Delhi District Court
Sh. Madan Lal Sethi vs Madhu Manak Tala on 16 October, 2014
In the Court of Additional District Judge02, South District,
Room No. 602, Sixth Floor, Saket Courts Complex, New Delhi
In the matter of :
RCA No. 02/14
Sh. Madan Lal Sethi, S/o Sh.Lala Dayal Chand Sethi,
R/o B110, Malviya Nagar, New Delhi 110017.
...... Appellant
(defendant no.1 in the original suit)
Versus
Madhu Manak Tala, W/o Mr. Punit Manak Tala
R/o B106, Malviya Nagar, New Delhi 110017
...... Respondent
(plaintiff in original suit)
AND
RCA No. 01/14
Sh. Chandan Kumar Singh, S/o Sh. Arun Kumar Singh,
R/o B106, Malviya Nagar, New Delhi - 110017.
...... Appellant
(defendant no.2 in the original suit)
Versus
Madhu Manak Tala, W/o Mr. Punit Manak Tala
R/o B106, Malviya Nagar, New Delhi 110017.
...... Respondent
(plaintiff in original suit)
Date of filing : 04.07.2014
Date of Institution : 04.07.2014
Decision reserved on : 25.09.2014
Date of decision : 16.10.2014
RCA No. 02/14 and RCA No. 01/14 Page 1 of 21
JUDGMENT
(on appeal against judgment/decree dated 26.03.2014 of Court of Civil Judge01, South District, Saket, Delhi) 1.1 (Case of the parties and issues before the trial court) Respondent / plaintiff Ms. Madhu Manak Talla filed civil suit no.554/2014 (original no.358/ 2011) for possession, mesne profit and damages and injunction in respect of part of property (more specifically delineated red in the site plan Ex.PW1/1, lying in the suit file; hereinafter referred as the suit property) bearing no.B106, Malviya Nagar, New Delhi. The plaintiff and appellant / defendant no.1 were knowing each other, having treatment and regards as sister and brother, the defendant no.1 had to reconstruct his building at B110, Malviya Nagar, New Delhi and on the request of defendant no.1 in October, 2006, the respondent/plaintiff gave the suit property with permission to store cold drinks and selling them with the assistance of his son and/or servant/appellant/ defendant no.2, on a lump sum monthly charges of Rs.10,500/ excluding electricity charges, and some portion of the suit property was occupied by the defendant no.1 for the purpose of making stay of his servant/defendant no.2 temporarily during period of reconstruction of his house. The appellant / defendant no.1 was to return the premises on the completion of construction in his plot, but he failed, consequently two legal notices dated 27.08.2010 and 08.03.2011 by registered post (Ex.PW1/6 and Ex.PW1/7, were sent appellant/ defendant no.1, besides a separate legal notice dt.08.03.2011 to appellant/ defendant no.2. (the AD card are Ex.PW1/8 collectively in respect of notices Ex PW1/7). The suit property was not vacated and handed over to the RCA No. 02/14 and RCA No. 01/14 Page 2 of 21 respondent/plaintiff.
1.2 The appellants / defendants 1 & 2 filed their separate written statements, while denying the facts and allegations of the suit. The appellant/defendant no.1 claimed that he was inducted as a tenant in two shops bearing no.3 and 5 on a monthly rent of Rs.1000/each shop, neither he was a permissive user nor the use and occupation charges were at the rate of Rs.10,500/ p.m, consequently provisions of the Delhi Rent Control Act were applicable and jurisdiction was barred of Civil courts. He was never served with any legal notice as alleged. The appellant/defendant no.2 was neither inducted by him in the premises nor he was his servant but he was an independent businessman, whom the appellant/defendant no.1 was supplying Coke, Pepsi and other beverages for his retail business, as appellant/defendant no.1 was carrying wholesale business. The appellant/ defendant no.2 is an independent tenant in the other portion in his occupation.
Similarly, the other appellant/defendant no.2 states that he is independently in possession of two room, one kitchen, bathroom, toilet located on the backside of ground floor of the said property, it was on monthly rent of Rs. 1800/, which was subsequently increased to Rs.2000/ pm. The other fact narrated by him are alike appellant/defendant no.1 vis a vis that respondent is not owner of the suit property.
