Delhi District Court
Sh. Dharamveer S/O Sh. Ratan Lal vs Smt. Sudeshna Devi on 4 February, 2016
IN THE COURT OF SH. SATISH KUMAR
ADDITIONAL DISTRICT JUDGE2, (NORTH)
ROHINI COURTS, DELHI.
RCA NO.40/15
Sh. Dharamveer S/o Sh. Ratan Lal
R/o M14, Rana Park, Dhol Wali Gali, Siraspur
Delhi110042. ......Appellant
Vs.
1. Smt. Sudeshna Devi
W/o Sh. Omi
R/o M14, Rana Park, Dhol Wali Gali,
Siraspur, Delhi110042.
2. Sh.Rajbhan Singh
S/o Sh. Mahender Singh
R/o C7, Rana Park, Siraspur,
Delhi110073. .......Respondents
APPEAL UNDER SECTION 96 R.W.S. 151 OF THE CPC AGAINST THE IMPUGNED JUDGMENT/ORDER DATED 22.07.2015 PASSED BY MS. SHEFALI SHARMA LD. CIVIL JUDGE; NORTH, ROHINI COURTS: DELHI IN SUIT TITLED AS "SMT. SUDESHNA DEVI VS SH. DHARAMVEER AND ANR. WHEREBY SUIT OF THE PLAINTIFF HAS BEEN DECREED.
Date of institution : 24.09.15
Date of order reserved : 01.02.16
Date of Order/Judgment : 04.02.16
RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.1 of 21
Final order : Appeal Allowed and the
impugned judgment dt.22.07.15
passed by Ld. Trial Court is set
aside.
Present: Sh.Girish Sharma Ld. counsel for the appellant.
Sh.Manoj Kumar Tyagi Ld. counsel for the respondents.
ORDER ON APPEAL AGAINST THE IMPUGNED ORDER DATED 22.07.2015:
1. By this order, I shall decide the appeal against the impugned order dtd.22.07.2015 passed by Ld. Civil Judge, North, Rohini Courts, Delhi whereby the suit of the respondent/plaintiff was decreed.
2. That the brief material facts to decide the instant appeal are that, the respondent/plaintiff has filed the suit for declaration, possession, mandatory injunction, permanent injunction and mesne profit against the appellant/defendant No.1 and 2 whereby it has been stated that the plaintiff is the sole and absolute owner of the built up property bearing No.M14, land area measuring 85 sqyds out of Kh. No.450, situated at Village Siraspur, presently known as colony Rana Park, Dhol Wali Gali, Siraspur, Delhi42 and the said property RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.2 of 21 was purchased by the plaintiff from the defendant No.2 Sh. Raj Bhan Singh for a total sale consideration amount of Rs. 1.50 lacs on dt.25.10.10 vide sale documents i.e. GPA, Receipt, Possession Letter, Agreement to sale and purchase and affidavit and the defendant No.2 Sh. Raj Bhan Singh handed over the peaceful vacant possession of the suit property to the respondent No.1 herein and at the time of the purchasing of the said property the appellant herein was in possession of part portion of the said property i.e. one room, kitchen, bathroom and latrine constructed on the first floor and the respondent No.1 herein terminated the tenancy right of the appellant and asked him to vacate the suit property. But he did not vacate the same. Hence the suit for declaration, possession, mandatory injunction and mesne profits was filed and the same was decreed in favour of the respondent No.1 herein and against the appellant and aggrived by the impugned judgment dt.22.07.15 passed by Ld Civil Judge, North, Rohini Courts, Delhi. The present appeal has been filed on the following grounds: A. BECAUSE the impugned judgment and order are abuse of the process of law as the RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.3 of 21 suit has been decided by the court not having jurisdiction to deal with the matter. As per the record, defendant no.1 was admitted as tenant in the suit premises on a monthly rent of Rs. 300/- per month and Rs. 150/- as Electricity and water charges. Therefore, the proper forum for claiming eviction of the appellant/defendant no.1 was the Rent Controller.
B. BECAUSE the Ld. Trial court did not appreciate the fact that in year 2009 the appellant had filed a suit for permanent injunction against landlord/defendant no.2 and his wife seeking relief of not dispossessing him forcibly and without the due process of law. In the said suit the factum of tenancy as well as the amount of rent were mentioned and the defendant no.2 RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.4 of 21 had not disputed the said facts by filing his written statement. Instead of contesting the said case, he undertook to not dispossess the plaintiff from the suit property vide his statement on oath before the Hon'ble court on 07.04.2011. Hence, there is no question of termination of tenancy of the appellant by the erstwhile owner of the suit property.
