Delhi District Court
Sh. V.K. Bhatnagar vs Sh. Charanjit Lal Mehra on 25 April, 2011
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI.
EVICTION PETITION NO. E292/09
1. Sh. V.K. Bhatnagar
S/o late Sh. K.C. Bhatnagar
R/o A1, Gurdwara Road,
N.D.S.E., PartI, New Delhi
2. Smt. M.V. Bhatnagar
W/o Sh. V.K. Bhatnagar
R/o A1, Gurdwara Road,
N.D.S.E., PartI, New Delhi
...... Petitioners.
Versus
1. Sh. Charanjit Lal Mehra
S/o Late Sh. Devi Das Mehra,
R/o Mehra Lodge, S555,
Greater Kailash PartII,
New Delhi
2. Dr. P.P. Kapur (Since deceased through his legal heirs)
(2a) Smt. Urmila Kapur
W/o Dr. P.P. Kapur
A1, Gurdwara Road,
N.D.S.E., PartI, New Delhi
(2b) Arun Kapur
Eviction Petition No. E292/09 Page 1 of 27
S/o late DR. P.P. Kapur
A1, Gurdwara Road,
N.D.S.E., PartI, New Delhi
...... Respondents.
Eviction Petition u/s 14 (1) (b) of Delhi Rent Control Act
Date of Institution of the case : 02.02.1987
Date of Judgment reserved : 23.04.2011
Date of Judgment pronounced : 25.04.2011
JUDGMENT:
1. Vide this judgment I shall dispose of an eviction petition filed by the petitioners u/s 14 (1) (b) of Delhi Rent Control Act against the respondents on the ground of subletting, assigning or parting with possession of the suit premises.
2. Brief facts, as stated in the petition, are that the petitioners are the owners/landlords of the property bearing No. A1, Gurdwara Road, N.D.S.E., PartI, New Delhi and the suit premises i.e. one hall measuring about 500 sq. feet on the ground floor of the aforesaid property was let out to the respondent no. 1 by the petitioners for the purpose of his office under the oral agreement of lease @ Rs. 525/ p.m. besides electricity charges @ Rs. 350/ p.m. and water charges @ Rs. 50/ p.m. It is stated that the respondent no. 1 has been very irregular in making the payment of rent in Eviction Petition No. E292/09 Page 2 of 27 respect of the suit premises and he has sublet, transferred, assigned or otherwise parted with possession of the demised premises in favour of the respondent no. 2 without written consent or permission of the petitioners. Hence, the present petition. It has been prayed that an eviction order may be passed in favour of the petitioners and against the respondents in respect of suit premises.
3. The respondents have contested the present petition by filing a joint written statement contending that the present petition is not maintainable as it is not signed, verified and filed by a duly authorized person in accordance with law. It is also contended that petition is bad for misjoinder of parties as petitioner no. 1 is not a necessary or proper party nor there is any privity of contract between the petitioner no. 1 and the respondents and other tenants of the suit property. It is further contended that petition is also bad for nonjoinder of necessary parties as the premises in question had been let out to both the respondents besides Sarv Sh. Ashvani Kumar Mehra, Yash Pal Mehra and Ashok Kumar Mehra by petitioner no. 2 by way of written lease deed dated 01.05.1974 and the petitioners have not impleaded the aforesaid three persons in the petition. The rate of rent of the suit premises at Rs. 525/ p.m. has not been disputed, but it has been denied that any electricity charges @ Rs. 350/ p.m. and Eviction Petition No. E292/09 Page 3 of 27 water charges @ Rs. 50/ p.m. are liable to be paid by the respondents. It has been denied that premises were let out to respondent no.1 by the petitioners under an oral agreement or that the respondent no.1 has sublet or assigned or parted with possession of the suit premises to the respondent no.2. The other contents of the petition are stated to be wrong and denied and the respondents have prayed for dismissal of the petition.
4. The petitioners have filed replication to the written statement filed by the respondents in which averments made in the petition have been reiterated and reaffirmed and those made in the written statement have been denied and controverted.