Whereas, the respondent/plaintiff reaffirmed her case by way of replication while denying the case of defendants/appellants. RCA No. 02/14 and RCA No. 01/14 Page 3 of 21 1.3 (Issues and evidence of the parties before trial court) The trial court framed the following issues for determination :
1. Whether the present suit is barred by Section 50 of DRC Act, 1956? OPD12
2. Whether the present suit is liable to be stayed under section 10 of the CPC? OPD12
3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?
4. Whether the defendant no.1 is a tenant of the plaintiff in the suit property? OPD1
5. Whether the defendant no.2 is a tenant of the plaintiff in the suit property? OPD2
6. Whether the plaintiff is entitled to recover of possession of the premises from the defendant? OPP
7. Whether the plaintiff is entitled to recovery of Rs.1,05,000/ towards arrears of leave and license fee? OPP
8. Whether the plaintiff is entitled to relief of permanent injunction, as prayed for ? OPP
9. Relief.
In order to establish the issues, the respondent/plaintiff entered into the witness box as PW 1, the appellant/defendant no.1 entered into the witness box as DW1, the other appellant/defendant no.2 examined himself as DW2; they also got examined two witnesses namely DW3 Sh. Ashish Chaudhary (who was one of the tenant of respondent) and DW4 Sh. B.S. Chopra, a shop keeper. Then evidence was closed.
1.4 (Findings given by trial court) - The onus to prove issue no 1, 2 , 4 and 5 was on the defendants, the onus to prove issue no.6,7 and 8 was on the plaintiff, the issue no.3 with regard to valuation of the suit was kept open for RCA No. 02/14 and RCA No. 01/14 Page 4 of 21 both sides, as per the nature of this issue. The trial court of Ms.Tanvi Khurana, Civil Judge01, South, Saket, by decree/judgment determined all the issues one by one by holding that appellants/defendants no.1 and 2 could not establish their issues 1, 2, 4 and 5. Consequently it was held that the appellants/defendants no.1 and 2 were not a tenant in the suit property to be governed by the provisions of the Delhi Rent Control Act. The plaintiff could not establish issue no.8 in respect of permanent injunction, it was determined against respondent/plaintiff. However, respondent/plaintiff proved other issues no. 6 and 7, therefore, suit was decreed for other relief of recovery of possession and arrears of leave and license & damages @ Rs.2,000/ pm from August 2010 from each defendant/appellant till possession is given to the plaintiff, in favour of respondent/plaintiff and against the appellants/ defendants no.1 and 2 and also held that the rate of amount was Rs.2000/ pm as admitted/pleaded by the defendants. It was also held that the suit was valued properly and accordingly issue no.3 was disposed off. (This appeal court had also called report from the trial court, about deficiency of court fee,if any, the report received from trial court is placed on record that no deficiency is there till the suit was decreed). The trial court in its 44 page judgment, has also reproduced relevant extract of record or evidence for return of appropriate findings.
Now, the present appeals have been filed separately by the appellants/defendants, however both the appeals are taken together because of common feature, evidence (particularly of appellants and their witness) and grounds of appeal. As per contents of both of the appeals, issue nos. 2 & RCA No. 02/14 and RCA No. 01/14 Page 5 of 21 3 have not been challenged nor there is cross objections by the respondent/plaintiff on the point of issue no.8, therefore, the appeals are being adjudicated on issues (i.e. no.1,4,5,6 and 7) assailed in appeals. 4.1 (Plea in appeal RCA no.2/14) - The appellant Madan Lal Sethi assails the impugned judgment/decree by way of detailed appeal, but in nutshell the trail court failed to appreciate the evidence on record and totality of circumstances based on preponderance of probabilities are leaning towards the appellant that he was never a licensee in the suit property but a tenant on a monthly rent of Rs.1000/ for each shop, consequently he is governed by the provisions of Delhi Rent Control Act. The trial court failed to take cognizance of law and evidence together and consequently the established plea of appellant has not been appreciated in right prospective, the judgment has been tendered against the appellant by ignoring the cannon of law and principle of natural justice. That is why the appellant is suffering a lot, which cannot be compensated in terms of money. Firstly the appeal was referred before Hon'ble High Court of Delhi but it was not properly presented there, it was returned by the registry, then it was represented in the District Court and in the meantime delay had happened which was bonafide, it is to be condoned, that is why the separate application u/s 5 of the Limitation Act was filed to condone the delay.
