS)No. 2213/2003 Page 13 of 19
be disputed that when the pleadings are found to be false,
frivolous and vexatious, to the knowledge of the person
making those pleadings, they ought to be struck off, so as
not to allow the party to go to trial on the basis of such
pleadings.
13. As noted earlier, the possession of the mezzanine
floor is with the defendants, the same having been taken
from the plaintiff in execution of the decree passed against
him. The admitted position is that there is one staircase in
the front leading from the ground floor to the mezzanine
floor and another staircase which starts from the mezzanine
floor and goes up to first floor and which admittedly was
constructed by the plaintiff himself. There is no way the
plaintiff can have access to the staircase leading from the
mezzanine floor to the first floor except by passing through
the mezzanine floor premises which are in lawful possession
of the defendants. The plaintiff will necessarily have to
enter the mezzanine floor premises, in order to access these
stairs and will also have to use the staircase leading from
the ground floor to the mezzanine floor on the front side.
The only substantive relief claimed in the suit is that the
defendant should not obstruct the plaintiff from accessing
CS(OS)No. 2213/2003 Page 14 of 19
the first floor through the staircases one of which leads from
ground floor to the mezzanine floor and the other from the
mezzanine floor to the first floor. The plaintiff absolutely has
no right to interfere in the use and enjoyment of the
mezzanine floor premises by the defendants or by their
tenants/licensees, as the case may be, even for the purpose
of accessing the first floor premises taken by him on rent
which otherwise has an access from the rear side. During
the course of hearing of FAO(OS) No. 244/2004, a Division
Bench of this Court noted that page 246 of the paper book
showed an entrance to the first floor (suit premises) from
the rear of the suit building, but that was locked. It was
agreed by the parties that their client will jointly break open
the lock shown on page 246 of the paper book so that there
is direct access from the ground floor to the first floor of the
suit property from the rear of the building. It was directed
the Division Bench that after the lock is broken, access to
the first floor (suit premise) should be made available to the
appellant (plaintiff before this Court) from the rear staircase.
th
When the matter was taken up by the Court on 14
December, 2009, the learned counsel for the appellant
(plaintiff before this Court) stated that the lock appearing in
CS(OS)No. 2213/2003 Page 15 of 19
the photographs on page 246 of the paper book had broken.
It was noted that behind the iron grill, there was a door and
behind that door, there was a shutter and behind that
shutter, there was a window panel and behind that window
panel, there was a rack. The learned counsel for the
appellant in FAO admitted that key of the shutter was
available with the appellant. Accordingly, the appellant
was directed to open the shutter after dismantling the
wooden panel and rack so that access to the first floor
premises was possible through the staircase appearing on
page 246 of the paper book. The learned counsel for the
appellant stated before the Division Bench that needful
would be done within two days. It is thus quite clear that
even if the plaintiff is not able to access the first floor
through the staircase in the front of the building, he can
definitely access them through the staircase in the rear
portion of the building. The relief claimed by the plaintiff, if
granted, would create the anomalous and rather impossible
situation, where the plaintiff and/or his employees/visitors,
etc. would have unhindered access to the premises occupied
by other persons on the mezzanine floor of the building. The
occupant of the mezzanine floor cannot be denied the right
CS(OS)No. 2213/2003 Page 16 of 19
to close and lock the premises occupied by him. If the
plaintiff is to be granted unhindered access to the first floor
through the staircase which starts from the mezzanine floor
and goes up to the first floor, that would mean that the
occupants of the mezzanine floor would not close and/or
lock the premises or the plaintiff and those seeking to visit
him on the first floor, would have a right to insist upon the
occupants of the mezzanine floor opening the door of the
mezzanine floor premises and then allowing them access to
the first floor through the internal staircase starting from
mezzanine floor and going up to the mezzanine floor. This
will amount to disrupting the lawful permission of the
mezzanine floor by its occupant. Even if the defendants at
the time of creation of the tenancy in respect of the first
floor had agreed to the plaintiff constructing a staircase
from mezzanine floor to the first floor and use of that
staircase for having access to the first floor, that
permission/licence by its very nature perishes with the
eviction order being passed against the plaintiff in respect of
the mezzanine floor and is no more available thereafter to
the plaintiff. There is no way the relief sought by the
plaintiff can be granted to him.
