Delhi District Court
M/S. Roop Lal Manohar Lal vs M/S. Hardat Rai Suresh Kumar on 31 March, 2014
1
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE
(CENTRAL) 03, THC, DELHI
Date of institution : 25.05.2005
Judgment reserved on : 25.03.2014
Judgment delivered on : 31.03.2014
Suit No. 432/2008
Unique Case ID No. 02401C0436242005
1. M/s. Roop Lal Manohar Lal
Through registered partner
Sh. Manohar Lal
2. M/s. R. S. Trading Company
Through registered partner
Sh. Satish Pal & Sh. Chander Prakash
3. Sh. Manohar Lal
S/o. Late Sh. Roop Lal
Authorized Partner of
all at 517, Lahori Gate, Delhi. ....Plaintiff
Versus
1. M/s. Hardat Rai Suresh Kumar
Through Partners
518, Lahori Gate, Delhi
2. Sh. Tirath Raj S/o. Sh. Ram Chander
Partner M/s. Hardat Rai Suresh Kumar
B32, M P Enclave, Pitampura, Delhi
3. Sh. Sushi Kumar S/o. Sh. Ram Chander
Partner M/s. Hardat Rai Suresh Kumar
B32, M P Enclave, Pitampura, Delhi
4. Sh. Ajay Kumar
S/o. Sh. Ram Chander
Partner M/s. Hardat Rai Suresh Kumar
B32, M P Enclave, Pitampura, Delhi
5. Smt. Santosh Devi W/o. Sh. Prem Kumar
Partner M/s. Hardat Rai Suresh Kumar
B32, M P Enclave, Pitampura, Delhi ....Defendants
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 1/23
2
J U D G M E N T
1. This is a suit for possession, recovery of damages, mesne profit and permanent injunction.
2. The plaintiff's case in nutshell is that the plaintiff no. 1 & 2, the two partnership firms, as first party and the defendant as second party had entered into a license deed dated 01.08.1996, vide which one shop ( as defined in para no. 3 of the plaint) was given on license basis on a license fee @ Rs. 6,000/ p.m. on terms of payment @ Rs. 1,500/ to each of the plaintiffs every fortnightly, for a period of five years commencing w.e.f. 01.04.96 and expiring on 20.03.2001 and it was further extended for a further period and license deed was to be expired on 20.03.2005 in terms of clause 2 of such license deed, but the defendant failed to hand over the peaceful vacant possession of the suit property to the plaintiff, despite several repeated requests, thus, a legal notice dated 15.03.2005 was served upon the defendants.
3. Defendant no. 2, the only contesting defendant filed the WS to contest the suit and in its contra pleadings had taken preliminary objections that defendant no. 1 firm ceased to be tenant in possession of the suit premises w.e.f. 31.03.2001 and w.e.f. 01.04.2001 a new entity i.e. M/s Hardat Rai Suresh Kumar & Company, a sole proprietorship concern was inducted as a tenant in the suit premises at a monthly rental of Rs. 3,000/ for GF and Rs. 3000 for Mezzanine floor, also that the suit was barred u/s 50 of Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 2/23 3 DRC Act & within the provisions of section 19 of The Slum Areas (Improvement & Clearance) Act, 1956 and that it was also bad for misjoinder of causes of action and of the parties, as two distinct causes have been combined in one suit & the plaintiff no. 3 was joined as plaintiff, though he was neither a necessary nor a proper party.
On merits, all the allegations and averments were denied by the defendants, praying for dismissal of the suit.
4. Replication to the written statement was filed by the plaintiffs, reiterating the facts as stated in the plaint and denied the averments made in the written statement of the defendant no. 2.
5. On the basis of the pleadings vide order dated 20.11.2006, the following issues were framed :
ISSUES
(i). Whether the suit has been signed, verified and instituted by a competent person?
(ii).Whether the license / tenancy of M/s. Hardat Rai Suresh Kumar has been duly terminated vide notice dated 15.03.2005. If so, its effect?
(iii).Whether the defendants are liable to pay the damages on account of use and occupation charges at the market rate of Rs. 12,000/ p.m. after expiry of period of notice dated 15.03.2005?
(iv).Whether the contractual tenancy continued in the name of partnership firm M/s. Hardat Rai Suresh Kumar & company who are in possession of the suit property? OPD
(v).Whether the suit is bad for misjoinder of plaintiff no. 3 being a necessary party?
