Delhi High Court
Mrs. Kavita Moin Jakhmola vs Dr. Anil Sethi on 24 February, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th February, 2016
+ RFA.No.422/2015
MRS. KAVITA MOIN JAKHMOLA ..... Appellant
Through: Mr. Rohit Kumar, Adv.
Versus
DR. ANIL SETHI ..... Respondent
Through: Mr. Anup J. Bhambhani, Sr. Adv.
with Mr. Nagesh, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This first appeal under Section 96 of the Code of Civil Procedure
1908 (CPC) impugns the judgment and decree, dated 7th April, 2015 of the
Court of Additional District Judge, Central - 14, Delhi in original Suit No.
428/2004, new Suit No.559/2014, of ejectment of the appellant from the
premises earlier in her tenancy and for recovery of arrears of the rent of mesne
profits.
2. The appeal came up first for admission on 7th July, 2015 when the
counsel for the respondent appeared on Caveat and considering the limited
nature of controversy therein, with the consent of the counsels, the appeal was
RFA.No.422/2015 Page 1 of 22
finally heard, trial court record requisitioned and judgment reserved. The trial
court record has been received and perused.
3. The respondent, on 10th December, 2004 instituted the suit from which
this appeal arises, pleading (i) that he had in December, 2000 let out a portion
of ground floor of property comprising of one drawing room, one kitchen, one
dining space, two bed rooms at the rear, whole of backyard including one
servant room in the backyard of his property No. C-49, Pamposh Enclave, New
Delhi to the appellant/defendant at a rent of Rs.5500/- per month besides
electricity and water charges; (ii) one study/room in the front of the ground
floor was not let out to the appellant/defendant; (iii) the front lawn and the
porch were meant for common use and never let out to the appellant/defendant;
(iv) that the letting the appellant/defendant was at the behest of her husband
who was a friend of the respondent/plaintiff and who represented that the
appellant/defendant on account of his back injury was in need of a premises at
ground floor and for this reason only the premises were let at a concessional
rent of Rs.5,500/- per month as against the then prevalent rent of such premises
of Rs.12000/- to Rs.18000/- per month; (v) that there was no agreement in
writing; (vi) that the appellant/defendant was irregular in payment of rent and
had not paid any rent since October, 2001 inspite of repeated demand; (vii) to
RFA.No.422/2015 Page 2 of 22
placate the respondent/plaintiff, the appellant/defendant w.e.f. January, 2004,
offered to increase the rent to Rs.8000/- per month; (viii) that the
respondent/appellant was then stationed at Japan and on returning in April,
2004 called upon the appellant/defendant to pay the arrears of rent; (ix) instead,
the appellant/defendant on 23rd August, 2004 unlawfully trespassed into the
room in the front of the ground floor which was retained by the
respondent/plaintiff for his own use; (x) that the tenancy of the
appellant/defendant was determined vide legal notice dated 5th September,
2004. Accordingly, the reliefs of ejectment of the appellant/defendant, for
recovery of Rs.2,71,550/- as arrears of rent with interest, for recovery of
Rs.68,350/- towards mesne profit/damages for use and occupation and for
recovery of future mesne profits at the rate of Rs.1000/- per day with interest
were claimed.
4. The appellant/defendant contested the suit by filing a written statement
pleading (a) that she is a tenant since December, 2000 in respect of the entire
ground floor at the rent of Rs.3000/- per month; (b) that the respondent/plaintiff
let out the premises to the appellant/defendant as the husband of the
appellant/defendant was known to the respondent/plaintiff; (c) that no written
agreement was executed and no rent receipt issued by the respondent/plaintiff
RFA.No.422/2015 Page 3 of 22
stating that if he did so he will have to pay a higher house tax for the property;
(d) that the appellant/defendant has been residing in the premises with her
child as her husband is working in Singapore; (e) that it was the
respondent/plaintiff who during his visit to India in April, 2004 had asked the
appellant/defendant to allow him use of the front room in the tenancy of the
appellant/defendant; (f) that the respondent/appellant had been asking the
appellant/defendant to increase the rent and in lieu thereof the
appellant/defendant paid full one year‟s rent in advance in cash and the
respondent/plaintiff also issued a receipt of the same; (g) that the
respondent/plaintiff in the notice dated 5th September, 2004 stated the rent to
the Rs.7000/- per month when the rent was Rs.3000/- per month and stood paid
for the period from 1st July, 2004 to 30th June, 2005; (h) that the suit is barred
by Section 50 of the Delhi Rent Control Act, 1958.
