Delhi District Court
Surender Santoshi vs Bimla Devi Alias Vimla Devi on 14 May, 2024
IN THE COURT OF SH. RAMESH KUMAR-II, DISTRICT
JUDGE-01, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
CNR No.DLSH01-002687-2023
RCA DJ No.60/2024
In the matter of:-
Shri Surendra Santoshi
S/o Sh. Brahmanand
R/o H.No.E-474, 3rd Floor,
Durga Gali, East Babarpur,
Shahdara, Delhi-110032.
.........Appellant
Versus
Smt. Bimla Devi @ Vimla Devi
W/o Shri Om Prakash Saxena
R/o H.No.E-474, Upper Ground Floor,
Durga Gali, East Babarpur,
Shahdara, Delhi-110032.
.........Respondent
Date of Institution : 03.05.2023
Date of Judgment : 14.05.2024
JUDGMENT
1 Vide this judgment, I shall dispose of the present appeal under Section 96 CPC filed on behalf of the appellant against the order dated 31.03.2023 passed by Ld. Civil Judge-03, Shahdara District, Karkardooma Courts, Delhi in Civil Suit bearing CS No.544/2019 titled as Bimla Devi @ Vimla Devi Vs. Surendra Santoshi, whereby Ld. Trial Court decreed the suit in favour of the plaintiff and against the defendant. The respondent was RCA DJ 60/2024 1 plaintiff before Ld. Trial Court and the appellant was defendant before Ld. Trial Court.
2 For the sake of convenience and clarification the parties are also referred to by their status, position before the Ld. Trial Court.
3 Brief facts, relevant for the disposal of the present appeal are that the plaintiff has filed a suit for eviction/possession and recovery of arrears of rent, mesne profit and other charges against the defendant claiming that the plaintiff is the absolute owner of the suit property bearing no.E-474, 3 rd Floor, Durga Gali, East Babarpur, Shahdara, Delhi-110032 and the defendant was inducted as a tenant in the suit property at the monthly rent of Rs.12,000/- on 19.11.2017 for eleven months only and a rent agreement in this regard was executed between both the parties on 14.11.2017. The plaintiff further alleged in her plaint that the electricity connection of the suit property is in the name of the plaintiff and she is also paying the house tax of the same being the owner of the suit property. The plaintiff further alleged in her plaint that the defendant has not paid the rent since 09.09.2018 and has also not paid the electricity, water charges and other maintenance charges which amounts to Rs.10,583/- (including the common area consumption billing of Rs.4980/-, cleaning/maintenance charges of Rs.1350/- and water charges as issued by Delhi Jal Board till 18.03.2018 of Rs.4253/-. The plaintiff further alleged in her plaint that the plaintiff requested the defendant to clear the dues but he did not pay any heed to the same and as such the plaintiff issued a legal notice to the RCA DJ 60/2024 2 defendant and 01.01.2019 thereby calling upon the defendant to vacate the suit property and pay the arrears of rent amounting to Rs.48,000/- and other dues of Rs.10,583/- but the defendant neither complied with the said notice, nor replied the same, rather the defendant after receiving the said notice, created nuisance and also threatened the plaintiff to implicate her in false case. The plaintiff further alleged in her plaint that the plaintiff and her husband lodged a complaint before concerned SHO on 31.03.2019 and before DCP North-East, Delhi on 22.04.2019 against the defendant but to no avail and therefore, the plaintiff filed the suit before Ld. Trial Court.