4.2 (Plea in appeal RCA no.1/14) - Although this appellant filed his separate appeal but there are common facts and grounds mentioned by him alike RCA No. 02/14 and RCA No. 01/14 Page 6 of 21 other appellant/defendant no.1. (Although some of the facts which were pertaining to other appellant, were mentioned as of this appellant alike in written statement to suit, but court is considering the case of this appellant as facts narrated by him intending to put or put during evidence). 4.3 Both the appellants are reiterating their case, alike presented before the e trial court but the grievances that the facts and evidence has not been appreciated by the trial court in right prospective nor law has been invoked in consonance.
4.4 (Reply of respondent/plaintiff) The respondent filed reply to each of the appeal and application, which reiterate the case of plaintiff as presented before the trial court vis a vis she denied all the averments of appeal that the trial court has rightly concluded the findings on disputed issues. It does not require to reproduce them, since respondent/plaintiff's case has already been introduced.
4.5 Further plea of both the sides will be taken on the forthcoming paragraph in order to avoid repetitions.
5.1 (Arguments of appellants/defendants no.1 and 2) - Sh. Anuj Garg, counsel for appellants presented the case on behalf of both appellants. It is a case of tenancy between the respondent/plaintiff and appellant/defendant no.1 in respect of two shops on a monthly rent of Rs.1000/ each and another case of tenancy between the respondent/plaintiff and appellant / defendant RCA No. 02/14 and RCA No. 01/14 Page 7 of 21 no.2 in respect of other portion/two room sets in the property on a monthly rent of Rs. 2000/. The respondent/plaintiff in her cross examination admits that there is exclusive possession of appellant/defendant no.1, it infers that it is a case of tenancy and it can never be a case of license but it was concluded otherwise by the trial court. The appellant was to reconstruct his house and respondent/plaintiff admits that it was constructed during 20082009, which much earlier to filing of the suit on 26.5.2011, the appellant was never asked to vacate the property which infers that tenancy was created; otherwise it is also admitted by the respondent/plaintiff in her cross examination that appellant / defendant no.1 was having shop from one Mr.Naseer Ahmad at corner of Malviya Nagar, New Delhi, prior to coming to the suit property, therefore there was no nexus that the suit property was taken by the defendant no.1 for period during reconstruction of his building. Moreover the shop no.3 and 5 is located along and adjacent other shops, which are on rent, it clearly goes in favour of the appellant/defendant that the suit property was let out to them on rent alike other shops. The other appellant/defendant no.2 is occupying his independent portion let out to him on a monthly rent of Rs. 2000/, the circumstances are also leaning and proving that he was inducted as a tenant in other portion of the property. The defendant no.2 had his independent source of income, there is no evidence by the respondent that appellant/defendant no.2 was servant of defendant no.1, in fact defendant no.2 is an income tax payee having annual receipts from Chandan Tours and Travels, having turn over more than Rs.6 lac per annum vis a vis defendant o.2 is having paid salary of Rs. 2,00,000/ pa duly RCA No. 02/14 and RCA No. 01/14 Page 8 of 21 narrated by direct oral evidence of witnesses DW3 and DW4 but there was no cross examination on behalf of plaintiff, it stand established. (It is relevant stage to mention here, when arguments were in progress but it could not completed by appellants, the matter was adjourned, on one of the adjourned date, the appellant after arguments for about 40 minutes, filed an application u/O XLI rule 27 CPC was filed to lead additional evidence to prove turn over and salary of defendant no.2, by reasoned order it was dismissed on 12.9.2014 and on subsequent date on 22.9.2014 another application under Order VI Rule 17 CPC was filed to amend the written statement, however the same was dismissed by reasoned order dated 22.9.2014 by this court). Otherwise, there is no cross examination of witnesses DW3 and DW4 with regard to annual return and income of defendant no.2, consequently it stands established the case of appellants, therefore, the impugned decree/judgment dated 26.03.2014 is liable to be set aside. The suit is abuse of process of law, it is case of clever drafting and the plaintiff/respondent in order to harass the appellants, tried to project case of lease in place of case of lease, but she could not succeed. The delay in filing the appeal is also to be condoned. 5.2 Yesterday, the appellants' counsel also filed eight cases (stating at Bar that copies have been sent to respondent's counsel in advance), to fortify the contentions made during arguments, the same are as follows (I) Associated Hotels of India Ltd Vs R N Kapoor AIR 1959 SC 1262 held, that lease is a transfer of an interest in land, the interest transferred is called the lease hold interest and lessee get rights to the exclusions of lessor. Whereas in case of license it gives right to use RCA No. 02/14 and RCA No. 01/14 Page 9 of 21 the property in a particular way or under certain terms, while it remains in possession and control of owner thereof; the legal possession continues to be be with the owner of he property but the licensee is permitted to make use of the premises for a particular purpose. It does not create in his favour any estate or interest in the property.
