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[Cites 20, Cited by 0]

Delhi District Court

Sh. V.K. Bhatnagar vs Sh. Charanjit Lal Mehra on 31 October, 2013

                  IN THE COURT OF MUNISH MARKAN,
                ADDITIONAL RENT CONTROLLER (SOUTH), 
                      SAKET COURTS,  NEW DELHI

EVICTION PETITION NO.   E­292/09

   1. Sh. V.K. Bhatnagar
      S/o late Sh. K.C. Bhatnagar
      R/o A­1, Gurdwara Road,
      N.D.S.E., Part­I, New Delhi 
   2. Smt. M.V. Bhatnagar
      W/o Sh. V.K. Bhatnagar
      R/o A­1, Gurdwara Road,
      N.D.S.E., Part­I, New Delhi              ...... Petitioners.

          Versus

   1. Sh. Charanjit Lal Mehra
      S/o Late Sh. Devi Das Mehra,
      R/o Mehra Lodge, S­555,
      Greater Kailash Part­II, 
      New Delhi
   2. Dr. P.P. Kapur (Since deceased through his legal heirs)
      (2a) Smt. Urmila Kapur
              W/o Dr. P.P. Kapur
              A­1, Gurdwara Road,
               N.D.S.E., Part­I, New Delhi 
       (2b) Arun Kapur
               S/o late DR. P.P. Kapur
              A­1, Gurdwara Road,
               N.D.S.E., Part­I, New Delhi    ...... Respondents.




E No.292/2009                                                        Page 1 /18
             Eviction Petition u/s 14 (1) (b) of Delhi Rent Control Act

        Date of Institution of the case                       :       02.02.1987
        Date of Judgment reserved                             :       28.10.2013
        Date of Judgment pronounced                           :       31.10.2013

                                            JUDGMENT

1. This is an eviction petition filed by the petitioner no.1 along with his wife petitioner no.2 against two respondents u/s 14 (1) (b) of DRC Act on the ground of subletting in respect of the suit property bearing no. A­1, Gurudwara Road, NDSE Part­1, New Delhi comprising one hall measuring about 500sqr. Feet on the ground floor. The case of the petitioners was that suit premises was let out to the respondent no. l only w.e.f. 01.05.74 under oral agreement of lease and the rent of the suit premises is Rs.525/­ per month besides electricity charges @ Rs. 350/­ per month and water charges @ Rs.50/­ per month. The petitioners had alleged in the petition that respondent no.1 had sublet, parted with or assigned the possession of the demised premises to respondent no.2 without the written consent of the petitioners.

2. On the other hand, stand of the respondents in their written statement was that it was not an oral tenancy but the suit premises was let out by the petitioner no.2 to both the respondents along with three brothers of the respondent no.1 namely Ashwani Kumar Mehra, Yashpal Mehra and Ashok Kumar Mehra by way of written Lease Deed dated 01.05.1974 which was executed by petitioner no.2 and in the said Lease Deed, petitioner no.1 signed as a witness.

3. Vide judgment dated 25.04.2011, Ld. Predecessor of this court had passed an eviction order in favour of the petitioners and against both the E No.292/2009 Page 2 /18 respondents in respect of the suit premises on the ground of subletting u/s 14 (1)

(b) of DRC Act. In the said judgment dated 25.04.2011, particularly para 21 to 23 thereof, Ld. Predecessor of the court discarded the document Ex.RW­1/A (purported to be the copy of the Lease Deed dated 01.05.1974) from total consideration on account of the same being un­registered document and being hit by section 49 of Registration Act.

4. Both the respondents challenged the judgment dated 25.04.2011 before Ld. ARCT in ARCT No.33/2011. Vide judgment dated 07.02.2012, Ld. ARCT had directed that a clear findings as to whether the document Ex.RW­1/A had been brought in existence by the respondents therein (petitioners herein) on 01.05.1974 required to be reached first and the effect thereof could be looked into only thereafter. With these directions, the case was remanded back. Further, before the Ld. ARCT, both the parties had submitted that they did not wish to adduce any further evidence as reflected from para 14 of the judgment dated 04.02.2012.

5. The present petitioners challenged the judgment dated 07.02.2012 before Hon'ble High Court but could not succeed.

6. Now before this court, only two issues are required to be determined. First whether document Ex.RW­1/A (the alleged written lease deed dated 01.05.1975) came into existence in the first instance and the effect thereof to be looked into only thereafter.

