Delhi District Court
Shri Narendra Kumar Jain vs Shri Shiv Pratap Seonie (Deceased) on 11 April, 2018
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
RCT NO. 09/2015
SHRI NARENDRA KUMAR JAIN
S/o LATE AJIT PRASD JAIN
R/o 22, SHRI RAM ROAD,
CIVIL LINES, DELHI 110054 ...APPELLANT
VERSUS
SHRI SHIV PRATAP SEONIE (DECEASED)
S/o LATE RAM PRATAP SEONIE
REPRESENTED THROUGH HIS LEGAL REPRESENTATIVES
1. SHRI HARSH PRATAP SEONIE,
S/o LATE SHIV PRATAP SEONIA
2. SHRI VARUN PRATAP SEONIE
S/o SHRI HARSH PRATAP SEONIE,
3. SHRI DEV PRATAP SEONIE,
S/o LATE SHIV PRATAP SEONIE,
ALL RESIDENTS OF
37, HANUMAN ROAD,
NEW DELHI 110001 ...RESPONDENTS
Date of filing : 06.07.2015 First date before this court : 15.07.2017 Date of concluding arguments : 19.03.2018 Date of Decision : 11.04.2018 RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 1 of 46 pages RCT NO. 10/2015 SHRI SURENDRA KUMAR JAIN S/o LATE AJIT PRASAD JAIN R/o 9, SUNDER NAGAR MARKET, NEW DELHI 110003 ...APPELLANT VERSUS SHRI SHIV PRATAP SEONIE (DECEASED) S/o LATE RAM PRATAP SEONIE REPRESENTED THROUGH HIS LEGAL REPRESENTATIVES
1. SHRI HARSH PRATAP SEONIE, S/o LATE SHIV PRATAP SEONIA
2. SHRI VARUN PRATAP SEONIE S/o SHRI HARSH PRATAP SEONIE,
3. SHRI DEV PRATAP SEONIE, S/o LATE SHIV PRATAP SEONIE, ALL RESIDENTS OF 37, HANUMAN ROAD, NEW DELHI 110001 ...RESPONDENTS Date of filing : 06.07.2015 First date before this court : 15.07.2017 Date of concluding arguments : 19.03.2018 Date of Decision : 11.04.2018 Appearance : Shri Rajesh Harnal, counsel for the appellant Shri Amit Sethi, counsel for the respondents RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 2 of 46 pages J U D G M E N T
1. The present two appeals involving similar questions of law have been taken up together for disposal. Appellant tenant Shri Narendra Kumar Jain of RCT No. 09/2015 is real brother of appellant tenant Shri Surendra Kumar Jain of RCT No. 10/2015. The present respondents namely Shri Harsh Pratap, Shri Varun Pratap and Shri Dev Pratap are successorsininterest of the original eviction petitioner landlord, Shri Shiv Pratap Seonie, who passed away during the eviction proceedings after transferring the demised premises by way of gift in favour of the present respondents. The appeal RCT No. 09/2015 pertains to the ground floor of premises no. 9A, Sunder Nagar Market, New Delhi while the appeal RCT No. 10/2015 pertains to first floor above shops no. 9 and 9A, Sunder Nagar Market, New Delhi. For brevity, the said tenanted premises are referred to as "the ground floor of the suit property" and as "the first floor of the suit property". Both appeals have arisen out of final order dated 23.05.2015 passed by the learned Additional Rent Controller (South) in two Eviction Petitions under Section 14 (1) (k) of the Delhi Rent Control Act. I have heard learned counsel for both parties, who took me through trial court record as well as relevant judicial precedents.
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2. Briefly stated, factual matrix as pleaded by Shri Shiv Pratap, the original eviction petitioner is as follows.
2.1 By way of lease deeds dated 09.08.1987, Shri Shiv Pratap Seonie, the now deceased predecessor of respondents inducted the appellants Shri Narendra Kumar Jain and Shri Surendra Kumar Jain as tenants in respect of the ground floor of the suit property and the first floor of the suit property respectively.
2.2 Appellant Shri Narendra Kumar Jain covered the open rear courtyard of about 11 feet x 13.5 feet on the ground floor of the suit property for his use, which construction by way of letter dated 15.02.2002 of the Land & Development Office was declared to be an unauthorized construction in breach of terms and conditions of the lease. Similarly, appellant Shri Surendra Kumar Jain carried out extension of about 436 sq. feet on the first floor of the suit property and also constructed a barsati floor of about 377 sq. feet on the first floor of the suit property for his use, which construction by way of letter dated 15.02.2002 of the Land & Development Office was declared to be an unauthorized construction in breach of terms and conditions of the lease.
2.3 By way of above mentioned letter dated 15.02.2002, a copy whereof was delivered to both appellants which followed another copy RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 4 of 46 pages thereof served upon them along with notice dated 09.09.2002, damages and penalty was imposed upon Shri Shiv Pratap, the predecessor of respondents with the directions to remove the said breach of terms of lease failing which further action would be taken by way of forfeiture of lease followed by reentry.
2.4 By way of letter dated 20.06.2002 followed by legal notice dated 09.09.2002, Shri Shiv Pratap, the predecessor of respondents, called upon the appellants to pay the damages imposed by the government on account of unauthorized construction carried out by them and also to remove the unauthorized construction personally or permit him to remove the same. But appellants opted to ignore the said notice.
2.5 Under these circumstances, Shri Shiv Pratap, the predecessor of respondents filed the eviction petitions under Section 14 (1) (k) of the Delhi Rent Control Act against the appellants as mentioned above. During pendency of the eviction proceedings, Shri Shiv Pratap passed away and the present respondents were brought on record by the learned Additional Rent Controller vide order dated 20.03.2003. It is thereafter that on 05.06.2003, the present appellants filed their respective written statements to the eviction petitions on 04.06.2003.
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3. In their separately filed written statements, the present appellants did not dispute their jural relationship of tenancy with late Shri Shiv Pratap and setup their version as follows.
3.1 While admitting that they had been inducted as tenants in the above described premises by late Shri Shiv Pratap, the appellants challenged the status of the present respondents as landlords. For, according to the present respondents, the above described premises were transferred to them by way of gift deed dated 10.01.2003, but the alleged gift transaction was not disclosed before the learned Additional Rent Controller on 22.01.2003 during the lifetime of Shri Shiv Pratap and no permission from government authorities was taken prior to the said gift transaction.
