Delhi District Court
Sh. Harmeet Singh vs Sh Saranjit Singh on 4 November, 2015
Harmeet Singh v Saranjit Singh RCA 35/10/06
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE -06: CENTRAL : DELHI.
RCA No. 35/10/06
Sh. Harmeet Singh,
S/o S. Dalip Singh,
R/o 2429, Tilak Street,
Paharganj,
New Delhi. ....... Appellant
Versus
Sh Saranjit Singh,
S/o S. Dalip Singh,
R/o 2429, Tilak Street,
Paharganj,
New Delhi. ......Respondent
Unique case I.D No. :02401C0009202006
Date of Institution : 04.01.2006.
Date of Reserving Judgment : 19.10.2015.
Date of Judgment : 04.11.2015.
Result: Appeal Dismissed Page 1 of 28
Harmeet Singh v Saranjit Singh RCA 35/10/06
JUDGMENT on Appeal against the
Judgment and Decree dated 17.11.2005
1. The appellant/defendant in the suit below has filed this
first appeal against the judgment and decree of Ld. Trial
Court below dated 17.11.2005 whereby which a suit for
Permanent Injunction filed against him by his own brother
i.e plaintiff/respondent herein was decreed resulting into
an order injuncting the appellant from entering into the
suit premises bearing no. 646, Chhe Tooti, Mohalla Bawli,
Paharganj, Fancy cloth market, New Delhi and also from
interfering in the business carried out by the plaintiff in
said shop under the name and style of M/s Ravinder
Brothers.
FACTS IN BRIEF.
2. In the suit below, the respondent herein claimed to be running and carrying on business of cloth merchant under the name and style of M/s Ravindra Brothers from the suit premises which is said to be his sole proprietorship concern and he was carrying the said business since the year 1982-83. The shop was acquired by him from one Sh Radha Krishan vide an agreement dated 10.8.1982. 2.1. The respondent is assessed to income tax and the concern is registered with Shops & Establishment Result: Appeal Dismissed Page 2 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 Department as a sole proprietor. In the course of business, it acquired good-will and reputation. The appellant, real brother of respondent also carried independent business at Ghaziabad in the name of M/s Harmeet Textiles but was forced to close down the said business due to alleged wrongful affairs. It was averred that with a view to delay his creditors, the appellant had shifted all his goods etc to residential premises from where he carried business activity in his wife's name from the said accommodation provided by their father in portion of which the appellant is said to be a licensee. On account of loss, father of the parties helped the appellant during his business activities with finance etc. Their father carried out a business in the name of Dalip Singh & Sons in another shop bearing no. 646, Chhe Tooti, Paharganj, New Delhi where the appellant was employed at monthly salary of Rs.1,000/- which was later increased to Rs.1500/- per month. However, the appellant misbehaved with his father and also adopted to mal-practices including misappropriation of goods and cash of the aforesaid shop resulting into termination of his employment vide notice dated 6.12.1989.
2.2. In its reply, the appellant claimed that the business of M/s Dalip Singh & Sons was a family business in which Result: Appeal Dismissed Page 3 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 he had a share besides claiming that the respondent's business in the name of M/s Ravindra Brothers is also a family concern in which he had equal right. He accordingly started visiting the respondent's shop and even on objections his misbehavior did not stop. The matter was reported to the police but to no avail. Thus, the respondent accordingly filed an Injunction suit.
3. The appellant took a stand in the written statement that the suit was with an intent to grab his share. He disclosed that M/s Ravindra Brothers was started by their father and at the relevant time, other firms namely M/s Dalip Singh & Sons and M/s Khurana & Company were also functioning under the control of their father, affairs of which are managed by both the parties. It was averred that the firms namely M/s Dalip Singh & Sons and M/s Ravindra Brothers are both controlled from the shop of M/s Dalip Singh & Sons and the telephone pertaining to M/s Ravindra Brothers is also installed in the premises of M/s Dalip Singh & Sons. It was stated that all books of accounts and bill books are kept in premises of M/s Dalip Singh & Sons and most of the times, the appellant sits with his father in the shop of M/s Dalip Singh & Sons in which the respondent also has a share. No partition has been effected is also a claim.
