Delhi District Court
Sh. S. S. Gupta vs The Vaish Co-Operative New Bank Ltd on 28 March, 2012
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: DELHI
RCA NO. 2/11
UID No. 02401C0127642011
Sh. S. S. Gupta
S/o. Late Shri J. S. Gupta
R/o. Flat No. 290, SFS
Hauz Khas, New Delhi-110016
............Appellant
Versus
The Vaish Co-operative New Bank Ltd.
Registered Head Office at :
7-B, Netaji Subhash Marg
New Delhi-110002
Through its Secretary or
Other Principal Officer
..........Respondent
Date of institution of appeal : 19/03/2011
Date of reserving for order : 19/03/2012
Date of pronouncement : 28/03/2012
JUDGMENT
1. The present appeal has been preferred by the appellant against impugned judgment dated 07/02/2011, whereby the suit of the appellant was dismissed.
2. The appellant/plaintiff has filed the present suit before ld. trial court with facts mentioning therein that the appellant let out the premises to the respondent/defendant w.e.f. 01/06/1972. The original tenancy was RCA No. 2/11 Page 1 of 13 for a period of three years w.e.f. 01/06/1972. Lastly, an unregistered lease deed was executed in terms of tenanted premises vide agreement dated 08/10/1988 for renewal of the lease for the period 01/06/1988 to 31/05/1991. No fresh lease deed was executed after 08/10/1988 and the rent was agreed to be enhanced by 10% every three years in terms of the provisions of Delhi Rent Control Act 1958 (as amended in the year 1988). The rent was exclusive of water and electricity charges. The rent was lastly enhanced from Rs. 3476/- per month to Rs. 3823/ per month w.e.f. 01/06/2006. Vide letter dated 07/06/2006, the respondent tendered rent of Rs. 3,823/- by way of two pay orders, both dated 07/06/2006 for Rs 3,720/- and Rs. 103/- for the month of June, 2006.
3. In the written statement filed before the ld. trial court, the respondent claimed the protection of provisions of Delhi Rent Control Act and challenged the jurisdiction of the court on the basis of Section 50 of Delhi Rent Control Act. It is further stated that the respondent is not a tenant of the appellant in respect of single tenancy and as such the suit as filed for the entire premises is bad for mis-joinder of the cause of action because two different cause of action cannot be joined with each other and the claim made in the present suit is not definite. It is further stated that the respondent was a tenant of the appellant in respect of two different tenancies in respect of the mezzanine floor and as such the allegation that the respondent was a tenant of the appellant in respect of the mezzanine floor as stated is false and incorrect. It is further stated that the portion which was having rent of Rs. 103/- per month was not effected by the provisions of Section 3 (c) of the Delhi Rent Control Act and was protected under the provisions of Delhi Rent Control Act. Service of notice was also disputed.
4. In replication to the written statement, it is submitted by the appellant RCA No. 2/11 Page 2 of 13 that the premises in question is one tenancy as the premises is single, contiguous as the remaining portion of the mezzanine floor was purchased by the respondent. It is further stated that merely on the ground of tendering of two pay orders, no inference could be drawn for two tenancies as impliedly suggested by the respondent in the written statement. It is further stated that an additional area of 60 sq. feet was devolved upon the appellant by way of partition and the said area was already under tenancy of the respondent. It is further stated that the respondent had agreed to pay proportionate rental of the said additional area to the appellant under an agreement dated 16/09/1973 which is a tripartite agreement between the erstwhile owner, the appellant and the respondent. The demarcating wall of the earlier tenancy and the additional area was removed by the respondent. There was no intention of two tenancy at any point of time.
5. The trial court vide order dated 08/02/2007 framed following issues :
"i) Whether suit of the plaintiff is barred under the provisions of DRC Act, 1958 or Delhi Co-operative Societies Act, 2003 ? OPD
ii) Whether suit of the plaintiff is bad on account of misjoinder of cause of action ? OPD
iii) Whether plaintiff is entitled for a decree of ejectment against the defendant in respect of suit property ? OPP
iv) Whether plaintiff is entitled to mesne profits, if so, at what rate and for what period ? OPP
v) Relief."
