Delhi High Court
Ashok Kumar Garg vs Anil Kumar Gupta on 23 July, 2010
Author: Reva Khetrapal
Bench: Reva Khetrapal
UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF RESERVE: May 12, 2010
DATE OF DECISION: July 23, 2010
+ RFA No. 47/2010
ASHOK KUMAR GARG ..... Appellant
Through: Mr.Neeraj Kumar Singh,
Advocate
versus
ANIL KUMAR GUPTA ..... Respondent
Through: Mr.Vikram Nandrajog with
Mr.Sushil Jaswal, Advocates.
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J.
1. This appeal seeks to challenge the judgment and decree passed by the learned Additional District Judge, Delhi, dated 21st November, 2009 decreeing the suit of the respondent for possession and damages.
2. The respondent‟s case as set out in the plaint was that he was a member/shareholder of Amarpali Apartments Group Housing Society and the allottee of Flat no.152 by the aforesaid Cooperative Society, RFA No.47/2010 Page 1 of 17 which was built on Plot no.56, Patparganj Residential Group Housing Society Complex allotted to the said Society. The appellant was aware that the respondent was the owner of the aforesaid flat and requested the respondent in the first week of April‟1995 that he may be allowed to temporarily occupy the aforesaid flat for 5-6 months. The appellant assured the respondent that he would vacate the flat within six months and would soon arrange an alternative accommodation for his residence. The respondent allowed the appellant to occupy the flat temporarily on a purely license basis for six months, and the appellant was asked to pay the water and electricity charges to the Society. After six months, the respondent asked the appellant to vacate the flat. The appellant requested the respondent for some more time for vacating the said flat. The respondent informed the appellant that he was liable to pay Rs.5000/- per month as licence fee/damages to the respondent for the use and occupation of the flat. In January 1996, the respondent again requested the appellant to vacate the flat as the respondent needed his flat. The appellant failed to vacate the same on one pretext or the other. The respondent terminated the licence and since then the appellant is a tresspasser/unauthorized occupant of the flat in question.
3. It is further the case of the respondent that the appellant continued to occupy the flat even though the appellant was always promising to vacate the flat and pay the arrears of damages. In the first week of January‟98, the respondent along with his wife and brother went to his RFA No.47/2010 Page 2 of 17 flat and again requested the appellant to vacate the flat. The appellant started misbehaving with them and extending threats. Apprehending danger at the hands of the appellant and his muscle men who had arrived at the scene, the respondent made a complaint to the SHO, P.S. Trilok Puri, Delhi and also to the Society, as by then it had become obvious to the respondent that the appellant was trying to illegally grab his flat and to dispose it of. The respondent had also received letters from the Society that the electricity and maintenance charges from May‟1995 had accumulated to the tune of Rs.16,959/- upto 30th April, 1998. In the month of July‟98, the respondent received summons issued in a suit for injunction being Suit No. 392 of 1998 instituted by the appellant, alleging that he had purchased the flat from the respondent against a consideration of Rs.5.45 lakhs through an Agreement to Sell and a General Power of Attorney both dated 9th May, 1995. The appellant therein stated that both the documents had been lost and a police report dated 25th January, 1996 lodged in respect thereof.
4. In the aforesaid circumstances, the respondent was left with no alternative except to file a suit for possession and recovery of damages against the appellant.
5. The appellant filed a written statement in the suit stating that the respondent had no right, title or interest to file the suit in respect of the flat in question, which he had already sold to the appellant for a total RFA No.47/2010 Page 3 of 17 consideration of Rs.5.45 lakhs. He further stated that, to effect the sale, the respondent had executed the following documents:-
"(1) Agreement to Sell dated 09.04.1995 (2) General Power of Attorney dated 08.05.1995 (3) Indemnity Bond dated 08.05.1995 (4) Special Power of Attorney dated 08.05.1995 (5) Affidavit dated 08.05.1995.
(6) Receipt dated 08.05.1995.
(7) Bill dated 08.05.1995."
6. It was asserted by the appellant in the written statement that he was a lawful occupant of the suit property and that the respondent had no right, title or interest in the same. A counter claim was also filed with the written statement praying for a direction to the respondent to get the sale deed registered with regard to the flat in question in accordance with law.