3.2 The area of the ground floor of the suit property is not just 11 feet x 44 feet. The entire shop on the ground floor of the suit property is the subject matter of tenancy and the eviction petition being for partial eviction is not maintainable in the eyes of law. Similarly, partial eviction of the first floor of the suit property is not sustainable in the eyes of law since second floor including open terrace above the first floor also was a part of tenanted premises. The site plans filed in the two eviction petitions do not tally with each other and the staircase RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 6 of 46 pages connecting the ground floor of the suit property with the first floor of the suit property has not been depicted in the site plans.
3.3 No open courtyard on the ground floor of the suit property was ever let out to the appellants, so there was never any scope of the same being covered by the appellants. Even as regards the first floor of the suit property, no unauthorized construction by way of extension of the first floor of the suit property by 436 sq feet or by way of barsati floor was carried out by the appellants. The entire premises consisting of the ground floor of the suit property and the first floor of the suit property were let out in the same state as existed and the appellants did not carry out any unauthorized construction.
3.4 The document described as the lease granted in favour of Shri Shiv Pratap by the government is only an agreement for lease and not the lease deed. The said agreement for lease executed by the government in favour of Shri Shiv Pratap accompanies with itself a draft of perpetual lease, which nowhere prohibits the alleged coverage though prohibits additions/alterations affecting the architectural or structural features. Therefore, even if it is believed that the appellants carried out any additions/alterations, no case under Section 14 (1) (k) of the Delhi Rent Control Act is made out.
RCT No. 09/2015Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 7 of 46 pages 3.5 Appellants never received the alleged letters or legal notice from or on behalf of Shri Shiv Pratap. The appellants are not liable to pay damages imposed by the government on Shri Shiv Pratap since they did not carry out any unauthorized construction. More so, because even the notice issued by L&DO reflects that the damages being claimed by the government pertain to the construction even prior to the date of inception of tenancy.
3.6 According to the appellants, the eviction petitions are liable to be dismissed.
4. The present respondents filed replications, denying the contents of the written statements and reaffirmed the petition pleadings. Respondents reiterated that the unauthorized construction was carried out by the appellants only.
5. On the basis of above pleadings, trial was carried out before the learned Additional Rent Controller in which two witnesses were examined on behalf of the present respondents while each of the appellants appeared as his solitary witness. Both eviction petitions were allowed by the learned Additional Rent Controller by way of separate impugned judgments.
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6. Hence, the present appeals.
7. During final arguments, learned counsel for both sides took me through their respective stand as described above in the light of various judicial precedents.
8. Arguments advanced by the learned counsel for appellants were as follows.
8.1 Learned counsel for appellants argued that an eviction petition in order to succeed under Section 14 (1) (k) of the Act must be based upon execution of a formal lease between the eviction petitioner and the government. But in the present case, no formal lease deed related to the entire suit property was ever executed between Shri Shiv Pratap or his successors and the concerned government authority. It was further argued that even the pleadings of the present respondents before the learned Additional Rent Controller are silent on this aspect.
8.2 It was further argued by learned counsel for appellants that there is no clarity as regards the extent of premises covered by the concerned tenancy and what the present respondents sought is a partial eviction, which cannot be permitted in law. Learned counsel argued that had the present respondents filed a copy of lease deed whereby the RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 9 of 46 pages appellants were inducted as tenants into the suit property, extent of premises would have become ascertainable. Learned counsel for appellants contended that site plan submitted by the present respondents is vague and incorrect. It was argued that going by the case setup by the present respondents, the present appellants covered the entire width of courtyard, which cannot be possible since it is not possible to conceive the existence of first floor without a staircase in the suit property and no staircase is depicted in the site plan filed on behalf of the present respondents.
8.3 It was further argued that even according to the case setup by the present respondents, the penalty imposed by government pertains to period prior to tenancy of the present appellants, therefore, the present appellants cannot be held liable in any manner.
8.4 It was argued by learned counsel for appellants that testimony of AW2, the official witness summoned during trial by the present respondents cannot be read in evidence because of following reasons. On 16.07.2003 after complete examination of PW1, counsel for the present respondents stated that he did not want to examine any other witness, but on the very next date 04.09.2003, one L&DO official witness was examined as AW2 and discharged with nil cross examination despite opportunity. Thereafter, on 09.02.2004, application RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 10 of 46 pages of the present appellants was allowed and AW2 was recalled at the cost of the present appellants. On the next date, 21.04.2004 AW2 appeared but since counsel for the present appellants was held up in the Hon'ble Delhi High Court, matter was adjourned subject to cost for 14.07.2004 and AW2 was bound down. On 14.07.2004, till afternoon AW2 did not appear, so notice under Order XVI Rule 12 CPC with bailable warrants against AW2 was issued. On 07.12.2004 AW2 appeared but the learned Additional Rent Controller discharged AW2 and adjourned the matter on the submission of both sides that they were trying to compromise the dispute. Thereafter, on 05.09.2006 AW2 appeared and stated that the concerned records stood transferred from her office L&DO to the office of MCD. On 05.03.2007, a corresponding witness from the office of MCD appeared but since none appeared for the present appellants, the learned Additional Rent Controller passed exparte orders and discharged the said MCD official. Thereafter, on 04.07.2007, exparte was setaside. On 17.01.2008 as well as 08.04.2008, the said MCD official again appeared on being summoned but was discharged unexamined at request of counsel for the present appellants for want of main counsel. Thereafter, AW2 was never summoned again and on 19.08.2009, the present respondents closed their evidence. Under these circumstances, the documents Ex. AW2/A and Ex. AW2/B which are copies of agreement for lease and letter dated 15.02.2002 of L&DO cannot be read in evidence according to the appellants.
RCT No. 09/2015Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 11 of 46 pages 8.5 Learned counsel for appellants also argued that agreement for lease, though exhibited in trial as Ex. PW1/B cannot be read in evidence since the same was not proved in accordance with law. Similarly, document exhibited as Ex. PW1/C cannot be read in evidence. It was argued that in crossexamination, PW1 admitted that no perpetual lease deed has ever been executed between the present respondents and the government. Alternatively, even if Ex. PW1/B is read in evidence, the same is not a perpetual lease but only an agreement to enter into perpetual lease, which is the reason that the same accompanies a draft of the lease deed.
8.6 Learned counsel for appellants further argued that the document Ex. PW1/D establishes that government had already reentered the suit property way back in the year 1978 whereas the present appellants entered into the picture on 09.08.1987. Since even the intended lease had already been cancelled, the provisions under Section 14 (1) (k) of the Act do not come into play. It was argued that the apprehension of reentry by the government should be based upon the breach committed by the tenant but in the present case the reentry had already been effect by the time the present appellants came into the suit property.