CS(OS)No. 2213/2003 Page 17 of 19
th
14. Though issues were framed in this case on 06
December, 2005, considering the facts and circumstances of
the case, as explained above, I am of the view that the suit
can be finally disposed of without recording evidence since
in view of the admitted facts and situation, the relief sought
by the plaintiff cannot be granted to him. No useful
purpose will be served from recording evidence when the
Court is of the view that the suit cannot culminate into
passing of a final decree of nature sought by the plaintiff.
Allowing such a suit to continue would not only be an
exercise in futility but also an abuse of the process of the
Court. Such an attempt needs to be thwarted at this very
stage instead of prolonging the matter by permitting the
parties to lead evidence, which would not serve any
purpose, but would consume the otherwise precious time of
the Court.
15. In K.K. Modi vs. K.M. Modi & Ors AIR 1998 SC
1297 , Supreme Court, inter alia, observed as under:
“Frivolous or vexatious proceedings may
also amount to an abuse of the process of
court especially where the proceedings
are absolutely groundless. The court then
has the power to stop such proceedings
summarily and prevent the time of the
public and the court from being wasted.
CS(OS)No. 2213/2003 Page 18 of 19
Undoubtedly, it is a matter of courts'
discretion whether such proceedings
should be stopped or not; and this
discretion has to be exercised with
circumspection. It is a jurisdiction which
should be sparingly exercised and
exercised only in special cases. The court
should also be satisfied that there is no
chance of the suit succeeding.”
Relying upon the aforesaid decision of Supreme
Court, this Court in Pamela Kumar vs. Chandrashekhar &
Ors, 2007(99) DRJ 475 , was of the view that the discretion
to stop the proceedings should be exercised if the Court is
satisfied that there is no chance of the suit succeeding.
16. In the case before this Court, since I am of the view
that the relief sought by the plaintiff cannot be granted to
him, no useful purpose is likely to be served from
continuing further proceedings in this suit.
The suit is accordingly dismissed, without any
orders as to costs.
(V.K. JAIN)
JUDGE
AUGUST 10, 2011
‘Bg’
CS(OS)No. 2213/2003 Page 19 of 19
% Judgment Pronounced on: 10.08.2011
+ CS(OS) 2213/2003
SANJEEV KUMAR JAIN ..... Plaintiff
Through: Mr Ankit Jain, Adv.
versus
RAGHUBIR SARAN CHARITABLE TRUST ..... Defendant
Through: Mr Simran Mehta, Adv.
CORAM:-
HON’BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
V.K. JAIN, J. (ORAL)
1. This is a suit for grant of permanent and
mandatory injunctions. It is alleged in the plaint that the
plaintiff is a tenant in respect of shop No. 11-E (Mezzanine
Floor) forming part of building situated on units No. 13 to
29, Block E-, Circle-D, Connaught Place, New Delhi with
entrance from the inner circle Connaught Place. The
plaintiff also claims to be tenant in respect of Flat No. 4,
CS(OS)No. 2213/2003 Page 1 of 19
which is the first floor immediately above the mezzanine
floor, forming part of the aforesaid building. The case of the
plaintiff is that when late Shri Prem Narain Aggarwal was
approached for the change of tenancy in respect of the
mezzanine floor, he was offered the tenancy of the first floor
and he agreed to the creation of tenancy in respect of the
first floor only on the condition that he will have direct
access to the first floor via staircase leading from the ground
floor of the mezzanine floor, from the front of the building
abutting the inner circle of Connaught Place. This,
according to the plaintiff, could have been possible only by
constructing a staircase leading to the first floor from the
mezzanine floor. It is further alleged that Shri Prem Narain
st
Aggarwal agreed to the proposal and his lease deed dated 1
July, 1986 was accordingly executed. This is also the case
of the plaintiff that he was made to write two letters to the
effect that he would be entitled to construct a staircase
integrating the mezzanine floor with the first floor.