ARGUMENTS OF THE RESPONDENTS

7. Ld. Counsel for respondents argued at length taking two lines of arguments. The contention of the respondents has been that it was not an oral E No.292/2009 Page 3 /18 tenancy as alleged by the petitioners. A written Lease Deed was executed on 01.05.974 on the one hand by petitioner no.2 and on the other hand by both the respondents along with three brothers of the respondent no.1 namely Ashwani Kumar Mehra, Ashok Kumar Mehra and Yashpal Mehra. It is argued that petitioner no.1 and one Sh.R. L. Bhati a property dealer were the two witnesses to the Lease Deed. The original Lease Deed remained with the petitioner but a carbon copy thereof bearing original signatures of all the parties was given to the respondents. Ld. Counsel for respondents had argued that at the time of filing of written statement, the copy of the said Lease Deed could not be filed as it was misplaced by the Ld. Counsel for respondents and the same was filed later on which was allowed by the court to be taken on record vide order dated 15.03.2001. Respondents also moved an application u/o 12 rule 2 CPC and notice Ex.RW­1/C was given to the petitioners to produce the original Lease Deed dated 01.05.1974 along with other document i.e. a counter foil of rent receipt dated 02.06.1980. It is argued that petitioners refused to receive the notice as reflected from returned envelop Ex. RW­1/D. He argued that subsequently both the petitioners were called upon to admit the document Ex.RW­1/A but none of the petitioners appeared, instead the counsel for both the petitioners did the admission denial and denied the Lease Deed Ex.RW­1/A and the rent receipt dated 02.06.1980 Mark Y. He further argued that in the replication filed by the petitioners, the petitioners had reserved their right to reply as and when the Lease Deed is filed. Ld. Counsel argued that despite the document Ex.RW­1/A coming on record subsequently, the petitioners had not chosen to file any reply and further did not examine any witness. It is argued that the conduct of the petitioners in not appearing in the court either as E No.292/2009 Page 4 /18 witnesses or for the purposes of admission and denial of the documents should be taken adversely against the petitioners.

8. Another limb of argument addressed by Ld. Counsel for respondents is that as far as the question of existence of document Ex.RW­1/A is concerned, respondent witness i.e. RW­1 who is respondent no.1 himself has tendered his affidavit Ex.R­1 wherein he categorically stated that it was not an oral tenancy but a Lease Deed was executed by petitioner no.2 and themselves on 01.05.1974. RW­1 categorically stated that the original of the Lease Deed is with the petitioner no.2 and carbon copy bearing the original signatures of the parties was given to them. It is further argued that respondents also examined handwriting expert RW­5 Sh.S. P. Singh who gave his expert report Ex.RW­5/A wherein the expert had given a finding in favour of respondents stating that the document Ex.RW­1/A i.e. Lease Deed dated 01.05.1974 and another letter dated 16.05.1985 Ex.RW­1/J bear the signatures of both the petitioners at their respective places.

9. Therefore, the Ld. counsel for respondents argued that the document Ex.RW­1/A has been duly proved by the respondents and the petitioners were given an opportunity but had not opted to lead any evidence in rebuttal. It is argued that the respondents had discharged their burden and produced the document on record and one of the executants i.e. RW­1 was examined who testified about his signatures on it. He argued that RW­1 had also testified that both the petitioners also signed Ex RW­1/A in his presence, and has also proved their signatures by way of examining the expert RW­5 who has given the report in favor of respondents. He argued that the respondents had discharged their initial onus by leading the best available evidence and the onus therefore shifted to petitioners E No.292/2009 Page 5 /18 but no evidence thereafter was led by the petitioners. It is further argued that during the cross examination of RW­1, RW­1 had deposed that the landlady was also called by M/s Jainco Property Dealer and she had also signed the document in their office and no suggestion was given by the petitioners to RW­1 controverting this statement. It is therefore, argued that this indicates that the document Ex.RW­1/A was executed by both the petitioners.

ARGUMENTS OF THE PETITIONERS:

10. On the other hand, Ld. counsel for petitioners had argued that a document can be proved by either its executant or by the witness or by the narrator of the document. He argued that RW­1 Sh.C. L. Mehra is an interested witness and therefore, his testimony cannot be relied upon for the purpose of proving the document Ex.RW­1/A. He further argued that as per the contention of the respondents, Ex.RW­1/A was allegedly executed by four brothers along with the respondent no.2 and apart from RW­1 i.e. respondent no.1, no other witness was examined by the respondents to prove the existence of Ex.RW­1/A. He further argued that for a while it may be presumed that the brothers amongst themselves are not having good relations but nothing prevented the respondents from summoning the independent witness i.e. Sh.R. L. Bhati and also the respondents have not examined/summoned the petitioners who are alleged to be the executants and witness of the document Ex.RW­1/A. It is therefore, argued that the Ex.RW­1/A is forged and fabricated document.

