Delhi District Court
Xi4234 vs Shri Nirmal Kumar Jain on 16 February, 2017
1
In the Court of Ms. Kaveri Baweja:Addl. District Judge03 (West)
Tis Hazari Courts: Delhi
RCA No.21/14/13 (New No.60786/16)
In the matter of :
Avery India Ltd.
Registered Office At;
Plot No.5059
Sector25, Ballabgarh,
Haryana121004
Also having its office at:
XI4234, 1Ansari Road,
Daryaganj,
New Delhi110002 .... Appellant
Versus
1. Shri Nirmal Kumar Jain
S/o Late Sh.Nannu Mal Jain,
XI4234, 1Ansari Road,
Daryaganj,
New Delhi110002
2. Smt.Savita Jain
W/o Late Sh.Kamal Kumar Jain
XI4234, 1Ansari Road,
Daryaganj,
New Delhi110002 .... Respondents
RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr.
2
Date of Institution of Appeal : 17.04.2013
Judgment Reserved on : 13.01.2017
Judgment Pronounced on : 16.02.2017
JUDGMENT
1. The present appeal filed by the above named appellant assails the judgment and decree dated 28.02.2013 [hereinafter to be referred as the impugned judgment] passed by the learned ACJ/ARC (West), THC, Delhi in respect of the suit property situated at ground floor of house bearing No.XI/4234, 1Ansari Road, Daryaganj, New Delhi110002 [hereinafter to be referred as the 'suit property']. The learned trial court while decreeing the suit of the Plaintiff/Respondent herein passed decree of possession in favour of the Respondents and against the Appellant herein in respect of the suit property, in addition to a decree of recovery of Rs.1,43,660/ as damages and future damages for use and occupation of the suit property w.e.f. 01.10.1993 to 26.02.1998 @ Rs.71830.20p per month and w.e.f. 01.03.1998 @ Rs.1,61,617.95 per month along with interest @ 6% per annum and cost of the suit.
2. The brief facts of the case of the Plaintiff/Respondent herein are that the suit property was let out to the Appellant herein by the RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 3 Plaintiff/Respondent herein and the last paid rent was Rs.5500/ per month, (it having been enhanced from time), to time excluding water and electricity charges. The premises were let out to the Appellant for use as office premises. The Plaintiff/Respondent herein terminated the tenancy of the Appellants vide notice dated 22.06.1993 calling upon the Defendant/Appellant herein to quit the demised premises and deliver its vacant possession to the Plaintiffs/Respondents by the midnight of 31.07.1993. The Plaintiff/Respondent also served another legal notice dated 01.08.1993 upon the Appellant herein. Since the Appellants failed to handover the vacant and peaceful possession of the property to the Respondents, the Plaintiff/Respondents filed the present suit claiming possession and damages for unauthorized use and occupation, as aforesaid.
3. It is further contended that the Defendants/Appellants removed the partition wall in between the premises in the suit property as well as adjoining premises and as such the Defendant is liable to restore the premises in question in its original position.
4. In their written statement the Defendant/Appellants herein pleaded inter alia that the suit was bad for misjoinder of parties and cause of action. It was further pleaded that the Plaintiffs have not approached the court with RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 4 clean hands as they have separate and distinct premises which cannot be subject of the same relief. It was alleged that the suit has been filed jointly only with a view to demonstrate the rent to be more than Rs.3500/ to avoid the provisions of Delhi Rent Control Act, 1958.
5. The Defendant/Appellant contended that Mr.Nannu Mal Jain leased out to the Defendant/Appellant, premises comprising a hall, bathroom, latrine, one small room, mezzanine with wooden staircase together with collapsible iron steel gate with two entrances, one from main gate of the hall and the other from the service road on the ground floor of the premises in the year 1962. In November, 1970, Mr.Nannu Lal Mal Jain informed Defendant/Appellant that vide order of the Hon'ble High Court the property situated on plot No.4, 1 Ansari Road, Daryaganj, Delhi bearing house No.4234, Ward No.XI, Delhi has been partitioned beween him and his wife Smt.Chander Kala jain. As per Defendant/Appellant, since the two premises were in possession of a common tenant i.e. Defendant/Appellant, no partition wall was erected by the owners/landlords and consequently tenant started paying rent to them in equal proportion for the separate premises.