7. On 20th March, 2004, the following issues were framed in the Suit: -
"1. Whether the defendant was inducted by the plaintiff in the premises Flat no.152, Amarpali Group Housing Complex, Patparganj, Delhi temporarily for a period of six months as licencee without payment of rent? OPP
2. Whether the suit premises has been sold by the plaintiff to the defendant as alleged for valid consideration for a sum of Rs.5,45,000/- and plaintiff executed documents i.e. agreement to sell etc.? OPD RFA No.47/2010 Page 4 of 17
3. Whether the plaintiff is entitled to possession of the suit property as claimed in the suit? OPP
4. Whether the plaintiff is entitled to damages in respect of use and occupation of property by defendant if so, at what rate and for what period? OPP
5. Whether the suit is bad for non-joinder and mis-joinder of parties as alleged in the written statement? OPD
6. Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC as alleged in the written statement? OPD
7. Relief."
8. The appellant thereafter moved an application under Section 65 of the Evidence Act for recording secondary evidence on the ground that the originals of the documents relied upon by him viz., Agreement to Sell dated 09.04.1995, General Power of Attorney dated 08.05.1995, Indemnity Bond dated 08.05.1995, Special Power of Attorney dated 08.05.1995, Affidavit dated 08.05.1995, Receipt dated 08.05.1995 and Will dated 08.05.1995, had been lost and a police report to this effect was filed. The learned trial court vide order dated 15 th March, 2004 rejected the appellant‟s application on the ground that the appellant had deliberately not filed the originals of the documents despite being granted several opportunities.
9. By an order dated 31st May, 2004, the right of the appellant to cross-examine the respondent‟s witnesses was closed, and subsequently RFA No.47/2010 Page 5 of 17 by an order dated 20th September, 2004, the appellant‟s evidence was closed and the matter was listed for final arguments.
10. Aggrieved by the orders dated 5th March, 2004, 31st May, 2004 and 20th September, 2004 passed by the trial court, the appellant preferred a petition under Article 227 of the Constitution of India being CM (M) No. 1320/2004 for setting aside the aforesaid orders which came to be heard and dismissed by this Court on 28 th January, 2009. The relevant extract of the said order is reproduced hereunder: -
"12. From the above mentioned facts, it would be apparent that the originals of the said seven documents were in possession of the petitioner at least from 27th November, 1999 till 24th August, 2002. Moreover, despite the fact that the trial court in the petitioner‟s Suit No.392 of 1998 had been repeatedly directing the petitioner from 24th August, 2000 to file originals of the said seven documents, the petitioner did not comply with the said order and even allowed his suit to be dismissed in default.
13. During the course of arguments Mr. Rawal stated that the petitioner‟s suit was no longer relevant as in that suit petitioner had only prayed for stay of possession in accordance with law and as the respondent had subsequently filed a suit for possession, the petitioner‟s suit had lost its relevance. In my view, even if Mr. Rawal‟s submission is accepted, then also the order sheets of the said case are relevant as they show that non- production of the original documents was due to petitioner‟s default, neglect and failure to produce the same in a reasonable time. In fact, the petitioner‟s version that the originals of the documents were initially lost, subsequently discovered, then mortgaged and once again lost, do not inspire confidence as the petitioner despite being in possession of originals of the documents did not file the same in his suit despite pre-emptory directions by the trial court. I am of the opinion RFA No.47/2010 Page 6 of 17 that as the sine-qua-non for attracting Section 65(c) of the Act is not fulfilled in the present case - as the non-production of the original documents was due to petitioner‟s default, neglect and failure - the petitioner‟s application to lead secondary evidence cannot be allowed. Consequently, I dismiss the present petition with costs of Rs.50,000/- and direct the trial court to finally dispose of the present case within six months from the date of this order."
11. On 6th June, 2009, the learned Additional District Judge decreed the suit in favour of the respondent and against the appellant. Aggrieved by the aforesaid decree, the appellant filed a Regular First Appeal before this Court being RFA No. 306/2009, in which the following order was passed on 9th September, 2009 :-
"After some arguments, both counsels agree that the case be remanded back to the trial court for fresh adjudication after granting one opportunity to the appellant to cross-examine the respondent, subject to the appellant depositing in this Court Rs.7 lacs towards mesne profits and subject to his making payment of cost of Rs.50,000/- which was imposed upon him by this Court in CM (M) NO.1320/2004 decided on January 28, 2009.