2. It is stated in the plaint that the first floor has
access from the service lane, but that is a common staircase
for two separate buildings No. E-10 and E-11 and,
therefore, it was specifically agreed between the parties that
CS(OS)No. 2213/2003 Page 2 of 19
the access from the mezzanine floor would form integral
part of the tenancy of the first floor. The plaintiff claims to
have accordingly constructed the staircase leading from the
mezzanine floor to the first floor at his own cost with the
approval of the landlord. As regards the access through the
service lane, it is alleged in para 13 of the plaint that the
service lane access to the first floor was closed more than 17
years ago.
3. Eviction proceedings were initiated against the
plaintiff in respect of the mezzanine floor and the suit filed
against the plaintiff for possession of the aforesaid premises
was decreed. It is alleged that though warrant of
th
possessions were sought to be executed on 16 December,
2003, the decree could not be executed on that date and
possession could not be taken.
4. It is specifically stated in para 11 of the plaint that
the plaintiff is still in possession of the mezzanine floor. It is
claimed that defendant No. 2 and his fellows were
attempting to obstruct the right of ingress and egress of the
plaintiff to the first floor. The plaintiff has accordingly
sought mandatory injunction, restraining the defendants
from obstructing the staircase leading from the ground floor
CS(OS)No. 2213/2003 Page 3 of 19
to the first floor via mezzanine floor and preventing access of
the plaintiff and his customers, etc. to the showroom on the
first floor, through the aforesaid staircase. He has also
sought mandatory injunction directing the defendants to
remove the junk and disused furniture which they have put
in the staircase leading to the first floor.
5. Vide IA No. 10153/2010 under Order 6 Rule 16
r/w Order 7 Rule 11 CPC, the plaintiff has sought rejection
of the plaint and dismissal of the suit. It is claimed in the
application that the following averments made in the plaint
are frivolous and vexatious, amounting to an abuse of the
process of the Court and are an attempt to re-litigate issues
which have already been settled between the parties right
up to Supreme Court in several rounds of litigation;
(i) In the first paragraphs of the plaint, the plaintiff
has stated that he is an existing tenant of the mezzanine
floor.
(ii) In paragraph No. 8 of the plaint the plaintiff has
averred that the only access to the first floor is from front,
through the mezzanine floor.
(iii) In paragraph No. 11 of the plaint, the plaintiff has
categorically asserted that he is in possession of the
CS(OS)No. 2213/2003 Page 4 of 19
mezzanine floor.
th
It is further stated in this application that on 30
December, 2003, when the suit was filed, the plaintiff was
not a tenant in the mezzanine floor and was not in its
possession, he having already been evicted and
th
dispossessed on 16 December, 2003 in execution of a
judgment and decree passed by the Civil Judge, Delhi on
rd
23 August, 2003.
6. The admitted facts in this case are as under:
(i) The defendants filed a suit against the plaintiff
seeking possession of the mezzanine floor forming part of
building situated on units No. 13 to 29, Block E-, Circle-D,
Connaught Place, New Delhi, which was decreed by the
rd
learned Civil Judge on 23 August, 2003;
(ii) a warrant of possession of the mezzanine floor was
issued by the learned Civil Judge in execution of the decree
passed by him;
(iii) an appeal was filed by the plaintiff against the
rd
judgment and decree dated 23 August, 2003, which was
dismissed by the learned Additional District Judge vide
rd
order dated 23 April, 2004;
(iv) the order of the learned Additional District Judge
CS(OS)No. 2213/2003 Page 5 of 19
was challenged by the plaintiff by way of CM(M) No.
th
118/2005 which was dismissed by this Court on 13
October, 2006. A Special Leave Petition was then filed by
the plaintiff against that order, which was dismissed by
th
Supreme Court vide order dated 19 February, 2007.
