Delhi High Court
Aas Mohd vs Renu Seth on 28 September, 2015
Author: Vipin Sanghi
Bench: Vipin Sanghi
$~32.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 28.09.2015
% RSA 350/2015
AAS MOHD ..... Appellant
Through: Mr. A.K. Dubey & Mr. Anurag
Dubey, Advocates.
versus
RENU SETH ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J. (OPEN COURT) C.M. No. 21005/2015
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
RSA 350/2015 and C.M. No.21004/2015
3. The present second appeal has been preferred to assail the judgment and decree dated 07.09.2015 passed by the learned Additional District Judge, Rohini Courts, Delhi in RCA No.70/2015 preferred by the appellant/ RSA 350/2015 Page 1 of 14 defendant. By the impugned judgment, the said first appeal had been dismissed and the judgment of the Trial Court, namely the ACJ-cum-ARC (North West), Rohini Courts, Delhi passed in the Suit No.316/2012 on 08.02.2013 affirmed.
4. The respondent/ plaintiff filed the said suit to seek recovery of possession & damages against the appellant/ defendant in respect of the suit property, i.e. 3rd Floor (consisting of three-room set) in property No.30-A, Keval Park Extension, Azadpur, Delhi admeasuring 58.5 sq. yards. on the premise that the plaintiff is the absolute, sole, rightful owner and landlord of the said house consisting of ground floor, second floor and the third floor. The plaintiff pleaded that the defendant was inducted as a tenant on the third floor vide rent deed dated 25.05.2010 on a monthly rent of Rs.6,500/- for a period of eleven months. On the execution of the rent agreement, the defendant was placed in possession of the rented premises. The rent agreement expired by efflux of time on 25.04.2011. The defendant was requested to vacate and handover the peaceful possession of the tenanted premises in the last week of April 2011. However, the defendant did not do so and filed a complaint on 05.05.2011. He made a statement before the Police at Police Station - Adarsh Nagar that he will settle the matter with the plaintiff. The plaintiff claimed that the defendant assured that he would positively vacate and handover possession of the suit premises to the plaintiff but he did not keep his promise and he continued to retain the possession illegally. He did not even pay the rent for the tenanted premises w.e.f. 25.04.2011 to the plaintiff.
5. The plaintiff stated that he terminated the monthly tenancy of the RSA 350/2015 Page 2 of 14 defendant vide legal notice dated 28.08.2012 by issuing a notice under Section 106 of the Transfer of Property Act calling upon the defendant to vacate the tenanted premises within fifteen days and to pay prevailing market rent @ Rs.20,000/- per month towards overstay, along with damages for unlawful and unauthorised overstay. This notice was received by the defendant. He sent a reply dated 15.09.2012 containing false, frivolous, concocted and cooked up averments. Since the defendant did not vacate the premises, the suit was preferred by the plaintiff.
6. The appellant/ defendant, upon being summoned, filed his written statement. The stand taken by the defendant in his written statement was that the contractual tenancy expired by efflux of time on 25.04.2011. He stated that on 20.05.2010, the plaintiff agreed to sell the third floor of the property bearing No.30A, admeasuring 58.5 sq. yds. situated at Kewal Park Extension, Azadpur, Delhi to the defendant for a sale consideration of Rs.12 Lakhs in the presence of the wife of the defendant and one Sh. Nasru - brother in law of the defendant. The defendant claimed that he had paid Rs.5 Lakhs in cash to the plaintiff on 20.06.2012 in the presence of his wife and Sh. Nasru. The defendant stated that in pursuance of the agreement to sell dated 25.06.2012, he had given a sum of Rs.1 Lakh in cash in advance on 25.04.2011 to the plaintiff on the expiry of the rent agreement in the presence of his wife and Sh. Nasru. He stated that he had agreed that the balance consideration of Rs. 6 Lakhs shall be paid by the defendant to the plaintiff on 20.09.2012 at the time of execution of the regular sale deed in favour of the defendant in respect of the third floor of property No.30A, Kewal Park Extension, Azadpur, Delhi admeasuring 58.5 sq. yds. He stated RSA 350/2015 Page 3 of 14 that the plaintiff had dishonestly, maliciously and fraudulently concealed this material fact. He stated that the defendant had lodged a complaint to SHO, PS - Adarsh Nagar, Delhi on 05.05.2011 on true material facts against the plaintiff. He stated that he was still ready and willing to pay balance consideration to the tune of Rs.6 Lakhs on or before 20.09.2012, and he had called upon the plaintiff to accept the balance sale consideration and execute the regular sale deed in favour of the defendant.