Result: Appeal Dismissed Page 4 of 28Harmeet Singh v Saranjit Singh RCA 35/10/06 3.1. The suit was contested also on the ground that w.e.f December 1988, some dispute arose in the family consequent to which his father tried to debar him and on 22.12.1988 his father also made a complaint against the appellant at police station Paharganj. The said report was dismissed being false. The report was purportedly against the in-laws of the appellant with an objective to harass them as the said in-laws advanced a loan of Rs.2 lacs on different occasions including the year 1982 when the shop in dispute was purchased and loan of Rs.60,000/- was also advanced by father in law of appellant. It is averred that on 7.9.1989 the respondent and his father tried to kill the appellant due to which he got hospitalized and the matter was reported to the police. The reason behind all this is said to be the inability of the respondent and his father to repay the loan.
3.2. The appellant claims that share in the shop in dispute and the documents by which the respondent claims to be the sole proprietor are said to have been intentionally made to defraud the appellant. The appellant stands in justification of the averments that the shop was started by the father of the parties for both of them. As per the history of transactions given by him in the written statement, a firm M/s Harmeet Textiles was in Result: Appeal Dismissed Page 5 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 existence at 646-647, Chhe Tooti, Paharganj, New Delhi prior to the year 1982. The firm namely M/s Ravindra Brothers was also in existence at that time. Both firms were in management and control of father of the parties. M/s Harmeet Textiles is said to be in the name of appellant while M/s Ravindra Brothers is said to be in the name of another brother of parties namely Sh Ravindra Singh. It is claimed that some time later Sh Ravindra Singh got appointment in a bank owing to which M/s Ravindra Brothers was transferred to one more brother of the parties namely Sh Dalbir Singh. At that time, all these brothers were working under instruction of their father. It is further claimed that in 1981, M/s Ravindra Brothers was closed and M/s Dalip Singh & Sons was settled in some other business. Likewise, M/s Harmeet Textiles was also closed in 1981-82 after which it had no dealings. Thereafter a new firm again by the name of M/s Ravindra Brothers was established for both the parties to the suit who were also managing M/s Dalip Singh & Sons as well as M/s Khurana & Company. Their father used to distribute the share amongst the parties to the suit. These preliminary objections have been amplified in the reply on merits which also constitutes denial to the averments in the Result: Appeal Dismissed Page 6 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 plaint.
3.3. In respect of averment that the respondent is sole proprietorship concern, the same stands denied. However, the averment that the shop was taken on 18.8.1982 from Sh Radha Krishan is not denied, although, it is averred that Sh Radha Krishan was himself a tenant and had no right to let out the shop to the respondent. The appellant claims that it was told to him that the shop has been purchased for Rs.60,000/- which amount was actually taken from his father in law. It is claimed that all investment in the shop was made by father of the parties after obtaining loan from father in law of appellant. It is also averred that the appellant had to sign on many document presented by his father in good faith because he was managing and controlling these firms and the appellant used to get his share from the profits till 1987. The appellant claims prior experience in the field as compared to the respondent and further claims to have been managing the sale and purchase and issuing bills of cash and credit at the shop. He claims that the respondent mostly used to sit in the other shop of M/s Dalip Singh & Sons as the account book and telephone of M/s Ravindra Brothers are got in the said shop. 3.4. The appellant denies to have carried any business at Result: Appeal Dismissed Page 7 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 Ghaziabad or that the said business failed. He claims that the said business in the name of M/s Harmeet Textiles was carried out from shop no. 646-647, Paharganj under the control of his father which was closed in 1981-82 as a new firm M/s Ravindra Brothers was established. A new plea is also taken that the appellant's father in law was an agriculturist and the respondent's father also demanded dowry from him and thus a sum of Rs.2 lacs was advanced.