RCT No. 09/2015Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 12 of 46 pages 8.7 It was argued by learned counsel for appellants that the present respondents claiming themselves to be the successors of Shri Shiv Pratap have no right, title or interest because the suit property or any part thereof was not lawfully transferred to them.
9. Arguments advanced by the learned counsel for respondents were as follows.
9.1 Learned counsel for respondents argued that the purpose of provision under Section 14 (1) (k) of the Act is to protect the government interest, so once government claims unauthorized construction and landlord notifies the tenant in that regard but tenant continues the user, Section 14 (1) (k) of the Act comes into play. It was argued that even if the unauthorized construction is believed to have been carried out by the respondents, once demand of the government was conveyed to the appellants, the latter were under a duty to demolish the unauthorized construction.
9.2 It was argued by learned counsel for respondents that having admitted their jural relationship of tenancy with Shri Shiv Pratap, the appellants are estopped from challenging the title of late Shri Shiv Pratap and his successors.
RCT No. 09/2015Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 13 of 46 pages 9.3 Learned counsel for respondents took me through the rival pleadings and contended that the eviction sought by the respondents was of the complete demised premises and it is the misreading of pleadings to say that the respondents have sought partial eviction. It was pointed out by learned counsel for respondents that in the replication also it was clarified that no partial eviction is being sought. Learned counsel for respondents also took me through evidence on record to show that case of respondents was never to seek a partial eviction.
9.4 Learned counsel for respondents also took me through the documentary evidence in support of his contention that L&DO has agreed to withdraw its order of reentry into the demised premises and submitted that even if the property is reentered by the government, maintainability of proceedings under Section 14 (1) (k) of the Act does not get affected.
9.5 It was argued by learned counsel for respondents that the document titled agreement for lease cannot be ignored since the same contains specific clauses treating the respondents as lessee under the superior lessor government and even otherwise, terms of the tenancy between the parties shall continue to be binding on the appellants till the appellants hold possession of the demised premises.
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10. Following judicial precedents were cited during final arguments :
(i) State of Karnataka & Ors. vs Selvi J. Jayalalitha & Ors., MANU/SC/0157/2017
(ii) Birad Mal Singhvi vs Anand Purohit, AIR 1988 SC 1796
(iii) Bharat Sales Ltd. & amp. Vs Lakshmi Devi & amp, AIR 2002 SC 2562
(iv) Prayasvin Bhanubhai Patel vs Sundari Khubchand Thawani, 2017 SCC Online Bom 7214
(v) Venu Madhava K. & Ors.vs The State (NCT of Delhi) and Ors., 246 (2018) DLT 373
(vi) Sukhwant Singh vs State of Punjab, AIR 1995 SC 1380
(vii) Pritam Singh vs Parmeshwari Devi etc, 1974 RLR 257
(viii) T. Arivandandam vs T.V. Satyapal & Anr., AIR 1977 SC 2421
(ix) Delhi State Industrial Development Corporation Ltd. vs K.C. Bothra & Ors., 108 (2003) DLT 447
(x) Bharat Petroleum Corporation Ltd. & Anr. vs N.R. Vairamani & Anr., 2005 (58) ALR 139
(xi) Anil Rishi vs Gurbaksh Singh, AIR 2006 SC 1971
(xii) Shyam Sunder Sharma vs Prem Lata & Anr., 30 (1986) DLT 305
(xiii) New India Assurance Co. Limited vs Nusli Neville Wadia, AIR 2008 SC 876
(xiv) Chander Kishore Sharma & Anr. Vs Kampa Wati, AIR 1984 Delhi 14
(xv) Anjali Dutta Barman & Ors. vs Planters Airways Ltd., MANU/GH/0634/2017 RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 15 of 46 pages (xvi) Rakesh Mohindra vs Anita Beri & Ors., MANU/SC/1293/2015 (xvii) H. Siddiqui (dead) by LRs vs A. Ramalingam, AIR 2011 SC 1492 (xviii) Anvar P.V. vs P.K. Basheer, MANU/SC/0834/2014 (xix) Ashoka Marketing Ltd. & anr. vs Punjab National Bank & Ors., AIR 1991 SC 855 (xx) State of Orissa & Ors. vs Md. Illiyas, AIR 2006 SC 258 (xxi) Sonu vs State of Haryana, AIR 2017 SC 3441 (xxii) R.V.E Venkatachala Gounder vs Arulmigu Vishwesaraswami & Ors., (2003) 8 SCC 752 (xxiii) Rashida Begum vs General Sales Ltd., (2002) 6 SCC 60 (xxiv) The Gondals Press vs Punjab National Bank & Anr., LPA 731/2012 decided by the Division Bench of the Hon'ble Chief Justice, Delhi High Court on 05.11.2012 (xxv) Smt. Shanti Sharma vs Smt. Ved Prabha, 1987 (2) All India Rent Control Journal 382 (xxvi) Abaskar Construction Pvt. Ltd. vs Pakistan International Airlines, 2011 II AD (Delhi) 478 (xxvii) Pakistan International Airlines vs Abaskar Construction Pvt. Ltd., 2011 LawSuit (Del) 3238 DB (xxviii) Vashu Deo vs Bal Kishan, AIR 2002 SC 569 (xxix) S. Thangappan vs P. Padmavathy, AIR 1999 SC 3584 (xxx) Bhola Nath vs Mohammad Ibrahim & Anr., MANU/UP/0445/1986 (xxxi) Sanjay Singh vs Corporate Warrantees Pvt. Ltd., 204 (2013) DLT 12 (xxxii) Jamuna Prasad & Ors. vs Shivnandan & Ors., SA 469/94, decided on 29.07.2011 by the Jabalpur Bench of Hon'ble Madhya Pradesh High Court RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 16 of 46 pages