5. Though there is a replication on file of the Trial Court but a perusal of
the order-sheet of the Trial Court shows that the replication was not permitted
to be taken on record and CM(M) No.115/2005 preferred by the
respondent/plaintiff thereagainst was dismissed on 25th April, 2006.
RFA.No.422/2015 Page 4 of 22
6. On the pleadings of the parties, on 15th March, 2005 the following issues
were framed:
"1. What is the extent of tenancy premises? Onus of proof
on parties.
2. Whether the premises were let out at the rate of
Rs.5500/- per month or Rs.3000/- per month? Onus of
proof on parties.
3. Whether the defendant agreed to increase rent to
Rs.8000/- per month w.e.f. January 2004? OPP
4. Whether the plaintiff is entitled to damages from
25.9.2004 to 10.12.2004, if so at what rate? OPP
5. Whether the plaintiff is entitled to interest, if so, at
what rate? OPP
6. Whether the suit is barred U/s 50 of DRC Act? OPD.
7. Relief."
7. On an application of the respondent/plaintiff, vide order dated 27 th
February, 2007, the following additional issue was framed:
"6A. Whether the plaintiff terminated the tenancy of the
defendant legally and validly with regard to the suit premises
vide notice dated 15th September, 2004, if so its effect? (OPP)"
8. The learned Additional District Judge (ADJ), on the basis of the
evidence led before him, has believed the version of the respondent/plaintiff
of the rent being Rs.5,500/- per month and the appellant/defendant being in
RFA.No.422/2015 Page 5 of 22
arrears thereof and has accordingly passed a decree for ejectment of the
appellant/defendant from the premises and a decree for arrears of rent for
three years prior to the institution of the suit @ Rs.5,500/- per month and a
decree for mesne profits @ Rs.8,000/- per month from the date of institution
of the suit, with effect from January, 2004 till December, 2004 @ Rs.9,000/-
per month, from January, 2005 to December, 2005 @ Rs.10,000/- per month
and so on.
9. The Civil Courts being competent to pass an order of ejectment of the
appellant/defendant from premises in her tenancy only if the premises are
not covered by the provisions of the Rent Act i.e. only if the rent thereof is
in excess of Rs.3,500/- per month, the counsel for the parties confined their
arguments on the said aspect only with the endeavour of the counsel for the
appellant/defendant being to establish that the rate of rent has been proved to
be Rs.3,000/- per month and the contention of the senior counsel for the
respondent/plaintiff being that the rate of rent has been proved to be
Rs.5,500/- per month, increased to Rs.8,000/- per month and thereafter
reduced to Rs.7,000/- per month.
RFA.No.422/2015 Page 6 of 22
10. There is admittedly no document recording the terms of letting and no
regular payment by cheque to gauge the rate of rent. Besides the oral
depositions of the respondent/plaintiff and his witnesses on one hand and the
oral deposition of the appellant/defendant on the other, there are some
documents with respect to rate of rent and on which the counsels laboured
during the hearing, with proof/admission into evidence even thereof being
under challenge. I will deal with them one by one.
11. The appellant/defendant in her written statement pleaded that the
respondent/plaintiff upon return to India in April, 2004 demanded increase
in rent and the appellant/defendant under pressure agreed to pay one full
year‟s rent in advance, which was paid in cash and on appellant/defendant‟s
insistence the respondent/plaintiff finally issued a receipt for the same.
12. However neither were the contents of the said receipt reproduced in
the written statement nor was the same or any copy thereof filed along with
the written statement or till the framing of issues or till the
respondent/plaintiff filed his affidavit by way of examination-in-chief, as the
said document in accordance with law should have been.