6. In January, 1990 Plaintiff No.2 represented to the RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 5 Appellant/Defendant herein that consequent upon the death of Mr.Nannu Mal Jain, her fatherinlaw, the rent of the demised premises owned by him should be paid to her for and on behalf of all the heirs of the said Mr.Nanu Mal Jain. It is claimed that since the rent of each premises is less than Rs.3500/ per month, the civil court did not have the jurisdiction to entertain the suit, it being barred by the provisions of Delhi Rent Control Act. The Appellant/Defendant further contended that the notice dated 22.06.1993 is illegal and bad in law and did not terminate the tenancy of the Appellants. Moreover, the Respondents/Plaintiffs could not have jointly sent the said notice in respect of the two demised premises, as aforesaid.
7. Following issues were framed by the learned Trial Court on the basis of the pleadings of the parties :
i) Whether the tenancy of the Defendants stands terminated by legal and valid notice as per Section 106 of TP Act, as alleged? If so, its effect? OPP
ii) Whether the Plaintiff is entitled to recover possession of suit premises, as alleged? OPP
iii) Whether the Plaintiff is entitled to recover any damages. If so, at what rate, for what period and for what amount? OPP
iv) Whether the Plaintiff is entitled to any injunction? OPP
v) Whether the suit is bad for misjoinder of parties and causes of action as alleged? OPD RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 6
vi) Whether the Plaintiffs own separate and distinct premises as alleged in para2 of the preliminary objections of written statement, if so,its effect? OPD
vii) Relief.
8. After considering the evidence on record, the learned Trial Court passed the aforesaid judgment, thereby decreeing the suit of the Respondents herein.
9. Detailed arguments have been advanced by learned counsels for the Appellant as well as the Respondents. I have considered the same in the light of the evidence on record and the relevant case law on the subject.
10. The Appellant assails the impugned judgment on various grounds. It is contended that the learned Trial Court denied the Appellant adequate opportunity to crossexamine PW2 & PW3, leading to denial of principles of natural justice and resulting in grave miscarriage of justice.
11. I have considered the aforesaid averments. However, admittedly the orders dated 21.07.1998 and 27.05.1999, whereby the right to cross examine PW2 & PW3 respectively was closed by the learned Trial Court have not been challenged by the Appellant and have thus become final. Thus, I see no force in this contention which accordingly deserves outright RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 7 rejection.
12. It is further submitted that in pursuance of decree dated 28.01.1990 (Ex.DW1/6) passed by the Hon'ble High Court of Delhi in Suit No.401/1969 titled as "Shri Kamal Kumar Jain vs. Shri Nannu Mal Jain & Ors", the entire property "Nanu Mal Building" was divided by metes and bound, the half portion of the tenanted property came to be owned by Sh.Nannu Mal Jain and the other half portion thereof, by Smt.Chander Kala Jain, thus making both of them separate individual owners of each severed portion and individual lessors of their respective portion. It is submitted that the said decree dated 28.01.1990 (Ex.DW1/6) not only determined their share, but also partitioned the entire suit property by metes and bound including the tenanted property and thus the tenancy of the Appellant was under two separate and independent lessors; the rent of each of the tenanted premises being Rs.2750/ per month, as such the civil court inherently lacked the jurisdiction and the matter ought to have been referred for adjudication as per the provisions of Delhi Rent Control Act, the rent for each of the aforesaid portion being less than Rs.3500/ per month.
13. Learned counsel for the Appellant further pointed out that as per the site plan Ex.P23 there are two entrances to the property thus clarifying RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 8 that the property in fact comprises of two distinct tenanted portions.
14. The rival contentions raised on behalf of the parties thus apparently raises one significant issue i.e. as to whether there was one composite tenancy or two distinct tenancies, as contended by the Appellant. In this regard, it would be pertinent to note that admittedly the premises in question were let out by way of a lease deed dated 01.05.1962. It is also not in dispute that the last paid rent was Rs.5500/ per month w.e.f. 01.08.1998. PW1 categorically deposed that "the tenancy has always remained one but we have been receiving cheques by two separate cheques and have been issuing only one receipt for both the cheques". In his crossexamination, PW1 reiterated the fact that the rent was being received by two separate cheques but the tenancy was one. He also deposed that they have divided the portion for the purpose of Income Tax only and even for Income Tax purposes, no portion has been earmarked separately. The witness denied the suggestion that the tenanted portion was spilt into two parts after the partition of the property.
15. It is also pertinent to note that in the crossexamination of PW1, it is the Defendant/Appellant who gave a suggestion to the witness, which was admitted by PW1 as follows: "It is correct that the partition wall was RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 9 not erected at the time of partitioning of the property as the Defendant wanted to use the entire premises for their office purpose as one unit." It is thus brought out in the course of evidence that though there was a partition of property in question, however, the property had not been partitioned by metes and bounds and rather at the request of Defendant/Appellant no partition wall was erected after the partition of the property since the Defendant wanted to use the entire premises where Defendants are running their office as one unit.
