Delhi District Court
Shri B.L.Pareek Son Of Shri R.C.Pareek vs Shri Rajender Kumar Sharma Son Of on 4 January, 2007
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IN THE COURT OF SHRI D.C.ANAND
ADDL.DISTRICT JUDGE:DELHI.
Suit No.638/02
1.Shri B.L.Pareek son of Shri R.C.Pareek,
2.Smt.Gita Devi w/o Shri B.L.Pareek
Both r/o Pareek Bhawan, 11434, Shakti
Nagar, Delhi-110007. ................. plaintiffs
vs.
1.Shri Rajender Kumar Sharma son of
Shri Sri Ram resident of F3, Main
Wazirabad Road, Kahzoori Khas,
Delhi-110094
2.Shri Brahm Dayal Singh son of
Shri Nichatter Singh resident of
H.No.B-178, Gali No.9, Bhajanpura,
Delhi. ............... defendants
SUIT FOR POSSESSION, DAMAGES AND
PERMANENT INJUNCTION.
JUDGMENT
1. Tersely, the plaintiffs pleaded that they are the 2 owners of property No.11434, Shakti Nagar, Delhi having acquired the same vide registered sale deed dt. 31-5-81. The defendant no.2 was dealing with the plaintiff no.1 earlier in sale and purchase of the shares being sub-broker wherein defendant no.2 suffered losses who in turn became dishonest and started demanding huge money from plaintiff no.1. The defendant no.2 had also threatened the plaintiff no.1 that he would recover the losses suffered by him from him by hook or crook.
2. Having come to know of the intentions of the plaintiffs to rent out the shop in the suit property on the ground floor as shown in red colour in the site plan, the defendant no.2 hatched a conspiracy with the defendant no.1 to illegally and unauthorizedly grab/encroach upon the said shop of the plaintiff with a view to blackmail him. With that view and design, the 3 defendant no.1 approached the plaintiffs in March, 1999 and represented himself to be the representative of M/s J.K. Cement Limited looking for place on rent for the purpose of opening their cash collection counters. The defendant no.1 as such inspected the said shop of the plaintiffs and stated that the same is suitable to the requirement of the company. The plaintiff no.1 asked the defendant no.1 to introduce him to some responsible and senior officer of the company and also quoted the rent of the shop as Rs.8,000/- p.m. After some discussions, the defendant no.1 agreed that the company M/s J.K. Cement Limited would take the premises @ Rs.7,400/- p.m and paid Rs.5,000/- in cash to the plaintiff no.1 against receipt dt. 10-3-99 wherein it was clarified that the amount is being received by him from the defendant no.1 of 'J.K. Cements Limited'. The plaintiff further 4 averred that in view of above, there was thus no contract entered into the plaintiffs and defendant no.1 as the intention was to enter into contract with M/s J.K. Cement Limited only. The plaintiff further averred that said receipt was tampered with by the defendant as in place of 'Rs.7,400/-', the amount of 'Rs.400/-' has been mentioned by overwriting on the said amount by writing 'Rs.' in place of '7' in figure '7,400/-'. The words 'start from 10-3-1999' have been added subsequently by tampering and manipulating said receipt with a revenue stamp crossed. The plaintiff as such averred that the intention of the defendant no.1 was to cheat the plaintiffs and to grab the shop of the plaintiffs illegally, forcibly and without following the due process of law. Further it was averred that after few days of the incident as above, the defendant no.1 again came and requested the 5 plaintiffs to allow him to get the shop cleaned as his senior officers were likely to come within few days to inspect the shop. After getting the said shop cleaned, defendant no.1 further gave a sum of Rs.5,000/- to the plaintiff no.1 to adjust the same when the agreement with the company is drawn. The receipt issued for the amount was also tampered with as subsequently the defendants affixed the revenue stamp and crossed the same. The plaintiffs became suspicious on account of behaviour of the defendant no.1 and as such, made contact with M/s J.K. Cements Limited and found that defendant no.1 is neither the representative of the company nor the company was opening any cash collection counter in the suit shop. The defendant no.1 again contacted plaintiff no.1 on 30-4-99 and demanded the key of the shop. On being confronted with the facts as above, the defendant no.1 became 6 angry and started threatening and abusing the plaintiff. A PCR also reached at the spot. One ASI of Delhi Police namely Om Prakash from P.S Roop Nagar, also reached there and asked the plaintiff no.1 to accompany him to the police station. The plaintiff and his two sons reached at the police station where plaintiff no.1 realized conspiracy hatched by defendants where defendant no.2 also reached. On 1-5- 99, the plaintiffs came to know that defendants in collusion with the said police officers got false case registered against plaintiff no.1 and his sons under Section 341, 380, 448, 452, 506 read with Section 34 of the I.P.C. The possession of the shop was also handed over to the defendant no.1 at around 11-30 or 12 noon of 1-5-99 by the police officials led by Shri Om Prakash ASI after breaking open the locks and removal of goods of the plaintiffs. Thereafter, the plaintiff no.1 7 and his sons were released on bail and a false case is pending in the court of M.M Delhi against them.