4 The defendant contested the suit by filing written statement thereby taking preliminary objections to the effect that no cause of action arose in favour of the plaintiff to file the present suit and the suit is not maintainable as there is no relationship of landlord and tenant between the plaintiff and the defendant. The defendant further submitted that the plaintiff has filed the suit only to drag the defendant into uncalled litigation and to extract money from the defendant worth Rs.6,12,000/- as no rent agreement was ever executed between both the parties and the said amount had been given by the defendant to the plaintiff as security at the time of taking the possession of the suit property, which amount is liable to be returned at the time of vacation of the suit property. The defendant further submitted that the defendant has right to reside in the suit property and enjoy the same till the said amount is refunded as it was agreed between the defendant and the plaintiff that Rs.6,00,000/- shall RCA DJ 60/2024 3 be refunded to the defendant one month prior to the vacation of the suit property without any interest and Rs.12,000/- shall be refunded at the time of vacation, after deducting electricity, water charges and other dues, if any. The defendant further submitted that at the time of payment of security amount of Rs.6,12,000/-, a written acknowledgment was executed and copy of the same was retained by the plaintiff in original and photocopy was handed over to the defendant and at that time, the plaintiff also got signatures of the defendant on a blank paper to get the payment of security amount executed in a formal agreement. The defendant further submitted that the audio and video recording as placed by the plaintiff on record is false and the defendant has already paid the electricity bills of lift, submersible and other maintenance charges till December, 2018 and after that the defendant is not liable to pay any maintenance as he is not using these facilities since January, 2019. The defendant further submitted that the plaintiff had lodged a false complaint with the police and SHO and the legal notice was not received by the defendant. The defendant further submitted that the plaintiff has not approached the court with clean hands and has suppressed material facts and had created forged and fabricated document and hence, the suit is liable to be dismissed.
5 The plaintiff filed replication in response to the written statement filed by the defendant wherein she denied the contentions made in written statement and reiterated the averments made in plaint.
6 After completion of the pleadings, the Ld. Trial Court RCA DJ 60/2024 4 framed the following issues vide its order dated 16.10.2019:-
1. Whether there exists relationship of landlord and tenant between the plaintiff and the defendant? OPP
2. Whether the defendant was inducted as tenant in the suit property @ rent of Rs.12,000/-
per month? OPP
3. Whether the plaintiff is entitled to decree of possession as prayed for? OPP
4. Whether the plaintiff is entitled for decree of recovery of arrears of rent at prayed for? OPP
5. Whether the plaintiff is entitled to decree of mesne profits/damages? If so at what rate and for which period? OPP
6. Whether the plaintiff is entitled for recovery of Rs.10,583 as arrears of electricity and water charges? OPP
7. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
8. Whether the suit has not been properly signed and verified? OPD
9. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD RCA DJ 60/2024 5
10. Whether the plaintiff has approached the court with unclean hands? OPD
11. Relief.
7 Thereafter, matter was listed for plaintiff's evidence. In order to prove her case, the plaintiff examined as many as four witnesses. In rebuttal the defendant failed to lead his evidence despite giving several opportunities, hence right of the defendant to lead DE was closed by Ld. Trial Court vide order dated 12.12.2022.
8 It is worthwhile to mention that after considering evidence of the parties, arguments as well as material available on record, Ld. Trial Court vide its judgment and decree dated 31.03.2023 decided all the issues in favour of the plaintiff and against the defendant.
9 Aggrieved by the said judgment and decree dated 31.03.2023 the appellant/defendant preferred the present appeal mainly on the grounds that:-
A. Because while deciding the issue No.(i) in favour of the Respondent, the Ld. Trial Court exceeded the power and jurisdiction available under section 73 of Indian Evidence Ac. In the absence of the opinion of the expert under Section 45 of Indian Evidence Act, the Ld. Trial Court even travelled beyond the wording of the Section 73 of Indian Evidence Act. The Hon'ble Supreme Court of India in the matter reported as 1992 Cr.L.J 3454 (SC), has RCA DJ 60/2024 6 clearly held laying down the guidelines that the court can compare the handwriting and specimen only on taking it from the person separately. Here in the case of the Appellant, the court without any specimen compared the signatures of the Appellant available on the Vakalatnama and written statement. Such comparison of the signature by the court itself without any corroborating scientific evidence is totally unreliable and cannot be foundation for passing any judgment and decree, as has been passed by the Ld. Trial Court.