(viA). Whether the suit of the plaintiff is barred as no permission under section 19 of the Slum Areas (improvement ) and Clearance Act, 1956, has been taken by the plaintiff? OPD
(vi).Relief.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 3/23 4
6. For proving its case, the plaintiffs have examined Sh. Satish Pal, a partner of M/s. R. S. Trading CO. as PW1, who produced his evidence by way of an affidavit Ex.PW1/A, and exhibited the documents Ex.PW1/1 to Ex.PW1/27 viz., Copies of form A & B & partnership deed of plaintiff no.1 are Ex.PW1/1 to 3, copies of Form A & B & partnership deed of plaintiff no. 2 are Ex.PW1/4 to 6, copy of registered partition deed dated 17.01.2004 Ex.PW1/7, relinquishment deed dated 29.05.2004 Ex.PW1/8, GPA in favour of Sh. Manohar Lal Ex.PW1/9, Copy of site plan of the suit shop Ex.PW1/10, copy of license deed dated 01.08.1996 Ex.PW1/11, Copy of notice dated 15.03.2005 Ex.PW1/12, registered postals receipts are Ex.PW1/13 to Ex.PW1/17, returned envelops are Ex.PW1/18 to Ex.PW1/22, Copy of the Newspaper and photographs are Ex.PW1/23 to Ex.PW1/27.
7. Thereafter, in support of his defence, the defendants have examined Sh. Tirath Raj as DW1, who produced his evidence by way of an affidavit Ex.DW1/A and exhibited only two documents Ex.DW1/1 & Ex.DW1/2.
8. I have gone through the records meticulously and have given my careful consideration to the contentions of Sh. , Ld. Counsel for the plaintiff and Sh. , Ld. Counsel for the defendant.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 4/23 5
9. Ld. counsel for the plaintiff has placed his reliance on the following judgments :
1. M/s. Nopany Investment Pvt. Ltd. Vs. Santok Singh, AIR 2008 Supreme Court 673 on the point that (1) on the increase of the rent, the suit premises brought out of the purview of DRC Act, in view of Section 3(c) and (2) for filing fresh suit for eviction under general law, issuance of notice under Section 106 of Transfer of Property Act not necessary
2. Jeevan Diesel & Electrical Ltd. vs. Jasbir Singh Chadha, 183 Delhi (2011) DLT 712 on the point that (1) there being no registered lease deed for leased premises then tenancy will be on monthtomonth basis, which could be terminated by notice under section 106 of Transfer of Property Act & (2) once service of plaint in suit to appellant taken as notice terminating tenancy, provision of Order 7 Rule 7 CPC can be applied to take notice of subsequent facts - Tenancy stands terminated after 15 days of receipt of service of summons and suit plaint
3. Bhandari Construction Co. Vs. Narayan Gopal Upadhye, (2007) 3 Supreme Court Cases 163 on the point that 'when the terms of transaction was reduced to writing, it is impossible to lead evidence to contradict its terms in view of section 91 of the Evidence Act'
4. M/s. Goyal Gas Agency Vs. M/s. Sat Prakash & Sons and Anr. , Crl. Rev. No. 1722 of 2007 D/D. 18.04.2011 on the point that within the provisions under Section 91 and 92 of the Evidence Act, 1872, 'If the contents of any compromise agreement are reduced into writing, then no amount of oral evidence is admissible for proving the execution, conditions and contents thereof except the document itself'.
10. My issuewise findings are as below:
11. Issue No. (i) & (v) (I). Whether the suit has been signed, verified and instituted by a competent person?
(v). Whether the suit is bad for misjoinder of plaintiff no. 3 being a necessary party?
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 5/23 6
12. These issues are framed on the plea of defendant no. 2 taken in Written Statement that M/s. Roop Lal Manohar Lal was not a registered partnership firm nor Manohar Lal or Satish Pal or Chander Prakash are its registered partners nor they were competent to sign, verify and institute the suit and hat plaintiff no. 3 is not a necessary party to be impleaded as a party. Thus, the onus to prove such issue is basically on the defendant no. 2.
It is observed that Sh. Tirath Raj, defendant no. 2 in his testimony by way of affidavitinevidence Ex.DW1/A has nowhere mentioned, even a whisper, on these aspects in his depositions and thus such facts brought above remained unproved. Thus, defendant no. 2 has failed to lead any evidence to prove both of his plea, taken in WS and thus, these remained mere a plea in his WS.