(II) Bharat Petroleum Corporation Ltd Vs MCD 64(1996) DLT 237in para 8, interpretation of sec. 105 of TPA has been reproduced as - (a) it is a transfer of an interest in an immovable property whereby the lessee becomes entitled to the enjoyment of of such immovable property, (b) it carries alongwith it a right to the exclusive possession thereof, (c) the aforesaid transfer is for a consideration (d) the existence of the said movable property is a condition precedent for the creation of a lease. On the other hand, a license is (I) simply a permission to do or continue to do some thing over the immovable property, which in the absence of such a license would be a trespass, (ii) A license is personal to the licensee, who consequently has got no power to sub let, (iii) unlike a lease, a license comes to an end alongwith death of the licensee and (iv) the licensee has no legal status in land. (III)V Chandrasekaran Vs Administrative Officer 2012 (12) SCC 133 while dealing with writs and appeals , under the provisions of section 5A, 11 and 16 of the Land Acquisition Act, 1894, it is held that the appellants have not approached the court with clean hands, and not entitled for relief claimed. Whenever a person approaches a court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives.
(IV)Ram Prakash Gupta Vs Rajiv Kumar Gupta 2007 (8) SLT 620 in appeal qua Order VII rule 11 CPC, it is held that the trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power U/O VII rule 11 CPC RCA No. 02/14 and RCA No. 01/14 Page 10 of 21 taking care to see that the ground mentioned therein is fulfilled, If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly U/O X of the Code.
(V) A Shamnmugam Vs Ariya Kshtria Civil App No. 40124213/2012 dod 27.4.12, while dealing with sections 34, 144 CPC and section 27 r/w article 65 of Schedule to the Limitation Act, on adverse possession vis a vis practice in civil courts, held, the duties and obligation of parties and court was laid down that it is bounden of the parties to investigate and satisfy themselves as to the correctness and authenticity of the matter pleaded vis a vis duty of court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The must effectively discourage fraudulent and dishonest litigants.
(VI)Kalvyaneshwari Vs Union of India 2011 (3) SCC 287 while dealing with public interest litigation, it was held on lack of bonafide that a petition which lacks bonafide and is intended to settle business rivalry or is aimed at taking over of a company or augmenting the business of another interested company at the cost of closing business of other units in the garb of PIL would be noting but abuse of the process of law. Further, every litigant who approaches the court, owes a duty to approach the court with clean hands and disclose complete facts. (VII)Panchu Gopal Barua Vs Umes Chandra Goswami AIR 1997 (SC) 1041 On the principle of equity, held, a party who seeks relief of equity must come to the court with clean hands. A court of equity must so act as to prevent perpetration of a legal fraud and it is expected to do justice by promotion of honesty and good faith, as far as it lies within its power.
(VIII)Anant Kaushal Vs Krishna Sharma 2013 (136) DRJ 57 held that while considering application U/O VII rule 11 CPC that the court is not expected to act mechanically as a mere automation and to merely go RCA No. 02/14 and RCA No. 01/14 Page 11 of 21 by the literal meaning of the words and expressions used by the plaintiff in the suit. It is expected to take a holistic view of the pleadings and to consider whether after taking the pleading as a whole and reading plaint in realistic manner, it can be said that the plaintiff indeed had knowledge of the defendant's refusal to perform at an earlier point of time, even though he may have mentioned a later date as giving rise to a cause of action in his favour.