B. Because the various courts of law, as reported in AIR (1961) Kolkata 461, has held that it is unsatisfactory and dangerous to stake the decision by comparison and especially without aid of micro- scoping enlargement or an expert advice. Here in the case of the Appellant, the Ld. Trial Court has committed grave error, while decreeing the suit of the Respondent. The Hon'ble Supreme Court of India in the matter squarely applicable in the case of the Appellant, reported as AIR (1967) SC 1326, has clearly held that the court has to call for the scientific evidence prior arising on the conclusion on his own comparison of the signatures on the documents. The directions has not been followed by the Ld. Trial Court, hence, the impugned order suffers and vitiated and is liable to be set aside.RCA DJ 60/2024 7
C. Because the Ld. Trial Court has relied upon the document Ex.PW-3/Z, to arrive that there had been relation of landlord and tenant, furthermore, relied upon the copy of Rent Agreement as per the PW-2 submitted by the Appellant with M/s Babarpur Gas Agency. The Ld. Trial Court has no reason to rely upon the document of PW-2 and particularly, when the photocopies placed before the court. There is neither any material nor the statement of PW-2 that the genuineness of the Rent Agreement was examined or find out for its threat- ness by any mode or practice. Thus, the approach of the Ld. Trial Court that under Section 21 of Indian Evidence Act, the photocopy purportedly or allegedly submitted by the Appellant with M/s Babarpur Gas Agency is not legally correct version and the same is liable to be set aside and thus, being defective in the eyes of law, thus, liable to be set aside. It has been categorically stated by the Appellant that he has never submitted the rent agreement with M/s Babarpur Gas Agency to get the connection activated of LPG Gas Supply at the given address, hence, the finding of the court is totally misconceived and misplaced.
D. Because the Ld. Trial Court was having no material, to admit the relationship of landlord and tenant under section 21 of Indian Evidence Act, as RCA DJ 60/2024 8 has been discussed in the judgment. There is no admission at all on the part of the Appellant either in writing or orally that the rent agreement which has been disputed to have the signature of the Appellant, was submitted by the Appellant with Babarpur Gas Agency. It is interested to look into that the Ld. Trial Court to arrive at the conclusion that signature of Appellant on the rent agreement, exercise the power under section 73 of the Indian Evidence Act, but at the same time, relied upon the rent agreement which has been disputed by the Appellant itself. As such, the finding of the Ld. Trial Court while passing the judgment & decree being contradictory is liable to be set aside.
E. Because it is reiterated that the Ld. Trial Court has given unique and different observation in respect of the signature of the Appellant on Ex.PW3/Z. The Ld. Trial Court has recorded the opinion that during the course of cross-examination of PW-3 in respect to the signature of Appellant on the Ex.PW-3/Z was in respect of three pages and no suggestion was given about the last page of the document. As per the Ld. Trial Court, it become favourable to the Respondent presuming under the law that though the signature is not available on the three pages, but the signature available on the last page shall make no difference and in the absence of RCA DJ 60/2024 9 cross-examination to that particular case, proving the signature of the Appellant as correct one. Such observation of the Ld. Trial Court is dangerous and hazardous as per the judgments of the Hon'ble Supreme Court of India reported herein-above. The mode and modus adopted by the court for proving the signature of Appellant on Ex.PW-3/Z, despite denial in the written statement, is neither acceptable nor sustainable in the eyes of law.
F. Because, though, the Ld. Trial Court has been in procedure to expedite disposal of the suit, as earliest as possible, but the speedy trial should not have such speed, to deny the ample opportunity to defend the case properly. The Hon'ble Supreme Court of India time and again has held that expedite disposal of the cases are appreciable being part of the fundamental right of the litigant. However, it does not mean that the opportunity should not be given to the litigant to deny the right of defending the case under the provisions of law.
G. Because the Ld. Trial Court has recorded that the opportunity to lead the Defendant's evidence was provided to the Appellant but he could not avail, recording in para No.8 of the judgment. It is matter of record that the Appellant was available for his cross-examination, behind his counsel, who fell seriously ill after filing the affidavit of evidence.RCA DJ 60/2024 10
However, the Ld. Trial Court has wrongly noted that no affidavit of evidence was filed by the Appellant.
H. Because the default to conduct the cross examination of the Appellant by the Respondent and his counsel, gives favour to the Appellant not to the Respondent, because the evidence led by the Appellant remains un-refuted. Closing of the opportunity to lead the evidence in defence on availability of the affidavit of evidence on record, does not give any adverse impact. There has been no denial by the Appellant to make himself available for the cross examination. In totality, the default to conduct the cross examination of the Appellant favours to the Appellant not to the Respondent and finding thus, delivered by the Ld. Trial Court is vitiated and suffered with irregularities.