It is well settled principle of law as settled in case titled as Vidyadhar Vs. Manak Rao, SCC 1999 573, wherein it was observed:
"Where a party to the suit does not appear in the witness box and states in his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct"
In this case though the defendant no.2 tendered his affidavitin evidence and also came to the witness box but did not lead any evidence on the aspects raised in issues in question, thus, was not put on cross examination, hence, it proves that he had admitted the case of the plaintiff on these aspects or leads to the adverse inference that his case setup by him for the above noted plea was not correct.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 6/23 7
13. On the other hand, to establish the fact that the suit has been signed, verified and instituted by a competent person, the plaintiff through his testimony Ex.PW1/A as PW1 that plaintiffs no. 1 and 2 were the partnership firm, vide document Ex.PW1/1 to 6 and by virtue of registered partition deed dated 17.01.2004, and relinquishment deed dated 29.05.2004, one Sh. Chander Prakash became the owner of the shop in which both the firms were running business and he had executed a GPA in favour of Sh. Manohar Lal, who was also one of the partner of plaintiff no.1 to proceed with the matter and that Sh. Manohar Lal, who was one of the partners of the plaintiff no. 1 firm was made party to avoid any legal complications. These depositions were supported with the documents Ex.PW1/7 to 9.
14. It is observed that the plaint dated 29.05.2005 has been signed and verified by Sh. Chander Prakash, Sh. Manohar Lal and Sh. Satish Pal and is presented with the affidavit of Sh. Manohar Lal. Also, it is observed that the depositions of PW1 on the abovenoted facts remained unrebutted and unquestioned. And as per the documents exhibited as Ex.PW1/1 to 9, the plaintiff has duly established and proved that plaintiffs no. 1 and 2 are partnership firm, Manohar Lal is one of the partner of plaintiff no.1, Satish Pal is one of the partner of plaintiff no. 2 and Chander Prakash being the owner of the shop in which both the firms are having its office was one of the partner of plaintiff no.2 and was authorized to issue General Power of Attorney in favour of Sh. Manohar Lal to represent both the plaintiff firms no. 1 and 2. And as the plaint is signed by one Sh. Satish Pal, the partner of plaintiff no.2, Sh. Chander Prakash, who was the owner of the shop in which Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 7/23 8 both the firms are running their business and issued GPA in favour of Sh. Manohar Lal, and also by Sh. Manohar Lal, who is plaintiff no. 3 and was a partner of plaintiff no. 1, thus, a necessary party even in his authority under the GPA issued by Chander Prakash, the owner of the suit property.
Thus, it is duly proved by the plaintiff that the plaint is duly signed, instituted and verified by the authorized person.
15. Also, it is observed that it is a well settled principle of law that as per the rules framed therein Order 2 CPC two or more parties can be joined together, if these are directed against the same defendant and based on the same set of facts & documents.
Further that, within the principles of Rule 3 of Order 2 CPC, it is also a settled norm of law that a plaintiff may unite several causes of action against the same defendant in the same suit and a needless expense can be avoided specially without causing injustice to anyone, if it could be done by combining different causes of action and also different claims in the same suit. (For these observations, reliance is placed on the judicial opinion expressed in the cases titled as Mania Barick Vs. Suki Bewa, AIR 1973 Orissa 47 & Kota Shrivali Vs. Chinnisita Ramaiya, AIR 2005 Andhra Pradesh 521)
16. It is also a well settled principle of law that for the same tenancy for two or more tenaments and executed by one or more persons against the same defendant, one suit is maintainable. (Reliance is placed on principle settled in a case titled as Jamiluddin Vs. Shamshuddin cited as AIR 1999 Allahabad 150) Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 8/23 9
17. Thus, there appears no misjoinder of cause of actions or of the parties, when plaintiffs no. 1 and 2 are joined together with plaintiff no. 3, who holds the GPA from the owner of the suit property for proceedings with the matter and was also impleaded as one of the plaintiffs & is made as one of the necessary parties to institute the suit as plaintiff, thereby it can be said that the plaintiff no. 3 Sh. Manohar Lal, the GPA holder of both the plaintiff firms no. 1 and 2 and an authorized partner of plaintiff no. 1, is the necessary party, particularly when the deed of license Ex.PW1/11 i.e. a subject of the suit that is being executed between Sh. Manohar Lal & Sh. Satish Pal as a first party, being the authorized partners of plaintiff no. 1 and 2 firms, the licensor and all four defendants including defendant no. 2, collectively as a second party, the licensee with regard to the suit property. Thus, on the appreciation of evidence of the plaintiff, it is observed that it is duly established on record by the plaintiff that 2 partnership firms, plaintiff no. 1 & 2 joined together and entered into a license deed with the defendants for license with respect to the suit property.