16. In the course of arguments, learned counsel for the Appellant further contended that the learned Trial Court ignored the Income Tax Returns filed on record in the course of trial showing that the owners/landlords have individually declared and treated the rent for their respective owned premises after the partition, as their individual income. It is submitted that after the tenancy was split up following the partition decree, the landlords were receiving separate rent independently for their respective portions. In this regard, learned counsel for the Appellant relied upon the cases of 'Sk. Sattar Sk. Mohd. Chaudhary vs. Gundappa Ambadas Bukate', 1997(1) RCR (SC) 98 and 'Mohar Singh vs. Devi Charan', AIR, 1988 SC RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 10 1365.
17. It was further submitted that since then the Appellant company accepted Sh.Nannu Mal Jain and Smt.Chandra Kala Jain as separate landlords of two independent tenanted premises and started paying rent to them separately by way of two cheques in their respective names. The individual owners of the respective premises used to issue receipt which was signed by both the owners separately and as such the learned Trial Court has erroneously decided the Issue No.6 in favour of the Respondents and against the Appellant. It is thus contended that the impugned judgment being contrary to the facts as well as the legal position is liable to be setaside, as prayed.
18. Learned counsel for the Respondent, on the other hand, vehemently contended that the impugned judgment suffers from no illegality and infirmity and rather the Appeal being devoid of merits, is liable to be dismissed. Learned counsel for the Respondent also relied upon the judgment of Hon'ble High Court titled as Good Year India Ltd. vs. Bharat Bhushan Jain & Ors. being RFA No.318/1999, date of decision being 23.11.2000, wherein while dealing with a similar proposition, Hon'ble High RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 11 Court observed that "the mere fact that the owners/landlords share the rent as per respective shares in the property does not make it a case of separate tenancies." Hon'ble High Court further observed that " we had put it to the learned counsel for the Appellant as to whether there can be more than one owners of the property and will in every case where there are more than one owners of the property, it must follow that there will be as many tenancies as the number of owners? Obviously, the counsel could not advance the proposition that the number of owners will decide the number of tenancies."
19. In the present case also, it is borne out from the evidence on record that though admittedly there were a partition of the property in question following the judicial order Ex.PW1/6, and the rent came to be paid by way of two separate cheques. However, it is the admitted case of both the Appellant as well as the Respondents that one consolidated rent receipt continued to be issued in respect of rent amounting to Rs.5500/ per month.
20. Learned counsel for the Appellant has placed strong reliance upon the judgment of Sk. Sattar Sk. Mohd. Chaudhary vs. Gundappa Ambadas Bukate (Supra) in support of his contentions. In the said judgment, the Hon'ble Apex Court held that "If all the coowners or the co lessors agree among themselves and split by partition the demised property RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 12 by metes and bounds andcome to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor." However, in the present case apparently the co owners chose to continue to deal with the tenanted property as one unit by not effecting its partition by metes and bounds and by continuing to issue a composite rent receipt in respect of rents received by them. It may also be necessary to mention at this juncture that it is not a disputed fact that the rent receipts used to be prepared by the Appellant themselves and furnished to the Respondents along with rent cheques and the Respondents used to sign the same.
21. Even otherwise, there is not an iota of evidence to establish the bifurcation of tenancy by the Respondents/Landlords following the decree Ex.PW1/6. Rather, it is their case that the tenancy remained one and undivided despite the partition effected by a decree dated 28.01.1990 (Ex.DW1/6).
22. It is also pertinent to mention DW1 categorically admitted in the course of his crossexamination that "the Appellant Company do not have any receipt for the two payments made to Chander Kala Jain and Nannu Mal RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 13 Jain for the same month." Further, witness of the Defendant/Appellant herein did not produce any evidence whatsoever to establish that any intimation qua partition of the tenancy was given by Nannu Mal Jain in writing to the Appellant, nor any documentary evidence to this effect was produced and proved on the judicial record in the course of trial.
23. In these circumstances, it is apparent that the Appellant has failed to prove that the tenancy was split up, as alleged. Reference in this regard may again made to the following observations of the Hon'ble High Court in the case of Sk. Sattar Sk. Mohd. Chaudhary vs. Gundappa Ambadas Bukate (Supra) : "But before the tenant can be required to split up the rent and pay separately to each owner, he has to be informed of the transfer by a notice which, by itself, will be sufficient to convert the single obligation into several obligations and he will be liable to pay rent to each cosharer separately."