3.5. The appellant also stands in denial to the averment that he was ever employed by his father as alleged. It is averred that loan amount was never returned despite requests and that the appellant was never provided with the accounts of all the shops for the years 1987-88, 1988- 89 and 1989-90.
4. The respondent also filed replication to the aforesaid written statement which is nothing but a reiteration of the facts of the suit as correct. Additional fact worth mentioning is that the replication provides are that the appellant had his independent business at Ghaziabad in Veruna Market which he carried till 1983 whereafter which he started business of tea vendor from the said shop till 1984. The appellant also claimed compensation for the loss that occurred to him during the year 1984 ant Sikh Result: Appeal Dismissed Page 8 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 Riots from Singh Sabha Gurdwara as well as the appropriate Government. Subsequently, he shifted to Delhi and was employed by father of the parties in his shop. The replication also provides that the appellant had also started another business in the name of M/s Inderjit Enterprises which he carried from residential premises in his wife's name. It is denied that any loan was taken from appellant's father in law by anyone. All averments in this respect are also denied. It is also denied that any dispute took place on 7.9.1989 or on several occasions. It is denied that the appellant had been doing the business from the very start at 646-647, Chhe Tooti, Paharganj, New Delhi. It is also denied that firm by the name of M/s Harmeet Textiles or M/s Ravindra Brothers existed at the shop in dispute prior to the year 1982 as alleged.
5. The Ld. Trial Court below had cast the underlined issues on 17.11.1993 on the basis of pleadings viz;
1. Whether the suit of the plaintiff is barred by the provisions of Section 41 of the Specific Relief Act ? OPD.
2. Whether the plaintiff is entitled to the relief of Permanent Injunction as prayed for ? OPP.
3. Relief.
Result: Appeal Dismissed Page 9 of 28Harmeet Singh v Saranjit Singh RCA 35/10/06
6. The respondent herein examined Sh Praveen Kumar as PW 1 and himself as PW 2. The appellant/defendant in the suit below examined Sh Ami Chand, Sr Accountant,Ministry of Home Affairs as DW 1, himself as DW 2, Sh Raj Kumar, Record keeper, Oriental Bank of Commerce as DW 3, Sh Vijay Prakash, Custodian Clerk, Land & Building department as DW 4, Sh Ram Phal Assistant, DDA as DW 5 and Sh Subhash Chaturvedi, UDC, Ministry of Home Affairs as DW 6.
7. After hearing the parties, the judgment and decree dated 17.11.2005 were passed against the appellant herein. The issue no. 2 was decided first in favour of the respondent herein primarily on the ground that the respondent had proved statement of bank account, agreement/receipt regarding acquisition of shop its registration with Shops & Establishments as well as income tax returns etc which collectively made clear that the respondent was in exclusive possession of the shop and also the sole proprietor of firm namely M/s Ravindra Brothers and whereas the appellant could not rebut the said claim and also failed in connecting the evidence led by him with his defence. His own testimony was found to be based on oral assertions lacking corroboration and full of contradictions.
Result: Appeal Dismissed Page 10 of 28Harmeet Singh v Saranjit Singh RCA 35/10/06 7.1. Issue no. 1 was also decided against the appellant for want of evidence and convincing arguments. The third issue was in favour of the respondent. 7.2. Feeling aggrieved, thus appeal.
GROUNDS OF APPEAL.