Thus, the plaintiff has duly established that the suit is signed & verified by competent person and is not bad either for the misjoinder of causes of action or for misjoinder of parties. Also, defendants have miserably failed to prove any contrary facts and both the plea taken by defendant no.2 in the WS were mere plea, that were not proved or established.
Therefore, Issue nos. (i) & (v) are duly proved by the plaintiff and thus decided in favour of the plaintiffs.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 9/23 10
18. Issue No. VIA (viA). Whether the suit of the plaintiff is barred as no permission under section 19 of the Slum Areas (improvement ) and Clearance Act, 1956,has been taken by the plaintiff? OPD For proving this issue, the onus is explicitly laid on the defendants, but the defendant have miserably failed to discharge the burden of proving this issue, as the contesting defendant no. 2 has not led even an iota of evidence on record and nothing has been mentioned even in testimony of the sole witness DW1, in his depositions nor tendered anything to prove such issue, nor even the PW1 was even put on scrutiny on such aspects during his cross examination.
Thus, except mere a plea taken by the defendants, they had failed to establish such issue. (Here also the reliance is placed on the observations made in Vidhyadhar's case, Supra) Therefor this issue no.VIA is also decided against the defendants.
19. Issue Nos. (ii), (iii) & (iv)
(ii). Whether the license / tenancy of M/s. Hardat Rai Suresh Kumar has been duly terminated vide notice dated 15.03.2005. If so, its effect?
(iii). Whether the defendants are liable to pay the damages on account of use and occupation charges at the market rate of Rs. 12,000/ p.m. after expiry of period of notice dated 15.03.2005?
(iv). Whether the contractual tenancy continued in the name of partnership firm M/s. Hardat Rai Suresh Kumar & company who are in possession of the suit property? OPD Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 10/23 11 Issue Nos. (ii), (iii) & (iv) are taken up together, as the Issue Nos.
(ii) & (iii) are interrelated and interdependent in the manner that decision of Issue No. (ii) will decide Issue No. (iii) as of its effect, whereas Issue No.
(iv) is the defence taken by the defendant to contest Issue Nos. (ii) & (iii) and also that the evidence led by the parties, for all these three issues, is the same.
20. For proving Issue no (ii) & (iii), the plaintiffs have produced the testimony of PW1, and he has deposed that the plaintiffs no. 1 and 2 are the partnership firms and both as first party entered into a deed of license dated 01.08.1996 with the defendants as second party with respect to the suit property. It is submitted that in terms of such license deed, the defendants were permitted to enter as licensee in the suit property @ Rs. 6,000/ p.m. on specific terms of payment to be made to each of the plaintiffs @ Rs. 1,500/ fornightly and for the commercial purposes, w.e.f. 01.04.1996, for five years and the license was to expire on 20.03.2001.
Also that a legal notice dated 15.03.2005 was given to the defendant terminating the license, but despite service of such notice, defendants continued in the use and occupation of such suit property and that the plaintiffs are thus, entitled for user charges @ Rs. 12,000/ at the market rate, after terminating of such license.
21. The defendant No. 2 has contested the claim of the plaintiffs Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 11/23 12 above mentioned pleading that the plaintiffs have created a 'tenancy' and not license in 1996 with M/s. Hardat Rai Suresh Kumar, a partnership firm, but such tenancy had expired in March 2001 and after expiry of such tenancy, a new oral tenancy was created in favour of 'M/s. Hardat Rai Suresh Kumar & Company' that was a Sole proprietorship firm of Sh. Tirath Raj, the defendant no. 2, who was earlier a partner of defendant no. 1, was its proprietor and the terms of tenancy were that it was at the rate of rent of Rs.3,000/ per month for the ground floor, to be paid to Plaintiff No. 1 and Rs.3,000/ for the mezzanine floor to be paid to the Plaintiff No. 2 and that the document of tenancy Ex.PW1/11 was wrongly named as 'license deed' whereas the intentions of the parties were to create 'tenancy' and not the license.