5. In order to prove their case, the petitioners have examined Sh. C.L. Sharma, who is attorney of petitioner no. 1 as AW1 who has placed on record special power of attorney executed by petitioner no. 1 in his favour as Ex. AW1/1, site plan showing tenanted premises as Ex. AW1/2 and photocopy of notice dated 03.10.1986 as Ex. AW1/3.
6. Another witness examined by the petitioners is Sh. Deepak Jain, Handwriting and Finger Print Expert as PW3 who has led his evidence by way of affidavit which is Ex. PW3/A and has placed on record his report dated 24.09.2008 as Ex. PW3/B, enlarged photographs of original documents as EX. PW3/C (Colly.) and their negatives as Ex. PW3/D Eviction Petition No. E292/09 Page 4 of 27 (Colly.).
7. It is pertinent here to mention that during the pendency of the case, the respondent no. 2 expired and an application u/o 22 rule 4 CPC was moved for impleading the LRs of respondent no. 2 which was allowed vide order dated 03.12.1997 and the LRs of deceased respondent no. 2 were substituted in place of the respondent no. 2 as reflected in the title of the case.
8. The respondent no. 1 examined himself as RW1 and led his evidence by way of affidavit which is Ex. R1. He has placed on record photocopy of lease deed dated 01.05.1974 as Ex. RW1/A, original rent receipt issued by petitioner no. 2 in the name of Dr. P.P. Kapur as Ex. RW1/B, copy of notice dated 20.04.2001 issued to the petitioner no. 1 by which respondents asked for providing original lease deed dated 01.05.1974 is Ex. RW1/C, original postal receipts are Ex. RW1/D, original returned envelope with AD and postal remarks 'refused' is Ex. RW1/E (though marked as Ex. RW1/D), notices received by Dr. P.P. Kapur from MCD are Ex. RW1/F & RW1/G, letters received from DDA are Ex. RW1/H & Ex. RW1/I, original letter issued by petitioner no. 1 to Dr. P.P. Kapur is Ex. RW1/J and original telephone bills in respect of the telephone installed in the suit premises in the name of Dr. P.P. Kapur are Ex. RW1/K to Ex. Eviction Petition No. E292/09 Page 5 of 27 RW1/M.
9. The respondents have also examined Sh. V.M.S. Khosla, Sr. Section Supervisor from MTNL, Delhi as RW1 who has brought the summoned record pertaining to the telephone number installed at property No. A1, NDSE, Part I, New Delhi.
10. Another witness examined by the respondents is Sh. O.P. Kanaujia as RW2 who is Special Assistant, Indian Bank, South Ex I, New Delhi who could not bring the summoned record pertaining to cheque No, 434696 dated 17.12.1981 because the said record is more than 21 years old and same has been destroyed as per the bank rules. In this regard, he has placed on record the letter dated 31.03.2003 from Sh. Sushil Malhotra, Chief Manager as Ex. RW2/A.
11. RW3 is Sh. Anil Kumar Sharma, Jr. Engineer Enforcement Branch, Lands (DDA), Vikas Sadan, INA, Delhi. RW4 is Sh. Tejvir Singh, Law Officer from MTNL, CGO Complex, Lodhi Colony, New Delhi.
12. RW5 is Sh. S.P. Singh who has filed his report as Ex. RW5/A, photographs from the judicial record as Ex. RW5/B1 to B11 and their negatives are Ex. RW5/C (Colly.).
13. I have heard the Ld. Counsel for the parties and I have gone through the written submissions filed by both the parties. I have also Eviction Petition No. E292/09 Page 6 of 27 perused the record carefully.