RFA.No.422/2015 Page 7 of 22
13. The appellant/defendant, at the fag-end of the cross examination of
the respondent/plaintiff put to him photocopy of a typed receipt dated 19th
July, 2004 of Rs.36,000/- in cash on account of rent from 1st July, 2004 to
30th June, 2005 @ Rs.3,000/- per month. The respondent/plaintiff denied the
suggestion that the same was issued or executed by him or that the same
bore his signatures. Opportunity sought by the respondent/plaintiff for re-
examination was denied.
14. Though the document thus did not stand proved but Exhibit PW-1/D1
was put on it. I may mention that Exhibit Mark is put on a document only
when it stands proved and admitted into evidence.
15. The appellant/defendant even thereafter did not produce the original
receipt aforesaid. However in her affidavit by way of examination-in-chief
she deposed of the said receipt having been issued by the
respondent/plaintiff; even then the reference was to the photocopy on which
Exhibit PW-1/D1 was put and original thereof not produced. The said
document was not even tendered in evidence when the affidavit by way of
examination-in-chief was tendered along with documents Exhibit DW-1/1 to
Exhibit DW-1/9 proved therein. The appellant/defendant in her affidavit by
RFA.No.422/2015 Page 8 of 22
way of examination-in-chief did not even depose that the signature on
Exhibit PW-1/D1, which the respondent/plaintiff as aforesaid had denied to
be his, were of the respondent/plaintiff.
16. The counsel for the respondent/plaintiff however in cross examination
of the appellant/defendant asked the appellant/defendant whether she had the
original thereof and the appellant/defendant replied in the affirmative.
However the original has not come on record. On further query the
appellant/defendant stated that the respondent/plaintiff had not prepared and
signed the „alleged‟ rent receipt dated 19th July, 2004 in her presence but had
merely given it to her.
17. The counsel for the appellant/defendant, to contend that the rent
receipt aforesaid stands proved, relied on Abdul Samad Vs. Gunendra
Krishna Roy AIR 1925 Calcutta 452 laying down that where the
genuineness of a rent receipt is sworn to by the tenant by whom the rent has
been paid, that is legally sufficient to prove the receipt despite the fact that
the person whose signature it bears has not been examined.
18. I am unable to agree. In Abdul Samad supra the tenant is stated to
have "sworn the genuineness of the rent receipt". The appellant / defendant
RFA.No.422/2015 Page 9 of 22
herein has not, inspite of the respondent / plaintiff having denied the same.
So much so that the appellant / defendant has not even bothered to produce
the original bearing the signatures of the respondent / plaintiff. On a
photocopy, it is very easy to supplant signatures on one document to
another. The appellant / defendant in her affidavit by examination-in-chief
merely stated that "The receipt is already exhibited as Ex.PW1/D1" and in
cross examination also instead of affirming its genuineness stated that it was
not prepared or signed in her presence and the respondent / plaintiff had
merely handed it over to her. Not only so, the High Court of Calcutta in
judgment supra was also swayed to hold the rent receipt to have been proved
because no objection was taken by the landlord to admission thereof into
evidence. That is also not so here. I am therefore unable to hold the alleged
rent receipt dated 19th July, 2004 to have been proved by the appellant /
defendant. Axiomatically, the same cannot be read. The appellant /
defendant, upon denial by the respondent / plaintiff, ought to, in her own
evidence, have produced the original and identified the signatures of the
respondent / plaintiff thereon in accordance with Section 67 of the Indian
Evidence Act, 1872. I find the Bombay High Court to have in Ramkrishna
Girishchandra Dode Vs. Anand Govind Kelkar1998 SCC Online Bom. 492
RFA.No.422/2015 Page 10 of 22
distinguished Abdul Samad supra reasoning that the view therein turned on
no objection having been taken to admission into evidence of the rent
receipts. The High Court of Gujarat also in Ahmedabad Municipal
Corporation Vs. Hotel Sarita 2012 SCC Online Guj. 1094 held rent receipts
to have been not proved on production only of xerox copy thereof and
without evidence of proof thereof.