7. The Trial Court heard arguments of the counsels for the parties on the point whether the plaintiff is entitled to a decree of possession under Order XII Rule 6 CPC. The Trial Court vide order/ judgment and decree dated 08.02.2013 found in favour of the plaintiff and decreed the suit partially in respect of the relief of possession. The Trial Court observed that the defendant had admitted the fact that the plaintiff was landlord of the suit property, of which the defendant was a tenant. He did not deny that the rate of rent was Rs.6,500/- per month. It was the case of the defendant that the tenancy had expired by efflux of time on 25.04.2011. Thus, the Trial Court observed that the said premises was outside the purview of the Delhi Rent Control Act.
8. The defence raised by the defendant premised on the alleged agreement to sell was rejected by the Trial Court, by observing that it is highly unbelievable in today's world that payment of Rs.6 Lakhs would be made by the defendant to the plaintiff without obtaining any receipt for the same. The defence premised on the alleged agreement to sell was rejected by the Trial Court on the basis of the judgment of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeria, II RSA 350/2015 Page 4 of 14 (2012) CLT 31 (C), and the decision of this Court in Skyland International Pvt Ltd. v. Kavita P. Lalwani ,191 (2012) DLT 594.
9. On the aforesaid premise, and also on the premise that the status of the appellant/ defendant could not change from that of a tenant, merely on execution of an agreement to sell - even if the same was assumed to be correct, the decree for possession was passed in favour of the respondent/ plaintiff.
10. The First Appellate Court concurred with the view of the Trial Court and returned the same finding that it was unbelievable that in today's world and age, payment of Rs.6 Lakhs would be made in cash and that too without a receipt.
11. The submission of learned counsel for the appellant is that at the first appellate stage the appellant had moved an application under Order XLI Rule 27 CPC. By this application, the appellant sought leave of the Court to bring on record the agreement to sell relied upon by the defendant/ appellant. On 19.09.2014, the First Appellate Court passed the order that it was of the considered view that the outcome of the application is intrinsic and connected with the arguments of the appeal itself. The application was, accordingly, placed for arguments along with the appeal itself. Learned counsel submits that when the appeal was heard and disposed of, the said application was not taken into consideration by the First Appellate Court.
12. Learned counsel for the appellant submits that this constitutes a grave illegality on the part of the Appellate Court and he has placed reliance on the judgment of the Supreme Court in Jatinder Singh & Another Vs. Mehar RSA 350/2015 Page 5 of 14 Singh & Others, AIR 2009 SC 354. In this case, a suit for declaration in respect of a sale deed had been filed by the plaintiff. When the matter was pending before the High Court at the second appellate stage, the appellant/ plaintiff filed an application under order XLI Rule 27 CPC to lead additional documents/ evidence such as certificate of Military service, voters list of concerned assembly segment, house tax receipt, payment of chaowkdra for the crops of several years, identity card issued by the Election Commission of India, ration card, etc. The Supreme Court observed that while deciding the second appeal, the High Court failed to take notice of the said application and decide whether the additional evidence could be permitted to be admitted into evidence. The Supreme Court observed that it was the duty of the High Court to deal with the said application on merits. Since the same had not been done, the Supreme Court set aside the judgment of the High Court in second appeal and remitted the appeal back for its decision afresh with application for acceptance of additional evidence in accordance with law.
13. Learned counsel submits that this Court should adopt the same course of action and set aside the impugned judgment and decree passed by the First Appellate Court, and require the First Appellate Court to consider the appellant's application under Order XLI Rule 27 CPC to lead additional evidence. It is also submitted that a decree on admission could not be passed in the light of the appellant's defence, without holding a trial.