I. Because the Hon'ble Supreme Court of India in the matter of P. Sanjiva Rao Vs. State of Adhra Pradesh, discussed about the value of cross examination in the civil and criminal cases both. Time and again, it has been held by the Hon'ble Apex Court as well as by other court of law that the sole object of the judicial system should be to discover the truth by calling the evidence from both the parties with the material documents. The Hon'ble Apex Court in the above said matter, has RCA DJ 60/2024 11 clearly held that the time is not essence, rather, the essence is cross examination of the witness and that should be given to the party, ignoring the rest of the circumstances and materials. The Ld. Trial Court has concluded in one line that the DE was closed because, the Appellant failed to avail the opportunity to lead the evidence, which is not factually correct and as such, the order of the Ld. Trial Court is unsustainable.
J. Because the Hon'ble Supreme Court of India in the matter of Noor Khan Ayub Khan Pathan Vs. West Bengal, has clearly held that cross examination of the witness is the integral part of the principles of natural justice, thus, the opportunity to close the DE is also not legally correct and acceptable. The Appellant is having legal right to get the opportunity for leading the evidence in the defence and is also legally entitled to get the advantage of default to conduct the cross examination of the Appellant by the Respondent in his favour.
K. Because since the affidavit filed by the Appellant and the cross examination was not conducted by the Respondent, hence, it is presumed that the contents of the affidavit of evidence of the Appellant are correct being unrebutted. Closing of the DE, in the absence that the affidavit of the RCA DJ 60/2024 12 Appellant has not been taken off from the record by specific orders, amounts the evidence led by the Appellant unrebutted and gives favour to the Appellant and as such, the order of the Ld. Trial Court is totally incorrect and vitiated.
L. Because the documents in order to prove the relationship of landlord and tenant between the Appellant and Respondent, the court was having no material and has relied upon only two documents which are disputed to be signed by the Appellant. Thus, in the absence of any proved document, to prove the relationship of landlord and tenant, the court was having no jurisdiction to pass an eviction order.
M. Because the onus to prove the issues No.(i) to
(vii) was upon the Respondent, which has not been discharged by the Respondent properly under the law, hence, the decree and judgment impugned before this Court is liable to be set aside.
N. Because it has been clearly contended by the Appellant in the written statement and in the affidavit of evidence that he is residing in the property against the payment of Rs.6,12,000/-, corroborated with the acknowledgment placed before the court. It has been categorically stated that the Appellant is residing with his own rights and RCA DJ 60/2024 13 having no relationship of landlord and tenant. The Ld. Trial Court in the absence of any cogent material and evidence merely on the wrong presumption, held that there is relationship of the landlord and tenant, which is not acceptable in the eyes of law.
O. Because neither from the pleading nor by leading the evidence, the Respondent succeeded to prove the relationship of landlord and tenant, hence, passing the decree of ejectment of the Appellant is not correct.
P. Because the court having no material and evidence nor the proved facts from the Respondent, to grant the mesne profits and damages, as has been awarded by the Ld. Trial Court in favour of the Respondent. The Respondent did not produce any material before the court, to arrive that the rate of rent was Rs.12,000/- in the year 2017. No proof of payment of rent including the rent receipt and statement of account was placed by the Respondent before the court, as a proof of getting the rent from the Appellant @ Rs.12,000/- per month. Thus, the finding of the Ld. Trial Court that the Appellant has to pay an amount of Rs.15,000/- per month on account of mesne profits is absolutely unacceptable. Q. Because the Ld. Trial Court has wrongly and illegally directed the Appellant to pay sum of RCA DJ 60/2024 14 Rs.15,000/- per month w.e.f. 06.01.2019 till the date of delivery of the possession, assuming that the rate of rent in the year 2017 has been @ Rs.12,000/- per month, which is solely based on the presumption and in the absence of any rent receipt or statement of account from the Respondent. In the absence of any proof of payment of rent of Rs.12,000/- per month by the Appellant, the court has no reason to hold that the Appellant has to pay sum of Rs.15,000/- per month to the Respondent w.e.f. 06.01.2019, thus, the judgment in respect to the issues No.(iii) to (xi) are also not sustainable in the eyes of law and is liable to be set aside.