Also that the receipt Ex.PW1/D2 to D5 were issued and such receipts of rent paid were signed by Sh. Manohar Lal, the partner of M/s. Roop Lal Manohar Lal & Company, Plaintiff No. 1 and Sh. Chandra Prakash, the partner of M/s. R. S. Trading & Company, plaintiff no. 2 and that the rent of Rs.39,000/ for 13 months and Rs.36,000/ for 12 months to Plaintiff nos 1 & 2 respectively is paid through two banks certificates Ex.DW1/1 & 2.
22. It is observed that defendant no. 2 as DW1 has not disputed the execution of document Ex.PW1/11, the deed of license dated 01.08.1996, nor its expiry in March 2001, nor its termination , but has only disputed the fact that vide such document, a 'license' was not created, rather the intentions of the parties were to create a 'lease' (tenancy) not license and that w.e.f.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 12/23 13 01.04.2001, a new tenancy was created with DW1, proprietor of M/s. Hardat Rai Suresh Kumar & Company.
23. Thus, basically the points in controversy, to determine are that :
(i).as to whether vide document Ex.PW1/11, a 'license' was created or a lease (tenancy) between plaintiffs and defendant no. 1 with all four of its partners including DW1 &
(ii).as to whether a new tenancy was created w.e.f. 01.04.2001 with DW1, as proprietor of a new proprietorship firm of M/s. Hardar Rai Suresh Kumar & Company.
24. On appreciation of evidence of DW1, the defendant no. 2 it is observed that it is not in dispute that M/s. Hardar Rai Suresh Kumar, defendant no. 1 is a partnership firm and DW1 is one of its four partners and defendant no. 1 along with all of its four partners including DW1 had executed the deed of license, in 1996, not first time rather even in 1986, the plaintiffs no. 1 and 2 as 'licensor' and the defendant No.1 with all of its four partners including DW1, as licensee, entered and duly signed the deed of license Ex.DW1/P1 in 1996, on almost all the same and similar terms except one difference that in 1986, the license fee was @ Rs. 4,000/ p.m. and Rs. 1,000/ was to be paid to each of the plaintiffs fortnightly whereas the license fee in 1996 was Rs.6,000/ per month and Rs. 1,500/ instead of Rs. 1,000/, was to be paid to each of the plaintiffs fortnightly on same and similar terms of payment of license fee.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 13/23 14
25. Also that both the document i.e. deed of license executed in 1986 and 1996, Ex.PW1/D1 and Ex.PW1/11 respectively are admitted documents, rather Ex.PW1/D1 was a document produced and put by the defendant to the PW1 in his cross examination.
26. It is also not in dispute that defendant no.1 M/s. Hardat Rai Suresh Kumar, the partnership firm with all its four partners including DW1 was in use and occupation of the suit property even in 1986 and continued in possession under these license deeds even upto March 2001 for 15 years continuously without any question regarding the word used as 'license', the plaintiffs are described as 'licensors', first party and the defendants, as license, the second party and also, these depositions were supported with the documents Ex.PW1/7 to 9 and during the course of cross examination of PW1, he remained unquestioned and thus, his testimony remained unrebutted on these facts and both the license were created only with the difference of the rate of license fee that was @ Rs. 1,000/ in the deed of license of 1986 that increased to Rs. 1,500/ in deed of 1996, the terms of payments were that it would be paid fortnightly to each of the plaintiffs.
Thus, basically, license fee fixed in 1986 was increase from Rs. 4,000 p.m to Rs. 6,000/ p.m without any change of any of the terms of payment in 15 years, in both the deeds of license executed between the parties with respect to the suit property and these facts were never disputed by the defendant and its partners at any point of time. Thus, intentions are clear and unambiguous that a license was created vide these two documents, between the plaintiffs and the defendants.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 14/23 15
27. In support of his plea of new tenancy, the defendant no. 2 as DW1 has relied on the receipts Ex.DW1/D2 - D5 of the amount paid to the plaintiff w.e.f. April 2001 upto 28.02.2002 and further payment of an amount of Rs. 39,000/ each vide cheques dated 21.03.2003 to plaintiff nos. 1 & 2 firm vide a transfer entry shown with document Ex.DW1/1, thus showing a total license fee paid in terms of deed of license after the expiry of the deed of license dated 01.08.1996, w.e.f. 1st April, 2001.