24. In this regard reliance was placed on the case of Raja Simhadri Appa Rao vs. Prattipati Ramayya, ILR (190608) 29 Mad 29. Similar view was taken in the case of Satyes Chandra Sarkar vs. Haji Jilfar Rahman, RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 14 (1918) 27 Cal LJ 438: 45 IC 721 and Keshava Prasad Singh Bahadur vs. Mathura Kuar, AIR 1922 Pat 608 (1): 69 IC 704, wherein it was observed that "it is open to the owners to apportion the rent inter se, but if no such apportionment is made, the obligation of the tenant remains single and in that situation, the lessor will not be allowed to split the tenancy by recovering the rent of a part only."
25. It is also not out of place to mention that a reply was sent on behalf of the Appellants in response to the notice dated 22.06.1993 (Ex.P24) sent by the Respondents thereby terminating the tenancy of the Appellant herein w.e.f. 31.07.1993. In reply to the said notice, Ex.P29, the Appellant did not raise any contention with regard to there being two separate tenancies having rent of Rs.2750/ each. Noticeably, the legal notice dated 22.06.1993 (Ex.P24) had been issued on behalf of Smt.Chander Kala Jain w/o Late Sh.Nannu Mal Jain and Smt.Savita Jain w/o Late Sh.L. Kamal Kumar Jain, which was also not objected to by the Appellant in its reply Ex.P29 dated 27.07.1993. Thus apparently, the contention with regard to there being two separate tenancies surfaced for the very first time when the written statement was filed by the Appellant before the learned Trial Court and is thus apparently an after thought.
RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 15
26. Insofar as the contention of the Appellants with regard to the Income Tax Returns of the Respondents/Landlords showing separate rents independently of their respective portions as their individual Income Tax is concerned, I am of the considered opinion that by no stretch of imagination can a tenant take advantage of the manner in which the landlord submits his Income Tax for the purpose of Income Tax assessment nor does it have any bearing whatsoever on their being two separate tenancies, as alleged.
27. The impugned judgment has also been assailed on the ground that the learned trial court erroneously granted mesne profits on the basis of evidence of PW2 & PW3 without any inquiry as to the age of the construction of the building in which the respective offices of the said witnesses were located. It is further contended that the learned Trial Court wrongly arrived at the findings on the issue regarding mesne profits by comparing two incomparable tenancies and on this ground the impugned judgment is liable to be set aside.
28. I have considered the aforesaid contentions. However, as observed hereinabove, PW2 & PW3 were not crossexamined by the Plaintiff despite several opportunities granted to this effect by the learned Trial Court, nor did the Appellant challenge the orders whereby the right to RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 16 crossexamine PW2 & PW3 were closed, thus making the said orders final and binding upon the parties. Moreover, no independent evidence was led by Defendant to establish the prevailing rate of rent at the relevant time. In these circumstances, it is now not open to the Appellant to raise this contention and the same is accordingly rejected.
29. In the light of the evidence on record and the unrebutted testimonies of PW2 & PW3, learned Trial Court, in my opinion, rightly assessed the mesne profits on the basis of the documents furnished by the witnesses and the findings on this issue also does not warrant any interference whatsoever. The Respondents are directed to submit the requisite court fees on the amount awarded by learned Trial Court towards damages, as per law within 03 weeks before the learned Trial Court.
Conclusion:
30. In the light of the above discussion, the Appeal being devoid of merits is hereby dismissed. Appeal file be consigned to record room. TCR be sent back to the concerned court along with copy of this judgment for information and compliance.
Announced in open court (Kaveri Baweja) today on 16.02.2017 ADJ03 (West), THC, Delhi RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 17 RCA New No.60786/16 Avery India Ltd. vs. Nirmal Kumar Jain & Anr. 16.02.2017 Present : Clerk for counsel for the Appellant. Respondent in person with counsel.
Vide separate judgment announced today in open court, the Appeal stands dismissed. Also vide separate order of even date, the application filed by the Respondents stands disposed of. Decree sheet be prepared accordingly.
A copy of the judgment and order be sent to the learned Trial Court for information and compliance. File be consigned to record room.
(Kaveri Baweja) ADJ03 (West), THC, Delhi 16.02.2017 RCA No.21/14/13 (New No.60786/16) Avery India Ltd. vs. Nirmal Kumar Jain & Anr.