Shakti Gupta vs Ashok Kumar Aggarwal and Others

M.L. Mehta, J.—This application is filed by the applicants/respondents No. 1 and 2 seeking review of the order dated 27.09.2012. Respondents No. 1 and 2 herein filed a suit being CS (OS) 252/2011 in the court of Additional District Judge-04, South District, Saket Courts against the petitioner herein i.e. Shakti Gupta (Defendant No. 2) and respondent No. 3 herein i.e. M/s. VXL Lodging N Boarding Services Pvt. Ltd. (Defendant No. 1) seeking possession of the suit premises i.e. S-60, Ground Floor, Greater Kailash, Part II, New Delhi.

In the said suit, the plaintiffs (respondents No. 1 and 2 herein) filed an application under Order XVA Rule 1 CPC dated 29.02.2012, seeking deposit of Rs. 2,12,000/-per month by the defendants therein, being the mesne profits/damages/charges for use and occupation of the suit premises. The said application was allowed by the learned ADJ vide his order dated 05.07.2012, with the direction to the petitioner herein (defendant No. 2) to pay a sum of Rs. 62,000/- per month as per the lease agreement dated 04.04.2011 from the month of September, 2011 and continue to pay the same on month to month basis by 10th day of each English calendar month. The petitioner getting aggrieved of the said order challenged the same before this court vide CM(M) 957/2012. Vide order dated 27.09.2012 passed by this court in the said petition, the matter was remanded back to the Trial Court with some observations. In the said order, it is recorded that the grievance of the petitioner i.e. the defendant No. 2 in the suit, is that he is not an unauthorized occupant of the suit premises, but is occupying the same with the authority of defendant No. 1 M/s. VXL Lodging N Boarding Services Private Limited (respondent No. 3 herein), and that he has been paying the rent @ 9500/- per month to defendant No. 1 M/s. VXL Lodging N Boarding Services Private Ltd. It was further observed in the said order that undisputedly, the suit premises was let out by the respondent No. 1 and 2 i.e. the plaintiffs in the suit to M/s. VXL Lodging N Boarding Services Pvt. Ltd. (defendant No. 1) by virtue of lease deed dated 04.04.2011. As per the petitioner (defendant No. 2), he was inducted as tenant therein by defendant No. 1 M/s. VXL Lodging N Boarding Services Pvt. Ltd. Based on these observations and noting that there being no privity between the plaintiffs (respondents No. 1 and 2) and the petitioner, the liability, if any, of the petitioner (defendant No. 2 in suit) because of occupying the suit premises was joint and several with defendant No. 1 M/s. VXL Lodging N Boarding Services Pvt. Ltd. It was on this premise that the matter was remanded back to the Trial Court to decide the matter afresh keeping in view the observations made by this court.

The instant review petition is filed by the respondents No. 1 and 2 i.e. the plaintiffs in the suit stating that the said order dated 27.09.2012 was passed by this court on the oral submissions made by the counsel for the parties and in the absence of the Trial Court record. It is submitted that stand which was taken by the petitioner''s counsel in the arguments on 27.09.2012 were inconsistent to the defence that was set up by this petitioner in the written statement filed in the above-said suit as defendant No. 2. It is submitted by the learned counsel appearing for the respondents No. 1 and 2 that the stand taken by the petitioner (defendant No. 2 in suit) in the written statement is that defendant No. 1 M/s. VXL Lodging N Boarding Services Pvt. Ltd. only facilitated the process, and in fact, the suit premises was taken on lease by the defendant No. 2 directly from the plaintiffs and he was paying rent directly to the plaintiffs and further that, no rent receipts were issued for that by the plaintiffs.

It is true that the order dated 27.09.2012 was passed by this court without reference to the pleadings of the parties in the suit and merely on the submissions made by the counsel for the parties. It is not disputed by the learned counsel for the petitioner that its stand as defendant No. 2 in the written statement was that he had taken the suit premises on lease and not that he was occupying the same with the authority of defendant No. 1. The case of the plaintiffs (respondents No. 1 and 2 herein) in the suit was that the suit premises was given to the defendant No. 1 by virtue of lease deed dated 04.04.2011 and defendant No. 2 (petitioner herein) was inducted as tenant by the defendant No. 1 as per the terms and conditions of the lease agreement between the plaintiffs and the defendant No. 1.

Having regard to the submissions made by the learned counsel for the parties, it is noticed that apparently, an error has crept in making the observations in the order dated 27.09.2012 in the manner, as noted above. Thus, the said order dated 27.09.2012 is reviewed to the extent that while setting aside the order dated 05.07.2012, the matter is remanded back to the learned ADJ to decide the matter afresh keeping in view the material available on record of his file. Limited to that extent, the review petition is allowed. R.P. stands disposed of accordingly.