28. The mode of payment and the amount paid does not prove the plea of defendant no. 2 that a new tenancy was created on new terms. Rather, to the contrary, these facts match to the depositions of PW1, in his testimony, that vide deed of license dated 01.08.1996, the license was commenced w.e.f. 01.04.1996 and to be terminated on 20.03.2001 and w.e.f. 01.04.2001, on the oral request of the Second Party i.e. Defendant No. 1 firm, the license was allowed to be extended to the licensee for a further period but as there was an irregular payment of license fee, the Plaintiffs had disclosed its intentions for not extending the license any more and that the defendant No. 1 should handover the peaceful possession of the suit property to the plaintiffs and thus, a legal notice dated 15.03.2005 was given in 2005.
29. Also, it is observed that the legal notice terminating the license was duly served through the documents exhibited as Ex.PW1/12 to 17A and DW1 has admitted that the address mentioned on the UPC were correct and that they have received the correspondence on that address as mentioned on Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 15/23 16 Ex. PW1/12 to 17A. Thus, it is clear that the defendant No. 1 and its partners were in receipt of the notice and were duly informed about the termination of tenancy vide such notice.
30. 'License' by nature of its term connotes a permissive use only upto the period such permission is not being terminated. Thus, clearly it is established on record that the deed of license dated 01.08.1996 vide which the 'license' with respect to the suit property granted to defendant No. 1 and of its partners had expired in March, but continued with further period with extension, but it was duly terminated vide notice dated 15.03.2005.
Thus, the contention of the counsel for the defendant No. 2 that under the nomenclature of 'license' a 'tenancy' was created between the plaintiffs and the defendant No. 1 under the deed of license dated 01.08.1996 cannot be upheld.
Further, defendant no. 2 had taken a plea that defendant No. 1 was a partnership firm with DW2 i.e. Sh. Tirath Raj as one of four partners at the time of extention of deed of license dated 01.08.1996 but after its expiry in March 2001, as such partnership firm was dissolved, by then and a new proprietorship firm M/s. Hardat Rai Suresh Kumar & Company was created under his proprietorship and a new oral tenancy was created with the plaintiffs and him as proprietor of the new firm on new term of payment of rent @ Rs.3,000/ per month for ground floor and Rs.3,000/ per month for the mezzanine floor and for ground floor, the rent was to be paid to Plaintiff No. 1 and for the mezzanine floor, the rent was to be paid to Plaintiff No. 2.
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31. It is observed that onus to prove this issue No. (iv) was on the defendant who had to prove, through independent affirmative evidence, above noted facts pleaded and deposed by the DW1 in his testimony.
32. On appreciation of evidence, it is observed that the defendant no. 2 has not produced any documentary evidence to support of the deposition of DW1 that defendants No. 1 firm that was admittedly a partnership firm with DW1 as one of its partners at the time of execution of the deed of license dated 01.08.1996, or even in 1986 as per deed of license Ex.PW1/D1, was dissolved and if so, at what point of time / year, it was dissolved.
It is observed that it was admitted by DW1 during cross examination that defendant No. 1 firm was an Income Tax Assessee, but no documents have been produced to prove that such firm that was an Income Tax Asessee, was ever dissolved. Also, no documents have been produced to show that w.e.f., 01.04.2001, M/s. Hardat Rai Suresh Kumar, defendant No. 1, the partnership firm was dissolved and that DW1, one of its partners was permitted to work as a Sole Proprietorship firm in the same suit property with the same business.
33. It is a well settled principles of law that the party that takes a plea has to produce the best evidence to prove such plea, in view of law settled in Gopal Krishnaji Ketkar V/s Mohamed Haji Latif & Ors. cited as AIR 1968 SC 1413 wherein it was observed that :
"Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 17/23 18 throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to reply upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issue in controversy and to rely upon the abstract doctrine of onus of proof. ..."
It is observed that the defendant no. 2 admits that he was one of the partners of defendant no.1, who was one of the executant of deed of license dated 01.08.1996 shows his ignorance about the execution of such deed and claims that such firm was dissolved but he does not prove this fact as to when he ceased to be its partner before it became the sole proprietor of new firm using its name and was working with the same business in the same place of business.