8. The grounds of appeal are more generalized than specific. I shall take up those that are specific. 8.1. To begin with it is stated that the trial Court has misconstrued the evidence resulting into improper appreciation in as much as the cash memos showing the signature of the appellant were not considered which will show that he participated in running of M/s Ravindra Brothers. The judgment is challenged on the ground that the ld. Trial Court failed to notice that separate firm in suit premises in the name of M/s Harmeet Textiles was run by the appellant as its sole proprietor. It is challenged on the ground that ld. Trial Court ought to have ruled that respondent is tress passer and is not entitled to injunction. Error of law is also pleaded to the effect that no injunction could have been passed against the co-owner. The judgment is also challenged on the ground that Sh Radha Krishan had no authority to transfer the tenancy and alleged agreement ExPW1/2 is invalid as fabricated. The Result: Appeal Dismissed Page 11 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 judgment is also challenged on the ground that all the three firms were started by funds of father of the parties making it a joint family business in which the respondent alone can not have any claim. The judgment is also challenged on the ground that Ld. Trial Court did not consider that the current account number 413 in the name of M/s Harmeet Textiles is at the address of the suit property showing that the appellant runs independent business at the suit property in the name of M/s Harmeet Textiles. It is further asserted that the documents proved by the respondent might prove his possession in the suit premises but they does not prove that the appellant is not carrying business in the name of M/s Harmeet Textiles or that he has no share in M/s Ravindra Brothers.
9. The appeal was admitted and notice thereof was issued to the respondent/plaintiff in suit below. The trial court record was also summoned. It is recorded in order dated 17.7.07 that the respondent shall not file reply and argue the same straightway. Liberty was granted. It would be imperative to give brief of outline of the proceedings during pendency of appeal which follow accordingly in next para.
Result: Appeal Dismissed Page 12 of 28Harmeet Singh v Saranjit Singh RCA 35/10/06 PROCEEDINGS PENDING APPEAL.
10. During pendency of appeal, the appellant sought exhibition of some documents that is some invoices, hospital bills, original MLC, original agreement by brother Sh Dalbir Singh in appellant's favour, certified copy of order dt. 29.6.1998 passed by Hon'ble High Court of Delhi, letter receipt, records of Oriental Bank of Commerce and some bill books. An application under Section 151 CPC was accordingly filed. It was dismissed on 17.7.07. Feeling aggrieved, the appellant took the matter before Hon'ble High Court in Misc. (main) (Civil) 1114/2007 which was disposed of on 13.10.2009 with directions to this Court to consider the application on its merits without being influenced by the statement made by the counsel to the effect that the appellant did not want to lead evidence but only desired to put exhibit marks on the above documents. It was directed that application be however, considered alongwith hearing on the main appeal, the matter being old and if this court comes out to the conclusion that a case for permitting additional evidence under Order 41 Rule 27 CPC is made out, then to pass appropriate orders. In the meantime proceedings remained stayed between 23.8.2007 till 20.1.2010.
11. It was only after some time that the appellant filed an Result: Appeal Dismissed Page 13 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 application under Section 151 CPC aimed at leading additional evidence. This Court, on 20.2.14, treated the said application as an application under Order 41 Rule 27 CPC and proceeded to hear the parties on the application as also on the appeal.
12. On 24.3.14, the application was allowed by detailed order with clear directions to the appellant to lead additional evidence in this Court itself for proving the documents as described in the list of documents dated 23.5.05.
13. The said order too, was challenged in CM(M)678/2014 which was dismissed as not pressed on 21.7.14 and the Hon'ble Delhi High Court was pleased to direct this court by way of request to expedite the disposal of the first appeal, and if possible to complete hearing of the final arguments within six months of the receipt of said order. The said period could not be practically adhered to as the appellant faltered on as many as three occasions in filing appropriate additional affidavit in evidence in tendom with the directions as contained in this Court order dt. 24.3.14. Infact, the appellant filed three additional affidavits in evidence incorporating pleas not sustainable and also vehemently challenged by the respondent before this Court had to pass a detailed order on 9.10.14 striking down certain portions of the final additional affidavit in evidence. It was only with the Result: Appeal Dismissed Page 14 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 intervention of the Court that appropriate chief examination of the appellant's witness could be concluded. The appellant has examined Sh Madan lal, Special Asstt OBC as AW 1, Sh Rakesh Kr Sharma, Dy Manager, Kangra Cooperative bank Ltd as AW 2 and himself as AW 3. The appellant also examined one Smt Meena Grover as AW 4 who proved the compromise dated 13.9.1998 between her father, respondent and the appellant in her evidence as ExAW4/1. The appellant concluded additional evidence after consuming substantive time of this Court which was spent in cross examination of AW3 on 15.1.15.