(v) objections were filed by the plaintiff in Execution
No. 74/2003 which the defendants had filed seeking
rd
execution of the judgment and decree dated 23 August,
2003. A perusal of the order passed by the learned Civil
Judge on the objections of the plaintiff would show that one
of the pleas taken by him was that the defendant could not
deprive him from access to the first floor through the
staircase leading from the ground floor from the front. The
th
objections were dismissed vide order dated 20 September,
2004.
(vi) order of the learned Civil Judge dismissing the
objections was challenged by the plaintiff before this Curt
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vide CRP No. 469/2004 which came to be dismissed on 25
October, 2004. While dismissing CRP No. 469/2004, this
Court, inter alia, observed as under:
“On 30th September, 2003, the
Respondent initiated execution
proceedings and on 16th December, 2003
CS(OS)No. 2213/2003 Page 6 of 19
the decree was executed. The report of
the Bailiff shows that the representative
of the Petitioner, Ram Sukhani, Manager,
wanted one month's time to vacate the
suit premises but the Respondent did not
agree to give time to the Petitioner.
Accordingly, the Petitioner removed its
goods and handed over vacant possession
of the suit property to the Respondent.
However, certain fixtures in the wall,
some a r-conditioners and three counters
were kept in the premises for being
removed a little later. There is no dispute
that possession of the suit premises was
peacefully handed over to the Respondent
but the items above-mentioned were kept
back…..In this regard, it was pointed out
that both the Bailiff as well as the
Executing Court have specifically
recorded that the Respondent has
received possession of the suit property
through the Bailiff and only some goods
are lying in the suit premises. As already
mentioned above, it appears that the
Petitioner could not immediately take
away those goods and had arranged with
the Respondent to have them removed at
a mutually convenient time. The
Respondent could very well have thrown
out the goods but did not do so perhaps
out of humanitarian considerations. The
Petitioner cannot be permitted to take
advantage of this situation. In fact,
apparently realizing this, even the
Executing Court gave fifteen days time to
the Petitioner to remove its goods failing
which they would be dispatched to the
Malkhana of the concerned police station.
There is more than sufficient material on
record to reach the conclusion that
possession of the suit property was
peacefully handed over by the Petitioner
to the Respondent and it was in this
CS(OS)No. 2213/2003 Page 7 of 19
spirit that the Respondent permitted the
Petitioner to leave some goods in the suit
premises for being removed on a later
date at a mutually convenient time.”
The order dated October 25, 2004 was challenged
before Supreme Court by filing SLP(C) No. 23325/2004
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which was dismissed on 25 November, 2004.
7. During the pendency of the suit, this Court vide
order dated November 8, 2004, vacated the ad interim order
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dated 30 December, 2003, whereby the defendants were
restrained from obstructing or preventing access of the
plaintiff to the showroom on the first floor through the
staircase leading to the opening on the inner circle and
leading the mezzanine shop and first floor. During the
course of the order, this Court, inter alia, observed as
under:-
“…As has already been mentioned above
the Lease Deed dated 1.7.1986 makes no
mention which staircase is to be used for
ingress and egress to the suit premises.
The annexed plan, however, shows the
rear and not front staircase. Since the
Mezzanine and First Floor were not
interconnected at the inception of the
tenancy of the suit premises the Lease
Deed could not have conceivably granted
the right of use of the front staircase
which does not lead to the suit premises.
Logically, the Lease Deed could also not
have made any mention of this fact for
CS(OS)No. 2213/2003 Page 8 of 19
the simple reason that it had not been
anticipated that the Plaintiff would be
evicted from the Mezzanine Floor only……
….If it was already within the
contemplation of the parties that the
Mezzanine and First Floor would be
interconnected they could easily have
mentioned it in the Lease Deed itself,
thereby rendering this controversy
completely otiose. It would then not have
been dealt with separately in the two
letters dated 4.7.1986...”
