Delhi District Court
Sh. Kanshi Ram vs Sh. Manjeet on 21 December, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTHWEST),
ROHINI COURTS, DELHI.
ARCT No. 41/12
Sh. Kanshi Ram
s/o Late Sh. Amar Singh
r/o SE8, Village Singalpur
Shalimar Bagh, Delhi110088 ........Appellant
Vs.
1. Sh. Manjeet
s/o Sh. Daya Singh
r/o Gali No. 15, Swaroop Nagar
Delhi.
2. Sh. Brij Bhushan
s/o Sh. Kunj Bihari Lal Dass
r/o Room No. 23, Ground Floor
SE9, Village Singalpur
Shalimar Bagh, Delhi110088 ..........Respondents
Date of institution : 28.04.2012
Date of hearing arguments : 16.12.2013
Date of Judgment : 21.12.2013
ARCT No. 41/12 Page 1 of 16
JUDGMENT
1. The appellant has filed the present appeal against the Judgment dated 12.03.2012 passed by the Ld. ARC, Rohini Courts, Delhi, in case entitled "Kanshi Ram vs. Manjeet & Ors, bearing suit no. E438/06/03.
2. The facts briefly stated are that the appellant (petitioner before the Ld. Trial Court) is the landlord of the suit premises i.e. Room No. 23 situated on the ground floor of property bearing No. SE9, Village Singalpur, Shalimar Bagh, Delhi 110088 as shown in red colour in the site plan. It is further stated that respondent No.1 is a tenant in the suit premises which has been let out to him at the monthly rent of Rs. 900/ excluding other charges. The respondent no.1 is not occupying the suit premises and has sublet, assigned or parted with possession to the respondent no.2 without the consent of the appellant/petitioner and the respondent no. 2 is in possession of the suit premises. It is further stated that respondent has defaulted in payment of rent since 01.05.1999 and the respondent has neither paid nor tendered the arrears of the rent despite repeated demands by the petitioner. It is further stated ARCT No. 41/12 Page 2 of 16 that the respondent has failed to pay or tender the rent w.e.f. 01.05.99 @ Rs.900/ per month within two months despite service of the legal demand notice dated 31.05.03.
3. On these allegations, the appellant/petitioner filed the eviction petition u/s 14(1)(a) & (b) of Delhi Rent Control Act, 1958, against the respondents, which was dismissed by the Ld. Addl. Rent Controller vide Judgment dated 12.03.2012. Hence, the present appeal.
4. Notice of the appeal was issued to both the respondents. However, only respondent no. 2 appeared before the Court whereas respondent no. 1 did not appear before the Court and as such, vide Order dated 01.06.2012, respondent no. 1 was proceeded ex parte.
5. I have heard Ld. Counsel for the appellant and respondent no. 2 and have gone through the impugned Judgment passed by Ld. ARC as well as the entire record.
6. Ld. Counsel for the appellant submitted that the Ld. Trial Court has committed a grave error in holding that the appellant/petitioner is not able to prove the existence of relationship of landlord and tenant between the ARCT No. 41/12 Page 3 of 16 appellant/petitioner and respondent no. 1, despite the fact that the pleadings/documents on record, very well establish that there exists the relationship of landlord and tenant between the appellant/petitioner and respondent no. 1.
7. Ld. Counsel for the appellant further submitted that the Ld. Trial Court has failed to appreciate that the appellant/petitioner has categorically stated and deposed that respondent no. 1 had sublet the suit property to respondent no. 2, therefore, it was upon respondent no. 2 to prove that he is not the sublettee which he miserably failed to do so.
8. Ld. Counsel for the appellant, in support of the case of the appellant, has relied upon the following Judgments :
(i) Celina Coelho Pereira & Ors. vs. Ulhas Mahabaleshwar Kholkhar & Ors., reported in 2009 XI AD (SC) 545;
(ii) Life Insurance Corporation of India vs. Bharat (Sales) Ltd., reported in 1995(1) RCR 422;
(iii) Dial Singh vs. Amrish Kumar, reported in 1995(1) RCR 527;
(iv) Vaishakhi ram & Ors. vs. Sanjeev Kumar Bhatiani, reported in JT 2008(3) SC 242;
(v) Dharampaul vs. Vinod Kumar Mathrawala, reported in ARCT No. 41/12 Page 4 of 16 2000(1) RCR 556;
(vi) Santosh Devi vs. Vir Chand, reported in 1996(1) RCR 225;
(vii) Unni Vacco vs. Thankamma Gregory, reported in 2003(2) RCR 254;
(viii) Hanuman Ji Ka Bara Mandir vs. Nagar Mal & Anr., reported in 2004(2) RCR 101;
(ix) Mukesh Seth & Anr. vs. A.B. Lal & Sons & Ors., reported in 2010 (117) DRJ 12;
(x) M/s Nath Oil Co. & Ors. vs. Smt. Kailash Rani Kapoor & Ors., reported in 82 (1999) DLT 936;
(xi) Biswantah Poddar vs. Archana Poddar & Anr., reported in AIR 2001 SC 2849;
9. Ld. Counsel for respondent no. 2 has also relied upon the following Judgments :
(i) Celina Coelho Pereira & Ors. vs. Ulhas Mahabaleshwar Kholkhar & Ors., reported in AIR 2010 SC 603;
(ii) Elofic Sales India vs. Punjab National Bank, in CM(M) No. 2130/2006 dated 08.04.2010;
(iii) Sarabjit Singh vs. Ms. Gurpal Kaur, in MAT. APP. 73/2009 dated 27.07.2012;
ARCT No. 41/12 Page 5 of 16
(iv) Sebastiao Luis Fernandes (Dead) through LRs & Ors. vs. K.V.P. Shastri (Dead) through LRs & Ors., in Civil Appeal No. 6183 of 2001 dated 10.12.2013;
(v) Som Dutt vs. Smt. Sharma Devi & Anr., in RFA No. 198/2009 dated 13.08.2013;
10. It is a well established principle of law that u/s 38 of the DRC Act, the Addl. Rent Control Tribunal is to act as an Appellate Court only on a question of law. In this regard, our Hon'ble Delhi High Court observed as under in 'Ram Dulari thru. L.Rs'. Vs. Om Parkash Gupta and Anr.