6. The crux of the whole dispute falls within issues no. 1 and 2 and the parties are at dispute upon issue no. 1 as disposal of both these issues will decide the fate of entire dispute between both the parties. During arguments, the appellant has also challenged the findings of ld. trial court mainly on both these issues as the findings given by ld. trial court on both these issues, has decided the entire dispute between the RCA No. 2/11 Page 3 of 13 parties.
7. Sh. Vijay Kumar Gupta, counsel for the appellant and Sh. A. P. Aggarwal, counsel for the respondent have advanced arguments on the grounds of appeal at length.
8. For disposal of issues no. 1 and 2, this court perused the plaint and in the plaint in para 5 and 6, the case of the appellant is that the rent was lastly enhanced from Rs. 3,476/- per month to Rs. 3,823/- per month w.e.f. 01/06/2006 and the respondent tendered rent of Rs. 3,823/- by two pay orders, one of Rs. 3,720/- and the other of Rs. 103/-. It is not explained by the appellant in the plaint what was the reason for tender of the rent by the respondent by two pay orders. This court perused replication filed by the plaintiff/appellant where in para 5 of the replication, it is stated that 60 sq. feet was devolved upon the appellant by way of partition and the said area was already under tenancy of the respondent. Thus, prior to devolve upon the appellant the area of 60 sq. feet, the appellant did not have this 60 sq. feet. It is further the case of the appellant in the replication that an agreement dated 16/09/1973 was a tripartite agreement between the erstwhile owner, the appellant and the respondent. The agreement is on the record which is Ex. P6. The same is perused. It is mentioned in the agreement that the appellant was already tenant of mezzanine floor of the property and after partition between the appellant and the erstwhile owner, the 60 sq. feet fallen to the lot of the erstwhile owner. It is further mentioned that till the tenancy of the respondent continuous, rent of Rs. 51.82 for the said 60 sq. feet as proportionate rent shall be paid. It is also mentioned in the agreement that at that time, the respondent was paying the rent of the portion already under the tenancy was Rs. 300/- per month. After partition, the respondent was paying rent of Rs. 248.18 to the appellant per month for the rent of the RCA No. 2/11 Page 4 of 13 portion which was fallen to his lot whereas Rs. 51.82 per month was directed to be payable of the rent as property was held by the appellant of erstwhile owner. Thus, in the agreement Ex. P6 itself mentioned about the bifurcation of rent of the portion already under the tenancy of the respondent and 60 sq. feet fallen after partition into the lot of the appellant. It is further mentioned in the replication that since the said portion of 60 sq. feet was already under the tenancy of the respondent, the appellant merged the said 60 sq. feet area with the existing tenancy and he proportionate rental of 60 sq. feet was added to the existed rent of the remaining portion, so as to make a single tenancy of the while area. However, this court is at loss to understand why such fact has not been mentioned in Ex. P6 which was the very first document executed among the parties regarding the tenanted portions/premises. Nothing is mentioned about any merger of tenanted premises in Ex. P6. Rather, in Ex. P6, there was bifurcation of rent of the tenanted premises i.e. there was separate rent provided for 60 sq. feet and for other remaining portion. Prior to agreement Ex. P6, the rent was Rs. 300/- p.m. but by virtue of agreement Ex. P6, the rent was bifurcated for Rs. 248.18 p.m. and Rs. 51.82 p.m. for tenanted premises mutually partitioned by Ex. P6. In case, if it was not the intention of the parties at the time of execution of Ex. P6, then there would not be any necessity for bifurcation of rent in agreement Ex. P6. In such circumstances, it was also not the necessity of the parties to mention separate rents of 60 sq. feet as well as the remaining portion of the tenanted premises. Moreover, this court further observes that what stopped the appellant to mention about the merger of the tenanted portions in the plaint itself. Plaint does not mention about such facts which were later on mentioned in the replication to refute the allegations of the respondent made in the written statement. In such RCA No. 2/11 Page 5 of 13 circumstances, all such allegations of merger of tenancies in replication, appeared as an after thought. It is only after filing of written statement, the appellant has brought all such facts in his replication.