In view of the above, the case is remanded back to the trial Judge with a direction to him to grant one opportunity to the appellant to cross- examine the respondent and with a further direction to dispose of the suit within three months from today. It is being made clear that in view of the order passed by this Court in CM (M) NO. 1320/2004 dated January 28, 2009, the appellant shall not be entitled to lead any evidence either oral or documentary. He shall however be allowed to summon the official record from the Municipal Corporation of Delhi and Electricity department to confront the respondent with relevant documents in the course of his cross-examination.RFA No.47/2010 Page 7 of 17
The amount of Rs.7 lacs shall be deposited with the Registrar General of this Court within 8 weeks who shall keep the same in fixed deposit in a nationalised Bank initially for a period of one year. The cost of Rs. 50,000/- shall be paid within four weeks.
The parties shall appear before the trial Court themselves or through advocates on September 17, 2009.
In terms of the aforesaid directions, the appeal is disposed of."
12. A Special Leave Petition filed against the aforesaid order was dismissed by the Hon‟ble Supreme Court. In terms of the aforesaid order the case was remanded to the trial court, where the respondent was cross-examined at length by the learned counsel for the appellant. After considering the evidence on record, the impugned judgment and decree dated 21st November, 2009 was passed from which the present appeal arises.
13. Arguments in the appeal were addressed by Mr. Birender Singh, the learned counsel for the appellant and Mr. Vikram Nandrajog, the learned counsel for the respondent.
14. The learned counsel for the appellant contended that the impugned judgment was not sustainable in the eyes of law in view of the fact that in the course of cross-examination of the respondent on 24th October, 2009, the respondent had unequivocally admitted that the original plaint was not signed by the respondent. It was further contended that the RFA No.47/2010 Page 8 of 17 respondent was then asked to compare his signature on the plaint with his signature on the other documents, that is, the Agreement to Sell, the General Power of Attorney, the Indemnity Bond, the Special Power of Attorney, the Affidavit, Receipt and Will, and at that time also the respondent specifically denied his signatures on the plaint as well as on the other documents.
15. The learned counsel for the appellant in support of his contention that the onus to prove that the suit has been signed, verified and instituted by a duly authorised person, was on the respondent relied upon the judgment of this Court rendered in the case of Bharat Aluminium Co. Ltd. vs. Maharashtra Aluminium Corporation reported in 159 (2009) DLT 489: (2009(5) AD (Delhi) 719). The learned trial Judge, he contended, had lost sight of the fact that a plaint has no meaning when it is without signature or the signature put thereon has been denied by the signatory himself.
16. It was further contended on behalf of the appellant that the rejection of his application under Section 65 of the Evidence Act by the trial court and thereafter by the High Court, and the dismissal of his Special Leave Petition by the Supreme Court in limine, had resulted in non-suiting the appellant. It was also contended that the trial court had failed to appreciate that the respondent, although he claims that he is the owner of the suit property, has never paid the house tax in respect of the suit property, and till date it is the appellant who has been paying the RFA No.47/2010 Page 9 of 17 house tax. The trial court had also failed to appreciate that the suit property was completely inhabitable at the relevant time, and it was the appellant who had completed the entire construction work and furnished the suit property at his own expense. As such, under the provisions of Section 60 (b) of the Indian Easements Act, 1982, the respondent had no right to revoke the licence of the suit property.