MANU/DE/1017/2010:
"12. I also consider that the learned Additional Rent Control Tribunal exceeded its jurisdiction by entering into an area which was prohibited . It is prohibited for Additional Rent Control Tribunal to re appreciate the facts and change the finding of fact given by Additional Rent Controller."
Also, in Kulwant Singh and Anr. Vs. Arjun Singh MANU/DE/9677/2006, our Hon'ble Delhi High Court observed as under :
ARCT No. 41/12 Page 6 of 16
"7. If the matter is examined in terms of aforesaid, it will be found that it is not the function of this Court to re appraise the evidence. There are concurrent findings by both the courts below, i.e., the ARC and the ARCT. In fact, under Section 38 of the said Act, the ARCT is to act as an Appellate Court only on a question of law."
Furthermore, in Dr. Mrs. Sushil Puri and Ors. Vs. Shri Jai Gopal and Ors.MANU/DE/9637/2006, our Hon'ble Delhi High Court observed as under :
"9. An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has been abolished."
And also in Smt. Kiran Sajjan and Ors. Vs. Smt. Swarnkanta Mahajan MANU/DE/9022/2006, our Hon'ble Delhi High Court observed a under :
"5. It cannot lose sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms ARCT No. 41/12 Page 7 of 16 of the legislative intent as a conscious decision in December, 1988 prior whereto the appeal was both on an error of law. These aspects have been emphasised to set forth the contours within which the impugned orders have to be scrutinised."
11. In this appeal, the appellant has not raised any question of law, but even otherwise I have perused the record. The Ld. Trial Court has specifically taken relevant and material extract of the evidence produced by both the parties and the other facts in the impugned Judgment. The Ld. Trial Court has also taken into consideration and noted down that during pendency of the proceedings, the signatures on document Ex. AW1/2 and the signatures of the person on the written statement of respondent no.1 and on the vakalatnama were sent to CFSL, Rohini, Delhi, for comparison and the Director of FSL, Rohini gave his report dated 09.04.10. The Ld. Trial Court, in view of the pleadings, evidence and documents proved on the record, correctly as per law examined the question, " whether there exists relationship of landlord and tenant between the appellant/petitioner and respondent no. 1". The appellant/petitioner has only proved the rent receipt Ex. AW1/2. Respondent no. 1 in his written ARCT No. 41/12 Page 8 of 16 statement though has not disputed his relationship, however, respondent no. 1 was proceeded ex parte and failed to appear in the witness box. The Ld. Trial Court has taken into consideration the defence of respondent no. 2 who stated categorically that respondent No.1 is an imaginary person , who has been arrayed by the petitioner just to evict the respondent no.2 from the suit premises.
12. The appellant/petitioner has relied upon the rent receipt Ex. AW1/2 to prove the existence of relationship of landlord and tenant, however, during the pendency of the proceedings before the Ld. Trial Court, respondent no. 2 moved an application u/s 45 of the Indian Evidence Act which was allowed and the FSL gave its conclusive report that, "the person who wrote red enclosed signatures stamped and marked A1 to A6 (admitted signatures of Manjeet Singh) did not write the red enclosed signatures similarly stamped and marked Q1 i.e. rent receipt". The Ld. Trial Court has correctly held that the onus to prove the existence of respondent no.1 was upon the petitioner. The petitioner has relied upon the rent receipt Ex AW1/2. However, the FSL report raises the shadow of doubt upon the ARCT No. 41/12 Page 9 of 16 rent receipt filed by the petitioner. It is a fact on the record that the appellant/petitioner has not placed on record any other document to prove the existence of relationship of landlord and tenant with the respondent no.1 .