11. Further, Ld. counsel for petitioners has argued that even the petitioners had examined an expert witness PW­3 Sh.Deepak Jain who had given his report Ex.PW­3/B wherein PW­3 had opined that the Ex.RW­1/A does not bear E No.292/2009 Page 6 /18 the signatures of both the petitioners at its respective places and also gave the opinion that even the document i.e. letter dated 16.05.1985 Ex.RW­1/J also does not bear the signatures of petitioner no.1.

12. Ld. counsel for petitioners further argued that the expert produced by the respondents i.e. RW­5 is not a qualified expert. He argued that nothing has come in the testimony of RW­5 to suggest that he was duly qualified. He also questioned the competence of the witness RW­5 to give the report Ex.RW­5/A. It is argued that the documents of the qualification of RW­5 which is Ex.RW­5/P­1 was issued by his father and therefore, the witness cannot stated to be having high level of competence in giving the expert opinion. He argued that RW­5 i.e. Sh.S. P. Singh had admitted that he himself had not personally attended any training for learning the science of questioned documents from abroad.

13. Further, Ld. counsel argued that on the contrary, PW­3 Sh.Deepak Jain who deposed and tendered his affidavit Ex.PW­3/A has stated therein that he is handwriting and fingerprint expert since 1990 and appeared in more than 2000 cases involving thousands of documents of disputed nature in the various courts of law, and also obtained one year certificate in Forensic Science from Delhi University, and Practical training of two years from the office of Senior Expert of the field in all aspects of handwriting and fingerprints examination. He further argued that this witness has given a detail report Ex.PW­3/B which is more reliable. In this regard, Ld. counsel for petitioners has relied on the fundamental components of evidentiary reliability of an expert opinion as per Frye's test. In this regard he has relied upon State v/s Sanjay Dass (Convict) 164 (2009) DLT 596 DB. He has also relied upon State of Himachal Pradesh v/s Jai Lal & Ors E No.292/2009 Page 7 /18 (1999) 7 SCC 280 in support of his contention that a person who has not done any scientific study or research in a given field cannot be labeled as an expert witness. He argued that the author giving expert opinion has to be qualified to be called a expert by knowledge, skill, experience, training or education, and that the level and expertise though may not affect the admissibility of evidence of the expert but certainly affects the weight to be accorded to the opinion of the expert. It is argued that the expert relied upon by the respondents cannot be equated with the expert relied upon by the petitioner and therefore, it is argued that the document Ex.RW­1/A is forged and fabricated document and has to be totally discarded from the consideration.

FINDINGS OF THE COURT:

14. Ld. ARCT vide judgment dated 07.02.2012 had remanded back the case with the specific directions to give a finding whether the document Ex.RW­1/A dated 01.05.1974 had been brought in existence by the present petitioners and the effect thereof has to be looked into only thereafter.

15. The thrust of the arguments of Ld. Counsel for respondents was largely on the other surroundings circumstances and other evidence led by both the parties. However, in my considered opinion, to ascertain the existence of the document, it is primarily the document which is to be looked into. The inference or corroboration, if any, can be looked for, only after the existence of the document is proved in accordance with law. As per section 67 of the Evidence Act, a document which is alleged to be signed by a person, the signature that person on the said document must be proved to be in his handwriting.

16. Perusal of Ex.RW­1/A shows that it bears the signatures of five E No.292/2009 Page 8 /18 persons apart from signatures of one person as lessor and of two witnesses. This document was produced by the respondents and respondent no.1 led his evidence by way of his affidavit Ex.RW­1 and his testimony in his affidavit is consistent with the document Ex.RW­1/A. RW­1 has categorically stated that Ex.RW­1/A which is Lease deed dated 01.05.1974 bears his signatures at point A and that of Sh. Ashok Mehra, Ashwani Mehra and Yashpal Mehra and Dr. P. P. Kapur at points B, C, D and E respectively. He also stated in his affidavit Ex R­1 that petitioners signed in his presence and petitioner no.1 signed Ex.RW­1/A as a witness and Sh.R. L. Bhati signed the said document also as a witness in his presence and he identified the signatures of Sh.R. L. Bhati at point "I".

