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FAO 37/2020 and C.M. Appl. No. 3126/2020

Decided On: 29.08.2022

Appellants: Rattan Mehta and Ors. Vs. Respondent: Gayatri Shah and Ors.

Hon'ble Judges/Coram:
Manoj Kumar Ohri


Manoj Kumar Ohri, J.

1. By way of present appeal filed under Order XLIII Rule 1(f) read with Section 151 CPC, the appellants have assailed the order dated 23.12.2019 passed by the learned ADJ-04, Patiala House Courts, New Delhi in CS No. 55540/2016, whereby the appellants'/defendants' defence was struck off and the written statement filed by them was directed to be taken off the record.

2. Brief facts, in nutshell, to appreciate the challenge are that the respondents/plaintiffs preferred a suit for possession, mesne profits and damages. In the plaint, the respondents claimed themselves to be owners of property bearing No. 25-A, C Block, Vasant Vihar Market (Local Shopping Centre-1), New Delhi (hereinafter, referred to as 'the suit property'). It was further claimed that a shop on the ground floor of the suit property was leased to Smt. Anju Mehta and appellant No. 1 vide Lease Deed dated 15.05.1984 at a monthly rent of Rs. 1,500/-, whereafter the defendants created a sub-tenancy in favour of M/s. Mahima Caps (P) Ltd. by entering into an Agreement dated 15.07.2004 (hereinafter, referred to as 'the Agreement'). The Agreement, a copy of which was filed alongwith the plaint, was statedly executed on behalf of defendants' partnership firm M/s. Rain through Smt. Anju Mehta and her son Rattan Mehta-the appellant. Under the said Agreement, M/s. Mahima Caps (P) Ltd. was required to pay Rs. 1 lac per month as minimum guaranteed proceeds towards the profit/sale.

3. It was pleaded before the Trial Court that the defendants having created sub-tenancy were no longer entitled to protection under the Delhi Rent Control Act, 1995. In support of the averment, they had placed on record a copy of the Agreement and averred that the original Agreement was in possession of the defendants.

4. While the alleged sub-tenants were proceeded ex-parte, the appellants appeared and filed a written statement, wherein they admitted the partnership of their firm M/s. Rain with M/s. Mahima Caps (P) Ltd., but not the execution, existence and possession of the Agreement. On 30.01.2018, the issues were framed by the Trial Court and those relevant to the present controversy are extracted below:-

"1. Whether the suit of the plaintiff's is barred under Section 50 of the Delhi Rent Control Act, 1958? OPD 1 and 2.


5. Whether the amount received as monthly minimum guaranteed profit of Rs. 1,00,000/- by defendant no. 1 and Smt. Anju Mehta (since deceased now represented by defendant no. 1 and 3) from defendant no. 4 under the agreement dated 15.07.2004, was in the nature of the rent or not? OPP.

6. Whether the plaintiff's are entitled to a decree of possession of the suit premises in terms of prayer clause (a)? OPP."

(emphasis added)

5. An application came to be filed on behalf of the plaintiffs under Order 11 Rule 1 read with Section 151 CPC seeking leave to deliver following interrogatories to defendant Nos. 1 and 2:-

"(a) Was not the agreement dated 15.07.2004, a true photocopy of which has been placed on record by the Plaintiffs, entered/executed between M/s. Rain, through its partners Smt. Anju Mehta w/o. late Shri Surinder Mehta and Shri Rattan Mehta s/o. late Shri Surinder Mehta (Defendant No. 1 herein), and M/s. Mahima Caps Private Limited (Defendant No. 4 herein), through its Managing Director Shri Dhiraj Arora, with respect to property No. 25-A, situated in C Block, Vasant Vihar Market (local shopping ........