14. The respondents have alleged in the written statement that the present petition is bad for misjoinder of parties as the petitioner no. 1 is not a necessary or proper party nor there is any privity of contract between the petitioner no. 1 and the respondents. It is stated that the premises in question had been let out to both the respondents besides Sh. Ashvani Kumar Mehra, Yash Pal Mehra and Ashok Kumar Mehra by the petitioner no. 2. On the other hand, the case of the petitioners is that they are the owners/landlords of the suit premises and the same was let out by the petitioners to the respondent no. 1 only. In this respect, AW1 Sh. C.L. Sharma who is attorney of the petitioner no. 1 has stated in his evidence that the petitioners let out one hall measuring about 500 sq. ft. situated on the ground floor of the property No. A1, Gurudwara Road, NDSE Part I, New Delhi to Sh. Chiranjit Lal Mehra on 01.05.1974 at monthly rent of Rs. 525/ exclusive of electricity and water charges fixed at Rs. 350/ as electricity charges and Rs. 50/ as water charges. In the crossexamination also, AW1 has categorically stated that both the petitioners are owners of the premises. He denied the suggestion that Mrs. Bhatnagar is the only owner of the premises in question. Not a single suggestion has been put to AW1 in his cross examination that both the petitioners have not let out the suit premises to the Eviction Petition No. E292/09 Page 7 of 27 respondent no. 1. Not even a single suggestion has been given by the Ld. Counsel for the respondents to AW1 that there does not exist relationship of landlord and tenant between the petitioner no. 1 and respondent no. 1. As it was the case of the respondents that the premises was let out by the petitioner no. 2 alone and that the petitioner no. 1 was neither the landlord nor the petitioners jointly let out the premises, it was expected from the respondents to put their case to the witness deposing against their case. In the absence of putting their case and thereby accepting the deposition of the witness on this aspect, it can be inferred that the case so put up by the respondents is not substantiated. As such, there is no merit in the contention of the respondents that relationship of landlord and tenant does not exist between the petitioner no. 1 and the respondents or that the present petition is bad for misjoinder of parties.
15. The petition is under Section 14 (1) (b) of DRC Act and Section 14(1)(b) reads as under: "That the tenant has on or after the 9th day of 1952 sub let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord."
16. The facts of the case are within a narrow compass. The case of the Eviction Petition No. E292/09 Page 8 of 27 petitioners is that they are the owners/landlords of the suit premises and same was let out to the respondent no. 1 by the petitioners for the purpose of his office under the oral agreement of lease @ Rs. 525/ p.m. besides electricity charges @ Rs. 350/ p.m. and water charges @ Rs. 50/ p.m. who has sublet, assigned or otherwise parted with possession of the demised premises in favour of the respondent no. 2 without any consent or permission in writing. While, the respondents have taken a stand in the written statement that suit premises had been let out by the petitioner no. 2 to both the respondents besides Sh. Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra under a written agreement of lease deed dated 01.05.1974. It is also the case of the respondents that both the respondents along with the aforesaid three persons are joint tenants in the suit premises and Dr. P.P. Kapurthe respondent no. 2 runs his clinic under the name and style of Dr. Kapur's Homeo Clinic in the suit premises since the inception of the tenancy besides the other tenants. It is further case of the petitioner that the suit premises was taken on rent through Sh. R.L. Bhati of M/s Jainco Property Dealer and the terms of tenancy were settled in his presence.
17. In order to prove their case, the petitioners led their evidence through Sh. C.L. Sharma, who is attorney of the petitioner no. 1 and Eviction Petition No. E292/09 Page 9 of 27 examined himself as AW1. In his evidence, he stated that he is the special attorney of Sh. V.K. Bhatnagar and he knows the petitioner for the last 27 years being a member of the society, namely, Manav Sthali School Organization of which the petitioner no. 1 is the Chairman and the petitioner no. 2 his wife. He further stated that the petitioners let out one hall measuring about 500 sq. ft. situated on the ground floor of the property No. A1, Gurudwara Road, NDSE Part I, New Delhi to Sh. Chiranjit Lal Mehra on 01.05.1974 at monthly rent of Rs. 525/ exclusive of electricity and water charges fixed at Rs. 350/ as electricity charges and Rs. 50/ as water charges. He further stated that it was an oral tenancy/agreement with Sh. Chiranjit Lal Mehra and at the time of creation of tenancy he was present there. He further stated that the respondent paid the rent for the month of May 1974 in his presence by means of a cheque and paid the rent only upto May 1980. He further deposed that Sh. Chiranjit Lal Mehra has sublet, assigned or otherwise parted with the possession of the tenanted premises to Dr. P.P. Kapoor who is in exclusive possession of the same since July 1986. He further deposed that since Dr. P.P. Kapoor is in exclusive possession of the premises and the business being run there, Dr. P.P. Kapoor opens and locks the premises. He further deposed that they got issued a legal notice dated 03.10.1986 to Sh. C.L. Mehra through advocate Sh. P.K. Aggarwal but Eviction Petition No. E292/09 Page 10 of 27 no reply to the said notice was received from the respondent.