17. Further, both the expert witnesses have deposed in favour of their respective clients. PW­3 Sh. Deepak Jain gave his expert report Ex.PW­3/A in favour of the petitioner wherein he opined that Lease Deed i.e. Ex.RW­1/A and another letter dated 16.05.1985 Ex.RW­1/J do not bear the signatures of both the petitioners at their respective places. I have also gone through the reasons given by PW­3 for giving his opinion.

18. On the other hand, RW­5 Sh. S. P. Singh has given his detailed report in respect of both these documents which is Ex.RW­5/A and as per the said report, aforementioned document Ex RW­1/A bears the signatures of the both the petitioners at their respective places. RW­5 has also given detailed observations and reasons in respect of the conclusion arrived at by him.

19. The thrust of the arguments of the Ld. Counsel for the petitioners is that RW­5 is not a competent expert witness. His contention has been that as far as the qualification of the said expert are concerned, a certificate Ex.RW­5/P­1 has E No.292/2009 Page 9 /18 been issued in favour of RW­5 by his father and therefore the same cannot be relied upon. Perusal of Ex.RW­5/P­1 shows that it is a certificate issued by Sh. R.P.Singh, Sr. Examiner of Questioned documents whereby it was certified that RW­5 remained associated him as a trainee expert for six years from 1992 to 1998 and had undergone theoretical studies and practical training, in scientific examination of the questioned documents, comparison and identification of handwriting, signatures and finger prints, thumb impression etc. It was also certified that he was now specially skilled in these subjects of scientific knowledge as an expert in the same. In this regard, I don't find any force in the arguments of the ld. Counsel for petitioners that a certificate issued by a father to his son has to altogether discarded. Nothing has either been brought on record or was argued by Ld. Counsel for petitioner to show that some mandatory qualification is required to be obtained before a person can be called as a handwriting expert. The judgment of State v/s Sanjay Dass (supra) on which the petitioner has relied particularly the reference to fundamental components of Frye's test itself shows that the level of expertise may not affect the admissibility of the evidence of the expert but affects the weight to be accorded to the opinion of the expert. Frye's test also calls that the author of the opinion qualifies to be an expert by knowledge, skill, experience, training or education.

20. Merely because a certificate has been issued by a father to his son cannot become a sole basis for discarding the testimony of the expert witness, if it otherwise indicates application of scientific knowledge, scientific methodology and other scientific techniques while arriving at its conclusions. In this regard, another judgment relied upon by the petitioners themselves i.e. Jia Lal (supra) E No.292/2009 Page 10 /18 also throws light that an expert is not a witness of facts and his evidence is really of an advisory character and the duty of the expert is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing, and tested becomes a factor and often an important factor for consideration along with the other evidence of the case

21. Therefore, it cannot be said that the testimony of RW­5 cannot be taken into consideration. It is basically the report and the basis on which the expert arrived at its conclusions, are the determinative factors in giving weight­age to the report of the expert. Further, perusal of the report of RW­5 i.e. Ex.RW­5/A clearly shows that the expert analyzed the disputed signatures using all the relevant tools like like magnifying lenses, flash magnifiers, light filters, transmitted light, low power microscope etc. Further, report Ex RW­5/A also indicates that the expert examined the signatures on various parameters of strokes, pen pauses, pen lifts, bluntness at start and ends, clumsiness of edges, tremor in the motion of hand and pen, delicate re­touching, writing speed, writing pressure, handwriting motion, nature of line quality, slant of stroke making, position of the writing base, alignment of writing line, simple natural variations, structural details and formations of the letters etc. The report itself indicates that the opinion has been given by the expert RW­5 in a scientific manner. In fact, the parameters on which the report of RW­5 is based is far more than those on which the report was given by PW­3 Sh.Deepak Jain. PW­3 has also given his report giving the reasons on the basis of which he arrived at the conclusions but the same are not as elaborate as E No.292/2009 Page 11 /18 that of RW­5.

22. Be that as it may, In the given circumstances, where the two experts have given contradictory reports, it becomes incumbent upon the court to compare the signatures and reach its own conclusions. Reliance in this regard can be placed on Murari Lal v/s State of M. P. ; (1980) 1 SCC 704. wherein it was held that in scenarios where there is an absence of expert opinion, a second screening in the form of the court's assessment is essential to ascertain the authorship of document.

"12....There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v Subodh Kumar and Fakhruddin v. State of M.P were cases where the Court itself compared the writings."

