Delhi District Court
Rajiv Jain vs Sh. Rattan Lal on 10 December, 2014
IN THE COURT OF ANURAG SAIN, ADJ03 (EAST),
KARKARDOOMA COURTS, DELHI
RCA No.: 80/14
Unique Case ID No. 02402C0188592014
RAJIV JAIN
S/o SH. RAJENDER KUMAR JAIN
R/o IX/25, MAIN ROAD,
OPP. DURGA MANDIR,
KAILASH NAGAR, DELHI31.
...........APPELLANT
Versus
SH. RATTAN LAL
S/o SH. POORAN MAL
R/o E49, ASHOK VIHAR,
PHASE : 1, DELHI
........RESPONDENT
Date of institution of appeal : 01.07.2014
Date of reserving judgment : 04.12.2014
Date of pronouncement : 10.12.2014
JUDGMENT
1. The present appeal is preferred against the impugned Order RCA No.: 80/14 Page 1 of 19 dated 07.06.2014 passed by Sh. M.P. Singh, SCJ/RC (East) KKD Courts Delhi.
2. The entire facts of the appellant in the present appeal as well as in the lower court below in his application under Order XXI Rule 97 CPC were that:
(i). The respondent along with Sh. Rajender Kumar Jain, father of the appellant had collided with each other which led to the passing of the judgment in decree dt. 05.07.2012. The case of the appellant is that the appellant is the tenant of the respondent since January, 2011.
(ii). As per the case of the appellant, appellant's case is that the father of the appellant Sh. Rajender Kumar Jain was having an extra marital affair with another lady namely Mrs. Shashi Jain.
(iii). On enquiry, it came to the knowledge in the month of December, 2010 that the father of the appellant, Sh. Rajender Kumar Jain had married to Mrs. Shashi Jain and have four children from the said second marriage. Thereafter, a family meeting was convened to sought out the matter but wherein Sh. Rajender Kumar Jain, father of the appellant admitted guilty and admitted to break his connections with his second wife, RCA No.: 80/14 Page 2 of 19 Mrs. Shashi Jain but Sh. Rajender Kumar Jain inspite of the above did not break his relations with his second wife and this resulted in a fighting in the family and as a result Sh. Rajender Kumar Jain was not allowed to enter into the tenanted premises i.e. the suit premises herein.
(iv).It is further stated by the appellant that the father of the appellant became furious and threatened to dispossess the appellant and his family by adopting all legal and illegal means.
(v).The appellant further stated that the father of the appellant, Sh. Rajender Kumar Jain contacted the respondent and informed that he is no more tenant of the respondent and requested him to take the possession of the tenanted premises.
(vi).The appellant further stated that the respondent came to the tenanted premises and asked the appellant to vacate the said premises on or before 16.01.2011 to which the appellant requested the respondent to allow him and his family members to stay in the tenanted premises till April, 2011 and also showed his willingness to take the said premises on rent on the same terms & conditions. The respondent accepted and allowed the appellant to stay on some fresh terms & conditions and the new RCA No.: 80/14 Page 3 of 19 tenancy was created in the name of the appellant at a monthly rent of Rs. 6,000/ per month which the appellant had been regularly paying to the respondent. The same being accepted by the respondent.
(vii).Subsequently, the appellant came to know that respondent by concealment of all these facts filed the present suit with Sh. Rajender Kumar Jain bearing no. 366/12 and the said suit was decreed vide judgment dt. 05.07.2013.
(viii).The appellant came to know about the said judgment in the execution filed by the respondent and on coming to know about the same filed the objections on 28.10.2013.
(ix).It is further stated by the appellant that the matter was fixed for the arguments on the application of the appellant under Order 21 Rule 97 for 23.05.2014. On the said date, the counsels for the parties were not present. The appellant was called by the court and was asked to sign the paper which was typed in English.
(x).The appellant further stated that when the counsel for the appellant appear before the court on 06.06.2014, it came to their knowledge that the statement of the appellant has been recorded RCA No.: 80/14 Page 4 of 19 under Section 165 Evidence Act and the statement so recorded was totally contrary to the facts stated by the appellant in his application under Order XXI Rule 97 CPC visavis the statement so recorded under Section 165 Evidence Act. He submits that he has moved an application on 06.06.2014 for the reexamination but the same was dismissed vide order dated 06.06.2014 with a cost of Rs. 5,000/. Ultimately, the objections were dismissed vide Order dated 07.06.2014. The present appeal preferred is against the said order.