19. This cat and mouse game which the parties hereto appear to have been
indulging in, continued with respect to the other documents also.
20. First of such documents is a handwritten computation/account sheet in
original without any signatures which the respondent / plaintiff did not file at
the time prescribed for filing documents and did not prove in his own
evidence and put to the appellant / defendant for the first time during her
cross examination and qua which the appellant/defendant stated:-
"I do not remember if this is one of the statement of
accounts that I kept and handed over to the plaintiff. I
do not think so that this hand writing is mine. I do not
remember writing this."
Again, Exhibit DW-1/P1 was put thereon though the document did not
stand proved and admitted into evidence. The respondent/plaintiff therefrom
RFA.No.422/2015 Page 11 of 22
purports to explain how the figure of Rs.7,417/- being value of one of the
cheques issued by the appellant/defendant/her husband in favour of the
respondent/plaintiff in the year 2001 was arrived at and to argue that
therefrom the rent is borne out to be Rs.5,500/- per month.
21. However since the document has not been admitted into evidence the
question of looking thereat for any purpose does not arise. I may mention
that though the respondent / plaintiff could have led rebuttal evidence and
proved the same but did not. I have in Subhash Chander Vs. Sh. Bhagwan
Yadav MANU/DE/3343/2009 held that if a party to a litigation chooses to
confront the opposite party with a document in cross examination without
filing the same in Court at the time provided therefor and if the opposite
party in cross examination does not admit that document and the same is not
proved, the party so putting the document can in his evidence / rebuttal
evidence prove the same. The respondent / plaintiff has not and cannot thus
rely on the said document.
22. The respondent/plaintiff in his affidavit by way of examination-in-
chief deposed that pursuant to police complaint by him in August, 2004 of
trespass by the appellant/defendant into the front room on the ground floor, a
RFA.No.422/2015 Page 12 of 22
settlement/compromise was arrived at (in which possession of the room was
restored to respondent/plaintiff) as contained in letters proved as Exhibit
PW-1/7 and Exhibit PW-1/8 and before finalizing the said letters drafts
thereof Exhibit PW-1/9 and Exhibit PW-1/10 were prepared by the
appellant/defendant in her own handwriting and containing corrections in
hand of respondent/plaintiff and which record the rent to be Rs.7,000/- per
month.
23. At the time of tendering of the affidavit by way of examination-in-
chief in evidence, Exhibit PW-1/7 was de-exhibited, being a photocopy.
However there was no objection to admission into evidence of Exhibit
PW1/8 to Exhibit PW1/10.
24. The only cross examination by the appellant/defendant of the
respondent/plaintiff with respect to the said documents is by way of
suggestion that the appellant/defendant was forced by the
respondent/plaintiff and his friends in collusion with police to write the
documents PW-1/7 to Exhibit PW-1/10 and which suggestion was denied by
the respondent/plaintiff.
RFA.No.422/2015 Page 13 of 22
25. The appellant/defendant however in her own affidavit by way of
examination-in-chief did not depose anything about the circumstances in
which she was forced to write the aforesaid letters acknowledging and
agreeing to pay the rent @ Rs.7,000/- per month.
26. The only contention of counsel for the appellant / defendant in
rejoinder was that the appellant / defendant in her evidence proved as
Exhibit DW1/2 - copy of complaint made by her to the Police on 1 st
September, 2004 of having been forced on 31st August, 2008 to write letters
aforesaid recording the rent to be Rs.7,000/- per month and there was no
cross examination thereon.