5.3 (Plea of respondent/plaintiff) The plaintiff by way of reply followed by oral submissions by counsel Sh. Purshottam Kumar, advocate opposed the application and appeals. Firstly, the application to condone the delay runs in many paragraph but grounds of appeal are mentioned as ground for condonation of delay, it is not proper and application is burden with unnecessary details of grounds of appeal in this application; secondly, the complete record has not been furnished before the court to make the conclusion under what circumstances appeal was filed before Hon'ble High Court of Delhi, instead of in the first court of appeal before ld. District Judge,Delhi.
So far other grounds of appeal are concerned the same are not tenable under the law as a few grounds have been repeated in other expression or the like, which is not tenable. There is no merits in the appeal. The appellants produced total four witnesses, complete opportunity was given for hearing at all stage from pleading till final hearing, how principle of natural justice has been denied to them. It is admitted case of appellants, as DW2 in his cross examination admits that he was never let out the property by plaintiff nor he was asked by the plaintiff to vacate the same and the trial RCA No. 02/14 and RCA No. 01/14 Page 12 of 21 court has reproduced in judgment those admitted facts / position from paragraph 11 of the affidavit of DW2 as well as his cross examination. Similarly DW1 / appellant also admits that he was given the suit property on the eve of reconstruction of building, he was operating his shop at corner of Mr. Naseer Ahmad and came to the suit property after leaving his shop, it suffice to establish that he was never let out the property on rent. It is also admitted case of appellants that there was relation of like brother and sister between the defendant no.1 and the plaintiff and because of previous antecedents the suit property was given to defendant no.1. The use and occupation charges were paid by cash, which is also not disputed. The suit property was given on license basis, which stand revoked and canceled by legal notices which stand proved but the suit property was not vacated by the appellants. This appellant court has also rightly dismissed the application for leading additional evidence because in the statement of DW3 and DW4 certain facts were introduced, which were never pleaded by the appellants in their written statements and the trial court has also rightly observed that witnesses DW3 and DW4 cannot be believed because of their inconsistent stand bis a vis for want of inspiring confidence. The appeals are liable to be dismissed heavy costs. This is the substance of the reply and oral arguments of respondent/plaintiff.
6.1 (Findings on both appeals) The rival contentions on appeals of both the sides are assessed, in the light of material on record in the form of record, evidence of the parties vis a vis the findings given by the trial court, RCA No. 02/14 and RCA No. 01/14 Page 13 of 21 since trial court record is available, besides the provisions of law and precedent/case law.
6.2 There is delay in filing the appeal. As appears, the appellants were advised and they filed appeal before Hon'ble High Court of Delhi, which was returned by the Register. To dispose off these appeals on merits, lenient view is exercised and delay in filing the appeals is condoned. 6.3 Both the parties are trying to plead and project their cases like appellants say it is a case of tenancy/lease and there are two premises of shop no.3 and 5 on monthly rent of Rs.1000/ each with appellant/defendant no.1 and it is another case of tenancy of defendant no.2/appellant of remaining two room set on the back of said property on monthly rent of Rs. 2000/. Since rent of each premises is below Rs.3,500/, the provisions of the Delhi Rent Control Act, 1958 are applicable. The respondent/plaintiff's case is of license of suit property, given to defendant no.1 for tenure during re construction of building of defendant no.1 vis a vis permitted him to make temporary stay of his servant, however, he was pay leave and license charges of Rs.10,500/ excluding electricity. The license was revoked vis a vis arrears were claimed, but appellant failed. Thus, the core question raised is, whether it is case of license or of tenancy?