3. A suit was filed by defendant no.1 against the plaintiff for permanent injunction which is pending in the court of Ld. Civil Judge wherein parties have been directed to maintain status quo. In that case, false plea was taken by defendant no.1 about loss of receipts for which false report was lodged with the police station Kashmere Gate as the originals would expose the defendant no.1 which were to be produced in original in the court of Ld. Civil Judge.
4. The defendants were also showing the said shop to some strangers on 10-9-01 so as to dispose of the same. On objection, the defendants threatened that they would not only sell the said shop but would also hand over the possession of the same to create further complications to the plaintiffs and thus, would recover 8 the money lost in the shares by defendant no.2. The action of the defendants is stated to be illegal and against all principles of natural justice and hence, the present suit for possession of the shop in suit as well as a decree of damages for payment of Rs.2,07,200/- with 24% interest and a sum of Rs.7,400/- p.m with interest as well as decree for permanent injunction restraining the defendants from selling or parting with possession of the suit property.
5. The defendant contested the suit with the plea that suit of the plaintiffs is barred by the provisions of Delhi Rent Control Act being defendant no.1 a tenant in the suit shop which is also not maintainable under Section 41 of the Specific Relief Act as efficacious remedy is available under the Delhi Rent Control Act. No notice under Section 106 of the Transfer of Property Act has been served by the plaintiffs on 9 defendant no.1 or under the Delhi Rent Control Act and as such, suit is not maintainable and liable to be rejected under Order 7 R 11 CPC. The defendant no.2 is also stated to be not a necessary party to the suit.
6. On merits, the defendant no.1 stated that Shri B.L. Pareek is the landlord of the suit premises/ shop. Whether plaintiff no.2 is also the co-owner is not known to the defendant no.1. Defendant no.1 has no knowledge that plaintiff no.1 and defendant no.2 have got any dealing of business/selling of shares etc or that defendant no.2 suffered huge losses. The defendant as such denied any conspiracy with defendant no.2 to illegally and unauthorizedly grabbed the suit shop of the plaintiffs. Defendant no.2 is, however, known to defendant no.1 since the year 1989 who told about a shop available on rent belonging to Shri B.L. Pareek, the plaintiff no.1 who was also known to him. 10 Defendant no.2 also proposed to the defendant that the terms and conditions could be settled on his mediation. The plaintiff no.1 on being discussed terms and conditions in the presence of defendant no.2 demanded Rs.3 lacs as pagri from the defendant no.1 besides the rent of Rs.400/- p.m including water and electricity charges. The defendant no.1 agreed to the same and paid Rs.3 lacs in cash to the plaintiff no.1 as well as advance rent of Rs.5,000/- twice against receipt. The plaintiff no.1 handed over the physical possession of the shop to the defendant on 10-3-99. The plaintiff despite of demand, did not issue the receipt of the pagri amount of Rs.3 lacs paid for the suit shop on the false excuse that no such receipts are issued in the market against payment of pagri as per practice and usage.