27. I am however unable to hold the same as proof by the appellant /
defendant of having been forced to write the letters recording the rent to be
Rs.7,000/- per month. All that the appellant / defendant in her affidavit by
way of examination-in-chief stated with respect to Exhibit DW1/2 is that the
same was a complaint lodged by her with police. The same can be proof
only of lodging a complaint but not evidence of being forced to write letters
in her own handwriting. The appellant / defendant has filed complaints
against the respondent / plaintiff of sexual harassment and ought to have as
RFA.No.422/2015 Page 14 of 22
proof of force under which she signed the letters, given particulars. In fact
objection even was taken by counsel for the respondent / plaintiff of mode of
proof of Exhibit DW1/2 and admission thereof into evidence. No records of
the police to whom the complaint was claimed to have been made were
summoned to prove filing / making thereof. Also, the complaint Exhibit
DW1/2 is of the respondent / plaintiff having made the appellant / defendant
agree to hand over possession of the front room and the writing of letter
recording rent to be Rs.7,000/- per month is merely incidental thereto. The
appellant / plaintiff did not even, in the said complaint, state that the rent was
in fact Rs.3,000/- per month. I therefore hold the appellant / defendant to
have not dented the admission in Exhibit PW1/8 to Exhibit PW1/10 of rent
being Rs.7,000/- per month.
28. The appellant / defendant in her cross examination, on being shown
Exhibit PW-1/8 (recording rent to be Rs.7,000/- per month) admitted her
signatures thereon but produced, literally from her hat, photocopy of another
document on which Exhibit DW-1/P3 was put, to contend that the rate of
rent mentioned therein is Rs.3,000/- per month. The counsel for the
respondent/plaintiff objected to said production but since the cross
examination was being conducted by Commissioner appointed by the Court
RFA.No.422/2015 Page 15 of 22
and who had not authority to reject anything, the document remained.
However in my opinion the said document is not legally on record, having
not been filed at the time prescribed by CPC for production of documents
and cannot be looked at. The said document was not put to
respondent/plaintiff also in his cross examination.
29. Thus, from the only document lawfully on record and proved in
accordance with law i.e. Exhibit PW-1/8 to Exhibit PW1/10 which the
appellant/defendant has admitted to be in her handwriting and signature and
which the appellant/defendant has failed to prove that she was forced to
write, as was suggested to the respondent/plaintiff in cross examination, the
rent is proved to be Rs.7,000/- per month.
30. I even otherwise, on going through oral depositions find it to have
been proved, applying the test of preponderance of probability, that the rent,
at the time of inception of tenancy was Rs.5,500/- per month as pleaded by
the respondent/plaintiff and not Rs.3,000/- per month as pleaded by the
appellant/defendant. It is not in dispute that the appellant/defendant and the
respondent/plaintiff and their respective spouses shared a friendly
relationship since much prior to the inception of the tenancy. It is the
RFA.No.422/2015 Page 16 of 22
unrebutted evidence of the respondent/plaintiff that the premises were let out
to the appellant/defendant at the same rent which the appellant/defendant
was paying for the premises at Satya Niketan earlier in her tenancy. The
appellant/defendant however evaded to disclose the rent being paid for the
premises at Satya Niketan earlier in her/her husband‟s tenancy and which the
appellant/defendant/her husband were required to vacate. Adverse inference
is drawn therefrom. Not only so, the appellant/defendant in her cross
examination, with respect to a large number of questions relating to payment
of rent, replied that it was her husband who used to deal with the same and
keep accounts. The husband of the appellant/defendant shied from
appearing as the witness and facing cross examination. Again adverse
inference has to be drawn that he, owing to his friendly relations with the
respondent/plaintiff, did not want to lie that the premises were taken on rent
at a rent of Rs.3000/- per month. In fact it is the deposition of the
appellant/defendant that it was her husband who had taken the premises on
rent from the respondent/plaintiff and thereafter she alongwith her husband
moved into the same. In the circumstances, the husband of the
appellant/defendant was the best witness to prove the rate of rent and his
RFA.No.422/2015 Page 17 of 22
non-production is fatal to the defence of the appellant/defendant of the rent
being Rs.3000/- per month.
31. There is other evidence also on record to support the plea of the rent at
the time of inception of the tenancy being Rs.5500/- per month but in the
light of Exhibit PW1/8 to Exhibit PW1/10 aforesaid need to discuss the
same herein is not felt. One other fact must however be mentioned. It is
again the admitted position that since the respondent/plaintiff from the time
of inception of the tenancy till April, 2004 was on a teaching assignment to
Japan and the upper floors of the house were lying locked, the
appellant/defendant was incurring expenses with respect to the property on
behalf of the respondent/plaintiff and adjusting the same in rent. There are
other claims/counter claims inter se of the parties. In this light of the matter
also it was incumbent upon the husband of the appellant/defendant to appear
and depose and in this light of the matter the plea of the appellant/defendant
of having been forced to sign the documents recording the rent to be
Rs.7000/- per month cannot be believed.