11. At this stage, it would be apposite to traverse through the evidence brought on the trial court record.
11.1 The present respondent no. 1 Shri H.P. Seonie appeared as PW1 in both eviction petitions to depose on oath the contents of his respective pleadings and placed on record the documentary evidence Ex. PW1/A to Ex. PW1/J. In both eviction petitions, at the time of tendering the documentary evidence, counsel for the present appellants raised an objection to the mode of proof of the photocopy of agreement for lease Ex. PW1/B and photocopy of gift deed Ex. PW1/C. The learned trial court did not decide the mode of proof objection instantly and left the same open. In the exhibition/marking of the exhibits/marks, there is substantial lack of clarity, insofar as there are multiple exhibit numbers assigned and the document concerned does not relate to the testimony. The notice Ex. PW2/D apparently is L&DO letter dated 15.02.2002 which bears two exhibit numbers, namely Ex. PW1/D and Ex. AW2/B. Similarly, the photocopy of agreement for lease also bears two exhibit numbers, namely Ex. PW1/B and Ex. AW2/A. 11.2 In his crossexamination, PW1 admitted that no perpetual lease deed of the land underneath the demised premises had been executed in favour of Shri Shiv Pratap or his alleged successors and the eviction petitions had been filed only on the basis of notice Ex. PW2/B. RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 17 of 46 pages In further crossexamination, PW1 stated that government has not re entered the suit property, though proceedings before the Estate Officer are being carried out; but on being confronted with portion A to A of Ex. AW2/B, L&DO letter dated 15.02.2002, PW1 stated that it is only the Estate Officer who can disclose as to when the reentry was affected. PW1 further stated that certain breaches pertained to the period prior to inception of tenancy of the present appellants for which the respondents are willing to pay the misuser charges to the concerned authority; that prior to executing gift deed Ex. PW1/C, no permission from superior lessor was required, irrespective of clause IX of the agreement for lease Ex. PW1/B; that he did not have sanctioned plan of the suit property or completion drawings thereof; that he could not say if the present respondents had sent reply to L&DO letter dated 15.02.2002 Ex. AW2/B, claiming that there was no breach of any law; that the dimension 11feet is from point A to B and the dimension 44 feet is from point B to C and the other shop is at point D while the staircase for going to first floor is between points C E F G marked in site plan Ex. PW1/A (markings are in the trial court record of only the eviction petition filed against Shri Narendra Kumar Jain); that he could not tell the dimensions of the staircase; that he could not tell the dimension between points C and G in Ex. PW1/A; that at the time of inception of tenancy, there was no staircase in the shop at point D for going to the first floor and he could not say if in the shop at point D the entire rear portion RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 18 of 46 pages marked red in Ex. PW1/A was open or covered; that he could not say if at the time of inception of tenancy, the alleged unauthorized construction was already in existence; that he could not say if the open area as shown between points B C D E and F G H I and J K L M N still exists in the suit property (markings J K L M N do not even exist on the site plan Ex. PW1/A in either of the files, though such markings have been made in site plan mark A which was subsequently exhibited as Ex. RW1/1) ; that the unauthorized construction done by the present appellants on the ground floor is by way of coverage of open space between points E F I H shown in Ex. PW1/A; that he did not know as to when the alleged unauthorized construction was carried out by the appellants, though it is correct that the damages for unauthorized construction on first and second floor being claimed by L&DO pertain also to the period prior to the inception of tenancy of the appellants; that he did not know if the suit property had been let out to the present appellants only after the reentry was withdrawn by the L&DO pertaining to the defaults related to the period when the earlier tenant Das Jewellers was occupying the suit property on ground floor.
11.3 The present respondents summoned an official witness from the office of L&DO, who was examined as AW2 on 04.09.2003. Despite opportunity, counsel for the present appellants opted not to challenge testimony of AW2 by way of crossexamination. In her RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 19 of 46 pages testimony AW2 simply saw the photocopy of agreement for lease and L&DO letter dated 15.02.2002 which were already on record and the learned trial court simply assigned exhibit numbers Ex. AW2/A and Ex. AW2/B, without perusal of original agreement for lease. Neither in the testimony of AW2 nor even on the documents there is any endorsement reflecting that original agreement for lease was produced before the trial court or even reflecting that the witness had an opportunity to compare the photocopy from judicial record with the original documents from her official record. As described above by way of datewise events, despite an order dated 09.02.2004 for recall of AW2 for the purposes of cross examination, on account of various reasons, AW2 or even any substitute official witness never stepped into the box to conclude her testimony by way of crossexamination. So, testimony of AW2 remains inchoate.
11.4 In their respective eviction proceedings, each of the present appellants appeared as RW1 as their solitary witness. Testimony of both appellants was recorded before the local commissioner appointed by the learned trial court.
11.5 Respondent Shri Narendra Kumar Jain in his chief examination affidavit deposed on oath the contents of his pleadings and placed on record site plan of the suit property as Ex. RW1/1 and photocopy of letter dated 16.01.1989 of late Shri Shiv Pratap as Ex.
RCT No. 09/2015Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 20 of 46 pages RW1/2. At the stage of tendering the document in evidence before the local commissioner, counsel for the present respondents objected to exhibition of Ex. RW1/2 on the ground that it is only photocopy. But even this objection was left open by the learned trial court. In his cross examination, the appellant Shri Narendra Kumar Jain stated that the suit property is in same condition since the inception of his tenancy; that he did not receive letter Ex. PW1/E and legal notice Ex. PW1/H and that AD card Ex. PW1/G does not bear his or any of his family member's signatures; that he could not say if prior to his being inducted as tenant, any unauthorized construction existed in the suit property; that he did not know that the present respondents are his landlords; that he did not remember name of the draftsman who prepared site plan Ex. RW1/1, though the same was got prepared by him by taking the draftsman to the spot; that he did not remember the date when the site plan Ex. RW1/1 was got prepared and also did not remember the charges paid by him to the draftsman.
11.6 Respondent Shri Surendra Kumar Jain in his chief examination affidavit deposed on oath the contents of his pleadings and placed on record certified copy of eviction petition filed against Shri Narendra Kumar Jain as Ex. RW1/1, certified copy of written statement of Shri Narendra Kumar Jain as Ex. RW1/2, copy of letter dated 16.01.1989 of late Shri Shiv Pratap as Ex. RW1/3 and site plan as Ex.
RCT No. 09/2015Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 21 of 46 pages RW1/4. At the stage of tendering the document Ex. RW1/3 in evidence before the local commissioner, counsel for present respondents objected to exhibition of Ex. RW1/3 on the ground that it is only photocopy. But even this objection was left open by the learned trial court. In his cross examination, on being shown photocopy of the lease agreement between him and Shri Shiv Pratap, Shri Surendra Kumar Jain admitted the said photocopy to be genuine and the same was assigned number Ex. RW1/P1 by the local commissioner, who also recorded objection as to the mode of proof, deficiency of stamp and want of registration but that objection also was left open by the learned trial court. In his further crossexamination Shri Surendra Kumar Jain stated that he had taken the suit property on rent in the same condition as it exists today; that the AD cards Ex. PW1/G and Ex. PW1/J do not bear his or any of his family member's signatures; that even prior to his induction as tenant, unauthorized construction existed in the suit property when the same was in possession of the earlier tenant Das Jewellers; that he did not know if the present respondents are landlord and owner of the suit property after death of Shri Shiv Pratap, though after death of Shri Shiv Pratap he has been paying rent by cheques in the name of the respondents.