C BECAUSE the Ld. Trial Court failed to appreciate that on 07.04.2011 defendant no.2 was still owner of the suit property and in absence of any sale deed, the plaintiff is not entitled to terminate the tenancy of the appellant/defendant no.l. D. BECAUSE the Ld. Trial court erred in considering the evidence of the plaintiff adduced by way of affidavit. The plaintiff stated in her cross examination that RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.5 of 21 neither she was aware about the contents of the affidavit Ex.PW-I/A nor it was read out to her at the time of its execution. Hence the contents of the plaint remain unproved in absence of legal and valid evidence by way of affidavit.
E. BECAUSE the Ld. Trial Court failed to appreciate that the plaintiff had miserably failed to prove during trial that she has acquired the ownership of the suit property and was entitled to claim possession of the same. There was no valid document on record to prove that the title and ownership of the suit property was transferred in favor of the plaintiff on the bases of the documents dated 25.10.2010 which are agreement to sell, power of attorney, deed of will, copy of receipt, possession letter and affidavit only.
RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.6 of 21 F. BECAUSE the Ld. Trial court erred in considering the documents filed on record of the plaintiff as proved merely on being exhibited in the court during the trial without appreciating that the mode of proof was incorrect and the documents could not be proved in the absence of examining their maker.
G. BECAUSE the Ld. Trial Court failed to appreciate that the plaintiff had not been able to prove that the tenancy of the suit was validly terminated by the previous owner at any point of time and hence was not entitled to for the relief of getting the appellant declared as unauthorized occupant of the suit property.
H. BECAUSE the Ld. Trial Court failed to appreciate that the plaintiff was not able to prove the service of legal notice RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.7 of 21 Ex.PW-1/10 upon the appellant/defendant no.2 and the postal receipt Ex.PW-1/11 and also acknowledgement card Ex.PW-1/12. The appellant had specifically denied the signature on the acknowledgement as of him and the plaintiff failed to prove that the legal notice was served upon the appellant at any point of time.
I. BECAUSE the Ld. Trial Court failed to appreciate that PW-2 Sh. Nikesh Kumar did not support the case of the plaintiff as during cross examination he stated that he was not aware what is written in his affidavit. He further stated that he put his signature only in Hindi and cannot sign in English and the evidence by way of affidavit Ex.PW-2/1 were shown to him which was bearing a signature in English. J. BECAUSE the Ld. Trial Court erred to reach to a conclusion PW-2 Sh. Nikesh Kumar RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.8 of 21 supported the case of the plaintiff when in fact he contracted the case of plaintiff as per which the documents were notarized.
K. BECAUSE the Ld. Trial Court erred to reach to a conclusion PW-3 Sh. Sanjay Gupta supported the case of the plaintiff and he was present at the time of exchange of consideration amount as well as preparation of sale documents whereas PW-2 Sh. Nikesh Kumar had categorically mentioned in his cross examination that except him, Joginder, Sultan and Rajbhan no else was present at the time of execution of the documents. PW-3 Sh.
Sanjay Gupta showed his ignorance about
the facts mentioned in para 5 of his
affidavit from point A to A and stated that the said facts were got typed by RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.9 of 21 counsel for the plaintiff on his own and he had not stated the same to the counsel. L. BECAUSE the Ld. Trial Court erred in law when so called admission was considered by it and was read against a co-defendant. In the written statement of defendant no.2, defendant no.2 had stated that he had already terminated the tenancy of defendant no.l and defendant no.1 was permitted to reside in the premises for further period only with the permission of the plaintiff and the said averment is not an admission but rather shows that in fact the tenancy of the appellant remained continuing even after execution of agreement to sell and GPA. It is pertinent to mention here that neither the plaintiff nor the defendant no.2 could produce any ocular or documentary evidence regarding termination RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.10 of 21 of tenancy appellant on any specific date, month and year.
M. BECAUSE the Ld. Trial Court failed to appreciate the fact that the defendant no. 2 vide his written statement had not admitted the case of plaintiff in any manner but rather had denied the factum of transfer of ownership of the suit premises to the plaintiff. The defendant no.2 had specifically stated in his written statement that the part payment was received in lieu of handing over the possession and execution of the documents but the sale was to be completed only on execution of sale deed and payment of remaining consideration. It is pertinent .to mention here that till date no sale deed has been executed in favour of the plaintiff.
RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.11 of 21 N. BECAUSE the Ld. Trial Court erred in deciding issue no.1 to 3 and 5 in favour of the plaintiff on the given reasons.