18. In the crossexamination of AW1, nothing material could be extracted to shake his testimony. He categorically stated in the cross examination that both the petitioners are owners of the premises. He denied the suggestion that Mrs. Bhatnagar is the only owner of the premises in question. He stated that Sh. P.P. Kapoor respondent no. 2 has not been residing in the demised premises since the inception of the tenancy. He further stated that Sh. C.L. Mehra was present at the time of creation of tenancy and he knew him since 1972 and he is a jeweller. He denied the suggestion that he has been doing the business of jewellery in the shop in question, but it is closed. He further denied the suggestion that Dr. Kapoor is running a Homeopathic Clinic since the inception of tenancy. He further denied the suggestion that the tenancy was created in favour of respondent no. 1 along with respondent no. 2, Ashok Kumar Mehra, Ashwani Kumar Mehra and Sh. Yash Pal Mehra. He categorically stated that rent was paid from 1974 to 1980 by respondent no. 1 @ Rs. 525/ p.m. excluding electricity and water charges. He denied the suggestion that Dr. P.P. Kapur is paying the rent since inception of tenancy and further that Dr. Kapoor is running the clinic since the inception of tenancy. He further denied the suggestion that M/s Jainco (Makkan Wala) was the mediator for creating the Eviction Petition No. E292/09 Page 11 of 27 tenancy in favour of the respondent no. 1 along with Dr. P.P. Kapoor, Mr. Ashok Mehra, Ashwani Kumar Mehra and Yash Pal Mehra. He further denied the suggestion that there was a written tenancy between petitioner no. 2 in favour of respondent no. 1 along with Sh. P.P. Kapoor, Ashok Kumar Mehra, Ashwani Kumar Mehra and Yash Pal Mehra on Ist May 1974 which was witnessed by Sh. Virender Kumar Bhatnagar and Sh. R.L. Bhatti of Jainco (Makkan Wala).
19. The respondents have not only denied the fact that the tenancy in respect of the suit premises was oral but have pleaded that the suit premises was let out vide a written lease deed dated 01.05.1974 in favour of both the respondents as well as the brothers of respondent no. 1, namely, Sh. Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra. On the other hand, the petitioners have stated in the petition that suit premises was let out to the respondent no. 1 by the petitioners under an oral agreement of lease. In the replication also, the petitioners have disputed the execution of any written lease agreement at the time of letting out the suit premises to the respondent no. 1 by the petitioners. As the plea of execution of written lease agreement dated 01.05.1974 has been set up by the respondents and denied by the petitioners, it was for the respondents to prove the execution of the lease deed.
Eviction Petition No. E292/09 Page 12 of 27
20. In this regard, RW1 who is respondent no. 1 himself has stated in his evidence that he, his three brothers namely Sh. Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra and brotherinlaw Sh. Prem Parkash Kapur jointly took the premises in suit on rent from petitioner no. 2 w.e.f. 01.05.1974 at a monthly rent of Rs. 525/ and this was not an oral tenancy and a lease deed was executed by petitioner no. 2 and themselves and original of the said lease is with the petitioner no. 2. Carbon copy of the said lease deed dated 01.05.1974 has been placed on record as Ex. RW1/A.
21. A perusal of the lease deed dated 01.05.1974 placed on record by the respondents as Ex. RW1/A shows that vide clause no. 2, the lease has been granted for a period of 5 years commencing from the 1st of May 1974 and the rent was to start from the same date. As such, it is evident that lease had been granted for a period of 5 years. As per section 17 (1) (d) of Indian Registration Act, leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, shall be compulsorily registered. Section 49 of Indian Registration Act reads as under: "No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affect such property or conferring such power, Eviction Petition No. E292/09 Page 13 of 27 unless it has been registered.
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument. "
22. As per the respondents, the lease was granted for a period of 5 years and the deed was not a registered one. Every lease deed in respect of immovable property for more than one year is required to be compulsorily registered by virtue of provision contained in section 17 (1) (d) of Indian Registration Act and in the absence of such registration, the lease deed dated 01.05.1974 (Ex. RW1/A) cannot be looked into for the purpose of determining the tenancy as it is hit by section 49 of Indian Registration Act. Therefore, in view of the provision contained in section 49, the lease deed dated 01.05.1974 (Ex. RW1/A) cannot be considered for ascertaining the fact of creation of tenancy being inadmissible.
