Delhi District Court
Sh. Abdul Hannan vs Sh. Vinit Kumar Singhal on 9 January, 2019
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE (NE)
KARKARDOOMA COURTS, DELHI
RCA DJ No. 96/18
IN THE MATTER OF :
Sh. Abdul Hannan
S/o Sh. Sannawar
R/o A86, New Seelampur,
Delhi53
....... Appellant
VERSUS
Sh. Vinit Kumar Singhal
S/o Sh. Sulekh Chand Singhal
R/o G289, Preet Vihar, Delhi92
..... Respondent
Date of Institution of Appeal : 13.11.2018
Arguments heard on : 20.11.2018
Date of Judgment/Order :09.01.2019
Decision : Appeal is dismissed with cost.
JUDGMENT
1. The present appeal impugns the judgment and decree dated 20.10.2018 passed by Ld. ACJ/ARC/CCJ (NE), Karkardooma Courts in suit No. 152/16 whereby the suit for possession, arrear of rent and mesne profits filed by the plaintiff / respondent against the defendant / appellant has been decreed.
RCA DJ No. 96/18Abdul Hannan V/s Vinit Kumar Singhal page 1 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
The parties are hereinafter being referred to by their respective status before the trial court.
2. The brief and relevant facts in the background of which the present suit was filed by the plaintiff is reproduced from the impugned judgment as follows:
a) Plaintiff is the owner of the property bearing No. A86, New Seelampur, Delhi consisting one hall, one latrine bathroom on the ground floor admeasuring 40 sq. yards(hereinafter referred as suit property).
b) The tenancy was created between the plaintiff and the defendant in regard to suit property on a monthly rent of Rs. 12,000/ per month excluding electricity and water charges w.e.f 20.04.2015 for six months. In this regard an rent agreement was executed between the defendant and plaintiff on 24.04.2015.
c) The defendant has failed to pay monthly rent of Rs. 12,000/ since August 2015. The defendant paid monthly rent uptill July 2015 only.
d) On 21.10.2015, father of the plaintiff visited the premises and stated to the defendant to vacate the suit property as per terms and conditions mentioned in the rent agreement. The defendant was further requested to pay the outstanding arrears, but instead of paying the same, the defendant became aggressive and started using abusive language and also threatened the plaintiff to face dire consequences and stated to the plaintiff to forget the suit property.
e) Thereafter, the plaintiff served a legal notice to the defendant dated 31.10.2015 whereby the tenancy of the defendant was terminated from 21.10.2015 and the defendant was directed to vacate the premises within 15 RCA DJ No. 96/18 Abdul Hannan V/s Vinit Kumar Singhal page 2 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
days from receiving of that legal notice. But, the defendant failed to comply the above noted legal notice and instead of vacating the premises the defendant filed a civil suit against the plaintiff and his father for permanent injunction and the same was assigned to Ms. Suchi Laler, JSCC/ASCJ, North East, Delhi bearing suit No. 220/2015 and after the notice the plaintiff appeared and made the statement before the Court not to evict the defendant without due process of law and without prejudice and admitting the contents of the suit and the same was disposed off on 20.11.2015.
f) Summons for settlement of issues were sent to the defendant. The defendant appeared in pursuance of summons and filed written statement in his defence. The defendant took several objections to contest the claim of the plaintiff. It is stated that the suit is barred by Section 50 of Delhi Rent Control Act. It is further averred that the suit is based on false and concocted facts and the plaintiff has concealed the material facts from the Court.
g) On merits, it is denied that the plaintiff is the owner of the suit property. It is admitted by the defendant that he is a tenant of the plaintiff in respect of the suit property, but it is claimed that the rent of property is Rs. 2,500/ per month and not Rs. 12,000/ per month as alleged in the plaint. It is stated by the defendant that he had sent rent by money order @ Rs. 2,500/ per month on 04.03.2016 for three months, which has been duly accepted by the plaintiff and the same shows that rate of rent is of Rs. 2,500/ per month.
h). Replication was filed on behalf of the plaintiff to the written statement of the defendant denying the contents of the written statement and reiterating the avermnents made in the plaint.
