Delhi High Court
Smt. Raj Aggarwal & Anr vs Shashi Jain & Ors on 11 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th July, 2017
+ C.R.P. 84/2013 & CMs No.6852/2013 & 6863/2013.
SMT. RAJ AGGARWAL & ANR ..... Petitioners
Through: Mr. Arvind Kumar Gupta, Mr.
Gajanand Kirodiwal and Mr.
Sagar Gupta, Advs.
versus
SHASHI JAIN & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Section 115 of the Code of Civil Procedure,
1908 (CPC) impugns the order and decree dated 8th February, 2013 of
the Civil Judge, Delhi of dismissal of a suit under Section 6 of the
Specific Relief Act, 1963 for recovery of possession filed by the two
petitioners/plaintiffs namely Raj Aggarwal and Nikhil Aggarwal
against the six respondents.
2. Notice of the petition was issued.
3. The order dated 17th October, 2014 in this petition records that
respondents No.1&2 namely Shashi Jain and Vijender Jain had been
served. The subsequent order dated 11th March, 2015 records that
none had appeared for respondents No.1&2 despite service. The
subsequent order dated 16th December, 2013 records that the
respondent No.3 Memo Devi had refused to receive service and
that the respondent No.4 Gian Wati had been served but none had
appeared on her behalf. None appeared for the respondents No.3&4
thereafter also. The order dated 11th March, 2015 records that
CRP No.84/2013 Page 1 of 9
respondents No.3&4 were ex-parte before the Trial Court also. Vide
order dated 11th March, 2014, the respondents No.1 to 4 were
proceeded against ex-parte. The respondents No.5&6 namely Jitender
Kumar Jain and Sukhmal Kumar Jain appeared in response to the
notice and have filed a reply to the revision petition. However today
when the matter is called out, none appears for the respondents
No.5&6 as well. The respondents No.5&6 are also proceeded against
ex-parte and the counsel for the petitioners has been heard. The Trial
Court record requisitioned vide order dated 17th October, 2014 has
been received and perused.
4. It was the case of the petitioners/plaintiffs in the plaint (i) that
one Hazaro Devi was the owner of property No.2294-95, Gali
Paharwali (Bari), Dharampura, Chandni Chowk, Delhi; (ii) that
Hazaro Devi died on 5th January, 1979 and the six respondents herein
are the heirs/successors of heirs of Hazaro Devi; (iii) that Nem Chand
Jain son of Hazaro Devi and predecessor of respondents No.5&6
namely Jitender Kumar Jain and Sukhmal Kumar Jain let out one shop
in the aforesaid property to the two petitioners/plaintiffs at a monthly
rent of Rs.40/-; (iv) that the petitioner No.1, after taking the shop on
rent, with the assistance of her father-in-law was running a Halwai
shop in the shop; (v) that the said Halwai shop was run from 1985 to
1987-88, since when it was lying closed; (vi) however rent was being
continuously tendered to Nem Chand Jain; (vii) that after the death of
Nem Chand Jain on 13th August, 1997, the rent though tendered, was
not received owing to a dispute between the then heirs of Hazaro
CRP No.84/2013 Page 2 of 9
Devi; (viii) that though the shop was lying closed (as the husband of
the petitioner No.1 was employed in a Bank) but the petitioner No.1
used to visit the same regularly and last visited the shop in February,
2006 when she also tendered rent to respondent No.1 herein i.e. Shashi
Jain daughter of Hazaro Devi (at this stage attention of the counsel for
the petitioners/plaintiffs has been drawn to page 17 of the paper book
where Shashi Jain is not mentioned as daughter of Hazaro Devi); (ix)
that when the petitioners/plaintiffs visited the shop on 9th May, 2006
they found that "construction/addition/alteration was being done in the
suit premises" and that the respondents (i.e. all the six respondents)
had illegally taken over the possession of the shop and had merged the
shop earlier in the tenancy of the petitioners/plaintiffs with an
adjoining shop.
5. The respondents No.1&2 i.e. Shashi Jain and her husband
Vijender Jain in their written statement, while denying the claim of the
petitioners/plaintiffs, took a stand that the petitioners/plaintiffs are in
collusion with the respondent No.3 Memo Devi (daughter of Hazaro
Devi), respondent no.4 Gian Wati and respondent no.6 Sukhmal
Kumar Jain. The respondent No.5 Jitender Kumar Jain, the
respondents No.5&6 Jitender Kumar Jain and his brother Sukhmal
Kumar Jain also denied the entire claim of the petitioners/plaintiffs.