11.7 No other evidence was brought.
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12. The provision under Section 14 (1) (k) of the Delhi Rent Control Act contemplates that a tenant is liable to eviction if he has, notwithstanding previous notice, used the demised premises in a manner contrary to any condition imposed on the landlord by the government or DDA or MCD while giving him lease of the land on which the demised premises are erected; however, according to Section 14 (11) of the Act, eviction order under Section 14 (1) (k) of the Act shall not be passed if the tenant, within time specified by the Rent Controller complies with the condition imposed on the landlord by the authorities mentioned above or pays to the concerned authority compensation as the Rent Controller may direct.
13. In proceedings under Section 14 (1) (k) of the Delhi Rent Control Act, what a petitioner landlord has to establish is that he received the land, on which demised premises are erected, by way of lease executed in his favour by the government or DDA or MCD; that a jural relationship of tenancy existed between the petitioner and the respondent; that the superior lessor had imposed certain conditions on the petitioner landlord at the time of granting lease; that the landlord notified the tenant respondent regarding the said condition; and that despite notice regarding the said condition, the tenant respondent used the demised premises in contravention of the said condition. However, if the tenant respondent complies with the said conditions within time RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 23 of 46 pages specified by the learned Rent Controller, section 14 (11) of the Act protects the tenant. What is to be seen is as to whether the present respondents during the eviction proceedings successfully established the above mentioned facts or not.
14. Of course, as rightly contended by learned counsel for the present respondents, in the proceedings under Section 14 (1) (k) of the Delhi Rent Control Act the eviction petitioner does not have to establish his ownership over the demised premises. What is required to be seen is whether the eviction petitioner had been granted lease of the land underneath the demised premises by the government authorities and whether the lease contained any condition and if so, what and if there was breach thereof by the tenant despite notice.
15. As regards the present respondents being recipients of the land underneath the suit property on lease from superior lessor government or DDA or MCD, PW1 Shri H.P. Seonie admitted in his crossexamination that no such lease was executed in favour of Shri Shiv Pratap or any of the present respondents. Even otherwise, it is nobody's case that the present respondents were recipients of the land underneath the suit property on lease from government.
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16. Case setup by the present respondents before the learned trial court and before this court is that they are recipients by way of gift of the land underneath the suit property through Shri Shiv Pratap who was recipient of the same by way of an agreement for lease from L&DO. Further case set up by the present respondents is that in view of certain specific clauses of the said agreement for lease, it cannot be denied that the land underneath the suit property was granted on full fledged lease to Shri Shiv Pratap and through him to the present respondents by the government. Per contra, stand of the present appellants on this aspect is that the alleged agreement for lease has not been proved in accordance with law and even otherwise, what was granted to Shri Shiv Pratap even as per respondents' own document, was only an "intended lease" and not "the lease" itself and that being so, Shri Shiv Pratap and the present respondents could not approach the court under Section 14 (1) (k) of the Delhi Rent Control Act.
17. In order to ascertain the true import of the said agreement for lease, it is the contextual substance of that document and not merely the form thereof which has to be analysed. But before examining the contextual substance of the said document, it would be necessary to decide as to whether the said document was proved in accordance with law, so as to be entitled to be read in evidence.
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18. As mentioned above, at the initial stage when PW1 Shri H.P. Seonie tendered a photocopy of the said agreement for lease in evidence as Ex. PW1/B, an objection of mode of proof was raised by learned counsel for the present appellants as the said document was only a photocopy, original whereof was not produced. The learned trial court ought to have decided the said objection at that very stage itself, but the objection was kept open. Thereafter, the said photocopy of agreement for lease was also assigned a fresh exhibit number Ex. AW2/A by the learned trial court through testimony of official witness from L&DO office without perusal of original or getting the photocopy compared with original record. And as also mentioned above, testimony of that official witness from L&DO remained inconclusive.
19. In the case of Anjali Dutta Barman & Ors. (supra) relied upon by learned counsel for appellants, it was held : "Therefore there is no room for doubt that when a document is per se not admissible in evidence, being a photocopy, the learned trial court ought not to have permitted admission of photocopy as exhibits". The said judgment was based by the Hon'ble Gauhati High Court on the basis of law laid down in the case of Nandkishore Lalbhai Mehta vs New Era Fabrics Pvt. Ltd., (2015) 9 SCC 755, which in turn referred to another judgment of Hon'ble Supreme Court of India in the case of Shalimar Chemical Works Ltd. vs Surendra Oil and Dal Mills, (2010) 8 SCC 423.
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20. In the case of Shalimar Chemical (supra), the Hon'ble Supreme Court of India was specifically dealing with the provision under Section 31 of the Trade & Merchandise Marks Act, 1958 which explicitly lays down that in all legal proceedings related to a registered trade mark, the original registration of the trade mark and of all subsequent assignments and transmission of the trade mark shall be prima facie evidence of the validity thereof. It is in that context that the Hon'ble Supreme Court of India in those judgments held that the xerox copy of the registration certificate should not have been marked as exhibits by the trial court.
21. In the case of R.V.E Venkatachala Gounder vs Arulmigu Vishwesaraswami & Ors., (2003) 8 SCC 752, the Hon'ble Supreme Court of India held thus :
".... The objections as to admissibility of documents in evidence may be classified into two cases : (i) an objection that the document which is sought to be proved is in itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or a revision. In the latter case, the objection should be RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 27 of 46 pages taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and to resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons : firstly, it enables the court to apply its mind and pronounce its decision on the admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of two types of objections, referred to herein above, in the latter case, failure to raise a prompt and timely objection amount to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court". (emphasis supplied) RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 28 of 46 pages
22. In the case of Sonu vs State of Haryana, AIR 2017 SC 3441 while dealing with the scope of electronic evidence in the light of the provision under Section 65B Evidence Act also, the Hon'ble Supreme Court of India relied upon the ratio laid down in the case of R.V.E Venkatachala Gounder (supra) and further observed thus :
"27. It is nobody's case that CDRs which are a form of an electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test as affirmed by this court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which are inherently admissible is an issue which can be taken up at the appellate stage because it is fundamental issue. The mode or method of proof is procedural and objection if not taken at the trial, cannot be permitted at the appellate stage. If the objections of mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Code of Criminal Procedure, 1973 as an example of documents falling under the category of inherently inadmissible evidence...." (emphasis supplied).RCT No. 09/2015
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23. Falling back to the present case, as mentioned above, at the very initial stage of tendering of the documentary evidence in the testimony of PW1, learned counsel for the present appellants raised an objection of mode of proof pertaining to the document assigned exhibit number Ex. PW1/B by the learned trial court and the objection also was specific to the effect that it was photocopy and not the original document. Significance of that document as mentioned above is that its contents would reveal its contextual substance. The learned trial court ought to have decided the said objection then and there, as per the settled legal position. Had the learned trial court decided the objection in favour of the present appellants thereby holding that photocopy of the agreement for lease could not be exhibited being inadmissible in view of above cited law, the present respondents would have had an opportunity to prove the lease in accordance with law by filing or producing the original document. Had the learned trial court decided the objection in favour of the present respondents, thereby holding that photocopy of agreement for lease could be lawfully exhibited as an admissible document, the present appellants would have had an opportunity to challenge that order on the basis of judicial precedents cited above.