34. It is observed that as per the depositions of DW1, after dissolution of defendant No. 1 that was a partnership firm, a new tenancy was created with plaintiffs for the proprietorship firm with a changed name adding '& Company' to the name of defendant No. 1 firm M/s. Hardat Rai Suresh Kumar. In the above noted circumstances when DW1 deposed that he did not know whether this fact was informed to the plaintiff that the earlier firm of defendant No. 1 has been dissolved and a new firm i.e. a proprietorship firm with the same name but adding '& Company' to its earlier name has been created. The contradiction of the depositions is clear.
Further, DW1 is heavily relying on the receipts Ex.PW1/D2D5 submitting that receipts were issued in the name of M/s. Hardat Rai Suresh Kumar & Company, but these receipts mentions the receipt of payment as a Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 18/23 19 'license fee' and not as a 'rent' and for the same amount as used to be paid earlier prior to 01st April, 2001. That shows that these receipts were issued to a licensee and not to a lessee and under the old terms as of the deed of license, these receipts do not prove that a tenancy was created in the name of M/s. Hardat Rai Suresh Kumar & Company.
Ld. Counsel for the defendant has heavily relied on the depositions of PW1 that he has admitted that a new tenancy was created, but PW1 voluntary clarifies that the word '& Company' was added as the defendant No. 2 i.e. Sh. Tirath Raj told to his brother to add '& Company' with the name of the firm of M/s. Hardat Rai Suresh Kumar, defendant No.1.
Ld. Counsel for the plaintiff has relied upon the judgments i.e. Bhandari Construction Co. Vs. Narayan Gopal Upadhye, (2007) 3 Supreme Court Cases 163 & M/s. Goyal Gas Agency Vs. M/s. Sat Prakash & Sons and Anr. , Crl. Rev. No. 1722 of 2007 D/D. 18.04.2011, submitting that when the terms of transaction was reduced to writing, it is impossible to lead evidence to contradict its terms in view of section 91 of the Evidence Act and that within the provisions under Section 91 and 92 of the Evidence Act, 1872, if the contents of any compromise agreement are reduced into writing, then no amount of oral evidence is admissible for proving the execution, conditions and contents thereof except the document itself.
I find strength in the contentions of Ld. Counsel for the plaintiff that in case, some contents of the agreement have been reduced into writing, then the contrary ocular evidence is of no consequence to that effect.
35. It is further observed that DW1 has admitted during his Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 19/23 20 examination that he had never informed the plaintiff either regarding dissolution of the defendant no. 1 firm or creation of his new firm as proprietor firm, thus in the totality of facts, as per facts established on record through the testimony of PW1 & DW1, it is clear that during the issuance of the receipts of license fee, the issuing person was not clear that that there was a change of the 'nature' of firm of defendant no. 1 from partnership firm to proprietorship firm of defendants no. 2, as it was never informed that there was any change of firm, if the words '& Company' were added in the name of defendant no. 1 firm in the receipts of license fee & such receipts were issued without any intentions or understanding that there was any change of the licensee i.e. defendants No. 1 firm that was given an oral extension of 11 months of such license for which in terms of the deed of license dated 01.08.1996, the license fee was deposited as per receipts Ex.PW1/D2D5 and vide bank certificates Ex.DW1/1 & 2.
Thus, the defendant No. 2 who is contesting the suit as defendant No. 2, in the capacity of a partner of defendant No. 1 that never asked or sought leave to amend his pleading or to change the name of the party by moving appropriate application under Order 1 Rule 10 CPC.
Thus, as per record, Sh. Tirath Raj, has appeared in the suit as defendant No.2, one of the partners of the defendant no.1 and not in the so capacity of the proprietor of any new firm as pleaded.
36. The defendant No. 2 has not taken any pain to prove or produced any document to establish that defendant No. 1 who was a licensee under the two license deeds with the plaintiffs since 1986 in the suit property, suddenly Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 20/23 21 dissolved on expiry of such deeds in March 2001 and w.e.f. 01.04.2001 a new firm i.e. Sole Proprietorship Firm under the proprietorship of Sh. Tirath Raj defendant No. 2 was created without any documents or registration or any other document to show such facts or changes.
37. This is also beyond imagination, as to how the parties i.e. Plaintiffs through their partners as first party and defendant No. 1 firm through their partners as second party who were under the relationship of 'licencor licensee' with regard to the suit property since 1986 for 15 years suddenly changed the 'license' into the 'tenancy' but on the same terms and conditions as incorporated in the two deeds of license dated 01.02.1986 and 01.08.1996 and one of the partners of the defendant no.1 has started pleading that under the wrong nomenclature in the deed of license it was a tenancy and not a license. The draft that also being produced in the list of documents as DW1/P2 dated 13.02.1991 show a number of changes/corrections made by the parties at different places but there is no cutting or changes suggested by anyone at the place of word 'license' to make it a 'lease' or 'tenancy', that proves the intentions of the parties entering into the deeds of license, that it was never intended to be a tenancy rather was a license.