23. It is also pertinent here to mention that there is even denial of signatures of the petitioners on Ex. RW1/A, claiming the tenancy to be an oral tenancy while denying the execution of written lease agreement in Eviction Petition No. E292/09 Page 14 of 27 favour of the respondents. The respondents have examined handwriting expert Sh. S.P. Singh as RW5 to prove the signatures appearing on Ex. RW1/A to be of the petitioners. To rebut this, the petitioners have examined Sh. Deepak Jain, Handwriting and Finger Print Expert as PW3. However, in view of the fact that lease deed Ex. RW1/A has to be excluded from consideration being unregistered as discussed hereinabove, the question of signatures appearing on the lease deed to be of the petitioners or not is inconsequential. So, there is no need to go into the testimonies of the handwriting experts examined by both the parties.
24. As the respondents had come up with the case that they took the premises on rent along with Sh. Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra through Sh. R.L. Bhati of M/s. Jainco Property dealer who was present at the time of taking the suit premises on rent by them and the terms of tenancy were settled in his presence, the said Sh. R. L. Bhati was the best person to prove the averments regarding creation of tenancy and its terms. This was more significant in view of denial of this fact during the crossexamination of AW1. But the respondents have not taken any steps to examine Sh. R.L. Bhati nor has any explanation come forward for not examining him. Therefore, it can be said that the respondents have withheld the best evidence which was available to Eviction Petition No. E292/09 Page 15 of 27 them and hence an adverse inference can be drawn against the respondents. Reliance may be placed upon Gopal Krishan Ji Ketkar Vs. Mohd. Haji Latif & Ors. AIR 1968 Supreme Court 1413 wherein it was held that "a party in possession of best evidence which would throw light on the issue in controversy withholding it, the court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Parties cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it".
25. As against the above, the witness appearing on behalf of the petitioners, i.e. AW1 has categorically stated in his deposition that he was present at the time of creation of tenancy and the rent for the month of May 1974 was paid in his presence by the respondent No. 1 vide cheque and that the rent upto May 1980 only has been paid. AW1 has not been cross examined on these material aspects and not even a single suggestion has been put by the Ld. Counsel for the respondents to him that he was not present at the time of creation of tenancy or that the rent was not paid in his presence. It is settled law that if a witness is not crossexamined on a particular point, that part of his testimony is deemed to be admitted by the other party. Reliance may be placed upon "Satyender Kumar Sharma Vs. Jitender Kudsia 2006 (1) RCR 207". Thus, it can safely be presumed that Eviction Petition No. E292/09 Page 16 of 27 the witness AW1, who is also the attorney of the petitioners, was present at the time of creation of tenancy and the terms of tenancy were settled in his presence. As such, he is a witness to the creation of tenancy and terms thereof. So, from his deposition, it can be inferred that the tenancy was created in favour of the respondent No. 1 alone and not in favour of the five persons alleged by the respondents, including the respondent no. 2. Although the Ld. counsel for the respondents has objected to this part of the testimony of AW1 during the course of arguments on the ground that this part of the testimony is beyond pleadings but the same cannot be accepted as it is settled law that evidence is not to be pleaded. It was not necessary for the petitioners to plead all the evidence. This part of the testimony of the witness is not inconsistent with the pleadings of the petitioners in any manner. Moreover, the witness has deposed these facts from his own knowledge and this makes the evidence of the witness more reliable in the absence of any evidence to the contrary.
26. Apart from this, the respondent no. 1 who has examined himself as RW1 has also stated in his evidence that the premises was let out for business purposes such as medical practice, chemists, departmental store, jewellery shop etc. as mentioned in the lease deed Ex. RW1/A and Dr. P.P. Kapur carried on his clinic under the name and style of Dr. Kapur's Homeo Eviction Petition No. E292/09 Page 17 of 27 Clinic since the inception of tenancy. In the crossexamination of AW1, a suggestion was given by the Ld. Counsel for the respondents that Sh. C.L. Mehra has been doing the business of jewellery in the shop in question which was denied by the witness and he stated that it is closed. Further, a suggestion was given to AW1 that Dr. Kapur is running a Homeopathic Clinic from the inception of tenancy, which was again denied by the witness. In his crossexamination, the respondent no. 1 has stated that he is jeweller and deals in jewellery from the suit premises. He further categorically stated that the other persons are also doing the jewellery business.