24. Another occasion and manner available to the present respondents to prove the said agreement for lease was by examining the RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 30 of 46 pages official witness from L&DO, who had produced the original records. As mentioned above, on 16.07.2003 after complete examination of PW1, counsel for the present respondents stated that he did not want to examine any other witness, but on the very next date 04.09.2003, the L&DO official was examined as AW2 and discharged with nil cross examination despite opportunity, without the learned trial court passing a reasoned order to reopen petitioner's evidence which had been closed on the previous date. As also mentioned above, on 09.02.2004, application of the present appellants was allowed and AW2 was recalled for crossexamination at the cost of the present appellants; on the next date, 21.04.2004 AW2 appeared but since counsel for present appellants was held up in the Hon'ble Delhi High Court, matter was adjourned subject to cost for 14.07.2004 and AW2 was bound down; on 14.07.2004, till afternoon AW2 did not appear so notice under Order XVI Rule 12 CPC with bailable warrants against AW2 was issued; on 07.12.2004 AW2 appeared but the learned Additional Rent Controller discharged AW2 and adjourned the matter on the submission of both sides that they were trying to compromise the dispute; on 05.09.2006 AW2 appeared and stated that the concerned records stood transferred from her office L&DO to the office of MCD. Thus, testimony of the L&DO witness AW2, who could have proved the agreement for lease by producing the original official records remained without cross examination, so his testimony remained inchoate. As further mentioned RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 31 of 46 pages above, on 05.03.2007, a corresponding witness from the office of MCD appeared but since till 02:20 pm none appeared for the present appellants, the learned Additional Rent Controller passed exparte orders and discharged the said MCD official; on 04.07.2007, exparte was setaside; on 17.01.2008 as well as 08.04.2008, the said MCD official again appeared on being summoned but was discharged unexamined at request of counsel for the present appellants for want of main counsel. In view of such circumstances, the learned trial court could have closed further opportunity to crossexamine AW2 or the MCD official after examining him afresh, if considered appropriate, but did not do so. Neither the L&DO witness AW2 was ever summoned again nor the corresponding MCD witness appeared in the box. And on 19.08.2009, the present respondents closed their evidence.
25. Yet another occasion for proving the agreement for lease was in the crossexamination of the present appellants. In the cross examination of RW1 Shri Surendra Kumar Jain, learned counsel for the present respondents put to the witness another copy of the agreement for lease, which was assigned exhibit number Ex. RW1/P1 before the local commissioner. Even at that stage, learned counsel for the present appellants raised an objection to mode of proof as the document was not original. But even at that stage, when after conclusion of proceedings before the local commissioner, matter came back to the court, the learned RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 32 of 46 pages trial court did not adjudicate upon that objection.
26. Therefore, the agreement for lease could not be proved during trial by the present respondents.
27. Since the agreement for lease was not formally proved on record, two essential ingredients of Section 14 (1) (k) of the Delhi Rent Control Act remain not established, namely that the present respondents or Shri Shiv Pratap had received the land underneath the suit property on lease from government and that while granting lease the superior lessor had imposed any condition on Shri Shiv Pratap or the present respondents.
28. As regards imposition of the conditions, as contemplated by Section 14 (1) (k) of the Delhi Rent Control Act, the only documentary evidence relied upon by the present respondents is the L&DO letter dated 15.02.2002, which also was assigned two exhibit numbers namely Ex. PW1/D and Ex. AW2/B during trial.
29. The said L&DO letter Ex. PW1/D is addressed to Shri Shiv Pratap, describing him as "exlessee and unauthorized occupant". Subject of the said letter is "Terms for temporary regularization and for withdrawal of reentry of the premises situated on Shop Plot no. 9, Block RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 33 of 46 pages No. 171, known as Sunder Nagar, New Delhi". The said letter, as would appear from its contents, is basically a demand notice raised by L&DO on Shri Shiv Pratap claiming damages for certain alleged breaches. The said letter, as would appear from its contents, was issued by L&DO after termination of the intended lease against Shri Shiv Pratap. The said letter, as would appear from its contents, simply gave an opportunity to Shri Shiv Pratap to pay damages to L&DO for regularization and withdrawal of reentry, that too only temporarily till 31.03.2002 and subject to payment of damages. There is no specific description of any breach for which L&DO claimed damages by way of the said letter.
30. Further, the said L&DO letter Ex. PW1/D explicitly stipulated that if the terms and conditions mentioned therein were not formally accepted by Shri Shiv Pratap, the same would automatically stand withdrawn after 45 days. There is no evidence to show as to whether compliance with terms and conditions of the said letter was carried out by Shri Shiv Pratap or time for compliance was got extended from L&DO, so the logical inference is that the said offer of temporary regularization and withdrawal of reentry stood automatically lapsed and consequently, Shri Shiv Pratap ceased to be holder of even intended lease of the land underneath the suit property.
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31. Further, from contents of the said L&DO letter Ex. PW1/D, it appears that the alleged breaches started sometime in the year 1978, while the present appellants were inducted into tenancy by Shri Shiv Pratap admittedly in the month of August 1987. But, there is also no material on record pertaining to the communication between Shri Shiv Pratap and L&DO, reference whereof can be found in the said letter Ex. PW1/D. The present respondents ought to have placed on record and proved letter dated 21.01.2000 of Shri Shiv Pratap mentioned in Ex. PW1/D in order to rule out that in the said letter, Shri Shiv Pratap admitted that the alleged unauthorized construction had been carried out by him only or he disputed existence of any unauthorized construction.