38. Thus, from the facts and circumstances brought on records, the intentions of the parties to enter into relationship with regard to the suit property through the two deeds of license dated 01.08.1996 & 1986 were clear that they wanted to create a 'license' with regard to suit property and not the 'lease' or 'tenancy'.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 21/23 22 Further, the defendant no. 2 has relied heavily on the admission in ocular evidence of PW1, regarding creation of new tenancy in the name of defendant w.e.f., 01.04.2001, but on the face of the two documents i.e., deeds of license in 1986 & 1996, when the terms of the contract were converted into a document, then in view of the provisions of Section 91 & 92 of Evidence Act and the settled law on these points that 'once the intentions / agreement between parties are reduced into the written document, then there is no scope to infer the contradictory intentions on the basis of any contradictory facts even if brought through ocular evidence of any witness, the ocular evidence of PW1, that a new tenancy was created in favour of defendant no. 1 cannot be upheld, when deed of license dated 01.08.1996 mentioned it clearly / explicitly as a license.
39. Thus, from the preponderance of probabilities as brought through the evidence of the parties, the plaintiffs have duly proved that a license was created vide deed Ex. PW1/11 and the same was duly terminated vide legal notice dated 15.03.2005. Also that the defendant No. 2 has miserably failed to establish that there was contractual 'tenancy' and not the license ever created for defendant no.1 and constituted in the name of new firm M/s. Hardat Rai Suresh Kumar & Company at any point of time.
Thus Issue No. (ii) & (iv) are decided against the Defendants and go in the favour the Plaintiffs.
40. So far as the claim of the plaintiff regarding the rate of damages for the use and occupation of the suit premises is concerned, the plaintiff has Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 22/23 23 claimed damages for user charges @ Rs. 12,000/ per month from the defendants for use and occupation of the suit premises, after termination notice dated 15.03.2005, but the plaintiff has miserably failed to produce any positive independent evidence to substantiate its plea regarding quantification of the user charges @ Rs. 12,000/ per month to establish that this was the market rate, but it is established on record that the defendants are in use and occupation of the suit premises, even after serving of notice regarding termination of license on 15.03.2005.
Thus, the plaintiff is entitled for damages in the form of mesne profits for use and occupation of the suit premises from the defendants. In the absence of any substantive evidence of market rate, it can safely be assumed that the plaintiff is atleast entitled for user charges @ license fee, as per deed of license dated 01.08.1996 executed between the parties. Therefore, the user charges @ Rs. 6,000/ per month are permitted w.e.f. 15.03.2005 till the date of vacation of the suit premises.
41. The other judgments relied upon by Ld. Counsels for the parties are based on the distinguishable facts and circumstances as are related to the factum of tenancy and the instant case is 'of license', not the tenancy as such, thus, the judicial opinions expressed therein are not applicable to the facts and circumstances of the present case and therefore are being discussed herein.
Thus, issue no.(iii) is decided in favour of the plaintiff, accordingly.
Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 23/23 24 Issue No. (vi):
Relief
42. In view of my findings on issues no. (i) to (vi) including viA, as all the issues are decided in favour of the Plaintiffs and against the defendants, thus the suit of the plaintiff stands decreed.
43. Resultantly, Plaintiff is entitled for the decree against the defendants as under:
i) for the recovery of the possession of the suit property.
ii) for the recovery of the user charges @ Rs.6,000/ per month for the use and occupation of the suit property w.e.f. 15.03.2005 till the date of its vacation.
iii) An interest on the principal sum as calculated in (ii) as above, @ 12.5% p.a. from the date it became due till its realization.
iv) A permanent injunction against the defendants restraining them to part with the possession of the suit property to anyone except that to the Plaintiff in any manner till it is handed over to the plaintiff.
No orders as to costs.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha)
st
31 Day of March, 2014. Addl. District Judge (Central03) Tis Hazari Courts / Delhi 31.03.2014 Suit No. 432/2008 M/s. Roop Lal Manohar Lal Vs. M/s. Hardar Rai Suresh Kumar 24/23