(xi).In the present appeal the appellant has challenged the judgment of the Trial Court interalia on the grounds as under:
(a) Counsel for the appellant submits that the statement so recorded on 06.06.2014 has no sanctity in the eyes of law. The same being recorded in the ignorance of the appellant and are contrary to the pleadings of the case.
(b) Counsel for the appellant further argued that the Trial Court had passed its decision solely on the basis of the statement of the appellant so recorded on 23.05.2014 and the statement so recorded under Section 165 Evidence Act is contrary to the facts so pleaded by the appellant in his application.
(c) Counsel for the appellant also argued that the order dated 07.06.2014 is also liable to be set aside as the ld. Trial RCA No.: 80/14 Page 5 of 19 court has failed to appreciate that the father of the appellant and the respondent/JD were in collusion with each other. He submits that the father of the appellant had deliberately taken such feable and weak defence which ultimately resulted in the passing decree under Order XII Rule 6 CPC. In these premise, the appellant prays that appeal be allowed and the order dated 07.06.2014 passed by the ld. Trial Court be set aside.
3. Reply to the same filed by the counsel for the respondent. The counsel for the respondent submitted that there is no illegality, perversity in the order of the ld. Trial Court and the same is arrived at after the appreciation of the facts. The contents of the appeal was denied intoto and as an explanatory fact, it has been submitted that the objections filed by the appellant are at the instance of his father, Sh. Rajender Kumar Jain. In these premise, the counsel for the respondent prays for the dismissal of the appeal.
4. I have heard the counsel for the parties. TCR received. Perused the records.
5. The entire case of the appellant revolves round two facts. Firstly, that the father of the appellant has left the suit premises on 16.01.2011 on account of having his bigamous relations with RCA No.: 80/14 Page 6 of 19 Ms. Shashi Jain and the relations between the appellant and his father, Sh. Rajender Kumar Jain were strained because of the above. Secondly, the appellant had been indicated as the tenant by the respondent at a monthly rent of Rs. 6000/ from 16.01.2011.
6. In order to find out the averments of the appellant that the father of the appellant had left the tenanted premises on 16.01.2011 or whether the father of the appellant Sh. Rajender Kumar Jain was still in the said tenanted premises. Secondly, whether their exists cordial relations or strained relations between the appellant and his father, Sh. Rajender Kumar Jain.
7. The respondent has filed suit for recovery of possession, arrears of rent and damages/mesne profits against Sh. Rajender Kumar Jain, father of the appellant bearing suit no. 366/11titled as "Ratan Lal Vs. Narender Kumar Jain".
8. Perusal of the memo of parties shows that the address of the defendant i.e. Sh. Rajender Kumar Jain in the court below was shown as 9/25, Main Road, opposite Durga Mandir, Kailash Nagar, Delhi110031.
9. Perusal of the record further shows that the defendant Sh. RCA No.: 80/14 Page 7 of 19 Rajender Kumar Jain, father of the appellant filed his written statement on 13.12.2011 along with the same he has filed his supporting affidavit wherein he has mentioned the aforesaid address.
10.Perusal of the record further shows that the plaintiff/respondent filed an application under Order 12 Rule 6 CPC for passing of a decree on the basis of admissions made by Sh. Rajender Kumar Jain, father of the defendant. Reply to the same filed by the defendant, along with reply he has filed the supporting affidavit wherein Sh. Rajender Kumar Jain mentioned the same address.
11. The respondent in the court below issued a legal notice dated 12.09.2011 Ex. PW1/A which was sent to Sh. Rajender Kumar Jain, father of the appellant through Registered A.D. As per the record, the same was duly received by the appellant, son of Sh. Rajender Kumar Jain. A.D card is exhibited as Ex.PW1/10. In the written statement so filed by Sh. Rajender Kumar Jain in the aforesaid suit, he denies the receipt of the legal notice specifically. Had there been any collusion between the respondent herein and plaintiff in the aforesaid suit, the father of the appellant would have admitted the same. RCA No.: 80/14 Page 8 of 19
12.The court vide order dated 05.07.2012, considering the facts of the matter, decreed the suit of the respondent under Order 12 Rule 6 read with Section 151 CPC.
13.Perusal of the record further shows that the father of the appellant preferred the appeal against the said order. The said appeal was assigned to the court of Sh. S.K. Sharma, ld. ADJ(East), Karkadooma Court. The said appeal was dismissed by the Court vide order dated 16.02.2013.
14. From the above, it is clear that Sh. Rajender Kumar Jain, father of the appellant did not left the suit premises and he was very much residing in the suit premises.