8. An appeal was filed by the plaintiff against the
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order dated 8 November, 2004 which was dismissed by a
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Division Bench of this Court on 20 January, 2010. During
the course of its decision, the Division Bench, inter alia,
observed as under:
“Be that as it may, learned counsel for
the parties have shown to us the plan
attached to the lease deed dated 1 st
July, 1986 as well as various
photographs, which form a part of the
record, which very clearly suggest that
the Appellant has independent access
from the service lane in the ground level
to the leased premises on the first floor.
There is, therefore, absolutely no need for
the Appellant to access the leased
premises on the first floor via the internal
staircase. There is also nothing to suggest
in the lease deed dated 1st July, 1986 or
anywhere else, that access to the leased
premises on the first floor could only be
through the shop on the mezzanine floor
or was intended to be only FAO (OS) No.
244/2004 Page 10 of 18 through the
CS(OS)No. 2213/2003 Page 9 of 19
shop on the mezzanine floor. In this
context, it may be noted that the lease
deed for the shop on the mezzanine floor
as well as the deed for the leased
premises on the first floor are self-
regulating documents and they stand
independent of each other. It is nobody's
case before us that the two leases are
intertwined. The only inter- connection
between the two properties is through the
internal staircase which, as we have
noted above, appears to have been
constructed by the Appellant for his
convenience since at the relevant time he
was a tenant of both properties.
We may look at the matter from another
point of view. Since the Respondents are
in possession of the shop on the
mezzanine floor they are entitled to
benefit from it either for their own
purpose or by renting it out to somebody
else. Consequently, it would be rather
odd, if not strange, if the Appellant, its
representatives and customers are made
entitled to walk through somebody else's
shop to access the leased premises on the
first floor. This would not only create an
impossible situation for whoever is in
possession of the shop on the mezzanine
floor but would also create a clear
hindrance to the full commercial
exploitation of that shop.”
9. Since an eviction order had admittedly been
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passed against the plaintiff on 23 August, 2003, he was no
more a tenant in respect of the mezzanine floor when this
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suit was instituted on 30 December, 2003. If the definition
CS(OS)No. 2213/2003 Page 10 of 19
of tenant, given under Section 2(l) of Delhi Rent Control Act,
is adopted, a decree for possession having already been
passed against the plaintiff, he was not covered under the
aforesaid definition of tenant. If, however, the definition as
given in Section 2(l) is not adopted since the tenancy was
not governed by the provisions of Delhi Rent Control Act,
the plaintiff would still not be a tenant since a decree for his
dispossession had already been passed much prior to filing
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of this suit by him on 16 December, 2003. Thus, it cannot
be disputed that the averment made in para 1 of the plaint,
wherein the plaintiff claims to be a tenant in respect of the
mezzanine floor, is totally false and frivolous.
10. Since possession of the mezzanine floor had also
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been taken from the plaintiff on 16 December, 2003, his
averment claiming to be in possession of the mezzanine
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floor on 30 December, 2003, when he filed this suit, is also
false and frivolous.
11. The averments made in the plaint claiming tenancy
in and possession of the mezzanine floor being false and
frivolous are liable to be struck off under Order 6 Rule 16 of
Code of Civil Procedure which permits the Court to strike off
pleadings which are frivolous/vexatious or are otherwise
CS(OS)No. 2213/2003 Page 11 of 19
abuse of the process of the Court.
12. The learned counsel for the plaintiff has relied
upon the decision of Supreme Court in Abdul Razak vs.
Mangesh Rajaram Wagle and Others JT 2010 (1) SC 508
and Sathi Vijay Kumar vs. Tota Singh and Others (2006)
13 SCC 353 , in support of his contention that the plaintiff
having not sought striking off pleadings for more seven
years, the application is highly belated and should not be
entertained. In the case of Abdul Razak (supra), Supreme
Court find that additional written statement was filed by the
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legal representatives on 03 March, 2004 which had been
taken on record without any objection from respondents No.