6.4. What is lease of property or its durations, it is defined U/s 105 and 106 of the Transfer of Property Act, 1882; the premises is defined U/s 2(f) of the Delhi Rent Control Act, 1958 and what is License, is defined in RCA No. 02/14 and RCA No. 01/14 Page 14 of 21 section 51 of the Indian Easement Act 1882. By reading them together and on their comparative study, it can be concluded that in case of lease of property or premises on rent, the parties creates right and obligations in the property, whereas in case of license, the license does not grant any right in the property but makes the licensee a permissive user of the property. In other words, the license is personal in nature between the licensee and the licensee, but in case of lease or rent, the relations are in respect rights or obligation qua the property. Moreover, the principles of lease and license have also been laid down as law in the following precedents/case law: *Delta International Ltd Vs. Shyam Sunder Ganeriwala 1999 III AD SC 521 Lease and License - held that there is thin line between lease and license. However test is to see the intention of parties, written document, surrounding circumstances, words expressed in agreement, if so.
**Chinnan & others Vs. Ranjithammal. AIR 1931 Madras 216 - held, on section 59 of the Indian Easement Act 882, that License is not annexed to property nor it is transferable or heritable right. Licensor parting with property or licensee dying, Licensee comes to an end. License is a right purely personal between the grantor and licensee. ***Chandu Lal Bal Krishan Madan Mohan, Mohan Lal Vs. MCD 1978 RLR 278 dod 09.11.1977 - Section 52 Easement Act r/w section 105 TPA A held that a person who is given possession of a property, as a licensee cannot claim the status of a Lessee. The rule is that once a licensee is always a licensee. On the expiry of the license, occupant becomes a trespasser and can be thrown out by permissible self help. 7.1 With the introduction of position of law of lease or license and rival claim of the parties, now the features of the case on record are to be RCA No. 02/14 and RCA No. 01/14 Page 15 of 21 analyzed. First of all, it is vehemently urged on behalf of appellants that there is no cross examination to the direct evidence of DW3 and DW4 in respect of independent business of defendant no.2 of M/s Chandan Tours and Travels, which suffice to establish that the case of tenancy of the premises in occupation of defendant no.2 vis a vis a case of tenancy of defendant no.1. However, such strong emphasis of appellants is misplaced, rather it reflects malafide on the part of appellant/defendant no.1, because (a) admittedly by witnesses, the affidavits of witnesses DW3 and DW4 were got drafted by defendant no.1; (b) neither the defendant no.1 nor the defendant no.2 in their own written statements or in affidavits uttered a single word about operation of M/s Chandan Tours & Travel, or its annual sales of Rs.6 lacs or annual salary of Rs.2 of defendant no.2 (c) it was first time the said DW3 and DW4 introduced these facts in their affidavit, but during cross examination they clarified, they are not knowing M/s Chandan Tours and Travels or its annual turnover or annual salary of defendant no.2 nor seen any record to this effect vis a vis affidavits were got prepared by Madan Lal Sethi, (d) the appellant/defendant no.2 in his statement U/O X CPC in other suit no. 208/10 (MarkB, in the trial court file) deposed that " I supply cold drinks for Madan Lal Sethi on commission basis" but DW2 in his cross examination denies this fact in the suit under challenge in appeal. It is settled law that evidence beyond pleading cannot be taken into consideration, as held in Brij Mohan Vs Sunil Gupta 138 2007 DLT 217. The appellants by way for their applications U/O XLI rule 27 CPC for additional evidence and another application U/O VI rule 17 CPC by proposing amendment, in the middle of arguments, made an RCA No. 02/14 and RCA No. 01/14 Page 16 of 21 abortive attempts to introduce those aspects. With this exclusions of evidence, now further merits of the appeals are taken. 7.2 In view of position of law and features of the case, for the following additional reasons, it is held that it is case of license & its revocation and not of lease or tenancy, thus the findings returned by trial on issue no. 1,4,5,6 and 7 are confirmed: (A1) The appellant/defendant no.2 in his written statement claims to be tenant but in his evidence/affidavit claims that he was not inducted in the portion of suit property by respondent/plaintiff and further confirms in his cross examination that he has no right to stay in the property. He also admits in his cross examination that there is no privity of contract between him and respondent/plaintiff. He does not mention then how he came into the property, therefore, it confirms the case of respondent/plaintiff. (A2) There is no explanation by appellant/defendant no.2 in his pleading or evidence, as to when he was inducted in the suit property, (A3) However, appellants' witness DW3 says in examination in chief that in 2006 when appellant/DW2 was in search of residence on rent, DW3 sent him to respondent/plaintiff. Then DW3 and DW4 claim in their examination in chief that respondent/plaintiff confirmed them that defendant no.2 had taken the portion on monthly rent. However, DW3 could not qualify his statement during cross examination, either it was with regard to whereabouts of defendant no.2 or his income as the affidavit was got prepared by defendant no.1 for him. Similarly, DW4 could not stand to the test of cross examination, either with regard to status or income of appellant/defendant no.2 but he signed affidavit, which was prepared by defendant no.1 in respect of rate of rent, he was even not knowing what is material narrated in his affidavit, prepared by defendant no.1. Otherwise, appellant/defendant no.2 never narrated his case either in his written statement nor in his affidavit as projected by DW3 and DW4 in their affidavit. To say, new case has been introduced by appellants through their witnesses. In addition, appellant/ RCA No. 02/14 and RCA No. 01/14 Page 17 of 21 defendant no.2 states that he was resident of AS83/433, Indira Camp, Begumpur, New Delhi and he has voter of that place.