6. The learned Civil Judge, on the basis of the pleadings, on 3 rd
January, 2007, framed the following issues:
"1. Whether the plaintiff has no locus standi to file the
present suit?OPD
CRP No.84/2013 Page 3 of 9
2. Whether the present suit is bad for non joinder and
mis joinder of necessary parties? OPD
3. Whether the suit is not properly valued for the
purpose of court fees and jurisdiction? OPD
4. Whether the suit is barred by limitation? OPD
5. Whether the plaintiff is entitled for decree of
possession as prayed? OPP
6. Whether the plaintiff is entitled for decree of
permanent injunction? OPP
7. Relief."
7. The learned Civil Judge has in the impugned order, on the basis
of the evidence led before him, found (a) that neither of the two
petitioners/plaintiffs chose to appear in the witness box and only the
husband of the petitioner/plaintiff No.1 and father of the
petitioner/plaintiff No.2 namely Subhash Chand Aggarwal appeared as
a witness; (b) that Subhash Chand Aggarwal proved the receipt in
favour of the petitioners/plaintiffs of payment of rent of the said shop
from 19th May, 1995 to 18th May, 1999 and some earlier rent receipts;
(c) that the said Subhash Chand Aggarwal also proved as Ex.PW-1/7
list of tenants submitted by Nem Chand Jain in another suit; (d)
however in the said list, the petitioners/plaintiffs were shown as tenant
only till 18th May, 1999; (e) that the aforesaid documents did not show
the possession of the petitioners/plaintiffs in the year 2006; (f) though
the aforesaid witness also proved as Ex.PW-1/8, a report dated 22nd
November, 2001 of a Local Commissioner in another litigation but the
CRP No.84/2013 Page 4 of 9
said report was not conclusive proof of possession; (g) that no other
document had been placed on record by the petitioners/plaintiffs to
show their possession after 1999; (h) that no police complaint had
been filed by the petitioners/plaintiffs of dispossession; (i) that the
petitioners/plaintiffs had thus failed to prove being in possession of
the property within six months prior to the institution of the suit.
8. Though the aforesaid findings were returned under Issue No.5
aforesaid but under Issue No.4, the finding is in favour of the
petitioners/plaintiffs and against the respondents/defendants.
9. I have enquired from the counsel for the petitioners / plaintiffs
that the petitioners having admittedly not used the tenancy premises
since the year 1988 and having also admittedly not paid the rent of the
tenancy premises since the year 1999, why should the discretion
inherent in exercise of revisional jurisdiction should be exercised in
favour of the petitioners / plaintiffs.
10. The counsel for the petitioners / plaintiffs on enquiry states that
the petitioner no.2 who was also a tenant in the premises is in
employment but he cannot tell where. He is also unable to tell as to
why the petitioner no.2 could not use the premises or carry on
business therein from 1987-88 onwards.
11. Therefrom it appears that irrespective of the merits of the case,
the petitioners / plaintiffs, as per their own case, though not in use or
need of the premises, were from 1988 to 2006 i.e. for nearly 20 years
holding on to possession of a commercial premises, only to extract
CRP No.84/2013 Page 5 of 9
consideration from the landlord for vacation of the same and taking
advantage of the protection accorded from eviction under the Delhi
Rent Control Act, 1958, the rent of the premises being Rs.40/- per
month.
12. The counsel for the petitioners / plaintiffs states that though the
petitioners / plaintiffs several times tendered rent of the premises for
the period after 1999, but the same was not accepted owing to inter se
disputes between the respondents.
13. Even if that were to be so, the least that was expected from the
petitioners / plaintiffs as a tenant was to tender the rent by Money
Order or under cover of a letter by Registered Post AD or under the
provisions at the relevant time of the Punjab Relief of Indebtedness
Act, 1934 (whereunder also prior to the judgment in Atma Ram Vs.
Shakuntala Rani (2005) 7 SCC 211 the rent used to be accepted) or
under Section 27 of the Delhi Rent Control Act,1958 and nothing of
this sort is pleaded.