14. Opportunity was given to the respondent to lead rebuttal evidence which was availed of. The respondent examined himself as RW1. The final arguments began on 9.3.15 and spanned several occasions that were kept as short as possible and concluded on 19.10.15. Needless to say that the same have been heard at substantial length having regard to the requests of arguing counsels. They have also placed on record the written submissions which have been accordingly perused by this Court. I shall now state the points for determination.
POINTS FOR DETERMINATION.
15. In the preceding paragraph I have pointed out that the arguments were addressed right from the beginning para of Result: Appeal Dismissed Page 15 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 the plaint before ld trial Court till the concluding para of the evidence adduced in the appellate Court. The extent of arguments does not imply that the fact in issue has to be necessarily broad in its spectrum. As a matter of fact, the issue before this Court is not only very short but also one of the simplest and if culled out with precision, it will clinch the controversy in issue. With that objective,I cull out two points for determination viz;
1. Whether the judgement impugned is correct on facts and law on the basis of evidence adduced in ld. Trial Court ?
2. Whether the additional evidence produced in this Court establishes that the appellant was indeed not only in possession of the shop in dispute but also had equal share in the running of the business by the name of M/s Ravindra Brothers ?
The second issue also includes the aspect
as to whether Sh Radha Krishan was
competent to put the respondent in
possession of the premises ini question ?
DECISION THEREON.
16. After having considered all the facts in additional evidence before me, I am of the considered view that this Result: Appeal Dismissed Page 16 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 appeal does not merit to succeed and is required to fail for the reasons as follows:
REASONS FOR DECISION.
17. During evidence before the Ld. Trial Court, the respondent had produced the agreement between him and Sh Radha Krishan, copy of which is ExPW2/1 (original was seen and returned). The signature of Sh Radha Krishan were identified at point A. Registration certificate ExPW2/3 and the income tax assessment record ExPW2/4 reveal that the respondent has been shown as proprietor of M/s Ravindra Brothers. PW 1 Sh. Preveen Kumar, Clerk, SBI, Paharganj proved the account opening form ExPW1/4 in the name of the respondent who is shown as proprietor of M/s Ravindra Brothers as on 26.4.1983. This document go to show that the firm M/s Ravindra Brothers operated from shop no. 646 soon after its possession was transferred to the respondent vide agreement ExPW2/1 on 10.8.1982. Receipt ExPW2/2 also reveals that it is the respondent who paid a sum of Rs.15,000/- to Sh Radha Krishan on account of fittings and fixtures left by him in the shop in question. It would be further narrowed down that the firm M/s Ravindra Brothers came up as a newly formed firm upon its registration under the Delhi Shops & Establishments Act, 1954 as on 19.2.1986 vide ExPW2/3.
Result: Appeal Dismissed Page 17 of 28Harmeet Singh v Saranjit Singh RCA 35/10/06 17.1. In none of these documents there is any reference of the appellant herein. It would be apparent from the evidence adduced by the appellant before ld. Trial Court that he had been unable to sustain his defence by virtue of other cogent documentary evidence. It is the case of the respondent that previous firm was formed up in the year 1982 whereafter which a new firm by the same name i.e M/s Ravindra Brothers was opened for benefit of both the parties to the suit. However, no evidence in this context has been produced. His other brothers Sh Dalbir Singh and Sh Ravinder Singh could have been the best witnesses in this regard. It is so as it was around this time only that his other brother joined some bank services while Sh Dalbir Singh started looking after the old firm in the name of M/s Ravindra Brothers that existed prior to the year 1982. Evidence of these persons would have been the best evidence to support the claim of the appellant which he not only withheld also in the suit below but also withheld as appellant before this Court. Ld counsel for appellant has correctly relied upon the ratio of judgment in M/s Ram Lal Rajgarhia v Prem Chand 1977 RLR (Notes) 21 to the effect that if evidence exists and is not produced, then Court may draw adverse inference against the party for not producing the same. I may as well add here that appellant Result: Appeal Dismissed Page 18 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 had named his brother Sh Dalbir Singh as a witness at serial no. 9 of his list of witnesses proposed to be examined during his additional evidence. However,the same very witness was give up by the appellant as recorded in order dated 18.7.2014. Thus, the appellant is found to have withheld best evidence in the ld trial Court as also in this Court. For the said reason, this Court does not find any fault with the finding of ld. Trial Court below so far as it pertains to issue no. 2.