9. Moreover, the plaint is silent altogether regarding merger of the premises as well as reasons for mention of two rate of rents in Ex. P6 except mutual partition. This court further observes that the suit was filed by the appellant in the year 2006 whereas the appellant along with the suit also filed documents. However, as per list of documents filed along with replication which was filed in the year 2007, the appellant brought Ex. P6 and rent receipts in the year 2007. Thus, initially the appellant did not come before the court with all complete facts. But when the respondent appeared and revealed the facts in the written statement, to counter those facts, the appellant had filed these documents along with replication. In the replication, the appellant set entirely different case by incorporating allegation of merger of the tenanted portions. It is not stated by the appellant when the rent was increased lastly. Rent receipts are perused carefully. In the rent receipts, there is only mention about the particulars of the suit premises as well as mentioned regarding mezzanine floor but nothing has been mentioned in the rent receipts regarding the tenanted portions. Admittedly, the last rent receipt was executed up to year 1991. Thereafter, it was the case of the parties that the rent was paid through pay orders.
10. It is the further case of the appellant that an unregistered lease deed was executed on 08/10/1988. The said agreement is on the record which is Ex. P5. The said agreement is perused. In this agreement, there is mention of rent as Rs. 2,100/- per month. However, nothing has been mentioned regarding total area of the tenanted premises. Similarly, there are other agreements on the record which are Ex. P1, RCA No. 2/11 Page 6 of 13 P2, P3 and P4, but in all these agreements, there is no mention either about merger of the tenanted premises or the exact area of the tenanted premises. The ld. trial court referred Ex. P101 and P102. Both are letters written by the respondent to the appellant on 20/10/1999 where it is mentioned that the rent of the portion of the premises was increased from Rs. 70/- to Rs. 77/- and from Rs. 2,541/- to Rs 2,795/-. Thus the respondent increased the rent for two different tenanted premises but there was no single enhancement of rent. This document filed by the appellant before the court and thus appellant admits about these documents. There was no protest on behalf of the appellant regarding separate enhancement of rents by the respondent. Ex. P103 is a letter dated 08/09/99 by the respondent to the appellant wherein it is categorically mentioned that two portions were taken on rent by the respondent. Ex. P106 is another important document written by the appellant himself to the respondent wherein the appellant categorically mentioned that two portions were taken on rent separately but subsequently, the respondent started paying rent by one cheque. There is another letter written by the respondent to the appellant when the respondent informed to the appellant that two portions of the building were occupied by the respondent and the rent was being paid for both portions by different rate of rents. Similar intention expressed by the respondent in Ex. P111 and Ex. P112. In Ex. P113 also there was mention of two different rate of rent. Similarly, in other documents also there are mentioned of two different rate of rents. Appellant further relied upon Ex. P125 wherein the rent was sent by the respondent to the appellant by two different pay orders. It is submitted on behalf of the appellant that there is nothing mentioned about two different portions but only mentioned about in the letter 'for head office premises'. This court further observes that there is no RCA No. 2/11 Page 7 of 13 protest or any objection by the appellant raised for dispatch of rent by the respondent by two different pay orders. In all the correspondence between the parties, the rate of rent were referred different and rent was also sent or dispatched through separate pay orders/ cheques. Moreover, Ex. P106 also mentions that two portions were taken on rent.
11. DW1 stated in para 2 of Ex. DW1/A that there were two different tenancies and there was never single tenancy in respect of both the portions. The rent was twice paid by two different pay orders to the appellant by the respondent. During entire cross-examination of DW1, there was no challenge on behalf of the appellant to the fact that appellant had ever protested for payment of rent by two pay orders or the rent was paid for both the premises separately. During cross- examination, it is also admitted by PW1 that the entire premises which is in the possession of the respondent was not let out by him at one time directly.
