PRABHA MANCHANDA Vs. KAWALJIT KAPOOR @ RANI
HIGH COURT OF DELHI
Dr. (Smt.) Prabha Manchanda
Smt. Kawaljit Kapoor @ Rani
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J.M. Malik, J. -
(1.) THIS revision petition raises an interesting question i.e. whether in a suit filed by the plaintiff/revisionist wherein notice under Section 6A of Delhi Rent Control Act 1958 has been called into question, the counter claim seeking possession and recovery of mesne profits is barred under Order 7 Rule 11 C.P.C. The case of the plaintiff/revisionist is this. The appellant was inducted as a tenant in respect of the premises in dispute at a rental of Rs.3,500/ - per month. The original landlord expired on 14.01.1993 leaving behind legal representatives. Smt. Kawaljit Kapoor, the defendant, claims to be one of his legal representatives. Vide notice dated 18.05.2006, she asked the appellant to increase the rent w.e.f. 08th July, 2006 by 10%. Thereafter, the suit for declaration was filed by the revisionist with the following prayers:
(a) Declare that the defendant in invoking Section 6A of Delhi Rent Control Act, 1958 without the ingredients of Section being attracted and despite the very entitlement of the defendant to invoke it being non existent intend to deny the plaintiff's legal character and deprive her of her right to property, the invocation vide notice dated 18th May, 2006 hence being illegal unlawful, wrong, unwarranted, arbitrary, malafide as well as without any cause of action and cannot be enforced/acted upon by the defendant.
(b) grant permanent injunction restraining the defendant by her representatives, assignees etc from acting upon notice under Section 6A Delhi Rent Control Act, 1958 enhancing the rent to Rs.3,850/ - per month there being a breach of obligation owed to the plaintiff and in so acting the defendant invading the plaintiffs' right to enjoyment of property through proceedings frivolous, vexatious and in abuse of law.
(c) grant any other relief which this Hon'ble Court may deem fit and proper be also passed in favor of the plaintiff and against the defendants.
(2.) THE appellant filed written statement as well as also filed counter claim dated 16.11.2006 wherein the defendant claimed possession and recovery of mesne profit. During the pendency of this case the appellant/plaintiff filed an application dated 12.01.2007 under Order 7 Rule 11 read with Section 151 CPC wherein the following averments were made. Firstly, under Order 8 Rule 6 -A of CPC the defendant/respondent has to file the counter claim in the written statement. However, the respondent has filed counter claim separately. The said counter claim has not been filed in consonance with the provisions of Order 8 Rule 6 -A and the same should be dismissed as per law laid down by the Orissa High Court in : AIR1985Ori260 and Chartered Bank v. Indo -Swiss Circuits, 1986 2 (Del) 399. Secondly, the defendant can set -up by way of counter claim only such right or claim which arises before the defendant has delivered his defense. The right pleaded in the counter claim has to await decision of the captioned suit. The right pleaded by the defendant does not exist and the counter claim is barred by law. The trial court has no pecuniary jurisdiction as the value of the suit is more than 3 lakhs to 20 lakhs whereas the counter claim has been valued for a sum of Rs.46,400/ -. The said application was contested by the respondent. The trial court returned the findings in favor of the respondent and against the appellant. Aggrieved by that order the appellant has now approached this Court.
(3.) THE learned Counsel for the appellant vehemently argued that the suit filed by the respondent is premature. He explained that counter claim is a separate case which does not lie until or unless the questions raised by the appellant are finally adjudicated by the concerned court. It was explained that the first of all the court will decide whether the notice issued by the respondent is valid on the reasons detailed in the suit. He opined that the cause of action would arise in favor of the respondent only when the court decides that the appellant is liable to pay 10% increase in enhancement. In order to fortify his argument he has cited following few authorities.;
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