R. Because the order of the Ld. Trial Court is based on presumption and assumption, hence, the judgment and decree of the Ld. Trial Court is liable to be set aside.
S. Because the judgment and decree impugned before this court has been passed by Ld. Trial Court arbitrarily without applying the judicial mind. T. Because the judgment and decree impugned before this court is having no correct application of the law and also far away from the settled legal proposition of law.
U. Because the Ld. Trial Court has travelled beyond the facts and circumstances of the case. Furthermore, the judgment and decree appears to be RCA DJ 60/2024 15 incorrect in the eyes of law, as well as within the facts and circumstances of the case.
On above grounds, the appellant has prayed the following reliefs:-
i) To set aside the order dated 31.03.2023 passed by Ld. Trial Court in Civil Judge-03, Shadhara District, Karkardooma Courts, Delhi in CS No.544/2019 titled as Bimla Devi @ Vimla Devi Vs. Surendra Santoshi.
ii) Grant an opportunity to the appellant to lead the defence evidence, modifying and recalling the order dated 12.12.2022, treating as connected relief to the main relief.
iii) Pass any other order or direction which this court may deem fit and proper under the facts and circumstances of the present case.
10 Notice of this appeal was sent to respondent/plaintiff.
11 Trial court record was also requisitioned.
12 Respondent appeared and filed reply to the appeal denying all the assertions made therein and has prayed for dismissal of the present appeal mainly on the ground that the appeal is not maintainable according to law and the appellant has no locus- standi to file the present appeal.
13 Appellant did not address his arguments despite giving various opportunities.
RCA DJ 60/2024 1614 On the other hand, the respondent filed written arguments, contending therein that the appellant allegedly taken the false and frivolous plea that the property was let out to the appellant on the security basis, but neither the original documents were produced nor any evidence was led to prove the documents. The respondent further contended that the respondent never received any alleged security amount of Rs.6,12,000/- from the appellant. The respondent further contended that the respondent never signed and executed of the alleged forged and fabricated acknowledgement receipt, hence question of retaining the original acknowledgement by the respondent does not arise. The respondent further contended that the respondent never took any kind of signature of the appellant on the blank papers and the appellant has taken the false and frivolous plea, which is not tenable in the eye of law. The respondent further contended that the audio and video recording as placed by the respondent before the Ld. Trial Court are the correct version of appellant and the respondent has rightly demanded the charges of electricity bill of lift, submersible and other maintainable charges till December, 2018, as the appellant using all facilities in the suit property, provided by the landlord / respondent. The respondent further contended that the court has ample power under the Indian Evidence Act and CPC to examine and compare any documents filed by any of the parties. The respondent further contended that the appellant has taken the false and frivolous plea about the rent deed dated 14.11.2017, which was duly proved by the respondent herein as per the Evidence Act by leading the evidence. The RCA DJ 60/2024 17 respondent further contended that even otherwise the appellant has not moved any application for sending the documents either to CFSL or to examine the documents from the Private Hand Writing Expert. Hence the onus upon the appellant to prove the documents as per law and the Ld. Trial Court has rightly given the findings on all the issues in detailed in the judgment and decree dated 31.03.2023. The respondent further contended that despite giving the opportunities to appellant for cross-examine of PW-2 as a witness from M/s. Babarpur Gas Agency to disprove the rent deed, but no cross-examination was done on behalf of appellant, hence testimony of PW-2 is un-rebutted and cannot be challenged at this stage. The respondent further contended that the respondent has already proved the relationship between the appellant and the respondent herein as landlord and tenant by proving the document i.e. rent deed as per law. The respondent further contended that the Court has ample power under Section 73 of Indian Evidence Act to examine and compare the documents and Ld. Trial Court, after examining the documents filed by both the parties had rightly given his findings on all the issues and passed the judgment and Decree. The respondent further contended that on 12.11.2021 the matter was fixed for P.E., but counsel for the appellant not cross-examine to the witness, hence the opportunity to cross-examine of PW-1 and PW-4 closed and on the same date the matter was adjourned for D.E. for 21.12.2021, on which date the appellant sought adjournment on the ground that main