17.2. As a matter of fact, the appellant is found to have faltered in his own defence to the effect that he had been running any business at Ghaziabad prior to 1982 till 1984 as in his cross examination dated 7.10.2002, he admits to have got compensation at Ghaziabad as a general help to the riots victims. He further says that he had not moved any application that his business had been affected. He admits that his shop was not surveyed. He has sought to make up a case that M/s Ravindra Brothers was established by his father for the benefit of both the parties to the suit after having obtained a loan from his father in law. He also tries to establish that the shop was purchased for Rs.60,000/-. However, in his cross examination dated 7.10.2002 he states that the document ExPW2/1 executed by Sh Radha krishan is a forged document. He was unable to give the Result: Appeal Dismissed Page 19 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 name of the person from whom the shop was allegedly purchased. According to his cross examination, he did not possess any document regarding purchase of this shop as the same was looted in riots. This is a departure from his defence which is not submitted in his written statement as no complaint in this regard was ever filed by him. Moreover, in his further cross examination on 12.2.02, he admits to be not possessing any document to show that the shop was taken by him in the year 1982. This testimony when read in conjunction with his defence to the effect that initially M/s Harmeet Textiles functioned at premises no. 646-647 Chhe Tooti, Paharganj, does not appeal to common sense. He has admitted otherwise that M/s Dalip Singh & Sons functioned from shop no. 646, Chhe Tooti, Paharganj. However, so far as M/s Harmeet Textiles that was closed in the year 1982 is concerned, same functioned from a shop bearing no. 646- 647 Chhe Tooti, Paharganj, Delhi. Strongly, in his cross examination dated 7.10.2002, the appellant submits that he does not know as to who is the owner of shop no. 647, Chhe Tooti, Paharganj. This is a strange contradiction which goes to the benefit of the respondent rather than the appellant. 17.3. DW 3 Sh. Raj Kumar, who appeared from Oriental bank of Commerce in Ld. Trial Court stated that account no. 413 in the name of M/s Harmeet Textiles was opened on Result: Appeal Dismissed Page 20 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 10.9.1980. However, this was operative from shop no;.647, Fancy cloth Market, Paharganj and thus contrary to the pleadings of the respondent. There is no mention of shop no. 646 in the record produced by DW 3. In any case, if the version of the respondent is to be believed, then the said M/s Harmeet textiles had closed out in the year 1982. This piece of evidence is of no avail or benefit to the respondent herein.
17.4. Likewise, the testimony of Sh Ram Phal, DW5 from DDA, Vikas Sadan is also of not any help to the respondent as its pertains only to some damages that were sustained by shop no. 646/1, Chhe Tooti, Paharganj. This witness has not established any connection between the suit premises i.e 646, Chhe Tooti, Paharganj and shop no. 646/1, Chhe Tooti Paharganj. Likewise, the testimony of DW 6 Sh Subhash Chaturvedi from Ministry of Home Affairs, Settlement Wing, is also not of any assistance to the respondent as it pertains only to the settlement of claim of displaced persons with which this Court shall have no concern so far as relief of injunction only is concerned. Thus, I reiterate that I find no illegality or misconstruction of facts or wrong appreciation of evidence by the ld. Trial Court below and to that extent I find no illegality or perversity in its order. Having said so, I would state that first point for determination is to be Result: Appeal Dismissed Page 21 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 answered in favour of the respondent and not the appellant.