32. I thus hold the premises in tenancy of appellant/defendant to be not
covered by the Rent Act. It cannot also be lost sight of that the entire city of
RFA.No.422/2015 Page 18 of 22
Delhi for about half century prior to the amendment w.e.f. 1st December,
1988 of the Delhi Rent Control Act was governed thereby and whereunder
irrespective of the expiry of the term for which the premises were let out, the
landlord was prevented from evicting the tenant till was able to establish a
ground of eviction under the Rent Act to have been made out and which
virtually made eviction of tenants an impossibility and allowed a tenant once
inducted into the premises to continue therein forever without even any
increase in rent to keep pace with the rising costs of immovable property and
living. The Act was amended as aforesaid w.e.f. 1st December, 1988 and
ceased to apply to premises the rent whereof is in excess of Rs.3500/- per
month and even for premises to which it applied, made increase in rent by
10% every three years permissible. The subject premises were let out much
thereafter at the end of the year 2000. Experience of the city of Delhi and
judicial notice can be taken of the fact that there was hardly any premises
available the rent whereof was less than Rs.3500/- per month at that time.
The subject premises are situated in a posh South Delhi colony. Had the
rent of the premises earlier in the tenancy of the appellant/defendant at Satya
Niketan been less than Rs.3500/- per month, it is inconceivable that the
appellant/defendant /her husband inspite of protection of Rent Act would
RFA.No.422/2015 Page 19 of 22
have voluntarily vacated the same. It is not their case that they vacated
pursuant to an order of eviction under the Rent Act. In this view of the
matter also, the version of the appellant/defendant of the rent being
Rs.3000/- per month is unbelievable. Mention may also be made of the fact
that more than 15 years have passed since the letting of the said premises to
the appellant/defendant. Even with a 10% increase every three years, the rent
of the premises would have been in excess of Rs.3500/- per month taking the
premises outside the purview of the Rent Act.
33. The counsel for the appellant/defendant also half heartedly contended
that there was variation between the pleadings and the evidence of the
respondent/plaintiff and that the impugned judgment and decree in any case
is liable to be set aside for the reason of the learned Additional District
Judge having not rendered any decision on Issue No.6A framed
subsequently. However no merit is found in the said contentions. I am
unable to find any such inconsistency in the pleadings and the evidence of
the respondent/plaintiff as to have a bearing on the decision of the appeal.
As far as the contention with respect to Issue No.6A is concerned, the same
was with respect to the determination of the tenancy of the
appellant/defendant; however in view of the dicta of the Supreme Court in
RFA.No.422/2015 Page 20 of 22
Nopany Investment (P) Ltd Vs. Santokh Singh (HUF) (2008) 2 SCC 728
laying down that institution of a suit for ejectment itself is notice of
determination of tenancy and which view has been consistently followed by
this Court, the said issue in any case was redundant and the error of the
learned District Judge in not rendering any finding thereon can again not be
fatal to invite setting aside of the judgment and decree.
34. As far as the aspect of extent of the tenancy premises is concerned, in
view of the compromise arrived at between the parties pursuant to the police
complaint aforesaid at the time of return of the respondent/plaintiff from
Japan, the same has lost any relevance. Admittedly at the time of institution
of the suit from which this appeal arise, the front room of the ground floor
was in the possession of the respondent/plaintiff and not in possession of the
appellant/defendant and thus there was no need for the respondent/plaintiff
to seek ejectment of the appellant/defendant therefrom.
35. No other argument was made.
36. There is thus no merit in the appeal. The same is dismissed.
RFA.No.422/2015 Page 21 of 22
37. The appellant / defendant having cooperated in expeditious disposal
of appeal, no costs.
Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 24, 2016 „M/bs‟..
RFA.No.422/2015 Page 22 of 22