counsel was busy in Rohini Courts and considering his request Ld. Trial Court adjourned the RCA DJ 60/2024 18 matter for 01.12.2022, on 01.12.2022 the appellant again sought adjournment and this time Ld. Trial Court gave one last opportunity for D.E subject to cost of Rs.5,000/- and put up the matter for 05.12.2022, and thereafter on 05.12.2022 again the appellant sought adjournment on the ground that the main counsel was not feeling well but no medical documents were filed on behalf of the appellant and the matter was adjourned for 12.12.2022. The respondent further contended that on 12.12.2022 neither the appellant paid the cost nor the main counsel was available for recording the chief examination of appellant, hence in view of the facts and circumstances of the case the Ld. Trial Court closed the D.E. on 12.12.2022 hence allegations against the Ld. Trial Court for closed the D.E are not tenable in the eye of law. The respondent further contended that the judgment cited under para are not applicable to the facts and circumstances of the present appeal. The respondent further contended that the counsel for respondent was very much available on 12.12.2022 when D.E. was closed, but due to non-availability of the main counsel of the appellant, Ld. Trial Court had no option for further adjournment, hence D.E. was closed. The respondent further contended that the respondent has rightly discharged the onus upon to prove the issue Nos.1 to 7 and Ld. Trial Court has rightly given the findings on all issues and thereafter, passed the judgment and decree dated 31.03.2023 and thus, appeal be dismissed with heavy costs.
15 I have perused the record including the trial court record and considered the submissions made before the court.
RCA DJ 60/2024 1916 The appellant has disputed that there is no relationship of landlord and tenant between him and the respondent. However, Ld. Trial Court while deciding issue no.1 & 2 has held that the appellant was tenant in the suit property.
17 The whole case of the respondent is based on the document i.e. rent agreement which is Ex.PW3/Z. The said document has been produced by PW2 Sh. Abhishek, Manager of Babarpur Gas Agency. The appellant also did not cross examine the PW1 Sh. Ajay Saxena and PW3 Smt. Bimla Devi and PW4 Sh. Khushi Ram. Thereafter, the appellant had filed a application under Order XVIII Rule 17 CPC for cross examination of PWs, which was allowed by Ld. Trial Court vide order dated 29.10.2022. The appellant had conducted the cross examination of PW3 but he failed to conduct the cross examination of PW1 and PW4 and ultimiately the right of appellant to cross examine the PW1 and PW4 was closed by Ld. Trial Court vide order dated 01.12.2022.
18 The appellant has alleged that the respondent had filed the suit only to drag the defendant into uncalled litigation and to extract money from the defendant worth Rs.6,12,000/- and no rent agreement was ever executed between both the parties and the said amount had been given by the defendant to the plaintiff as security at the time of taking the possession of the suit property, which amount is liable to be returned at the time of vacation of the suit property.
19 I have perused the rent agreement Ex.PW3/Z. A perusal of RCA DJ 60/2024 20 the said rent agreement reveals that this document had been executed between the plaintiff and the defendant for lease of suit property by the plaintiff to the defendant at the monthly rent of Rs.12,000/- per month. A persual of Ex.PW3/Z further reveals that it bears signatures of the plaintiff at the place of 'landlady' as well as of defendant at the place of 'tenant'. The appellant in his written statement has denied that no rent agreement was ever executed between the parties. The appellant had opportunity to cross examine the PW2 Sh. Abhishek who had produced the said rent agreement Ex.PW3/Z in his testimony but the appellant failed to conduct the cross examine the PW2. Thus the testimony of PW2 had remained unrebutted and unchallenged on the aspect of rent agreement Ex.PW3/Z. 20 The appellant had made all the endevour before Ld. Trial Court to delay the proceedings, which is apparent from trial court record. The appellant did not cross examine the PWs and his right to cross examine the PWs was closed by Ld. Trial Court. Thereafter the appellant filed an application under Order XVIII Rule 17 CPC for cross examination of Pws which was allowed. The appellant got conducted the cross examination of PW3 only but he again failed to conduct the cross examination of PW1 and PW4. Similar was the situtation when the matter was listed for appellant's evidence as the appellant had also not lead his evidence despite giving various opportunities by Ld. Trial Court. Now before this court the appellant is allegaing that he was not afforded opportunity by Ld. Trial Court for leading his evidence. It is crystal clear from the trial court record that sufficient RCA DJ 60/2024 21 opportunities have been provided to the appellant to lead his evidence but he failed to do so for the reasons best known to him.