17. Mr. Vikram Nandrajog, the learned counsel for the respondent, on the other hand, contended that the respondent had never sold the flat in question to the appellant and, therefore, the seven documents mentioned hereinabove were never executed. He stated that the appellant and the respondent were known to each other as they had shops in the same area, i.e., in the Hauz Kazi Market, Delhi and the respondent had on a personal request of the appellant allowed the latter to reside in his flat for a period of about six months. He further stated that when the respondent asked the appellant to vacate the suit premises, the latter filed a suit for injunction in July 1998, seeking protection against dispossession. In the said suit, the appellant in support of his claim stated that he had purchased the flat in question from the respondent, filed only the photocopies of the seven documents referred to hereinabove, and did not file the originals on the ground that these has been misplaced/lost by him, and for this purpose the appellant placed on record a police report dated 21st January, 1996. Subsequently, the appellant filed an application dated 1st December, 1999 under order XIII Rule 2 read with RFA No.47/2010 Page 10 of 17 Order XVIII Rule 17-A read with Section 151 CPC seeking the permission of the Court in the said suit to file the originals of the aforesaid documents on the ground that the originals had been found by him in his house, and the earlier police complaint dated 25th January, 1998 had been withdrawn by him.
18. The trial court by an order dated 24th August, 2000 allowed the appellant‟s aforesaid application and directed him to produce the original documents. Thereafter the appellant‟s suit was repeatedly adjourned on several dates, that is, on 17th November, 2000, 15th January, 2001 and 8th February, 2001 to enable the appellant to file the originals of the aforesaid documents. On 16th March, 2001, the trial court recorded in its order the fact that the appellant had not filed the original documents despite having been given a last opportunity and since on the said date neither the appellant nor his counsel appeared, the trial Court dismissed the suit of the appellant in default.
19. Subsequently, on an application for restoration moved in the aforesaid suit i.e. Suit No. 392/1998, the trial court, by an order dated 23rd August, 2001 restored the suit subject to the condition that the original documents would be produced by the appellant on the next date, i.e. on 24th August, 2001. The trial court further stated that if the original documents were not produced on the next date, the suit would be treated as dismissed in default. However, the appellant again sought further time on 24th August and 27th August, 2001 for filing the original RFA No.47/2010 Page 11 of 17 documents. On 3rd September, 2001, the petitioner filed an application seeking extension of time to file the original documents till 15th September, 2001 on the ground that the said documents had been mortgaged for raising a loan to meet the expenses incurred on account of his wife‟s illness and that the said loan was to be repaid by 15 th September, 2001. He stated that as soon as the documents were realeased, he would file the originals before the trial court.
20. Mr. Nandrajog contended that the appellant even thereafter continued to concoct stories, this time spinning a story that though he had on 24th August, 2002 brought the original documents to the Tis Hazari Courts, Delhi, for the purpose of filing the same in the suit filed by the respondent, but his bag (allegedly containing the original documents) was stolen when he went to the urinal, after parking his scooter. It was on this basis that the appellant filed an application under Section 151 CPC read with Section 65 of the Evidence Act, referred to hereinabove, for leading secondary evidence which was rejected by the trial court. A challenge to the said order, as already stated, was raised by the appellant by way of CM(M) No. 1320/2004, which was dismissed by this Court on 28th January, 2009. A Special Leave Petition arising therefrom also having been dismissed, Mr. Nandrajog contended that the said order had attained finality.
21. It is submitted by Mr. Nandrajog that the entire conspectus of facts thus amply demonstrates that the appellant all along was RFA No.47/2010 Page 12 of 17 hoodwinking the court. Different versions were raised by him from time to time, none of which inspired the confidence of the Court. Mr. Nandrajog also submitted that the lifeline offered to the appellant by the order dated 9th September, 2009 passed by this Court, in RFA No. 306/2009, whereby the matter was remanded back to the learned trial court for being decided afresh, after affording to the appellant an opportunity to cross-examine the respondent, also proved to be of no avail to the appellant. The aforesaid cross-examination of the appellant did not yield the desired results, and nothing emerged on the record to controvert the respondent‟s case that the appellant was a licensee and that the ownership vests in the respondent. The seven documents relied upon by the appellant with a view to grab the property of the respondent indubitably were unregistered documents and the evidence on record proved that the documents were not even submitted to the Society, or to the DDA, or to the MCD, or to any other department. Had there been a trace of these documents with the Society or with any Department, the appellant could have summoned them. The clincher was that though the appellant summoned a witness from the MCD, he did not confront the respondent with any of the documents produced by the said witness from the MCD.