(B1) Appellant/defendant no.1 admits that he applied to authorities for sanction for reconstruction of his House No. B110, Malviya Nagar, Delhi in 2006 and after having permission, he got it completed in 2008; he took the suit property from the plaintiff. Plaintiff/PW1 also explained that defendant no.2 was allowed in back portion of suit property by defendant no.1 in October 2008, but there is no contrary cross examination. Appellant / defendant no. 2 / DW2 admits that he has been knowing other appellant / defendant no. 1 since 2002.
(B2) He/defendant no.1 was operating his business from a shop of Mr. Naseer Ahmad at Corner of Malviya Nagar, New Delhi and after leaving the said shop, he came in the suit property. Thus, there is clear nexus that defendant no.1 had not only left the shop of Mr. Naseer Ahmad but also his house was also being constructed in same phase of time, when suit property to was given to him.
(B3) Appellant / defendant no.1 / DW1 in his pleading and affidavit of examination in chief narrates not only his own case but also the plea of defendant no.2 but during cross examination DW1 says that he does not know in what capacity the defendant no.2 was present in the portion of suit property.
(B4) Appellant/defendant no.1 admits that he has not made any payment after July 2010 and he had also not filed any application U/s 27 of the Delhi Rent Control Act.
(B5) It is also the plea and case of appellant/defendant no.1 himself that he was not permitted by the respondent/plaintiff to get registration with MCD, instead the respondent got herself registered.
(B6) The appellants claims to be tenants because of exclusive possession, but it has to be assessed with other factors also, which are establishing RCA No. 02/14 and RCA No. 01/14 Page 18 of 21 case of license. When a permissive user is allowed to use the premises, with or without consideration, no interest is created therein, despite licencee is using the premises.
(C1) The appellant/defendant no.1 admits that acknowledgment card (Ex PW1/8) bears correct address and other appellant/defendant no.2 admits that A/D cards (Ex PW1/8 colly), bears his signature, the same are in respect of legal notice dated 7.3.2011 posted on 8.3.2011 to the appellants. Although the appellants had denied the notices, however, respondent/plaintiff proved the postal receipts and A/D cards, carrying correct addresses of the appellants vis a vis it has been admitted by defendant no.1. It establishes the plea of respondent/plaintiff that legal notices were served upon them. Therefore, the onus shifted on the appellant no.1 to prove that he had not received the legal notice but they failed. Thus, they had received notice of revocation of license and to pay charges.
(C2) None of the appellants has replied the legal notices. In Kalu Ram Vs Sita Ram (1980 RLR Note 44, dod 2.5.1980), it has been held by Hon'ble High Court of Delhi, that if the plaintiff before filing suit makes serious assertions in a notice, then the defendant must not remain silent by ignoring to reply, if he does so, then adverse inference may be raise against him. It applies to the situation in hand, since there is no reply by any of the appellants to the notice, while narrates facts alike plaint. Otherwise, the respondent/plaintiff has proved her case against the appellants. (C3) The appellants/defendants cross examined plaintiff/PW1 on the terminology of 'lease' and 'license', which she explained in common meaning that license is for permissive user for short duration and tenancy is usually for fixed period vis a vis she had given the property on license basis. (C4) There is no evidence showing that respondent/plaintiff and appellant/defendant no.1 had intended to create lease or relationship of landlord and tenant or the respondent/plaintiff had intention to let out on lease or rent but circumstances have established case of license, which stand revoked.