14. During the course of arguments, this Court enquired whether the appellant had filed the original agreement to sell before the First Appellate Court. The answer is in the negative. It is stated that only a photocopy had RSA 350/2015 Page 6 of 14 been filed. On a query by the Court as to where the original agreement to sell is located, learned counsel for the appellant, on instructions from the appellant - who is present in Court, states that the original of the agreement to sell was retained by the respondent. Thus, he is not in a position to produce the same.
15. The primary submission of learned counsel for the appellant hinges on the fact that no order was passed on the appellant's application under Order XL Rule 27 CPC by the First Appellate Court while dismissing the said appeal. Even if the said grievance of the appellant is assumed to be justified, it does not automatically follow that this Court is obliged to mechanically set aside the impugned judgment of the First Appellate Court, and remand the matter back to the First Appellate Court for re-consideration of the said application under Order XL Rule 27 CPC, and in that light, re- consider the entire matter. It would need examination whether any useful purpose would be served in adopting such a course of action.
16. Unlike in the case of Jatinder Singh (supra) - where by moving an application under Order XL Rule 27 CPC documents of unimpeachable character were sought to be led in evidence at the second appellate stage, in the present case, the appellant moved the said application to lead in evidence the so-called Agreement to Sell allegedly entered into between the parties on 25.06.2012. The appellant has not explained as to why the said so-called Agreement to Sell was not produced before the Trial Court. Even though the appellant claimed that the original of the said Agreement to Sell was retained by the respondent, no such averment was made in the written statement. No notice to produce the said so-called original Agreement to RSA 350/2015 Page 7 of 14 Sell was given to the respondent/ plaintiff before the Trial Court. In fact, before the Trial Court, the appellant/ defendant chose not to even disclose as to where the original of the so-called Agreement to Sell resided.
17. The plea with regard to the parties entering into the Agreement to Sell, on the face of it, appears to be a frivolous and dishonest plea, when it is considered in the light of the surrounding facts & circumstances. The appellant/ defendant himself filed a police complaint on 05.05.2011 against the respondent/ plaintiff, when he was asked to vacate the suit premises. He stated before the police that he would settle the matter with the plaintiff. In this background, one would have to be rather naive to accept that the parties entered into an Agreement to Sell, whereunder the plaintiff agreed to sell the tenanted premises to the defendant; received entirely in cash the amount of Rs.6 Lakhs out of the total consideration of Rs.12 Lakhs without executing a receipt, and without there being any independent witness to the transaction - as the appellant claimant stated that only his wife and brother-in-law Sh. Nasru were present.
18. The stand taken by the appellant/ defendant that the original Agreement to Sell was retained by the respondent/ plaintiff is also unbelievable, as it does not accord with the natural course that such transactions follow. Invariably, whenever an Agreement to Sell is executed between the parties, the original is retained by the agreement purchaser, since it is he who is seeking to derive benefit of the agreement, and it is he who parts with either the full or part of the sale consideration when such an Agreement to Sell is executed. The appellant/ defendant has not explained in his written statement as to under what circumstances the said usual and RSA 350/2015 Page 8 of 14 normal course followed in relation to such transactions was not adopted, and why the alleged Agreement to Sell was retained by the respondent. Clearly, the appellant does not wish to face the scrutiny that he would have been subjected to - in relation to the genuineness and authenticity of the Agreement to Sell, had he produced the original of the said instrument before the Court. The respondent/ plaintiff has completely denied the alleged transaction of Agreement to Sell with the appellant/ defendant. Thus, the failure of the appellant/ defendant to produce the original of the said agreement before the Trial Court, or even before the First Appellate Court, along with the application under Order XL Rule 27 CPC clearly raises an adverse inference against the appellant/ defendant that the said transaction is non-existent, bogus and concocted.