21 The appellant has alleged that he has right to reside in the suit property and enjoy the same till the amount of Rs.6,12,000/-, which was given to the plaintiff as security at the time of taking possession of the suit property, is refunded. The appellant has not led any evidence to prove that he had given Rs.6,12,000/- to the respondent as security at the time of taking the possession of the suit property, nor could he extract relevant material in this regard from the PW3 while cross examining her. Even otherwise, appellant/defendant has remedy to file a separate suit for recovery of Rs.6,12,000/- from the plaintiff in terms of authority of Hon'ble High Court of Delhi titled as "H.S. Bedi vs. NHAI", RFA 784/2010 (DHC). On the other hand, the plaintiff/respondent had successfully proved by way of oral and documentary evidence that the appellant was her tenant. Ld. Trial Court has rightly observed that there is no concept in law of the property being given on security against some particular amount of money. Therefore, this contention of the appellant is not tenable.
22 The appellant had to prove that no rent agreement was ever executed beetween the parties for tenancy in respect of the suit property. Neither the appellant cross examined the PW1, PW2 and PW4, nor he led his own evidence to prove that rent agreement Ex.PW3/Z is forged and fabricated document. PW4 Sh. Khushi Ram in his affidavit has categorically deposed that on 14.11.2017, the rent agreement was executed between both the RCA DJ 60/2024 22 parties in his presence, but the testimony of PW4 could not be impeached by the appellant/defendant as he failed to cross examine this witness despite giving opportunities. Ld. Trial Court while dealing with issue no.1 has observed that the court has ample powers under Section 73 of Indian Evidence Act to compare the signatures of the parties with the signatures on the said document. Ld. Trial Court after comparing the signatures of the plaintiff/PW3 on her evidence recorded on 12.02.2020 as well as on 15.11.2022 and her signature on the said rent agreement opined that the signatures are same and identical in the flow as well as the formation of the alphabets. Ld. Trial Court also compared the signatures of the defendant on his written statement and his affidavit as well as on the other applications and his signatures on the said rent agreement and held that the signatures are same and identical in the flow as well as the formation of the alphabets.
23 The respondent/plaintiff had issued legal notice dated 01.01.2019 to the appellant/defendant on 03.01.2019 for termination of his tenancy. The defendant has alleged that he had not received the said legal notice. A perusal of postal receipt reveals that the address of the appellant/defendant mentioned therein is the same as of the suit property. Therefore, it is clear that the legal notice dated 01.01.2019 was duly served upon the appellant/defendant and his tenancy stood terminated as per Section 106 of T.P. Act w.e.f. 05.01.2019. The defendant, who is residing in the suit prpoerty, should have immediately sent his reply with some denial, but he has replied to the said legal notice.
RCA DJ 60/2024 23This court is of the considered opinion that when the defendant denied his signature on rent agreement Ex.PW3/Z and attempted to defeat the plaintiff's claim, court can compare signatures and give its finding and it is not necessary that plaintiff should take steps to get signature compared by an expert. In the present case, when the defendant failed to reply to legal notice dated 01.01.2019 denying his signatures found in rent agreement Ex.PW3/Z and when the defendant has not led any evidence in support of his contentions despite giving various opportunities, in these circumstances, this court is of the opinion that Ld. Trial Court has rightly compared the signatures of the defendant found in the rent agreement Ex.PW3/Z with his written statement, affidavit and applications and gave its finding that the defendant had appended his signature on the rent agreement Ex.PW3/Z. Therefore, from the pleadings as well the the evidence led by the plaintiff the terms of the relationship of landlord and tenant can easily be culled out as above.