27. As such, there is contradiction in the stand taken by the respondents in view of the crossexamination of AW1 and evidence of respondent no. 1. In the crossexamination of AW1, Ld. Counsel for the respondents is giving a suggestion that Sh. C.L. Mehra i.e. respondent no. 1 has been doing business of jewelery in the shop in question. Simultaneously, he is also putting a case that from the inception of tenancy Dr. Kapur i.e. respondent no. 2 is running a Homeopathic Clinic. But, in the cross examination, respondent no. 1 states that he is jeweller deals in jewellery from the suit premises. Not only this, respondent no. 1 also states that the other persons are also doing the jewellery business. Therefore, when the respondent no. 1 deals in jewelery and other persons are also doing the Eviction Petition No. E292/09 Page 18 of 27 jewelery business from the suit premises, then question of running Homeopathic clinic by Dr. P.P. Kapur in the suit premises does not arise. The other persons are none but Dr. P.P. Kapur and other brothers of respondent no. 1 namely Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra and when they are also dealing in jewelery business as stated by the respondent no. 1 in his crossexamination, there is no question of running Homeopathic clinic by respondent no. 2 Dr. P.P. Kapur from the suit premises since the inception of tenancy as claimed by the respondent no. 1 in his evidence.
28. Not only this, there is further contradiction in the testimony of RW1. He stated in his evidence that besides them, Dr. P.P. Kapur carried on his clinic under the name and style of Dr. Kapur's Homeo Clinic since the inception of the tenancy and after the death of Dr. P.P. Kapur, his wife Smt. Urmila Devi is carrying on the business of lab. Meaning thereby, the respondent no. 1 is trying to put forward a case that he and his other brothers were running the business of jewellery in the suit premises and simultaneously, Dr. P.P. Kapur was also running his Homeopathic clinic in the suit premises. But, the respondents have not disclosed in which portion of the suit premises, Homeopathic clinic was being run by respondent no. 2 Dr. P.P. Kapur or presently being run by his wife. The respondents have not Eviction Petition No. E292/09 Page 19 of 27 filed any site plan of the suit premises showing demarcation of the portion in which jewelery business was being run by the respondent no. 1 and his brothers and the portion of the suit premises in which respondent no. 2 was running his Homeopathic clinic. Therefore, testimony of RW1 is not trustworthy and believable.
29. The respondent no. 1 has also stated in his evidence that they have been paying rent to the petitioner some time in cash and some time by cheque against receipt. He further stated that Dr. P.P. Kapur paid rent for the period 01.06.1997 to 31.05.1980 by cheque on asking of the petitioner. However, in the crossexamination AW1 has categorically stated that rent was paid from 1974 to 1980 by respondent no. 1@ Rs. 525/ p.m. excluding electricity and water charges. A suggestion was given by the Ld. Counsel for the respondents to AW1 that Dr. P.P. Kapur is paying the rent since inception of tenancy, which was denied by the witness. The said suggestion given to AW1 by the Ld. Counsel for the respondents that rent was being paid by Dr. P.P. Kapur since inception of tenancy is in sharp contradiction to the statement of respondent no. 1 that they have been paying rent to the petitioner and Dr. P.P. Kapur paid rent for the period 01.06.1997 to 31.05.1980 by cheque on asking of the petitioner. As such, again testimony of RW1 is wavering, shaky and lacks credence.