23. A careful scrutiny of the document i.e. RW­1/A shows that the signatures of petitioner no.1 thereon as a witness are strikingly similar to the admitted signatures of the petitioner no.1. Ex.RW­1/A also shows that not only that petitioner no.1 put his signature thereon but also wrote his complete name as well Virendra Kumar Bhatnagar as well as his father's name Sh. Krishan Chandra Bhatnagar. Both these handwritings are written with the same pen and appears to be written by the same person. Perusal of signatures of petitioner no.1 on Ex RW­1/A leaves hardly any doubt and strongly indicates that it is petitioner no.1 who signed document Ex RW­1/A. If aforementioned parameters as explained by RW­5 in his report are applied to Ex RW­1/A, it invariably supports the case of the E No.292/2009 Page 12 /18 respondents that Petitioner no.1 signed this document. I am satisfied that the document bear the signatures of petitioner no.1.

24. All this has to be appreciated in the backdrop of the fact that this document Ex.RW­1/A is dated 01.05.1974 whereas the present petition was filed by the petitioners in the year 1987 and even after a gap of 13years, there is compelling resemblance between signatures of petitioner no.1 with disputed signatures and admitted signatures. As far as the signatures of petitioner no.2 on the document are concerned, it appears to have shown some variations with the passage of time. Further, petitioner no.2 has signed the petition as Mamta Bhatnagar in the petition whereas in the document Ex.RW­1/A the signature appears to have been done as M. Virender. Though there is some variation in the signatures of petitioner no.2 but there are some similarities in the admitted signatures and disputed signatures of petitioner no.2 as pointed out by RW­5. The contention of the petitioners that respondents had not examined both the petitioners and Sh. R.L. Bhati cannot negative the existence of the document. Respondents on their part had given notice to the petitioners to admit/deny the document Ex RW­1/1 but the petitioners did not enter the witness box and simply denied their signatures on Ex RW­1/A through their counsel. This omission on the part of the petitioners to appear in the court has compelled the court to draw adverse inference against the petitioners in terms of section 114(g) of Evidence Act. Even if the respondents omitted to summon the petitioners, nothing prevented the petitioners to appear in the witness box and demolish the case of the respondents. Law does not require any particular number of witnesses to be examined for the proof of any fact (by virtue of section 137 of Evidence Act). Therefore, considering the document which is a carbon E No.292/2009 Page 13 /18 copy bearing original signatures, in its totality, it is held that the document Ex.RW­1/A in fact came into existence on 01.05.1974.

25. Coming to the question of the effect of document Ex.RW­1/A on the present proceedings ARGUMENTS OF THE PETITIONERS :

26. It was argued by Ld. Counsel for petitioners that document Ex.RW­1/A is allegedly a carbon copy and is a secondary evidence and therefore, cannot be looked into. He further argued that even for a while if the document Ex.RW­1/A is presumed to be in existence, it cannot be read in evidence as it purported to create a Lease Deed for the period of five years and was mandatorily required to be registered as per section 107 of Transfer of Property Act and section 17(1)(d) of the Registration Act. He further argued that there is nothing on record to suggest that the said document was duly registered and therefore, it is hit by section 49 of the Registration Act. He argued that this document cannot be even read for a collateral purposes in view of the judgment K. B. Saha and Sons (P) Ltd. V./s Developer consultant Ltd.; 2008 (8) SCC 564. He argued that a document which is required to be registered under the law if it is un­registered is not admissible in evidence u/s 49 of Registration Act. Since in the present case, by way of document Ex.RW­1/A the respondent intends to show that as to who are the tenants in the suit premises and this being an important term of agreement is not a collateral purposes and for this purpose, the document cannot be looked into. He relied on Haran Chandra Chakravarti v/s Kaliprasanna Sarkar AIR 1932 Cal 83(2) wherein it has been held that the terms of a compulsorily registrable E No.292/2009 Page 14 /18 instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease deed into evidence.

27. He further argued that the document Ex.RW­1/A is a carbon copy and therefore is not a primary evidence and the secondary evidence has not been proved in accordance with law. He further argues that even the document Ex.RW­1/A do not indicate whether it is properly stamped and therefore is inadmissible by virtue of section 35 of the Act.