15.The next submissions of the counsel for the appellant that because of the bigamous marriage of Sh. Rajender Kumar Jain, father of the appellant with Mrs. Shashi Jain, the relations between the appellant and his father were strained and because of this the father of the appellant have left the suit premises.
16.There is a marriage card of the daughter of Sh. Rajender Kumar Jain and sister of the appellant. Perusal of the marriage card dated 15.05.2014 shows the names of Sh. Rajender Kumar Jain and Rajeev Jain, the appellant which is not disputed. RCA No.: 80/14 Page 9 of 19
17. As per the ordersheet dated 16.05.2014, it has been observed by the court that the appellant had sought adjournment as there is a wedding in his family. This shows that the relationship of the appellant with Sh. Rajender Kumar Jain were cordial. Thus, from the above it is clear that the father of the appellant Sh. Rajender Kumar Jain was living in the suit premises and were having cordial relations with the appellant.
18.Moreover, it is the case of the appellant is that his father Sh. Rajender Kumar Jain because of bigamous relations with Mrs. Shashi Jain, had left the suit premises in and around 20.12.2010 January, 2011 and the relations between him and the appellant are strained and colluded with the respondent in the present matter by giving false address of the suit property in the present proceedings, he could have taken legal action in this regard against his father. The appellant has not filed any complaint against his father for furnishing the false address before the court. All this shows that the averments of the appellant are far from truth. The appellant and his father Sh. Rajender Kumar Jain are handingloves with each other and it is the joint malafide attempt of the appellant and his father to frustrate the RCA No.: 80/14 Page 10 of 19 decree passed in favour of the respondent.
19.Ld. Trial Court had rightly appreciated about the relations of the appellant with his father.
20.The next submissions of the counsel for the appellant is that the appellant had been inducted as a tenant in the premises @ of Rs. 6,000/ per month from 16.01.2011.
21. The ld. Trial Court had not only decided the objections of the appellant solely on the basis of the statement so recorded on 23.05.2014 as alleged by the appellant but also on the merits of the matter. Ld. Trial Court had rightly held that as per the case of the appellant himself that he was inducted tenant sometimes between December 2010 to 16.01.2011. However, nothing has been filed by the appellant in this regard. There is no rent agreement and no rent receipts also.
22.It is the case of the appellant that he had been making the rent to the respondent however, nothing has been filed by the appellant to prove the same. He could have filed his bank account, incometax returns to show that rent is being paid by him to the respondent which is conspicuously missing in the present suit. It is only self serving statement of the appellant. RCA No.: 80/14 Page 11 of 19 The court is aware of the fact that the appellant is interested in the outcome of the result in his favour.
23.Now, coming to the other aspect whether the statement so recorded of the appellant by the court under Section 165 of the Evidence Act on 23.05.2014 is against law, illegal and has no sanctity.
24.The court after recording the statement of the appellant on 23.05.2014 adjourned the matter for 06.06.2014 for final arguments. On 06.06.2014 the objector with the counsel was present. The cost so imposed upon the objector vide Order dated 02.05.2014 was paid to the DH. Arguments on the objections heard and the matter was kept for orders for 07.06.2014. The record further reveals that the appellant had filed an application under Section 151 CPC on the same day at about 4 p.m. The same was heard and dismissed by the ld. Trial Court with cost of Rs. 5,000/.
25.The submission of the counsel for the appellant that the ld. Trial Court on 23.05.2014 recorded the statement of the appellant which is uncalled and in fact it was being told to the appellant that it would be in the interest of the appellant in case the RCA No.: 80/14 Page 12 of 19 appellant vacate the suit property at the earliest and directed the appellant to sign a paper which is typed in English.
26.Counsel for the appellant further stated that on 06.06.14 when the counsel for the appellant appeared before the court that there it had come to his knowledge that the statement of the appellant was recorded under Section 165 of Evidence Act on 23.05.14 which facts were totally contrary to the pleadings of the appellant in his application under Order XXI Rule 97 CPC. The appellant had filed an application on the very same day. The same was dismissed by the court with a cost of Rs. 5,000/.