32. The cause of action to bring proceedings under Section 14 (1) (k) of the Delhi Rent Control Act consists of misuser of the demised premises by the tenant in breach of conditions imposed by the superior lessor at the time of grant of lease. What Ex. PW1/D contains is only the consequences of the alleged breach in the form of damages computed by L&DO. There is no clear evidence as to what was the nature of the alleged breach of the alleged conditions of lease. Merely because Ex. PW1/D has been proved it does not mean that its contents also stand proved. As held in the case of Birad Mal Singhvi (supra), mere proof of documents would not be tantamount to proof of contents thereof, especially where the contents relate to the crux of the dispute under RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 35 of 46 pages adjudication before the court. In other words, merely because L&DO letter dated 15.02.2002 stood proved as Ex. PW1/D, its contents regarding the allegation of breach cannot be assumed to be true because it is the allegation of breach which is the essential part of proceedings under Section 14 (1) (k) of the Act. And it is that breach, which has to be proved by way of independent evidence.
33. On the aspect of breach of any condition of the agreement for lease, the present respondents failed to prove on record even the rent agreement between the present appellants and Shri Shiv Pratap, which would have divulged the extent of premises under tenancy and in this respect even site plan filed by Shri Shiv Pratap was absolutely unscientific and vague.
34. In the case of Rashida Begum (supra) relied upon by the learned counsel for the present respondents, there was specific evidence available on record as regards an agreement for lease, which is missing in the present case. Further, in the case of Rashida Begum (supra), there was also clear evidence on record in the form of specific notice of the superior lessor pointing out the breach concerned, which was misuser of the property and conveying the decision of the President of India to reenter the premises, which is missing in the present case. In the case of Rashida Begum (supra), the Hon'ble Supreme Court of India on the RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 36 of 46 pages basis of evidence on record held in para 6 of the judgment that in the circumstances of that case, there was little scope for doubt that between the superior lessor and the appellant there was an agreement for the lease of the land with certain conditions which were binding on the lessee with the consequence of termination of the agreement in case of default and consequent reentry. But in the present case, as mentioned above, there is not even formally proved agreement for lease from which the conditions imposed by the superior lessee upon the present respondents while granting lease could be deduced.
35. Similarly, the judgments in the cases of Smt. Shanti Sharma (supra) and The Gondals Press (supra) relied upon by the learned counsel for the present respondents are clearly distinguishable from the present case in the sense that although there is no dispute to the legal proposition that reentry effected by the L&DO with respect to the land underneath the demised premises does not prevent the lessee as owner of the said land from seeking eviction of his tenant in the property constructed on the said land till the property is repossessed by the superior lessor, but in the present case, the vital piece of evidence required to test the case on the anvil of Section 14 (1) (k) of the Delhi Rent Control Act is missing and that missing evidence is the documentary evidence to disclose the terms of the purported lease or even the intended lease, which terms were imposed by the superior RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 37 of 46 pages lessor on Shri Shiv Pratap at the time of granting him lease of the land underneath the suit property.
36. In the case of Shanti Sharma (supra), the issue was whether the proceedings under Section 14 (1) (e) of the Delhi Rent Control Act survived even after termination of lease of the landlord by the superior lessor during pendency of eviction proceedings and the tenant had a right to challenge ownership of the landlord. The issue involved in the present case is not the ownership of Shri Shiv Pratap or the respondents but the question as to whether the land underneath the suit property was granted to Shri Shiv Pratap by the government on lease, imposing any conditions, which were allegedly breached, making the present respondents liable to face risk of reentry. In the case of Shanti Sharma (supra) there was no dispute that the perpetual lease had earlier existed and after cancellation of the lease, dispossession of the landlord was stayed as the authorities were computing damages after which the lease would be restored. In contrast, in the present case, re entry had already been effected and even as per L&DO letter Ex. PW1/D, the superior lessor agreed to regularize the breaches only temporarily and withdraw reentry only upto 31.03.2002 subject to Shri Shiv Pratap making payments as demanded in the said letter.
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37. The fine distinction to be kept in mind is that in the cases of Shanti Sharma (supra) and The Gondals Press (supra), the eviction proceedings were not under the provisions of Section 14 (1) (k) of the Delhi Rent Control Act which specifically takes care of protecting the landlord from risk of cancellation of perpetual lease and the consequent reentry. Whether or not the demised premises were required by the landlord for his bonafide needs which was the issue in those cases has no bearing on the breach of lease conditions by the tenant to put the landlord to risk of reentry. It is in that context that giving the word "owner" a wider meaning, survival of eviction proceedings despite an order of reentry was held to be tenable. The dispute in the present case is not as to whether Shri Shiv Pratap continued to be owner of the suit property even after reentry by L&DO. The dispute in the present case is as to whether any terms were imposed by L&DO while granting lease to Shri Shiv Pratap, which terms of lease were breached by the present appellants. And this can be deduced only after going through the contents of the document of lease granted to Shri Shiv Pratap, but the said lease document was not formally proved during trial.
38. Coming to the aspect of jural relationship of tenancy between the present respondents and the present appellants, the admitted case of both sides is that the present appellants were inducted as tenants by Shri Shiv Pratap. As reflected from trial court record, on 18.02.2003, RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 39 of 46 pages learned counsel for Shri Shiv Pratap informed the court that Shri Shiv Pratap had passed away on 03.02.2003; on behalf of the present respondents an application under Order 22 Rule 3 & 10 CPC was filed and they specifically claimed to have inherited the suit property by virtue of gift deed executed in their favour. On the next date, 20.03.2003, reply to application under Order 22 Rule 3 & 10 CPC was filed and the learned trial court observed thus :
".... Applicants filed affidavits of daughters of the deceased petitioner. Copies given. Heard. The affidavits are vague inasmuch as daughters of deceased did not affirm that they were aware of existence of gift deed dated 10.01.2003. Respondent on the other hand has objected that property was transferred by the lessee by way of gift deed in favour of applicants without obtaining permission of paramount lessor, therefore, they cannot be said to have acquired legal rights in the property. Keeping their objection open to be tackled at trial, application under Order 22 Rule 3 & 10 CPC is allowed and applicants are substituted in the place of deceased petitioner..."