12. The ld. trial court has made observation in page 19 of the impugned judgment that the appellant is not able to show that there was a single consolidated tenancy. This court also agrees with the findings given by ld. trial court inasmuch as the appellant is not able to produce any letter or document for merger of the tenanted portions.
13. Ld. counsel for the appellant further relies upon the notice Ex. P127 and submits that the said notice has not been replied by the respondent despite service. As a proof of service, he further relies upon Ex. P130 which is AD card bearing seal of the respondent and also his signatures thereon. On the other hand, ld. counsel for the respondent vehemently submits that the said notice was never served by the respondent. He has submitted that DW1 during cross- examination categorically stated that the seal on Ex. P130 is not of the RCA No. 2/11 Page 8 of 13 bank and it a forged seal. To rebut this piece of evidence, the appellant did not take any step to prove the service of Ex. P127 upon the respondent. Ld. counsel for the appellant relies upon Section 114 of Indian Evidence Act and submits that the court has to draw presumption. On the other hand, ld. counsel for the respondent refers Fakir Mohd. Vs. Sita Ram AIR 2002 Supreme Court and submits that since the person posted the notice has not appeared as a witness and, therefore, Section 114 of Indian Evidence Act has no application in the present case. He further relied upon Mangaldas Pitamberdas Rana Vs. Nalinkumar Mugallal Jayaswal CRA No. 681 of 1973 Gujarat High Court, wherein it was held :
"I am convinced that it is the duty of the landlord to terminate both the tenancies by giving different an distinct particulars in regard to each tenancy, though it may be open to given only one notice. From this view point, I did peruse Ex 31 and I did not find any such particulars in respect of each tenancy in the said notice to quit. In this view of the matter, Mr. Majmudar is right in bringing to the notice that in the instant case, the notice to quit is bad in law."
14. During further arguments, ld. counsel for the respondent submits that the evidence of the appellant cannot be looked into as the appellant tendered in his evidence affidavit Ex. PW1/A and the said affidavit has not been sworn in upon the knowledge of PW1. He further submits that the affidavit sworn in without stating therein which contents of the affidavit are true and correct as per the knowledge of the deponent, is no affidavit in the eyes of law. He further submits that the present memorandum of appeal has been verified upon the knowledge and belief without mentioning therein which paras have been verified upon the knowledge of the appellant and which paras have been verified upon belief of the appellant explaining therein the source of belief, is no affidavit in the eyes of law. To substitute this plea, he relies upon Hira Lal Vs. Amarjit Singh 1977 Rajdhani Law Reporter 520, wherein it RCA No. 2/11 Page 9 of 13 was held :
"........ It has been held over and over again that affidavits must be either affirmed as true to knowledge or from information received provided the source of information is disclosed, or as to what the deponent believes to be true provided that the grounds for such belief were stated. Such Affidavits where the verification lacks the essential requirements are valueless.
3. The Supreme Court in AKK Nambiar v. Union of India and another, AIR 1970 Supreme Court 652 observed as follows :
"...... The reasons for verification of affidavit are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence......."
15. He further relies upon Caetano Dias V. Caetano Rodrigues AIR 1978 Goa, Daman and Diu 12, wherein it was held :
".......The Supreme Court and High Courts have framed rules for making affidavits. Under such rules verification is compulsory. However, such verification would be necessary also in affidavits filed in support of interlocutory orders in view of the provisions of O. 19 CPC which clearly require that the facts deposed in the affidavit must be such that the deponent is able of his own knowledge to prove. The Punjab High Court has held in Bhupinder Singh v. State of Haryana, AIR 1968 Punj 406 that the provisions of O. 19, R. 3 should be strictly observed and affidavits which are violative of the requirements of the mandatory provisions of law deserve to be ignored. The High Court observed that the words that the contents of the affidavit :are true and correct to the best of my knowledge and belief" carry no sanctity and such a verification cannot be accepted".