7. The defendant spent considerable amount on the 11 decoration of the shop, purchase of furniture and installation of the board in the name of SHARMA TRADERS proprietor Rajinder Kumar Sharma.
8. The defendant denied any conspiracy or illegal design or representation of himself before the plaintiff as representative of M/s J.K. Cements Limited. The defendant denied that suit shop was taken on rent for M/s J.K. Cement Limited/company as the same was taken for the purpose of doing his own business. The defendant denied other averments of the plaint as referred to above or tampering with the receipts as alleged by the plaintiff. The defendant further submitted that on 30-4-99, he returned back at about 6-00 p.m to the shop where they had left their servant Kishan to look after the work found that plaintiff no.1 and his three sons had forcibly entered into the shop and took away the goods, furniture and cash with the 12 mala fide motive to dispossess the defendant from the suit shop. The incident took place in the presence of defendant no.2 and one Harpal Singh who had incidentally come to the suit shop to meet the defendant. A report was lodged for registration of F.I.R No.119/99 in police station Roop Nagar. Case was registered and plaintiff as well as his three sons are facing trial before learned M.M, Delhi. The defendant denied false implication of the plaintiff no.1 and his three sons. The defendant however stated that due to timely intervention by the neighbours and the persons present at the shop and police help, the plaintiff no.1 and his sons could not succeed in dispossessing the defendant no.1 from the suit shop. The suit filed by the defendant bearing No.132/99 was filed soon after the incident of 30-4-99 as there was serious apprehension of dispossession of the defendant from the suit shop. 13
The suit has also been finally decreed in favour of the defendant. The receipts in question were lost some where and as such, the defendants lodged a complaint with the police. The defendant also denied any disposing of the shop as on 10-9-01 as alleged by the plaintiff. The defendant also denied that they ever think of subletting or sale or part with possession of the suit property.
9. Defendant no.2 assailed the suit against him being not a necessary party to the suit who also took the plea in his written statement filed separately as taken by defendant no.1 while making denial of the averments of the plaint as made against him.
10. The plaintiffs filed replications to the written statements wherein they assailed the allegations as made in the written statements while reaffirmed the averments of the plaint in toto.
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11. On the above pleadings, following issues were framed on 12-8-02:-
1. Whether there is no privity of contract and relationship of landlord and tenant between plaintiff and the defendants with respect to the property in dispute?OPP
2. Whether the suit is barred by the provisions of Sec.41 of Specific Relief Act?OPD
3. Whether the suit is barred by the provisions of D.R.C Act?OPD
4. Whether there is no cause of action in favour of the plaintiffs and against the defendants as claimed in preliminary objection no.3 of the written statement?OPD
5. Whether the suit is bad for mis-joinder of defendant no.2?OPD
6. Whether the plaintiff is entitled to possession of the suit premises?OPP
7. Whether the plaintiff is entitled to damages?
If so, at what rate and for what period and from which of the defendants?OPP 15
8. Whether plaintiff is entitled to permanent injunction as claimed in the plaint?OPP
9. Whether plaintiff is entitled to interest. If so, at what rate, to what amount and for what period?OPP
10.Relief.
12. The plaintiffs examined Shri Rakesh Pareek while the defendants Shri Brahm Dayal Singh and Shri Rajinder Kumar themselves examined as DW1 and DW5 whose affidavits were filed in evidence as well as Shri Ram Niwas H.C from police station Roop Nagar, HC Satya Prakash from police station Kashmere Gate and Shri Budh Singh, Ahlmad in the court of Shri S.K. Gupta, Ld. Civil Judge.
13. I have heard the learned counsel for the parties and have perused the evidence, documents on record carefully and have perused the written submissions as well. My findings on the issues are as under:- 16
ISSUE NO.1.