22. The entire appeal of the respondent, Mr. Nandrajog, contended was predicated only on one ground, viz., that when the respondent- plaintiff was cross-examined he denied his signatures on the plaint. RFA No.47/2010 Page 13 of 17 However, a perusal of the record shows that no such plea was taken in the written statement filed by the appellant. The appellant and the respondent were admittedly known to each other and were neighbours and friends, and as such the appellant must be deemed to be acquainted with the signatures of the respondent. Despite this there is no plea raised in the written statement by the appellant that the plaint was not signed by the respondent. Furthermore, no evidence was led by the appellant that he got executed any work in the flat, either of a temporary or a permanent character, and as such clause (b) of the Section 60 of the Indian Easement Act, 1982 cannot come to the assistance of the appellant and could not have been invoked by him.
23. After hearing the parties at length and perusing the records, I find no infirmity, illegality or perversity in the order of the trial court. The respondent has proved on record that he was the allottee of the flat, in question from the Amarpali Apartments Group Housing Society and that the appellant and he being neighbours in the Hauz Qazi Market, he had inducted the appellant into his flat at a time when the appellant was looking for a residential accommodation, on the assurance of the appellant that he would vacate the premises latest within six months. The appellant, with a view to grab the suit property, has put forth a counter claim to the effect that there was a sale transaction between him and the respondent. The appellant has, however, failed to prove even a single document executed by the respondent in this regard or that the RFA No.47/2010 Page 14 of 17 sum of Rs.5.45 lakhs or any other amount whatsoever was received by the respondent, which amount is stated to have been handed over by the appellant to the respondent in cash.
24. Had the appellant entered into a sale transaction with the respondent, in my view, it is unbelievable that the Society would not have been apprised of the same. The appellant also failed to bring on record any evidence from the side of the Society or from the DDA or the MCD to support his assertion that there was a sale transaction between the parties. This Court, in order to ensure that no injustice was caused to the appellant, and keeping in view the fact that the application of the appellant for leading secondary evidence under Section 65 of the Evidence Act was rejected from the trial court till the Supreme Court, gave the appellant another opportunity to cross-examine the respondent by order dated 9th September, 2009 passed in RFA no. 306/2009. The records reveals that pursuant to the said order the respondent was subjected to extensive cross-examination on a number of occasions. The record also reveals that though a witness was present from the MCD before the trial court the appellant did not choose to confront the respondent with the records of the MCD, presumably for the reason that the same would have resulted in completely falsifying the case of the appellant. Thus, there is not even an iota of evidence, either oral or documentary, to prove that the respondent sold the flat in question to the RFA No.47/2010 Page 15 of 17 appellant at any point of time or that he got any work executed to make the flat habitable.
25. Adverting to the contention raised by the counsel for the appellant with regard to the respondent having failed to discharge the onus of proving that the plaint was signed, verified and instituted by him, a careful reading of the evidence shows that the question posed to the respondent (PW1) was not whether he had signed the plaint. But it was put to him as to whether the document Mark „G‟ (the plaint) was signed by him. Significantly, this question was posed by inserting the plaint (Mark G) with seven other documents bearing Mark „A‟ to Mark „F‟. The respondent who had denied his signatures on documents Mark „A‟ to Mark „F‟, apparently on account of confusion denied his signatures on Mark „G‟ as well. Thus, the statement of the respondent that none of the documents to prove the sale were signed by him cannot be misconstrued and read out of context. All the more so, as it is evident from the record that the signature of the respondent appears on the plaint at two places and on the vakalatnama as well as on the affidavit by way of evidence. The evidence must therefore be read in its entirety. Merely because the plaintiff in cross-examination inadvertently denied his signatures on the plaint, the impugned judgment cannot be overthrown on this ground alone.
26. To conclude, the appellant has, in my considered opinion, failed to make out that the impugned judgment and decree warrant interference RFA No.47/2010 Page 16 of 17 from this Court. The entire version of the appellant is uncorroborated and unproved on record and there is neither any oral nor any documentary evidence to support his claim that a sale transaction was entered into between the respondent and him. The ownership of the flat thus clearly vests in the respondent-plaintiff, who appears to have been deprived of its possession by the appellant-defendant concocting one story after another.
27. Resultantly, the appeal fails and is dismissed.
REVA KHETRAPAL (JUDGE) July 23, 2010 sk RFA No.47/2010 Page 17 of 17