- (1.) C M-10503-CII-2016 Learned senior counsel for the respondent submitted that he is ready to argue the main petition. As such, no separate order is required to be passed in the present application and the same is disposed of.
(2.) The main petition is taken up on the board of this Court for hearing arguments today itself. Present petition under Article 227 of the Constitution of India for setting aside order dated 21.12.2015, passed by learned Civil Judge (Junior Division), Gurgaon, whereby application under Order 15 Rule 5 CPC, filed by the respondent/plaintiff was accepted and defence of the petitioner/defendant was struck off on account of non-payment of rent. Relevant facts of the case that petitioner had taken on rent fourth, fifth & sixth floors of the property in dispute on lease on the basis of lease deed dated 17.8.2011. As per petitioner, possession of the leased premises was not handed over, whereas the case of respondent that possession was handed over on the same day and payment of rent was being made upto February, 2012 and thereafter, petitioner failed to make the payment of admitted rent even. Learned senior counsel for the petitioner, while assailing the impugned order, submitted that the Court below has not considered the facts that in terms of lease deed dated 17.8.2011, possession was never handed over to the petitioner. Being aggrieved of that, Civil Suit No. 314 dated 6.9.2012 was filed for specific performance of the lease deed dated 17.8.2011. Thereafter, respondent filed Civil Suit No. 14 dated 9.1.2013 for seeking possession of leased premises and for recovery of Rs. 56,40,000/-. Undisputedly, civil suit was filed earlier by the present petitioner seeking direction from the Court to the respondent to hand over peaceful possession of the leased property and in the alternative for refund of amount paid by them. So, it was not a case of payment of admitted rent having not been paid to the respondent. Rather, petitioner is aggrieved of the fact that respondent already received the payment on account of rent and failed to deliver possession of the leased premises and for that purpose, petitioner had to file civil suit before the Court below.
(3.) Learned senior counsel for the petitioner also submitted that order on application under Order 15 Rule 5 CPC cannot be passed in a mechanical manner. Rather, the same can be filed in case of suit for recovery of possession and not in any other suit like suit for mandatory injunction, whereas in the instant case, the main suit filed by the respondent was for mandatory injunction. On this point, reliance was placed upon the judgment rendered by this Court in Fastrack Computing Limited and Others v. Col. Govinder Singh (Retd.) and Others, 2014 9 RCR(Civ) 3353 . Learned senior counsel for the petitioner also submitted that order on application under Order 15 Rule 5 CPC can be passed only if there is a case of default in making payment of rent and order on such an application is not to be passed in a routine and mechanical manner because the same is penalty to the person against whom such an order is passed. On this point reliance has been placed upon the judgment rendered by the Hon'ble Apex Court in Bimal Chand Jain v. Gopal Agarwal, 1981 2 RCR(Rent) 314 and view taken by this Court in M/s Saras Paper Pack v. Shyam Sunder, 2001 1 RentLR 580 , Raj Kumar Mittal v. Arvind Kumar Jain, 2003 1 RentLR 395 and Narinder Pal v. Surinderjit Singh and Others, 2011 162 PunLR 576. Learned senior counsel for the respondent submitted that possession of the demised premises was handed over on 10.8.2011. Even rent of the leased premises was paid upto February, 2012, but thereafter payment was not made for the period from March, 2012 onwards. Notice was issued in this regard on 8.7.2012 and even in reply, the plea was taken that payment of rent has been made from March, 2012 to July, 2012.;