Delhi District Court
Smt. Meenakshi Jain vs Smt. Rani Jindal on 23 September, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH),
ROOM NO. 401, ROHINI COURTS, DELHI.
RCA No. 22/13
Smt. Meenakshi Jain
w/o Sh. Damodar Kumar Jain
r/o F3/29, IIIrd Floor
Sector - 11, Rohini
Delhi - 110085 .....Appellant
Vs.
Smt. Rani Jindal
w/o Sh. Rajesh Kumar
r/o 2530, Jain Sthanak Road
Onkar Nagar, Tri Nagar
Delhi 110035 ..........Respondent
Date of institution : 01.06.2013
Date of hearing arguments : 06.09.2013
Date of Judgment : 23.09.2013
JUDGMENT
1. This Judgment shall govern the disposal of an appeal filed by the appellant (defendant before the Ld. Trial Court) against the impugned Judgment dated 06.05.2013 passed by Ld. SCJ/RC RCA No. 22/13 Page 1 of 23 (N/W), Rohini Courts, Delhi, in the suit bearing no. 436/2011 case entitled "Rani Jindal vs. Meenakshi Jain" whereby the suit of the respondent (plaintiff before the Ld. Trial Court) has been decreed with mesne profits along with interest @ 9% p.a.
2. The brief facts as stated which lead to the filing of the present appeal are that respondent (plaintiff before the Trial Court) filed a suit for ejectment and recovery of Rs. 15,000/ for future damages against the appellant/defendant averring therein that that respondent/plaintiff has let out the shop measuring 10x40 feet situated at ground floor of property bearing no.2530, Jain Sthanak Road, Onkar Nagar, Tri Nagar, Delhi (herein after referred as suit property) under a rent deed dated 19.01.2010 to appellant/defendant for monthly rent of Rs.15000/ excluding other charges for period of 20 months starting from 01.01.2010 and tenancy coming to end on 31.08.2011. It is further stated that rent agreement was duly registered on 21.01.2010. It is further stated that upon expiry of tenancy period on 31.08.2011, appellant/defendant failed to deliver the possession of the suit property to respondent/plaintiff as such the possession of the appellant/defendant in it after 31.08.2011 is as tress passer. It is RCA No. 22/13 Page 2 of 23 further stated that even otherwise appellant/defendant failed to pay rent of August 2011, inspite repeated demands. Moreover, appellant/defendant is liable to pay damages/mesne profit w.e.f 01.09.2011 till the delivery of possession @Rs.2000/ per day as per the terms agreed under the said rent agreement. It is further stated that since appellant/defendant has not delivered the possession nor has paid the damages hence the present suit has been filed with the prayer that a decree of ejectment be passed regarding shop in question as shown red in the site plan annexed as well as for decree for recovery of sum of Rs.15,000/ on account of arrear of rent with interest, the respondent/plaintiff also prayed for preliminary decree for future damages/ mesne profits @ 20,000/ per month w.e.f 01.09.2011 till delivery of possession.
3. On these allegations the respondent/plaintiff filed a suit for ejectment and recovery of Rs. 15,000/ for future damages/mesne profits against the appellant/defendant, which was Decree in favour of the respondent/plaintiff vide Judgment dated 06.05.2013 passed by Ld. SCJ/RC (N/W)/Delhi. Hence, the present appeal.
RCA No. 22/13 Page 3 of 23
4. It is stated in the appeal that the Ld. Trial Court has failed to frame proper issues arising out of the pleadings of the parties in para no. 5 of the WS, which is the reply of para no. 5 of the plaint whereby jurisdiction of the Civil Court has been seriously contested and no proper issue has been framed regarding the jurisdiction wich further led to no finding on the matter raised and contested in the pleadings. It is further stated that the rate of rent was hotly contested and the appellant/defendant had further proved rent receipts Ex. DW1/2 evidencing payment of Rs. 3100/ per month from November 2009 to July 2011 immediately before filing of the suit. It is further submitted that rate of rent of Rs. 3100/ pm means that in ejecting a tenant, the provisions of Delhi Rent Control Act would apply and not the general provisions of the Transfer of Property Act. Hence, non framing of the issue of jurisdiction of the Civil court and non finding thereupon has resulted a grave miscarriage of justice and thus the findings of the Ld. Trial Court are liable to be set aside.