13. It is a well settled proposition of law that the initial onus is on the person who alleges that the document was executed by the persons whose names appear thereon as the executant. But where these persons admit their endorsement on the blank paper, the onus is very easily shifted. There can be no dispute that the petitioner has to establish his own case. He has to stand or fall on the basis of evidence led by him. Merely because the respondent does not establish his case, petitioner does not automatically succeed. Significantly, in this case also respondent no. 1 did not contest the proceedings, but taking into consideration the rent receipt Ex. AW1/2 and the FSL report as well as the defence of respondent no. 2 that respondent no. 1 is a fictitious person brought by the petitioner just to evict the respondent No.2, the appellant/petitioner has failed to prove the necessary ingredient i.e. the existence of relationship of landlord and tenant between the parties. The stand of the respondent no. ARCT No. 41/12 Page 10 of 16 2 is more probable that the respondent no. 1 is an imaginary person in view of the report of FSL because it is specifically stated by the Director FSL in his report that the signatures on the rent receipt filed by the petitioner, the written statement and the vakalatnama filed by the respondent no.1 does not match and are of not the same person. Therefore, it is clear that the signatures on the rent receipt and on vakalatnama and on the written statement are of the different person which also prove that the petitioner has filed and relied upon a forged and fictitious document. I do not find any flaw in the findings of the Ld. Trial Court to this extent. The appellant/petitioner has not placed and also has not pointed out any document before this Court to establish the identity of respondent no. 1 and/or has not examined any other independent witness to substantiate his claim to prove the existence of relationship between appellant/petitioner and respondent no. 1.
14. The findings of the Ld. Trial Court are based upon the record proved before it by the parties. The admission of respondent no. 1 is of no help to the case of the appellant/petitioner in view of the FSL report on the record, as ARCT No. 41/12 Page 11 of 16 discussed herein above.
15. It is a fact on the record that the appellant/petitioner did not lead any independent evidence before the Ld. ARC in support of his case. The suits on the civil side are decided on the basis of preponderance of probability. The burden of proof in such cases is not to be discharged as conclusively as would be expected in a criminal trial.
16. The burden of proof has two distinct meanings - Namely
(i) as a matter of law and pleadings, and (ii) as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and S. 102 with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstances which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on ARCT No. 41/12 Page 12 of 16 that basis to make a just order. It would thus appear that though the legal burden, the burden as a matter of law and pleadings remains constant on the claimant the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses.
17. The burden of proof is not static, and may shift during the course of the evidence. Thus, while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side i.e. on the evidence on record.
18. It is well settled proposition of law that onus to prove sub letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out, it would then be for the tenant to rebut the evidence. Thus, in the case of subletting, the onus lying on the landlord would stand discharged by adducing prima facie proof of the fact that the alleged subtenant was in exclusive possession of the premises or, to borrow the language of Sec. 105 of the Transfer of Property Act, was holding right to enjoy such ARCT No. 41/12 Page 13 of 16 property. However, in the present case, onus to prove primarily lies upon the appellant/petitioner by adducing prima facie proof of the fact that there exists relationship of landlord and tenant between the appellant/petitioner and respondent no. 1 and respondent no. 1 has sub let the premises to respondent no. 2. It is relevant to mention here that the appellant as AW1 in his cross examination before the Ld. Trial Court has stated that he does not have any documentary proof regarding the alleged sub tenancy created by respondent no. 1, but earlier he was having the documentary proof regarding the alleged subtenancy. It is further stated by the appellant in his cross examination that he is having the documentary proof regarding the respondent no. 1 being a tenant in the suit premises which is rent receipt filed by him as Ex. AW1/2. However, in view of the above discussions, the rent receipt i.e. Ex. AW1/2 cannot be relied upon and the appellant has failed to produce any documentary proof to prove the relationship of landlord and tenant between the appellant/petitioner and respondent no. 1. Similarly, the appellant/petitioner admittedly has also not filed any proof regarding the alleged subtenancy created by respondent no. 1. ARCT No. 41/12 Page 14 of 16 The appellant is bound to produce the best evidence. In this case, as discussed herein above, the appellant/petitioner has failed to prove that there was relationship of landlord and tenant between the appellant/petitioner and respondent no. 1 which is most necessary ingredient for grant of relief u/s 14(1)(a) & (b) of the DRC Act.
19. In the matter of Ramchandra vs. Rajendra Shrikrishna Deshmukh & Ors, (2007) 6 Supreme Court Cases 737, the Hon'ble Supreme Court has held that "any suit for possession on strength of titleburden of proof was on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court was also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions".
20. The Judgments relied upon by the appellant/petitioner are not applicable to the present case in view of the facts of the present case. The findings of this Court and are of the Ld. Trial Court do not amount to the expression that respondent no. 2 is ARCT No. 41/12 Page 15 of 16 the owner of the suit premises. The petition has been dismissed only on the ground that the appellant/petitioner has failed to prove the relationship of landlord and tenant between the appellant/petitioner and respondent no. 1.
21. Hence, I do not find any reason to interfere in the findings of Ld. Trial Court. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellant.
22. In the result, I hold that this appeal is devoid of any merits and is accordingly dismissed. However, parties are left to bear their own costs. Record of the Trial Court be sent back alongwith an attested copy of the Judgment passed today. Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court
today i.e. 21.12.2013 (CHANDER SHEKHAR)
Distt. & Sessions Judge (NorthWest)
Rohini Courts, Delhi
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