24 Next comes the question about the payment of arrears of rent for Rs.48,000/- w.e.f. 09.09.2018 to 08.01.2019. Ld. Trial Court has found that the tenancy of the defendant was duly terminated on 05.01.2019 by way of legal notice duly served upon him and thereafter, he became an unauthorized occupant in the suit property and accordingly held that the plaintiff is duly entitled for arrears of rent w.e.f. 09.09.2018 to 05.01.2019. A perusal of rent agreement Ex.PW3/Z reveals that rent was Rs.12,000/- per month. It is specifically observed that defendant put a suggestion to plaintiff/PW3 to the extent that the defendant RCA DJ 60/2024 24 is not liable to pay any rent and mesne profit to him, which suggestion was denied by PW3. Therefore, burden to prove this fact shifts upon the defendant. However, the appellant/defendant has not led any evidence to prove that there was no liability regarding payment of rent. This court has already held herein- above that rent agreement was duly executed between the parties. Since the tenancy of the defendant was terminated on 05.01.2019, therefore, Ld. Trial Court has rightly observed that the plaintiff is entitled for recover of rent w.e.f. 09.09.2018 to 05.01.2019 @ Rs.12,000/- which comes to Rs.46,800/-. The same therefore does not call for any interference.
25 Next comes the question about liability of the defendant towards payment of electricity and water charges as well as maintenance charges. The plaintiff claims that Rs.10583/- is outstanding againt the defendant towards arrears of electricity and water charges. To prove this fact the plainiff had relied upon the electricity charges and water bills which are Ex.PW1/H and Ex.PW1/I. A suggestion has been put to the PW1/plaintiff by the defendant during cross examination to the extent that defendant is not liable to pay any rent, maintainence charges amounting to Rs.10,583/- and any other amount. However, the appellant/defendant did not enter into the witness box. Therefore, Ld. Trial Court has rightly held that the plaintiff is entitled to recovery of amount of Rs.10,583/- from the defendant towards the due charges of electricity, water and maintenance. This issue also does not call for any interference.
26 The last question which comes for consideration is RCA DJ 60/2024 25 whether the Ld. Trial Court was correct in granting mesne profits to the plaintiff at the rate of Rs.15,000/- per month on account of wrongful occupation of the suit premises. Ld. Trial Court after relying upon authorities of Hon'ble High Court of Delhi titled as "Vinod Khanna @ Ors. Vs. Bakshi Sachdev (deceased) through LRs & Ors.", AIR 1996 (Delhi) 32 and "M.R. Sahni Vs. Doris Randhawa", 2008 (104) DRJ 246 recorded that suit premises was let out to the defendant at the rate of Rs.12,000/- per month in the year and the same on average basis could easily fetch the minimum amount of Rs.15,000/- as rental value to the plaintiff and accordingly held the plaintiff to be entitled for mesne profit @ Rs.15,000/- per month w.e.f. 06.01.2019 till date of delivery of possession by the defendant.
In "Vinod Khanna @ Ors. Vs. Bakshi Sachdev (deceased) through Lrs & Ors. (supra), Hon'ble High Court of Delhi observed that the judicial note can be taken of the fact about increase of rents in the premises in and around Delhi, which is a city of growing importance being the capital of the country, which is a matter of public history.
Further, in "M.R. Sahni Vs. Doris Randhawa" (supra), Hon'ble High Court of Delhi while reiterating the steep increase in the rentals in Delhi, again emphasized that in relation to determination of mesne profits, there is always some element of guess work.
In view of the discussion of the abovesaid legal precedents, this court is of the view that awarding mesne profits RCA DJ 60/2024 26 by Ld. Trial Court to the plaintiff @ Rs.15,000/- w.e.f. 06.01.2019 till date of delivery of possession by the defendant also does not call for any interference.
27 Ld. Trial Court has appreciated all the documents, pleadings and evidence so adduced before decreeing the suit of the plaintiff vide its judgment and decree dated 31.03.2023 and thus I do not find any merit in the appeal as there is no illegality or irregularity in the impugned judgment and decree dated 31.03.2023. The appeal is therefore dismissed. No order as to costs.
28 A copy of this judgment alongwith the trial court record be sent back to the Ld. Trial Court for information. 29 Appeal file be consigned to Record Room as per rules.
(Typed to the dictation directly, corrected and pronounced in open court on 14.05.2024).
(RAMESH KUMAR-II) DISTRICT JUDGE-01 SHAHDARA DISTRICT KARKARDOOMA COURTS DELHI RCA DJ 60/2024 27