19. The alleged Agreement to Sell was allegedly executed on 25.06.2012, i.e. after the amendment of the Registration Act and the Transfer of Property Act, which came into effect on 24.09.2001. By the said amendment, sub- Section (1A) was added to Section 17 of the Registration Act, which enlists the documents of which registration is compulsory. Section 17(1A), inter alia, provides that the documents containing contracts to transfer for consideration, any immovable property, for the purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered, if they have been executed on or after the commencement of the said amendment Act (brought into force w.e.f. 24.09.2001), and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of said Section 53A. The appellant is seeking to set up the alleged Agreement to Sell dated 26.05.2012 to claim occupation of the suit premises as an RSA 350/2015 Page 9 of 14 agreement purchaser holding possession in part performance. However, the said defence is not available to the appellant/ defendant in view of Section 17(1A) of the Registration Act.
20. Reference in this regard may be made to Om Prakash Singhal Vs. K.L Kurian, CS(OS) No.1433/2012 decided on 19.02.2014. This Court in the said decision, inter alia, observed as follows:
"17. Though the plaintiff denies that his son executed the „baynama‟ and receipt aforesaid, however even if the same were to be believed/accepted, the fact remains that the Agreement to Sell contained in the „baynama‟ relied upon by the defendant, in favour of his wife, is an unregistered document. Pursuant to the amendment with effect from 24th September, 2001 of The Registration Act, 1908 and the Transfer of Property Act, 1882, no plea of delivery of possession in part performance is entertainable without the Agreement to Sell in pursuance to which possession is delivered being registered. Not only so, neither does the baynama state that possession has been delivered in part performance thereof nor is it the plea of the defendant in the written statement. The wife of the defendant, even if held to be an agreement purchaser of the said flat and even if it were to be held that possession of the said flat pursuant to the said Agreement to Sell was delivered, has no right to continue in possession thereof in pursuance of the said Agreement to Sell."
21. Consequently, the nature of occupation of the appellant/ defendant continued as that of a tenant holding over after the termination of his tenancy, and did not change to that of an agreement purchaser holding the property in part performance of the Agreement to Sell. Consequently, even if the application of the appellant under Order XL Rule 27 CPC were to be considered and allowed by the First Appellate Court, it would make no RSA 350/2015 Page 10 of 14 difference to the case of the parties.
22. In Maria Margarida Sequeria Fernandes (supra), the Supreme Court has, inter alia, observed:
"67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
70. x x x x x x x x x
71. Apart from these pleadings, the Court must insist on RSA 350/2015 Page 11 of 14 documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission.
75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence."
(Emphasis supplied)
23. The appellant/ defendant, however, miserably failed to even set up a RSA 350/2015 Page 12 of 14 triable defence on the basis of his claim that the parties entered into an Agreement to Sell on 26.05.2012.
24. In relation to the false claims and defence, the Supreme Court observed in Maria Margarida Sequeria Fernandes (supra) as follows:
"84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.
85. This Court in a recent judgment in Ramrameshwari Devi and Others (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."RSA 350/2015 Page 13 of 14
25. The aforesaid decision, apart from certain others, has been elaborately considered by this Court in Skyland International Pvt Ltd. (supra). In my view, the Courts below were completely justified in rejecting the false and frivolous defence of the appellant/ defendant and proceeding to pass a decree for ejectment against the appellant/ defendant on the basis of admissions made by him under Order XII Rule 6 CPC.
26. Keeping in view the fact that the defence set up by the appellant/ defendant is wholly frivolous and unbelievable, and the same has been set up with a view to somehow prolong the litigation and hold on to the suit property by hook or by crook, the appellant is subjected to Costs of Rupees One Lakh. The Costs shall be deposited with the Delhi Legal Services Authority within four weeks.
27. A copy of this order shall be communicated to the Delhi Legal Services Authority. In case of failure of the appellant to deposit the said costs, it shall be open to the Delhi Legal Services Authority to initiate appropriate action for recovery of costs through execution. A report shall also be sent to this Court in case the costs are not deposited. The Registry shall, in that eventuality, list the matter before Court for appropriate directions.
28. The appeal stands disposed of in the aforesaid terms.
VIPIN SANGHI, J SEPTEMBER 28, 2015 B.S. Rohella RSA 350/2015 Page 14 of 14