ARGUMENTS OF THE RESPONDENTS:

28. On the other hand, Ld. counsel for respondents had firmly argued that Ex.RW­1/A is a primary document by virtue of Explanation 1 of Section 62 of Indian Evidence Act. It is argued that a document which is signed by the parties is primary evidence against the party executed it. He argued that since both the petitioners had signed this document, therefore, it is a primary document and cannot be said to be secondary evidence. Since Ex. RW­1/A is a carbon copy and the original of the same is the petitioners who were called upon to produce the said original which they have not produced and even the petitioners did not come forward to admit this document, therefore, by virtue of section 89 of the Evidence Act, this document is deemed to be stamped and executed in the manner required by law. Therefore, it is argued that the document Ex RW­1/A, in fact, has to be treated as executed in accordance with law and is deemed to be registered for all E No.292/2009 Page 15 /18 the intents and purposes. He further argued that perusal of this document shows that apart from both the respondents, there were three more tenants and no case of subletting is made out.

FINDINGS OF THE COURT:

29. It is held that the document Ex.RW­1/A came into existence, the notice to produce the said document was given by the respondents to the petitioners but they had not produced the same. Further, the petitioners were called upon to admit this document but petitioners themselves have not come forward to admit/deny their signatures and execution of this document and instead chose to deny their signatures through their counsel. The conduct of the petitioners in not appearing in the court warrants drawing of adverse inference against the petitioners in terms of section 114(g) of Evidence Act. The petitioners being the landlords are in possession of the original of document ExRW­1/A. The respondents being tenants obviously have a carbon copy of the lease deed but the said document bears the signatures of the both the parties.

30. I find merit in the contentions of Ld. counsel for respondents that ExRW­1/A is a primary document in terms of Explanation I of section 62 of Evidence Act. It may be a carbon copy but since it bears the signatures of both the petitioners, it is a primary document. Further, petitioners were called upon to produce the original of this document but they had not produced it. Therefore, the court is compelled to hold that document Ex RW­1/A is deemed to be stamped and executed in accordance with law by virtue of section 89 of Indian Evidence Act. Once this is the case, no question arises regarding taking the document within the ambit of section 17 of Registration Act and Section 49 of Registration Act. If the E No.292/2009 Page 16 /18 law treats a document as being duly executed in accordance with law, the document has to be considered duly executed, stamped, and registered for all intents and purposes. The petitioners cannot be allowed to take advantage of their own act of with­holding the document and thereby putting the blame on the respondents for not filing the original document and at the same time keep on agitating that the document is not registered. The factum of registration or otherwise of the same can only be ascertained once the document in original is produced by the petitioners which they have not done. Petitioners can not blow hot and cold in the same breath.

31. As far as the defence of the respondents is concerned, the respondents had produced the best available evidence with them and the initial onus to prove the existence of this document was upon the respondents which they had duly discharged. Now the onus shifted to the petitioners. Once the doubt was cast regarding the execution/ registration of the said document, the onus was upon the petitioners to produce the original document in order to avail the benefit in accordance with law which the petitioners had miserably failed to do so. In fact, the position of the petitioners was like caught between devil and deep sea. Petitioners based their claim of subletting taking the ground that the tenancy was oral. Once the carbon copy i.e. Ex.RW­1/A came into picture, the petitioners had no option but to deny it and now, the petitioners cannot take the advantage of their own wrong i.e. on the one hand, withholding the original document and on the other hand claiming that the same has not been executed in accordance with law.

32. It is a cardinal principle of law that a person must always approach the court with clean hands. The endeavor of the courts is always to find the truth E No.292/2009 Page 17 /18 and a party who does not approach the court with clean hands is not entitled to any relief.

33. In my considered opinion, the document Ex.RW­1/A whose existence has been duly proved and it is held that there is no legal bar by virtue of section 89 of Evidence Act to take into account Ex.RW­1/A, it is held that this document is duly executed in accordance with law and is deemed to be duly registered. Perusal of it completely demolishes the case of the petitioners that respondent no.1 had sublet, assigned or parted with the possession of the suit premises to respondent no.2. Ex RW­1/A supports the stand of the respondents taken throughout that it was a written tenancy created on 01/05/1974 between petitioner no.2 on one hand and both the respondents along with three brothers of respondent no.1 on the other. Petitioner no.1 had signed the lease deed as a witness. Therefore, no case of subletting is made out. The document demolishes the case of the petitioners beyond repair. In the face of the document ExRW­1/A, the oral testimony of AW­1 Sh. C.L. Sharma is completely demolished. Accordingly, eviction petition is dismissed. Parties to bear their own costs.

File be consigned to Record Room. 

Announced in open court                                           (Munish Markan)
on 31.10.2013                                             Additional Rent Controller 
                                                            (South), Saket, New Delhi




E No.292/2009                                                                              Page 18 /18