5. It is further stated in the appeal that the Ld. Trial Court has failed to take note of the fact admitted by PW1, in its deposition, that respondent/plaintiff landlady admitted that she never RCA No. 22/13 Page 4 of 23 issued any receipt of rent to the appellant/defendant. It is further stated in the appeal that the entire arrears of rent till the filing of the suit is admitted to have been received by the respondent/plaintiff and thus, the receipt issued by husband of the plaintiff/respondent i.e. Ex. DW1/2 goes to show that the actual rate of rent between the parties is Rs. 3100/ pm and not of Rs. 15,000/ pm and further goes to show that Ex. P1 is a bogus and sham transaction and with ulterior motive to take out the case from the provisions of the Delhi Rent Control Act, hence, the Civil Court has no jurisdiction to try and decide the matter in controversy and the impugned Judgment and Decree passed by the Ld. Trial Court are perverse, against the facts and law and therefore, is liable to be set aside.
6. It is further stated in the appeal that the Ld. Trial Court erred in law in misconstruing and misapplied the law laid down by the Hon'ble Supreme Court in the matter of Ganga Bai vs. Chhabubhai, AIR 1982 SC 20 and in the matter of Ishwar Dass Jain vs. Sohan Lal, AIR 2000 SC 426, wherein it is held that Section 92(1) not applies when the case of a party is that the transaction recorded in the document, was never intended to be RCA No. 22/13 Page 5 of 23 acted upon at all between the parties and that document is a sham. It is further stated in the appeal that in the present case also, admittedly no receipt of rent @ Rs. 15,000/ pm was ever issued by the respondent/plaintiff and further the entire arrears of rent has been received by her till the date of filing of the suit and further the rent receipt Ex. DW1/2 has to be believed so as to conclude that Ex. P1 was never intended to enforce and acted upon and further there is no other proof of payment of rent or receipt of rent @ Rs. 15,000/ pm, hence, the Ld. Trial Court has misapplied the law laid down by the Hon'ble Supreme Court in the impugned Judgment.
7. It is further stated in the appeal that the Ld. Trial Court has filed to appreciate that the document Ex. DW1/2 i.e. the rent receipt has been conclusively proved by DW1 appearing on behalf of the appellant/defendant and noncommittal/shaky statement of respondent/plaintiff as PW1 and further admission of signatures of her husband (Rajesh) on Ex. P1 by her, which was got compared with Ex. DW1/2 and report of the hand writing expert is on Ex. DW2/B concluding that the signatures of Rajesh on Ex. P1 is the same as appears on Ex. DW1/2, RCA No. 22/13 Page 6 of 23 hence, the findings of the Ld. Trial Court is not maintainable and liable to be reversed and consequently, the suit of the respondent/plaintiff is liable to be dismissed.
8. It is further stated in the appeal that the Ld. Trial Court has wrongly decided issue no. 1 against the appellant/defendant and the respondent/plaintiff has not proved the execution of the alleged lease deed dated 19.01.2010 i.e. Ex. P1.
9. It is further stated in the appeal that the Ld. Trial Court has committed a grave legal error in not appreciating the convincing and conclusive evidence established by the appellant/defendant in order to prove her case by producing the rent receipts Ex. DW1/2 issued and signed by the husband of the respondent/plaintiff and the same is compared withthe admitted signatures of Rajesh (husband of the respondent/plaintiff) on a lease deed Ex. P1 by DW2, a hand writing expert after getting necessary permission from the Hon'ble Court vide Order dated 03.10.2012. Hence, the findings of the Ld. Trial Court are not maintainable.
10. Notice of the appeal was issued to the respondent/plaintiff and the respondent filed the reply stating therein that the appeal RCA No. 22/13 Page 7 of 23 filed by the appellant/defendant is misconceived and devoid of any merits. It is further stated in the reply that the stay as claimed by the appellant/plaintiff cannot be granted as there is money decree in favour of the respondent and as per provisions of Order 41 CPC, the money decree cannot be stayed without depositing the amount and as the ejectment order has been passed, the appellant is liable to pay the amount of damages fixed by the Ld. Trial Court from the date of decree till disposal of the present appeal.