1 and 2, who did not even seek the leave of the Court to file
further pleadings in the light of additional written
statement. The Court also felt that respondents No. 1 and 2
had led evidence keeping in view the pleadings contained in
the additional written statement. It was in view of these
facts that the Court noticing the application for striking off
the additional written statement having been filed after gap
of 3½ years, without explaining as to why respondents No. 1
and 2 did not object to the taking on record the additional
written statement and framing of additional issues in 2005
CS(OS)No. 2213/2003 Page 12 of 19
and they having chosen to lead evidence knowing fully well
that after their impleadment the legal representatives had
pleaded that they had become owners of the property, was
of the view that it ought not to have been allowed at that
stage. The facts of this case are altogether different. This is
not a case of filing of additional written statement, but is a
case of making averments which were false and frivolous to
the knowledge of the plaintiff and were made at the very
threshold when this suit was filed. Considering the conduct
of the plaintiff as is evident from the facts and
circumstances noted in the preceding paragraphs, I am of
the view that the application ought not to be rejected on the
ground of delay alone. In the case of Sathi Vijay Kumar
(supra), the Court reiterated the otherwise settled
proposition of law that normally the Court cannot direct the
parties as to how they should prepare their pleadings and if
they have not offended the rule of pleadings while making
averments or raising arguable issues, the Court would not
order striking out pleadings. It was also observed that
power to strike out pleadings is extraordinary in nature and
must be exercised by the Court sparingly and with extreme
care, caution and circumspection. However, it can hardly
CS(OS)No. 2213/2003 Page 13 of 19
be disputed that when the pleadings are found to be false,
frivolous and vexatious, to the knowledge of the person
making those pleadings, they ought to be struck off, so as
not to allow the party to go to trial on the basis of such
pleadings.
13. As noted earlier, the possession of the mezzanine
floor is with the defendants, the same having been taken
from the plaintiff in execution of the decree passed against
him. The admitted position is that there is one staircase in
the front leading from the ground floor to the mezzanine
floor and another staircase which starts from the mezzanine
floor and goes up to first floor and which admittedly was
constructed by the plaintiff himself. There is no way the
plaintiff can have access to the staircase leading from the
mezzanine floor to the first floor except by passing through
the mezzanine floor premises which are in lawful possession
of the defendants. The plaintiff will necessarily have to
enter the mezzanine floor premises, in order to access these
stairs and will also have to use the staircase leading from
the ground floor to the mezzanine floor on the front side.
The only substantive relief claimed in the suit is that the
defendant should not obstruct the plaintiff from accessing
CS(OS)No. 2213/2003 Page 14 of 19
the first floor through the staircases one of which leads from
ground floor to the mezzanine floor and the other from the
mezzanine floor to the first floor. The plaintiff absolutely has
no right to interfere in the use and enjoyment of the
mezzanine floor premises by the defendants or by their
tenants/licensees, as the case may be, even for the purpose
of accessing the first floor premises taken by him on rent
which otherwise has an access from the rear side. During
the course of hearing of FAO(OS) No. 244/2004, a Division
Bench of this Court noted that page 246 of the paper book
showed an entrance to the first floor (suit premises) from
the rear of the suit building, but that was locked. It was
agreed by the parties that their client will jointly break open
the lock shown on page 246 of the paper book so that there
is direct access from the ground floor to the first floor of the
suit property from the rear of the building. It was directed
the Division Bench that after the lock is broken, access to
the first floor (suit premise) should be made available to the
appellant (plaintiff before this Court) from the rear staircase.
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When the matter was taken up by the Court on 14
December, 2009, the learned counsel for the appellant
(plaintiff before this Court) stated that the lock appearing in
CS(OS)No. 2213/2003 Page 15 of 19
the photographs on page 246 of the paper book had broken.