i). On completion of pleadings, the following issues were framed by the
RCA DJ No. 96/18
Abdul Hannan V/s Vinit Kumar Singhal page 3 of 9
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
Ld. Predecessor:
1. Whether plaintiff is entitled to a decree of possession as prayed for ? OPP
2. Whether plaintiff is entitled to a decree of arrears of rent and mesne profits, as prayed for ? OPP
3. Whether suit is barred U/s 50 of the Delhi Rent Control Act ? OPD
4. Whether plaintiff has concealed the material facts from the Court, which if revealed, would disentitle from getting the reliefs sought by him ? OPD
5. Whether suit is barred by Section 35A CPC ? OPD
6. Relief.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 20.10.2018 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned, the Ld. Trial Court failed to appreciate the correct facts and contradictions. It is claimed that the Ld. Trial Court has not appreciated the evidence recorded before it properly. As contended, the Ld. Trial Court failed to appreciate the facts in proper perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suit without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
RCA DJ No. 96/18Abdul Hannan V/s Vinit Kumar Singhal page 4 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
4. The respondent did not wish to file reply to the appeal but denied the averments therein and supported the impugned judgment and decree.
5. I have heard the Ld. Counsel for the appellant and respondent and gone through the trial court records. I have also gone through the written synopsis filed on behalf of respondent. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "
preponderance of probability" would serve the purpose for obtaining a decree".RCA DJ No. 96/18
Abdul Hannan V/s Vinit Kumar Singhal page 5 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
6. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
7. There is no admission regarding the claim of the plaintiff by the defendant with regard to the rate of rent only though the tenancy is admitted. The only dispute regarding the rate of rent as defendant claimed that rent of property is Rs. 2,500/ per month only and therefore suit is barred by Section 50 of the DRC Act. The plaintiff by way of rent agreement dt. 24.04.2015 proved that the rent was Rs. 12,000/ per month and attesting witness was also examined as PW2. As observed, the testimony of PWs remained unimpeached and uncontroverted regarding rate of rent. The signature of defendant on the rent agreement is admitted but no steps has been taken by defendant to get the said agreement null and void and it is claimed that his RCA DJ No. 96/18 Abdul Hannan V/s Vinit Kumar Singhal page 6 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
signature is obtained in blank paper. In view of the testimony of witness and documents on record, the rate of rent of premises is duly proved by plaintiff @ Rs. 12000/ per month and therefore Ld. Trial Court rightly reached to the conclusion that suit of the plaintiff is not barred by Section 50 of the DRC Act. No other ground for filing of this appeal is assailed except that the suit is barred by DRC Act.
From the material on records, the tenancy of the defendant / appellant has been proved on record. In view of the testimony of witnesses and document on record, it is also proved that defendant / appellant has been inducted as tenant vide rent agreement dt 24.04.2015 and therefore the provisions of Delhi Rent Control Act do not applies in this matter. In view of section 116 of Indian Evidence Act, the defendant/ appellant cannot be permitted to deny the right / ownership of plaintiff. No steps has been taken by appellant till today to declare the rent agreement as null and void and merely oral and bald averments are not sufficient to prove the contentions. This court finds itself in consonance with the findings of the Ld. Trial Court and the impugned judgment and decree does not warrant for any interference. The Ld. Trial Court rightly reached to the conclusion and decided the issues on the basis of materials on record and evidence of the parties and this court does not find any ground to interfere with the findings of Ld. Trial Judge. The findings of the Ld. Trial Judge is well explained in the impugned judgment and the same does not require any interference. The findings of Ld. Trial Judge does not appear to suffer from any illegality or infirmity.
8. The pleadings of the parties and evidence on record reveals that the appellant / defendant categorically failed to prove his case in view of the RCA DJ No. 96/18 Abdul Hannan V/s Vinit Kumar Singhal page 7 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
contention in the pleadings. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The appellant has failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the appellant to establish such facts.
9. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to RCA DJ No. 96/18 Abdul Hannan V/s Vinit Kumar Singhal page 8 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
10. From the testimony of the witnesses, pleadings of the parties and the documents on record, it is established that the Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellant is not sufficient to grant relief in his favour. This court does not find any illegality or infirmity in the impugned judgment and decree dated 20.10.2018 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with costs.
11. Decree sheet be drawn accordingly.
12. Trial Court records be sent back along with copy of this judgment.
13. Appeal file be consigned to record room.
Gorakh Digitally signed by
Gorakh Nath Pandey
Location: Court No.69,
Announced in open Court
on this 09th day of January, 2019
Nath North East District,
Karkardooma Court,
Delhi
Pandey
G. N. Pandey
Date: 2019.01.09
16:49:42 +0530
Addl. District Judge (NE)
Karkardooma Courts, Delhi
RCA DJ No. 96/18
Abdul Hannan V/s Vinit Kumar Singhal page 9 of 9