16. He further relies upon M/s. Sunder Industries and another v. M/s. General Engineering Works, New Delhi AIR 1982 Delhi 220, wherein it was held in para 6:
"6. Order 19 Rule 3 (1) of the Civil P. C. provides, "Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated". Thus RCA No. 2/11 Page 10 of 13 affidavits are either affirmed as true to knowledge, or from information received provided the source of information is disclosed, or as to what the deponent believes to be true provided the grounds for such belief are stated. If the affidavits lack such verification it is of no use. In A. K. K. Nambiar v Union of India, AIR 1970 SC 652, it has been observed that if affidavits were not properly verified they cannot be admitted in evidence. It, therefore, must be held that two affidavits filed on behalf of the plaintiff are valueless."
Thus, in view of the observations made herein above, there is no infirmity in the findings given by the ld. trial court in the impugned judgment regarding issues no. 1 and 2.
17. Ld counsel for the appellant relies upon Deenar Builders Vs. Khoday Distilleries 2000 Rajdhani Law Reporter 50 and submits that, though, he admits the execution of lease deeds which are Ex. P1, Ex. P2, Ex. P3, Ex. P4 and Ex. P5 but these are not registered documents and requires compulsory registration under Section 17 of Registration Act. Thus, it is contended that these documents, may be relied upon by the plaintiff himself, can't be looked into evidence for want of compulsory registration. However, this judgment is not applicable to the facts of the present case inasmuch as the crux of the dispute revolves not around these lease deeds but only to the rate of rent of two portions of the tenanted premises situated at the same place. It is not in dispute between the parties that respondent was paying regular rent to the appellant and appellant was regularly accepting the rent of both portions of the tenanted premises without any protest or demur. The appellant further relies upon Shri Radhakrishan Temple Trust Maithan, Agra Vs. Hindco Rotatron Pvt. Ltd. & Ors. 187 (2012) Delhi Law Times 548 and Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) 146 (2008) Delhi Law Times 217 (SC) and submits that in view of both these judgments no notice was required to be issued by the appellant for eviction. This court observes that both RCA No. 2/11 Page 11 of 13 these judgments are not applicable in the set of facts projected by both the parties inasmuch as the defence of the respondent in the case which takes out one portion of the tenanted premises out of the general law and brings it in the statutory protection of Delhi Rent Control Act. Moreover, the appellant relies upon the notice mainly to substantiate that despite notice, the respondent did not controvert the contents of the notice at the very first instance. The respondent brought the evidence to prove the fact that since there was no receipt of notice on behalf of the respondent, therefore, the respondent could not get opportunity to deny the allegations mentioned in the notice. Moreover, this court has already observed herein above that after filing of the written statement, the appellant filed replication and in the replication the appellant entirely comes with new facts i.e. fact of merger of tenanted portions as this case was not set out by the appellant either in the plaint or in the notice Ex. P127. Thus, these judgments as relied upon by the appellant are not applicable to the facts of the present case.
18. The appellant has also raised as alternative plea that in case the suit of the appellant is barred for one portion of the tenanted premises under Delhi Rent Control Act, then the suit of the appellant definitely is maintainable for another tenanted portion as one portion of the tenanted premises definitely comes out of the purview of the Delhi Rent Control Act as per Ex. P125. Here this court observes that the notice Ex. P127 is not valid in view of Mangaldas Pitamberdas Rana Vs. Nalinkumar Mugallal Jayaswal (supra) wherein it was already held that termination of both tenancies by one notice is valid if distinct and separate particulars for each tenancy be given. But in this case, there is no particulars of different tenancies have been given which brings one of the tenanted portion out of the purview of Delhi Rent Control RCA No. 2/11 Page 12 of 13 Act, 1958. Thus, this issue no. 3 is also cannot be decided in favour of the appellant.
19. In view of the observations made herein above, this court observes that there is no infirmity in findings given by the ld. trial court in the impugned judgment. Thus, the appeal filed by the appellant is hereby dismissed. There is no order of cost. Trial court record be sent back along with copy of the judgment. Appeal file be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 28/03/2012. Additional District Judge-09 Central District, Tis Hazari Courts Delhi RCA No. 2/11 Page 13 of 13