Eviction Petition No. E292/09 Page 20 of 27
30. It is interesting to note that respondents have alleged that it is not only the respondents who were tenants in the suit premises, but the brothers of respondent no. 1 namely Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra were also inducted as tenants in the suit premises by the petitioner no. 2 and they are joint tenants in the suit premises. In the cross examination, RW1 has denied the suggestion that his three brothers namely Ashvani Kumar Mehra, Yash Pal Mehra and Sh. Ashok Kumar Mehra never remained joint tenant in respect of the suit premises. He stated that they maintain cash book, account book etc. in respect of the business being carried out from the suit premises and all these account and cash books etc. are in his name. He admitted that he has not placed on record any of his account books, cash books etc nor any copy thereof have been filed. He denied the suggestion that he has not filed the above said books because his three brothers are neither joint tenants nor they have any relation to the jewelery business in the suit premises.
31. In view of above, when the respondent no. 1 has claimed that he along with his aforesaid three brothers and respondent no. 2 are joint tenants in the suit premises and they are running jewelery business in the suit premises and they also maintain account books and cash books in respect to the business being carried out from the suit premises, it was incumbent Eviction Petition No. E292/09 Page 21 of 27 upon the respondents to have placed on record the said account and cash books to show that the respondents along with the aforesaid three persons are joint tenants in the suit premises and are dealing in the same business from the suit premises. The said account and cash books could have been the best evidence to show that the respondents along with aforesaid three brothers of respondent no. 1 are joint tenants in the suit premises. But, despite maintaining the account and cash books in respect of the business being carried out in the suit premises, the respondents have not placed on record the same and, therefore, an adverse inference is liable to be drawn against the respondents on this count also.
32. Although, the respondents have examined witness from MTNL namely Sh. V.M.S. Khosla to prove that a telephone connection bearing No. 4617083 is installed in the suit premises in the name of respondent no. 2 Dr. P.P. Kapur, but the said witness Sh. V.M.S. Khosla has deposed that as per the file it is not known as to since when this telephone was installed in the suit premises. Thereafter, again the respondents examined another witness Sh. Tejvir Singh from MTNL as RW4 to show that telephone bills placed on record by the respondents as Ex. RW1/K to Ex. RW1/M in respect of the suit premises are in the name of respondent no. 2 Dr. P.P. Kapur and the said telephone connection is installed in the name of respondent no. 2 since Eviction Petition No. E292/09 Page 22 of 27 the inception of tenancy. But, again this witness RW4 has categorically stated in the examinationinchief that he cannot tell when the telephone was installed. As such, from the aforesaid telephone bills Ex. RW1/K to Ex. RW1/M and from the testimony of aforesaid witnesses RW1 and RW4 who are officials from MTNL, it is not proved that telephone connection bearing No. 4617083 is installed in the suit premises in the name of respondent no. 2 Dr. P.P. Kapur since inception of tenancy and therefore an inference cannot be drawn that Dr. P. P. Kapur is a tenant in suit premises since the inception of tenancy as pleaded by the respondents.
33. So far the contention of the respondents that Dr. P.P. Kapur paid rent for the period 01.06.1997 to 31.05.1980 by cheque on asking of the petitioner and rent receipt issued in the name of Dr. P.P. Kapur has been placed on record as Ex. RW1/B is concerned, the respondents have examined Sh. O.P. Kanaujia, Special Assistant, Indian Bank to prove the cheque No. 434696 dated 17.12.1981 for Rs. 9975/ towards rent for the aforesaid period. But, the said witness could not prove the said cheque as the record in respect of the said cheque has been destroyed. Moreover, it is settled law that by mere payment of rent in respect of the suit premises, tenancy itself is not created. Therefore, plea of the respondents that respondent no. 2 Dr. P.P. Kapur has paid the rent in respect of the suit Eviction Petition No. E292/09 Page 23 of 27 premises by way of cheque does not make the respondent no. 2 a joint tenant in the suit premises. Similarly, notices received by Dr. P.P. Kapur from MCD Ex. RW1/F & RW1/G and letters received from DDA Ex. RW1/H & Ex. RW1/I at the suit premises address do not prove the contention of the respondents that the respondent no. 2 was the joint tenant in the suit premises.
34. Ld. Counsel for the respondents have vehemently argued that testimony of AW1 cannot be relied upon as petitioners themselves have not entered into the witness box and AW1 who is attorney of petitioner no. 1 cannot depose on behalf of the petitioners. He has relied upon the authority titled as Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. AIR, 2005 SC 439 in which it has been held that "Power of attorney holder - cannot depose in place and instead of principal."