27. It is important to note that the appellant did not inform to his counsel about the proceedings dated 23.05.2014 till 06.06.2014 i.e. the next date of hearing. It is also important to note that the matter had been hotly contested between the appellant and the respondent. If according to the appellant, the ld. Court on 23.05.2014 advised the appellant that it would be in his favour if he gets the suit property vacated at the earliest and also the appellant was directed to sign a paper typed in English. This averment of the appellant is devoid of any merit. Where the matter is hotly contested and proceedings so happened on RCA No.: 80/14 Page 13 of 19 23.05.2014 the appellant ought to have disclosed the aforesaid facts to his counsel immediately who could have taken appropriate steps in this regard by moving an application for expunging the statement so recorded by the court, which is conspicuously missing in the present case. Thus, the averment of the appellant are without any basis. This fact is further fortify from the application u/s 151 CPC filed by the appellant at 4:00 p.m. on 06.06.2014 when the appellant averred that he had come to know only on 06.06.2014 when the counsel have gone through the statement made by the appellant on 23.05.2014. All this shows that the appellant was well aware of the proceedings dated 23.05.2014 before the ld. Trial Court.
28.The other point of consideration is whether the ld. Trial Court acted illegally with perversity in recording the statement of the appellant under Section 165 of the Evidence Act.
29.Section 165 of Evidence Act lays down as under: The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or RCA No.: 80/14 Page 14 of 19 thing; and neither the parties no their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
30.The aforesaid section gives arm to the Judge with the most extensive power possible for the purpose of getting the truth. The effect of this section is that, in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact whatever. A Judge may ask any question he pleases about any irrelevant fact, if he does so in order to RCA No.: 80/14 Page 15 of 19 discover or to obtain proper proof of relevant facts.
31. It gives power to the court to ask or put any question in any form at any time to any witness or parties about any fact relevant or irrelevant, but that power is to be exercised in order to discover or obtain proper proof of relevant facts. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court.
32.Perusal of the order dated 06.06.2014 whereby the ld. Trial Court dismissed the application of the appellant under Section 151 CPC clearly reveals that the application has been moved with the sole object of reexamining the appellant.
33.Ld. Trial Court had rightly observed in its order dated 06.06.2014 that the aforesaid application has been moved only for the purposes to cover up the same through reexamination which is without merits. In these premise, the application of the appellant under Section 151 CPC was dismissed.
34.I have already stated above the object of the Section 165, is allowing the Judge to ask even irrelevant questions under this section "indicative evidence" which may lead to the discovery of relevant evidence and also for the purposes of eliciting the RCA No.: 80/14 Page 16 of 19 information on material facts which the court considers to be relevant for the proper adjudication of the matter.
35.Perusal of the statement so recorded on 23.05.2013 shows that the ld. Trial Court in fact asked relevant questions to the appellant which were also more or less the averments of the appellant in his application under Order XXI Rule 97 r/w Sec. 151 CPC.
36.From the above, looking from any angle the proceedings held on 23.05.2014 cannot be termed as illegal or with perversity.
37. Lastly, assuming the averments of the appellant is correct then the position would be that appellant is a tenant under the tenancy of respondent at a monthly rent of Rs. 6,000/ per month which is outside the purview of the Delhi Rent Control Act. Admittedly, the appellant is in arrears of rent.
38.In case the averments of the appellant are correct then what stops the respondent to file a suit for possession, arrears of rent and mesne profits against the appellant. What follows from the above is that there is apparent collusion between the appellant and his father, Sh. Rajender Kumar Jain who are hand in gloves with each other and are hard bent upon to frustrate the fruits of RCA No.: 80/14 Page 17 of 19 the decree so awarded in favour of the respondent in the suit bearing no. 366/11.
39.The court has no hesitation, considering the facts of the case, to hold that the ld. Trial Court had rightly dismissed the application of the appellant being false, frivolous and vexatious however, the cost so imposed by the court appears to be exaggerated. The same is reduced to Rs. 10,000/.
40.In view of the discussion above, there is no infirmity in the order passed by the ld. Trial Court. The order of the ld. Trial Court is upheld with the modification in the cost as stated above. The appeal of the appellant is dismissed.
41. Decree sheet be prepared accordingly.
42.Copy of the judgment be sent to the Ld. Trial Court.
43.File be consigned to record room.
Announced in the Open Court today on 10.12.2014 (Anurag Sain) Additional District Judge03, (East) Karkardooma Courts, Delhi RCA No.: 80/14 Page 18 of 19 R.C.A. No. 80/14 10.12.2014 Present: None.
Vide separate judgment announced in the open court today, there is no infirmity in the order passed by the ld. Trial Court. The order of the ld. Trial Court is upheld with the modification in the cost. Decree sheet be prepared accordingly. Copy of the judgment be sent to the Ld. Trial Court. File be consigned to record room.
(Anurag Sain) ADJ3, East, Karkardooma Court, Delhi/10.12.2014 RCA No.: 80/14 Page 19 of 19