11. The matter before me was argued by the Ld. Counsels for both the sides. I have also gone through the entire record including the plaint, documents, evidence and impugned Judgment/Decree. Accordingly, I shall decide the appeal in accordance with the issues framed in the original suit and my issue wise findings after reappraisal are as under :
ISSUE No. 1 :
"Whether the respondent/plaintiff is entitled for ejectment of the appellant/defendant from the suit shop, as prayed for? OPP.
12. The Onus to Prove this issue was upon the respondent/plaintiff.
RCA No. 22/13 Page 8 of 23
13. While dealing with the case in hand, one important fact which is to be kept in mind is that the respondent/plaintiff herself appeared into the witness box and deposed in favour of her case, but so far as the appellant/defendant is concerned, she has not appeared into the witness box rather her Spl. Power of Attorney Sh. D.K. Jain appeared into the witness box as DW1 and deposed in the Court. Law is well settled in this regard that the power of attorney holder can depose only in respect of the 'acts' done by him in exercise to the power granted by the instrument. The term 'acts' would not include deposing in place and in respect of the principle. In other words, if the power of attorney holder has rendered some 'acts' in pursuance of power of attorney. He may depose in the principles in respect of such acts but he cannot depose for the principle for the 'acts' done by the principle and not by him. Similarly, he cannot depose in the principle in respect of the matter which only the principle can have personal knowledge and in respect of the principle is to be cross examined.
14. In this case, no much reliance can be placed upon the deposition of DW1 i.e. the special power of attorney of the RCA No. 22/13 Page 9 of 23 appellant/defendant in view of the fact that it was the appellant/defendant who was dealing and acting on her own while dealing with the respondent/plaintiff. The deposition of DW1 to the extent act done by the appellant/defendant are beyond the scope of the deposition of DW1 and cannot be relied upon.
15. In this case, the WS was signed and verified by the appellant/defendant and filed along with duly attested affidavit of the defendant. The appellant/defendant has stated in the WS that the parties were agreed for a sum of Rs. 3100/ per month as rent amount in order to let out a shop, which amount the respondent/plaintiff has received since November 2009 upto July 2011. It is further stated in the WS that mentioning a sum of Rs. 15,000/ per month towards rent in the alleged agreement casts serious aspersion on the execution of the rent agreement dated 19.01.2010. It is further stated in the WS that alleged rent agreement dated 19.01.2010 is nothing but a sham one in order to bring home the issue under the Transfer of Property Act, but it is a fact that execution of rent agreement dated 19.01.2010 has not been denied specifically by the appellant/defendant in the RCA No. 22/13 Page 10 of 23 WS. It is further stated in the WS that there was an oral agreement between the parties, as they were close friends, in which it was decided that the respondent/plaintiff received a sum of Rs. 3100/ per month as rent till the possession of the premises subject to an increase of 10% rent annually.
16. The whole of the written statement itself demonstrates that the transactions in the suit only took place between the respondent/plaintiff and appellant/defendant. The Spl. Power of Attorney Ex. DW1/1 was executed on 03.10.2012 and the WS was signed and verified on 14.11.2011. It is the case wherein as per the WS, the defendant herself dealt with the subject matter. It is no where pleaded that DW1 has rendered some 'acts' in pursuance of power of attorney or otherwise for which he may depose for the appellant/defendant in respect of such acts. It is a well established principle of law that DW1 cannot depose for the principle for the acts done by the principle and not by him.
17. Now adverting back to the reappraisal of the facts of the present case presuming that the deposition of DW1 can be read in this case. Ld. Counsel for the appellant mainly stressed upon the point that the respondent/plaintiff is not entitled for a decree RCA No. 22/13 Page 11 of 23 of ejectment of the appellant/defendant from the suit premises since the rate of rent of the suit premises is Rs. 3100/ per month and the present suit is barred u/s 50 of the Delhi Rent Control Act. In this regard, I would like to refer the pleadings of the parties before embarking upon the depositions of DW2 and the relevancy of the same in the light of the facts of the present case. It has been stated by the appellant/defendant in the WS that the plaintiff received a sum of Rs. 3100/ per month as rent since November 2009 upto July 2011 apart from other allegations in the WS. So the specific plea which has come on the record is that the respondent/plaintiff received a sum of Rs. 3100/ as rent from November 2009 upto July 2011. It has no where stated in the WS that the husband of the respondent/plaintiff received such an amount from the appellant/defendant. Hence, in view of the pleadings of the parties the Ld. Trial Court has rightly, as per the facts of the case, taken into consideration that how the document Ex. DW1/2 can be read in the evidence in view of the pleadings and the Ld. Trial Court in my opinion has correctly appreciated the fact that Ex. DW1/2 is beyond the pleadings and cannot be RCA No. 22/13 Page 12 of 23 considered on this ground. I do not find any flaw in the findings of the Ld. Trial Court regarding the reasons given in discarding the evidence of DW2 and/or discarding the document Ex. DW1/2.