It was noted that behind the iron grill, there was a door and
behind that door, there was a shutter and behind that
shutter, there was a window panel and behind that window
panel, there was a rack. The learned counsel for the
appellant in FAO admitted that key of the shutter was
available with the appellant. Accordingly, the appellant
was directed to open the shutter after dismantling the
wooden panel and rack so that access to the first floor
premises was possible through the staircase appearing on
page 246 of the paper book. The learned counsel for the
appellant stated before the Division Bench that needful
would be done within two days. It is thus quite clear that
even if the plaintiff is not able to access the first floor
through the staircase in the front of the building, he can
definitely access them through the staircase in the rear
portion of the building. The relief claimed by the plaintiff, if
granted, would create the anomalous and rather impossible
situation, where the plaintiff and/or his employees/visitors,
etc. would have unhindered access to the premises occupied
by other persons on the mezzanine floor of the building. The
occupant of the mezzanine floor cannot be denied the right
CS(OS)No. 2213/2003 Page 16 of 19
to close and lock the premises occupied by him. If the
plaintiff is to be granted unhindered access to the first floor
through the staircase which starts from the mezzanine floor
and goes up to the first floor, that would mean that the
occupants of the mezzanine floor would not close and/or
lock the premises or the plaintiff and those seeking to visit
him on the first floor, would have a right to insist upon the
occupants of the mezzanine floor opening the door of the
mezzanine floor premises and then allowing them access to
the first floor through the internal staircase starting from
mezzanine floor and going up to the mezzanine floor. This
will amount to disrupting the lawful permission of the
mezzanine floor by its occupant. Even if the defendants at
the time of creation of the tenancy in respect of the first
floor had agreed to the plaintiff constructing a staircase
from mezzanine floor to the first floor and use of that
staircase for having access to the first floor, that
permission/licence by its very nature perishes with the
eviction order being passed against the plaintiff in respect of
the mezzanine floor and is no more available thereafter to
the plaintiff. There is no way the relief sought by the
plaintiff can be granted to him.
CS(OS)No. 2213/2003 Page 17 of 19
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14. Though issues were framed in this case on 06
December, 2005, considering the facts and circumstances of
the case, as explained above, I am of the view that the suit
can be finally disposed of without recording evidence since
in view of the admitted facts and situation, the relief sought
by the plaintiff cannot be granted to him. No useful
purpose will be served from recording evidence when the
Court is of the view that the suit cannot culminate into
passing of a final decree of nature sought by the plaintiff.
Allowing such a suit to continue would not only be an
exercise in futility but also an abuse of the process of the
Court. Such an attempt needs to be thwarted at this very
stage instead of prolonging the matter by permitting the
parties to lead evidence, which would not serve any
purpose, but would consume the otherwise precious time of
the Court.
15. In K.K. Modi vs. K.M. Modi & Ors AIR 1998 SC
1297 , Supreme Court, inter alia, observed as under:
“Frivolous or vexatious proceedings may
also amount to an abuse of the process of
court especially where the proceedings
are absolutely groundless. The court then
has the power to stop such proceedings
summarily and prevent the time of the
public and the court from being wasted.
CS(OS)No. 2213/2003 Page 18 of 19
Undoubtedly, it is a matter of courts'
discretion whether such proceedings
should be stopped or not; and this
discretion has to be exercised with
circumspection. It is a jurisdiction which
should be sparingly exercised and
exercised only in special cases. The court
should also be satisfied that there is no
chance of the suit succeeding.”
Relying upon the aforesaid decision of Supreme
Court, this Court in Pamela Kumar vs. Chandrashekhar &
Ors, 2007(99) DRJ 475 , was of the view that the discretion
to stop the proceedings should be exercised if the Court is
satisfied that there is no chance of the suit succeeding.
16. In the case before this Court, since I am of the view
that the relief sought by the plaintiff cannot be granted to
him, no useful purpose is likely to be served from
continuing further proceedings in this suit.
The suit is accordingly dismissed, without any
orders as to costs.
(V.K. JAIN)
JUDGE
AUGUST 10, 2011
‘Bg’
CS(OS)No. 2213/2003 Page 19 of 19