18. This brings me to the second point for determination which pertains to additional evidence produced in this Court. This Court has already categorically set up the documents that were sought to be proved by way of additional evidence and the witnesses that were produced in support of the same. Largely speaking, the basic claim of the appellant is based upon various invoices and bills pertaining to M/s Ravindra Brothers which were purportedly in his possession as the same were kept at the residence and moved to the office of M/s Dalip Singh & Sons as and when required. It is already on record that the accounts and records pertaining to M/s Ravindra Brothers were kept by S.Dalip Singh in a separate shop from where M/s Dalip Singh & Sons operated and where the respondent mostly sat, although these facts have been denied. I may say at the very outset that these facts as stated by me above are not to be found in the written statement filed in ld. Trial Court. Further, these facts are also not alleged in the memorandum of appeal and in any case no permission has been sought by the appellant from this Court to incorporate any additional ground in appeal. My order dated 9.10.2014 is categorically clear about deposition of AW 3 that could not have been Result: Appeal Dismissed Page 22 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 permitted to be read in his evidence for the reasons recorded therein. The primary reason is that the deposition was not in sink with the directions of this Court as submitted in order dated 24.3.14. I have to further add here that majority of the deposition constituted in ExAW3/A is still beyond pleadings. No doubt, the Court permitted the appellant to prove the bills, hospital record, agreement etc however, that does not imply that the appellant will adduce evidence that has not been pleaded in his pleadings or to raise such grounds that do not find place in the memorandum of appeal. In this view of the matter, I have examined the documents exhibited on record by AW 3 except those which have been specifically disallowed from examination in chief dated 15.11.2014. This Court finds that majority of the bills relied upon by the appellant are purported to have been issued by the appellant and also signed by him. It would be very important to note that bills ExAW3/1 to ExAW3/3, ExAW3/8, ExAW3/9, cash memo ExAW3/14 to ExAW3/19 and the reverse side of the bills ExAW3/26 and ExAW3/27 are pertaining to the year 1988 before the month of December of the said year. Even if it is, for the sake of arguments, accepted that the respondent has some defence worth appreciation, then also, it can not be lost sight of that according to own pleadings of the appellant Result: Appeal Dismissed Page 23 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 certain dispute arose between him and his father in the month of December 1988. There is no contrary evidence to suggest that the appellant was not employed by his father in his firm in the manner averred. It being so, there would be nothing wrong in the appellant showing the above invoices/cash memo prior to December 1988 or even for that matter, some of the cash memos/invoices which pertained to the year 1989. There is no contrary cogent evidence on record to disprove the fact that S. Dalip Singh, father of the appellant did not remove him from his service or debar him on 16.2.1990.
18.1. Moreover, merely by producing some invoices, it can not said that the same has been proved as purportedly there is no signature of the person receiving the goods under the invoice. Not even a single such customer has been examined by the appellant to prove that any of the bills/cash memos/invoices relied upon by the appellant were issued by the appellant. Having regard to the overall evidence that has been led on record, admission of the appellant that relations between him and respondent no. 3 and their father was very nasty to the extent that he was sought to be physically harmed, this Court shall not be misguided in accepting the argument of respondent that the invoices could be manufactured. In any case, I am of the view that same have Result: Appeal Dismissed Page 24 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 not been proved in accordance of law. Same is the position with respect to the medical record. Admittedly, in cross examination, the appellant has stated that the concerned doctor had not taken any medical history of alleged incident. 