18. It has been held time and again that Court can discard the expert evidence where instead of relying on the opinion of an expert that a document is executed by a particular person the trial court relies upon other circumstances in the case and comes to the conclusion that the document is not genuine, it being a finding of fact could not be interfered in the appeal. The finding is not vitiated on the ground that the other circumstances on which reliance was placed were not put to the expert in his cross examination . Further the matter related to appreciation of evidence on the record which cannot be done in second appeal. When the Court permits the evidence of an expert to be brought on the record on a technical matter, it does not abdicate its function to judge for itself whether the opinion of an expert is correct or not on a matter at issue. Thus it was open for the Court to discard the expert's opinion and to rely on other circumstances for holding that the document in question RCA No. 22/13 Page 13 of 23 was not a genuine one. AIR 1957 SC, Rel. on; AIR 1935 Lah 555 and AIR 1925 Cal 485, Disting. Sri Chand vs. Ramrati Devi, AIR 1980 Allahabad 294.
19. It is held in the matter of Jamunabai vs. Surendrakumar, AIR 1995 MP 274 that expert's evidence may or may not be relied upon, but in a case where the positive ocular testimony proves a particular fact which stands unshattered in the cross examination that such expert's evidence would not take place of the positive proof and, therefore, the Court will have to come to its own conclusion as to whether reliance is to be placed on the positive ocular testimony or the expert's evidence which is based on the comparison of the disputed signatures with the standard signature.
20. It is further a well settled proposition of law that if the tenancy agreement is in writing, no oral evidence can be given about it except the payment itself. Against the written terms, no oral evidence about any variation etc. can be given u/s 92 of the Evidence Act. N.S. Parthasarthy vs. Pandmini, 1982 RLR
442.
21. It is held in the matter of Jitender vs. Krishan, 1986 Raj. RCA No. 22/13 Page 14 of 23
LR 188 that if rent agreement is in writing, oral evidence of terms is not permissible.
22. It is held in the matter of S. Gopal Reddy vs. State, AIR 1996 SC 2184 that the expert evidence is a weak type of evidence. It is not conclusive without seeking any independent and reliable evidence.
23. Even otherwise in the matter of Krishi Utpadan Mandi Samiti vs. Bipin Kumar, AIR 2004 SC 2895, it is held that the party leading evidence contrary to terms of a written document cannot be permitted.
24. In the present case, the appellant/defendant who has not stepped into the witness box rather led her evidence through special power of attorney cannot be allowed to lead the evidence contrary to the terms of the lease agreement Ex. P1 which under the law required to be registered and is registered. Even otherwise, document Ex. DW1/2 cannot be relied upon by the appellant/defendant in view of the specific pleading by the appellant/defendant that the respondent/plaintiff was receiving the rent.
25. Section 92(1) of the Evidence Act, 1872, provides that the RCA No. 22/13 Page 15 of 23 bar imposed by Section 92(1) applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub section is hot attracted when the case a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose, oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.
26. Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the RCA No. 22/13 Page 16 of 23 writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind s rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (S. 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (S. 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.
27. Both under S. 45 and S. 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the RCA No. 22/13 Page 17 of 23 admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that Court may accept that fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.