O. BECAUSE the Ld. Trial Court erred in
deciding issue no.4 in favour of the
plaintiff vide which defendant no.1 was
directed to pay the sum of Rs.2000/- per month starting from 25.10.2010 till delivery of possession. The trial court held that the plaintiff did not filed any evidence to show that the rate of rent in the similarly situated premises in surrounding areas is Rs.5000/- per month and despite this arbitrarily calculated the monthly rent as Rs.2000/- in absence of any evidence on record to this effect. The Ld. Trial Court acted on surmises and conjectures only.
P. BECAUSE the Ld. Trial Court failed to
appreciate the fact that mere bald
RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.12 of 21
allegations made by the plaintiff in the plaint do not prove her case in absence of any ocular or documentary corroboration. Q. BECAUSE the Ld. Trial Court failed to appreciate the fact that the burden of proof to prove existence of the cause of action to file a suit, is always on the plaintiff.
R. BECAUSE the Ld. Trial Court failed to appreciate that the plaintiff had filed the suit against two defendants but plaintiff sought no relief from defendant no. 2. This fact was not considered by the Ld trial court that defendant no. 2 disputed transfer of suit property in favour of the plaintiff and submitted in his WS that sale deed was to be executed to complete sale transaction. It is pertinent to mention here that in case RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.13 of 21 the plaintiff had come to the court with clean hands previous owner would have been witness of the plaintiff and not a defendant and this fact was overlooked by the Ld. Trial court while deciding the suit.
3. That, upon notice of the appeal as well as the application for condonation of delay the respondent No. 1/plaintiff appeared with counsel and argued that the appeal of the appellant is not maintainable and the same is without any basis and also beyond period of limitation and there is no illegality in the impugned judgment passed by the Ld. Trial Court and the same may kindly be dismissed with cost.
4. That, the summons of the appeal issued against the respondent No.2 Sh. Raj Bhan Singh received back unserved with the report that he has been died.
5. Having heard the arguments advanced by the Ld. counsel for the parties and after gone through the grounds of the appeal as well as the application for condonation of delay and of the Trial Court record and impugned judgment dt. RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.14 of 21 22.07.15, this court is of the considered view that there is patent illegality in the impugned judgment passed by the ld. Trial Court.
6. It is argued by the Ld. Counsel for the appellant that there is delay of 32 days to file the appeal and the same may kindly be condoned on the ground that the appellant is an illiterate person and because of the misguide of the previous counsel he could not obtained the certified copy well within time and for that reason could not file the appeal within the period of limitation and make a request that the delay to file the appeal was neither intentional nor deliberate and the delay to file the appeal may kindly be condoned.
7. On the other hand Ld. counsel for the respondent No.1 has argued that the appellant intentionally and deliberately and to harass the respondent No.1 did not file the appeal within the period of limitation and the appeal is time barred and the same may kindly be dismissed.
8. Having heard the arguments advanced by the Ld. counsel for the parties, this court is of the considered view that no doubt the appellant is illiterate person and because of the fault of the previous counsel he should not be suffered and as per the provisions of law appeal has to be decided on RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.15 of 21 merits.
Reliance is placed upon 1987 Rajdhani Law Reporter (SC) 132 Collector, Land Acquisition vs. Katiji.
Limitation Act, S.5. Life Purpose of courts is to do justice.
They must attempt to decide matters on merits and adopt liberal approach towards condoning delay on sufficient cause. They must not adopt pedantic and technical approach and thus legalize injustice.
Judiciary is because of its power to remove injustice.
Thakkar, J. To condone, or not to condone, is not the only question. Whether or not to apply the same standard in applying the "sufficient cause"
test to all the litigants regardless RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.16 of 21 of their personality in the said context is another.
9. Therefore, the application for condonation of delay U/s 5 of the Limitation Act is hereby allowed and the delay to file the appeal is hereby condoned.
10. Having heard the arguments advanced by the Ld. counsel for the parties and after gone through the grounds of the appeal as well as the application for condonation of delay and of the Trial Court record and impugned judgment dt. 22.07.15, this court is of the considered view that there is patent illegality in the impugned judgment passed by the ld. Trial Court. Inasmuch as the respondent No.1 herein has evered in the plaint before the Ld. Trial Court that she become the owner of the suit property by virtue of sale documents i.e. agreement to sale and purchase, GPA, Receipt, Possession Letter and Affidavit all dt.25.10.10 for a lawful consideration of Rs.1.50,000/ and the documents placed on record are not sufficient to prove that the respondent No.1 had purchased the suit property, inasmuch as the GPA is revocable document and the same can be revoked at any point of time by the executant and the same has also not been able to prove that any right, title or interest have been created RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.17 of 21 or transferred by the GPA over the suit property. And the document regarding sale in favour of the respondent No.1 would have been proved, those documents viz GPA, Sale agreement, Affidavit, Receipt, Will dt.25.10.10 were not registered documents and therefore did not constitute sale within the meaning of Sec.54 of the Transfer of Property Act and sale of any immovable property presupposes that the sale deed ought to be registered under the registration act and without registration of the sale deed it cannot be said or proved that the right, title or interest have been transfered in favour of the vendee on the basis of the GPA.