39. As rightly submitted by learned counsel for the present appellants, if the suit property got transferred to the present respondents by way of gift deed on 10.01.2003, it remains unexplained as to why on 22.01.2003 when the matter was listed before the learned trial court, an application seeking Shri Shiv Pratap to be substituted by the present respondents was not filed. But the learned trial court vide order dated 20.03.2003 allowed the application under Order 22 Rule 3 & 10 CPC RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 40 of 46 pages and at the same time, kept the issue of alleged gift deed "open to be tackled at trial". Therefore, it was necessary for the present respondents to prove the alleged transaction of gift of the suit property from Shri Shiv Pratap to them by way of gift deed dated 10.01.2003.
40. But as described above, the alleged gift deed was not proved in accordance with law. At the very initial stage of tendering the documents in evidence in the testimony of PW1, learned counsel for the present appellants raised an objection of mode of proof pertaining to the document assigned exhibit number Ex. PW1/C by the learned trial court and the objection also was specific to the effect that it was a photocopy and not the original document. Instead of deciding the mode of proof objection then and there, as laid down in law cited above, learned trial court left the objection unattended.
41. Coming to the argument of respondent side that the present appellants are estopped from challenging title of the present respondents, the argument in the present case cannot be accepted. In the case of S. Thangappan (supra), the Hon'ble Supreme Court of India held that the estoppel contemplated by Section 116 of the Evidence Act is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end. It was held by the RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 41 of 46 pages apex court that where subsequent to his induction as tenant if the landlord looses his title under any law or agreement and there is threat to such tenant of his eviction by subsequently acquired paramount title holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by the principle of estoppel under Section 116 of the Evidence Act.
42. In the case of Bhola Nath (supra) it was held thus :
"8. It is true that the principle of estoppel is based on general principle of justice, equity and good conscience. But the said principle is to be applied to the cases covered by Section 116. When Section 116 clearly refers to the words 'at the beginning of the tenancy', then estoppel of all types under this Section has to be confined to cases where denial of such title is of a time when such a tenant was inducted into the tenancy. This cannot be extended to a case where subsequently the lessor/landlord lost his right either by sale, transfer or otherwise, under the law. Thus, this principle does not preclude a tenant to deny the original lessor's right if, infact, he loses his right subsequently. The principle of law of estoppel is that no party should be permitted to deny the title of his lessor/landlord subsequently if he himself derives right on account of such lessor/landlord admitting him to the tenancy. But it has to be kept in mind that this principle is applicable only where such denial is at the point of time of beginning of such tenancy... ....
10. From the aforesaid decisions, it is clear that the principle of estoppel is applicable to a case where denial is made by a tenant of his landlord's title at the point of time when he was inducted into his tenancy. It does not apply to a case where subsequently the RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 42 of 46 pages landlord lost his title or new right has been created in someone else...."
43. In the case of Pritam Singh (supra), the Hon'ble Delhi High Court held thus :
"6. It is not in dispute that the appellant was a tenant under Ratan Singh and Asha Singh. So the appellant was not inducted into the premises by the respondents who allegedly became owners of the property subsequent to the commencement of the tenancy of the appellant. In terms, therefore, Section 116 of the Evidence Act is not attracted. Apart from this, the challenge is that even if it be assumed that the respondents became owner of the property in dispute they have lost their title subsequently. In these circumstances, where the tenant denies the title of his landlord, it is related to facts which have happened subsequent to the commencement of the tenancy. The bar of estoppel does not come into operation and it is open to the tenant to plead that the title of the landlord has passed to the government so that he has no right to claim eviction or realize rent". (emphasis supplied)
44. In the present case, as mentioned above, it is respondents' own stand that the present appellants were inducted into the suit property as tenants by Shri Shiv Pratap, who lost title not just by way of cancellation of the intended lease but also by way of gift deed dated 10.01.2003. That being so, objection of the present respondents as regards estoppel under Section 116 of the Evidence Act is liable to be rejected.
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45. To summarize, neither the agreement for lease which purportedly contained the terms imposed by the government at the time of granting lease of the land underneath the suit property to Shri Shiv Pratap nor the gift deed allegedly executed by Shri Shiv Pratap pertaining to the suit property nor the alleged breach of conditions was proved in accordance with law and consequently, the essential elements pertaining to Section 14 (1) (k) of the Delhi Rent Control Act remain not proved by the present respondents.
46. But failure of the present respondents to prove the above mentioned facts was largely because the objection of mode of proof, raised by the learned counsel for the present appellants was not adjudicated upon by the learned trial court then and there. Going by the above cited law, had the learned trial court declined to exhibit the agreement for lease and the gift deed on the ground of the same being photocopies, the objection being related to mode of proof, the present respondents would have had an opportunity to place on record and prove the original agreement for lease and the original gift deed. Similar situation arose in the case of Shalimar Chemical (supra) and the Hon'ble Supreme Court of India held thus :
"15. On a careful perusal of the whole matter we feel that serious mistakes were committed in this case at all stages. The trial court should not have marked RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 44 of 46 pages as exhibits the xerox copies of the certificates of registration of trade mark in the face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging by marking them as exhibits subject to objection of proof and admissibility. The appellant therefore, had a legitimate grievance in appeal about the way the trial proceeded.
16. The learned Single Judge rightly allowed the appellant's plea for production of original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41 Rule 27 CPC. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent defendant an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.
17. The Division Bench was again wrong in taking the view that in the facts of the case, the additional evidence was not permissible under Order 41 Rule 27 CPC. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondents defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the original of the certificate of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent defendant to produce evidence in rebuttal, RCT No. 09/2015 Narendra Kumar Jain vs Shiv Pratap Seonie RCT No. 10/2015 Surendra Kumar Jain vs Shiv Pratap Seonie Page 45 of 46 pages if they so desired. We accordingly, proceed to do so".
47. In view of above discussion, both the appeals are allowed and thereby both the impugned judgments are setaside and both matters are remanded to the learned trial court for proceeding further in accordance with law by adjudicating upon the objections as mentioned above, followed by recording additional evidence, if any led by either side or both sides and by deciding the lis afresh. Both parties shall now appear before the learned trial court on 17.04.2018 at 02:00 pm.
48. A copy of this judgment be sent to the learned trial court along with trial court records and appeal files be consigned to records.
Announced in the open court on
this 11th day of April, 2018 (GIRISH KATHPALIA)
District & Sessions Judge GIRISH
South East, Saket Courts KATHPALIA
New Delhi 11.04.2018 (a)
Digitally signed
by GIRISH
KATHPALIA
Date: 2018.04.13
15:25:52 +0530
RCT No. 09/2015
Narendra Kumar Jain vs Shiv Pratap Seonie
RCT No. 10/2015
Surendra Kumar Jain vs Shiv Pratap Seonie Page 46 of 46 pages