RCA No. 02/14 and RCA No. 01/14 Page 19 of 21 (D1) Ld counsel for the appellants have placed reliance on reasons given in case law/precedent on point of Order VII rule 11 CPC, whereas it is appeal after complete trial, wherein appellants had entered into witness box and they got examined two witnesses.
(D2) Principles of pleadings and evidence are equally applies to the appellants/defendants, in fact the appellants transgressed beyond their pleadings, by introducing new case through the witnesses DW3 and DW4. (D3) The written statements of defendants/appellants are identical, however, during cross examination of appellant/defendant no.2, he came out with facts that he was not inducted in the suit property by respondent/plaintiff. 7.3 It would not demerit the case of respondent/plaintiff of license of suit property nor the suit property is to be treated on lease basis, in case adjacent property/shops were let out on rent. Further, it would also not demerit the case of respondent, in case the property was sealed by MCD. 8.1 Accordingly, both the appeals are dismissed, the appellants will bear their costs of appeal. The judgment will be of in each file. However, because of peculiar circumstances appearing from record and considering the case of appellants, although it is first appeal, but it warrants to impose cost on each appellants, which is quantified as Rs.5,000/ per appellant and accordingly, it is imposed to be payable to respondent/plaintiff within one month, failing which it may be recovered as per law. Decree sheet be drawn accordingly. A copy of judgment be certified to trial court and record called be also sent back.
RCA No. 02/14 and RCA No. 01/14 Page 20 of 21 8.2 The appellant/defendant no.1 had deposited fixed term deposit of Rs.80,000/ and appellant/defendant no.2 had deposited fixed terms deposit of Rs. 60,000/ in the name of court of Additional District Judge, Delhi accounts of appellants (at the time of admission of appeal), let the same be sent to trial court for its discount with upto date interest to be released to the respondent/plaintiff, since trial court is also executing court, where execution petition is pending, however, such amount shall be adjusted toward total amount recoverable. The trial court will be at liberty to do needful, including the correspondence with the concerned Bank(s) in respect of amounts lying there.
File be consigned to record room.
Announced in the open Court (Inder Jeet Singh)
on Asvina 24, Saka,1936 Addl. District Judge02 (South), Saket
New Delhi / 16.10.2014
RCA No. 02/14 and RCA No. 01/14 Page 21 of 21
RCA No. 02/2014
16.10.2014
Present : Ms. Bhawna Verma, Proxy counsel with appellant.
Proxy counsel for respondent / plaintiff.
Vide separate judgment announced today, the appellant's appeal, along with another appeal, is dismissed. The appellant will bear the cost of appeal. However, because of peculiar circumstances appearing from record and considering the case of appellant, although it is first appeal, but it warrants to impose cost on each appellants, which is quantified as Rs. 5,000/ and accordingly, it is imposed to be payable to respondent/plaintiff within one month, failing which, it may be recovered as per law. Decree sheet be drawn accordingly.
File is consigned to record room.
(Inder Jeet Singh) ADJ02 (South), Saket New Delhi / 16.10.2014 RCA No. 02/14 and RCA No. 01/14 Page 22 of 21 RCA No. 01/2014 16.10.2014 Present : Ms. Bhawna Verma, Proxy counsel for appellant.
Proxy counsel for respondent / plaintiff.
Vide separate judgment announced today, the appellant's appeal, along with another appeal, is dismissed. The appellant will bear the cost of appeal. However, because of peculiar circumstances appearing from record and considering the case of appellant, although it is first appeal, but it warrants to impose cost on each appellants, which is quantified as Rs. 5,000/ and accordingly, it is imposed to be payable to respondent/plaintiff within one month, failing which, it may be recovered as per law. Decree sheet be drawn accordingly.
File is consigned to record room.
(Inder Jeet Singh) ADJ02 (South), Saket New Delhi / 16.10.2014 RCA No. 02/14 and RCA No. 01/14 Page 23 of 21