11. It is pertinent to mention that even for argument sake it is presumed that the suit property was purchased by the respondent No.1 herein then she ought to have served upon a legal notice to the appellant whereby it had been specifically mentioned for purchase of the suit property and the respondent No.1 had also mentioned in the said legal notice for the adornment and ought to have been mentioned that she had purchased the suit property and the appellant was to be asked to make the payment of arrears of rent and also to mention the monthly rent. Though, the respondent No.1 in her examination in chief has proved the legal notice dt. RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.18 of 21 14.09.11 as Ex.PW1/10 with the postal receipts Ex.PW1/11 and AD card Ex.PW1/12 before the Ld. Trial Court but after gone through the legal notice dt.14.09.11 Ex.PW1/10 it reveals that the same is vague and defective notice and not been able to prove the case of the respondent No.1/plaintiff.
12. That, the Ld. Trial Court has also wrongly appreciated the relationship of landlord and tenant between the appellant herein and the respondent No.1 inasmuch as the respondent No.1/plaintiff has not been able to prove the relationship of landlord and tenant as well as the rent of Rs. 5,000/ per month and the findings of the Ld. Trial Court on this issue are unsustainable.
13. The Ld. Trial Court has wrongly appreciated that the rate of rent is Rs.5,000/p.m. of the tenanted premises and the tenancy of the appellant was terminated by legal notice dt.14.09.11. In the entire said legal notice it has no where been mentioned that the rate of rent of the tenanted premises was of Rs.5,000/ per month. Whereas it has come on evidence that prior to the filing of the suit before the Ld. Trial Court of the respondent No.1/plaintiff, the appellant had filed the suit for permanent injunction against the erstwhile owner Sh. Raj Bhan Singh and his wife Smt. Shashi Singh RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.19 of 21 whereby it has been stated that the rate of the rent in the year 2008 was of Rs.450/ per month with Rs.100/ per month towards the electricity and water charges and the said suit was disposed off with the statement made by both the defendants that they shall not dispossess the plaintiff Sh. Dharamveer who is the appellant herein without due process of law and this fact was also within the notice of the respondent No.1 /plaintiff as mentioned in the legal notice dt. 14.09.11 Ex.PW1/10. Therefore, there is no evidence on record that the rate of the rent of the tenanted premises was Rs.5,000/ per month and this court has no reason to disbelieve the averments of the suit of the permanent injunction filed by the appellant/defendant no.2 before the Ld. Civil Judge, in the year 2009 much before the sale purchase of the suit property, wherein the monthly rent of the tenanted premises was mentioned as Rs.450/ per month. And there is not even a single iota of evidence lead by the respondent No.1/plaintiff before the ld. Trial Court that any notice of adornment with the mentioning that the respondent No.1/plaintiff ever demanded or claimed Rs.5,000/ rent per month from the tenant Sh. Dharamveer who is appellant herein and it appears that the respondent No.1/plaintiff had RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.20 of 21 taken the plea of the rent of Rs.5,000/ per month just to avoid to file the petition before court of Ld. Rent Controller and the Civil Court has no jurisdiction to try and entertain the suit where the rent of the tenanted premises is less than Rs.3500/ per month and the only jurisdiction to try the petition where the rent is less than Rs.3500/ per month is of the court of Ld. Rent Controller and Delhi Rent Control Act apply for the same. Therefore, the impugned judgment dt. 22.07.15 passed by the Ld. Trial Court is hereby set aside.
14. Appeal file be consigned to record room after due compliance. Trial court record be sent back with a copy of this order.
Announced in the open (Satish Kumar) Court on 04/02/16 ADJ02, North, Rohini Courts, Delhi/04.02.16 Every page of this order is signed by me.
(Satish Kumar) ADJ02, North, Rohini Courts, Delhi/04.02.16 RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.21 of 21 RCA NO.40/15 04.02.2016 Present: Ld. Proxy counsel for the counsel for parties.
Vide my separate order announced in the open court today the appeal of the appellant is hereby allowed and the impugned judgment/decree dt.22.07.15 passed by the Ld. Civil Judge (Trial Court) is hereby set aside.
TCR along with the copy of order of appeal be sent back to the Ld. Trial Court.
File be consigned to record room after due compliance.
(Satish Kumar) ADJ2, North, Rohini Courts, Delhi 04.02.2016 RCA NO.40/15 Sh. Dharamveer Vs Smt. Sudeshna Devi & Ors. Page No.22 of 21