18.2. Also having regard to the fact that majority of evidence of AW 3/appellant is beyond pleading, I may say that respondent is correct in relying on the judgment in S.V Devadiga v Smt. Rangu S. Devadiga AIR 1977 SC 890 to the effect that the appellate Court can not make out a new case which was not pleaded by party. The respondent is also correct in relying on judgment in Sharma Enterprises v Hotel Leelaventure Ltd 159(2009) DLT 60 to the effect that mere marking or endorsement of document is not the proof of document unless there is cogent evidence. Conversely, absence of exhibit mark on a document will not preclude Court from considering said document in evidence in respect of proof, if it has been led. Likewise reliance is also rightly placed on judgment in case titled Guru Nanak Investment Co. v Bhajan Singh Etc 1976 RLR (Notes) 31 to the effect that although a formal proof of a document may be done by an attesting witness but for proving its contents, the parties must produce best evidence. 18.3. This now brings me to the aspect as to whether Sh Radha Krishan was competent to put the respondent in Result: Appeal Dismissed Page 25 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 possession of the premises in question. In this regard, respondent has strongly placed reliance on agreement dated 10.8.1982 ExPW2/1. It has been the contention of the appellant that Sh Radha Krishan being himself a tenant could not have transferred the possession of the premises in question particularly the tenancy rights unto the respondent. In this context, the respondent has also additionally pleaded that AW 4 Smt Meena Grover was a party to the compromise dated 13.9.1998 between the appellant's father, appellant and the respondent. The said document is merely a photocopy which has been denied by the appellant and does not stand proved. The record of litigation relied upon by the parties was never the subject matter of the suit or appeal and therefore, no useful purpose would be served in going through the said record as even otherwise the Court can form an opinion on the basis of material before it. Reverting back to ExPW2/1, the original of this document was duly produced. The appellant has blown hot and cold in same breath in his pleadings in respect of this document. At one place he claims the same to be a forged document while on the other he claims that Sh Radha Krishan was incompetent to transfer the possession of the suit premises. He urges this Court to conclude that on the basis of this document, the respondent should be declared as tress passer who will not Result: Appeal Dismissed Page 26 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 be able to sustain the claim of injunction against co-owner. 18.4. In this context, I am to state that firstly, the appellant has miserably failed in proving that he was ever the co- owner to firm M/s Ravindra Brothers and secondly that the argument that a tress passer can not maintain a suit for injunction itself is misplaed. The appellant relies on judgment of Hon'ble Apex Court in Meghmala & Ors v G Narsimha Reddy & Ors 2010 Law Suit (SC) 706 which categorically holds that even a tress passer cannot be evicted forcibly. The Hon'ble Apex Court relied on judgment in various other cases as evident from para 34 of the judgment itself. Thus, if a tress passer can not be evicted forcibly, then there is no question of such tress passer to not to have a legal right to protect such possession and accordingly seek an injunction. For the aforesaid reasons, I find that the second point of determination is also to be answered in favour of the respondent and against the appellant.
RESULT.
19. In view of the above discussion, I find no infirmity or illegality in the judgment of Ld Trial Court below. Consequently, the appeal fails. It is accordingly dismissed. Parties are left to bear their own costs.
20. Let decree in appeal be accordingly drawn in accordance Result: Appeal Dismissed Page 27 of 28 Harmeet Singh v Saranjit Singh RCA 35/10/06 of Order 41 Rule 35 CPC and certified copy of the Judgment as well as Decree be transmitted to the ld. Trial Court below/its successor Court for intimation alongwith trial Court record.
21. After necessary formalities, file of appeal be consigned to Record Room.
Announced in open Court. (Manish Yaduvanshi) Dated: 04.11.2015 ADJ-06(Central)Delhi RCA No. 35/10 Harmeet Singh v Saranjeet Singh.
04.11.2015
Present : None.
Vide separate judgment of even date
announced in the open Court, the appeal is dismissed.
Parties are left to bear their own costs.
Let decree in appeal be accordingly drawn in accordance of Order 41 Rule 35 CPC and certified copy of the Judgment as well as Decree be transmitted to the ld. Trial Court below/its successor Court for intimation alongwith trial Court record.
After necessary formalities, file of appeal be consigned to Record Room.
(Manish Yaduvanshi) ADJ-06(Central)Delhi 04.11.2015 Result: Appeal Dismissed Page 28 of 28