35. In the present case, the petitioners have led their evidence thorough Sh. C.L. Sharma who examined himself as AW1 and has stated in his evidence that he is the special attorney of Sh. V.K. Bhatnagar and he knows the petitioner for the last 27 years being a member of the society namely Manav Sthali School Organization of which the petitioner no. 1 is the Chairman and petitioner no. 2 his wife. He further stated that the petitioners let out one hall measuring about 500 sq. ft. situated on the Eviction Petition No. E292/09 Page 24 of 27 ground floor of the property No. A1, Gurudwara Road, NDSE Part I, New Delhi to Sh. Chiranjit Lal Mehra on 01.05.1974 at the monthly rent of Rs. 525/ exclusive of electricity and water charges fixed as Rs. 350 as electricity charges and Rs. 50/ as water charges. He further stated that it was an oral tenancy/agreement with Sh. Chiranjit Lal Mehra and at the time of creation of tenancy he was present there. He further stated that the respondent paid the rent for the month of May 1974 in his presence by means of a cheque and paid the rent only upto May 1980. In the cross examination, he categorically stated that petition was drafted in his presence and he has also gone through it carefully. There is nothing in the cross examination of AW1, which can suggest that he is not aware of the proceedings of the case or that he has avoided to answer the questions put to him by the Ld. Counsel for the respondents. Further, there is not a single suggestion in the crossexamination of AW1 that he does not have personal knowledge of the present case or that he cannot depose on behalf of the petitioners. Rather AW1 has categorically stated that he was present at the time of creation of tenancy and the respondent paid the rent in his presence and the testimony of AW1 has gone unrebutted on this aspect as already discussed herein above.
36. It has been held by the Hon'ble High Court of Delhi in Vinay Eviction Petition No. E292/09 Page 25 of 27 Jude Dias Vs. Renajeet Kaur CM (M) 1030/2008 that, "There can be no dispute that the attorney of the petitioner can appear in the Court on behalf of the party and do the act as specified in power of attorney. An attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of the facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal." As such there is no merit in the contention of the Ld. Counsel for the respondents that AW1 is not a competent witness or that his testimony cannot be relied upon.
37. In view of aforesaid discussions, the respondents have miserably failed to prove that suit premises was let out to both the respondents along with brothers of respondent no. 1 namely Ashok Kumar Mehra, Ashvani Kumar Mehra and Sh. Yash Pal Mehra and they are joint tenants in the suit premises. On the other hand, the petitioners have successfully proved that Eviction Petition No. E292/09 Page 26 of 27 suit premises was let out to respondent no. 1 only. Once it is proved that the premises was let out to the respondent No. 1 alone and not to the respondent No. 2 and other persons alleged by the respondents, the presence of the respondent No. 2 at the demised premises can be said to be unauthorized. As discussed above, the respondents failed to prove their averments that the respondent no. 2 was authorized occupant being a joint tenant, the only inference which can be drawn is that the demised premises has been sublet, assigned or otherwise parted with in favour of respondent no. 2. Hence, the petitioners can be said to have proved the grounds of eviction u/s 14 (1) (b) of DRC Act.
38. Accordingly, an eviction order is passed u/s 14 (1) (b) of DRC Act in favour of the petitioners and against the respondents in respect of the suit premises i.e. one hall measuring about 500 sq. feet on the ground floor of property bearing No. A1, Gurdwara Road, N.D.S.E., PartI, New Delhi, more specifically shown in red colour in the site plan Ex. AW1/2.
File be consigned to Record Room.
Announced in the open court (Balwant Rai Bansal)
on 25th April, 2011 ARC (South), New Delhi
Eviction Petition No. E292/09 Page 27 of 27
E292/09
25.04.2011
Present: None.
Vide my separate judgment dictated and announced in the open court, the present petition u/s 14 (1) (b) of DRC Act filed by the petitioners is allowed. Accordingly, an eviction order is passed u/s 14 (1) (b) of DRC Act in favour of the petitioners and against the respondents in respect of the suit premises. No order as to cost.
File be consigned to Record Room.
(B.R. Bansal) ARC (South), New Delhi/25.04.2011 Eviction Petition No. E292/09 Page 28 of 27