14. Rather, from the non-appearance of the respondents before this
Court and non-appearance of some of the respondents before the Trial
Court, it appears that the petitioners / plaintiffs are making a claim
taking advantage of the inter se disputes between the respondents.
15. Irrespective of the aforesaid facts, Section 6(3) of the Specific
Relief Act bars an appeal and review from any order or decree passed
in any suit instituted thereunder.
CRP No.84/2013 Page 6 of 9
16. Though Revision Petition under Section 115 lies, but before this
Court entertains Revision Petition against an order under Section 6 of
the Specific Relief Act, a ground different from that of appeal is to be
made out for exercise of revisional jurisdiction. This Court cannot re-
appreciate any evidence led before the Trial Court. In fact Courts
have held that the High Court will generally not interfere in revision as
the proper remedy is to institute a regular suit for declaration of title
and possession. Only in extreme cases where the High Court finds
grave injustice to have been done or where there has been no trial at
all or where the decision is vitiated by error of law and the like, has
the remedy of revision against an order or decree under Section 6 of
Specific Relief Act, 1963 been held to be maintainable. In the facts of
the present case when the petitioners / plaintiffs were admittedly for
about 20 years prior to the institution of the suit not in use of the
premises, the question of any injustice lest grave having been caused
to the petitioners / plaintiffs does not arise.
17. The Trial Court, under issue no.6 has held that the petitioners /
plaintiffs failed to prove being in possession of the premises from
1999 till 2006. The counsel for the petitioners / plaintiffs has not been
able to show as to how the said finding is perverse. Even if the report
of the Local Commissioner aforesaid proved as Ex.PW1/8 and the list
of tenants proved as Ex.PW1/7 is to be read, as the counsel for the
petitioners / plaintiffs wants, the same also do not show the possession
of the petitioners even till the beginning of the year 2006 or for that
matter after the year 2001.
CRP No.84/2013 Page 7 of 9
18. For the suit under Section 6 of the Specific Relief Act to
succeed, it is essential for a plaintiff to prove that the plaintiff, within
six months prior to the institution of the suit was in possession of the
premises. Once the petitioners / plaintiffs failed to prove so, as has
been rightly held by the learned Civil Judge on appreciation of the
evidence, the issue no.6 supra also ought to have been decided against
the petitioners / plaintiffs and the suit ought to have been dismissed as
barred by limitation.
19. Though the counsel for the petitioners / plaintiffs has also
contended that merely because the petitioners / plaintiffs had stopped
paying rent did not entitle the landlords to take possession forcibly but
the petitioners / plaintiffs having failed to prove being in possession of
the premises within six months prior to the institution of the suit from
which this petition arises, the petition is liable to be dismissed on that
ground alone. In fact the petitioners / plaintiffs have not given any
date of dispossession and what has been pleaded and stated in
evidence is that the petitioners / plaintiffs on their visit in the month of
February, 2006 were in possession and on the next visit on 9 th May,
2006 found that they had been dispossessed. There is nothing to
substantiate the visit of the petitioners / plaintiffs in the month of
February, 2006. If the petitioners / plaintiffs had visited and tendered
rent on that date and the same had not been accepted, the petitioners /
plaintiffs instead of relying upon their oral version should have taken
steps of tendering the rent by Money Order or by Registered Post AD
or deposited the rent in Court.
CRP No.84/2013 Page 8 of 9
20. A suit under Section 6 of the Specific Relief Act is not
concerned with title. Thus, the title if any of petitioners / plaintiffs as
tenant is not relevant for such a suit. What was relevant was
possession of the shop within six months prior to institution of the suit
and of which there is no evidence. Similarly, there is no evidence of
date of dispossession.
21. The counsel for the petitioners / plaintiffs has also drawn
attention to the averments made by some of the respondents in another
inter se proceeding between themselves, of some of them having
dispossessed the petitioners / plaintiffs. However the counsel for the
petitioners / plaintiffs is unable to give the outcome of the said
averments; without any finding in the other proceedings of some of
the respondents having dispossessed the petitioners / plaintiffs, no
reliance thereon can be placed.
26. Thus no ground for interfering with the order under the
revisional jurisdiction is made out.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 11, 2017 „bs/pp‟..
CRP No.84/2013 Page 9 of 9