28. In view of the findings of the Ld. Trial Court and the discussions therein and herein above, I fully concur with the findings of the Ld. Trial Court that merely claiming a registered document to be a sham document and putting up oral evidence RCA No. 22/13 Page 18 of 23 regarding rate of rent to be Rs. 3100/ per month is not permissible in view of Section 91 & 92 of the Indian Evidence Act. I also do not find any flaw on the observation of the Ld. Trial Court that if we appreciate the evidence, the respondent/plaintiff in her cross examination has denied the document i.e. rent agreement Mark B bearing signatures of her husband and the fact that even the respondent/plaintiff in her cross examination has reiterated that she used to collect rent, in such situation evidence of DW1 regarding rent receipt Ex. DW1/2 containing signatures of husband of the respondent/plaintiff is not only beyond the pleadings, but even otherwise documents have not been properly proved by merely exhibiting it. DW2 has committed irregularities while writing down his report. I also do not find any substance in the arguments of the Ld. Counsel for the appellant/defendant that Ex. DW1/2 has wrongly been discarded by the Ld. Trial Court. I also do not find any flaw in the findings of the Ld. Trial Court that in view of the registered lease deed Ex. P1, the respondent/plaintiff has been able to establish the rate of rent to be Rs. 15,000/ per month and that the tenancy was for the RCA No. 22/13 Page 19 of 23 period of 20 months and that the rent is due from August 2011 onwards and that the respondent/plaintiff has been able to establish that the tenancy came to an end by afflux of time and that the plaintiff is entitled for ejectment of the appellant/defendant from the suit shop. Hence, in view of the above discussions, I, on reappraisal of the entire matter, hold that the respondent/plaintiff is entitled for the ejectment of the appellant/defendant from the suit shop and decide this issue also in consonance with the findings of the Ld. Trial Court in favour of the respondent/plaintiff and against the appellants/defendants. Accordingly, I uphold the findings of Ld. Trial Court regarding issue no. 1.
ISSUE NO. 2 :
"Whether the respondent/appellant is entited for recovery of rent of Rs. 15,000/ for one month of August 2011? OPP".
29. The Onus to Prove this issue was upon the respondent/plaintiff.
30. In view of the above discussions, I do not find any flaw in the findings of the Ld. Trial Court thereby holding that respondent/plaintiff is entitled for Rs. 15,000/ on account of RCA No. 22/13 Page 20 of 23 arrear of rent in respect of the month of August 2011. Accordingly, I uphold the findings of Ld. Trial Court regarding issue no. 2.
ISSUE NO. 3 :
"Whether the respondent/plaintiff is entitled for mesne profit? If so, at what rate and for what period? OPP".
31. The Onus to Prove this issue was upon the respondent/plaintiff.
32. However, in view of the discussions herein above and taking into consideration the findings of Ld. Trial Court, I do not find any flaw in the findings of the Ld. Trial Court that taking the evidence in totality that mesne profits @ Rs. 15,000/ per month would meet the end of justice and the respondent/plaintiff shall be entitled for mesne profits @ Rs. 15,000/ per month from September 2011 till the delivery of the possession. Accordingly, I uphold the findings of Ld. Trial Court regarding issue no. 3 in favour of the respondent/plaintiff and against the appellant/defendant.
ISSUE NO. 4 :
"Whether the respondent/plaintiff is entitled for any interest, if so, at what rate and for what period? OPP". RCA No. 22/13 Page 21 of 23
33. The Onus to Prove this issue was upon the respondent/plaintiff.
34. In view of the above discussions, I on reappraisal hold that the respondent/plaintiff is entitled for the interest @ 9% on the arrears of rent as decided in issue no. 2 and decide this issue also in consonance with the findings of the Ld. Trial Court in favour of the respondent/plaintiff and against the appellants/defendants. Accordingly, I uphold the findings of Ld. Trial Court regarding issue no. 4.
RELIEF :
35. In the light of above discussions, no relief can be granted to the appellant.
36. Accordingly, I do not find any reason to interfere in the findings of Ld. Trial Court. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellant. There is no infirmity in the impugned Judgment of Ld. Trial Court.
37. In the result, I hold that this appeal is devoid of any merits and is accordingly dismissed. However, parties are left to bear their own costs.
RCA No. 22/13 Page 22 of 23
38. Record of the Trial Court be sent back along with an attested copy of the Judgment passed today. Decree Sheet be drawn accordingly. Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court
today i.e. 23.09.2013 (CHANDER SHEKHAR)
Distt. & Sessions Judge (North)
Rohini Courts, Delhi
RCA No. 22/13 Page 23 of 23