14. At the outset, Learned counsel for the defendant submitted that to prove the issue, the primary evidence as was required in form of affidavit or otherwise by plaintiff no.1 who executed admittedly the receipts mark DA and DB, as were proved by the defendant, of which originals were lost as per F.I.R Ex. DW 3/1, has been withheld by the plaintiff of which adverse inference goes against the plaintiff. In this connection, Learned counsel for the defendant relied upon the case of Janki Vashdeo Bhojwani and another vs. Indusind Bank Limited and others reported in AIR 2005 SC 439 wherein in almost similar circumstances, their Lordship of the Apex Court was of the view that:
'Order III, Rules 1 and 2, CPC empowers the holder of power of attorney to "act" on behalf of the principal. In our view, the word "acts" empowered in Order III, Rules 1 and 2, CPC, confines only in respect of "acts"17
done by the power of attorney holder in
exercise of power granted by the
instrument. The term "acts" would not
include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined.'
15. In the present case, although plaintiff no.2 appeared who deposed for and on behalf of plaintiff no.1 as well but non-examination of plaintiff on the crucial documents mark DA and DB is fatal to the plaintiff as admittedly mark DA and DB are the receipts of the amount of Rs.5,000/- by plaintiff no.1 from the defendant no.1 Shri Rajinder Kumar Sharma. Both the receipts are of the amount received from 18 Rajinder Kumar Sharma of J.K. Cement Limited as advance against the office rent for the suit shop @ Rs.400/- p.m starting from 10-3-99. Mark DA receipt is dt. 10-3-99 duly signed by plaintiff no.1 on the same date in the presence of defendant no.2.
16. The plaintiff does not dispute the receipt of Rs.5,000/- on 10-3-99 against receipt but only alleged manipulation in the figure of rate of rent which according to him was @ Rs.7,400/- p.m and that too with M/s J.K. Cement Limited as the defendant interpolated the word 'Rs.' in place of '7' so as to read it as '400/-' and not @ Rs.7,400/-. In this interpolation in the receipt, the plaintiff did not examine any expert to prove the allegation. More so, the plaintiff admitted that photo copy of mark DA seems to be in the handwriting of his father i.e plaintiff no.1. The plaintiff also admitted that besides mark DA document, the 19 defendant no.1 also paid Rs.5,000/- in April in Ist or 2nd week of 1999. He also admitted that his father i.e plaintiff no.1 issued a receipt of the second payment of Rs.5,000/- mark DB which according to him seems to be in the handwriting of his father. On the face of admission of mark DA and DB which stand proved as per law by the defendant, the deposition by plaintiff that no rent deed was prepared by his father i.e plaintiff no.1 between 10-3-99 and second payment of Rs.5,000/- is of no consequence and help to the plaintiff as defendant no.1 is admittedly in possession of the suit premises of which possession was sought by the plaintiff on the plea that the mark DA and DB were got executed by defendant no.2 dishonestly in the name of defendant no.1 who represented himself to be the representative of M/s J.K. Cement Limited as there was loss in the share business which the 20 defendant no.2 was having with plaintiff no.1 who was dealing as sub broker in sale and purchase of shares. Nothing has been placed on record by the plaintiff so as to show and prove on record that there was sale and purchase business between defendant no.2 and plaintiff at any point of time wherein defendant no.2 suffered a loss and to take a revenge, got executed the rent receipts mark DA and DB. As already discussed, even the plaintiff no.1 did not come forward to depose in the court to substantiate the plea as taken against mark document DA and DB. The plaintiff, as such, failed to prove that suit premises was to be let out to M/s J.K. Cement Limited and not to defendant no.1 to whom admittedly rent receipt was issued and from whom advance rent of Rs.10,000/- was taken by plaintiff no.1. More so, admittedly the plaintiff did not submit any complaint in writing complaining to M/s 21 J.K. Cement Limited from whom enquiries were made that the defendant no.1 had misrepresented himself as their representative. As such, I see substance in the submissions by Learned counsel for the defendant that shop in question was not to be taken on rent by M/s J.K. Cement Limited and it was not so represented by defendant no.1 to the plaintiff as document mark DA and DB speaks of receipt of the advance rent from defendant no.1 of M/s J.K. Cement Limited and not for and on behalf of M/s J.K. Cement Limited although plaintiff denies the suggestion that his father i.e plaintiff no.1 handed over the possession of the suit shop to defendant no.1 on 12-3-99 after receiving payment of Rs.5,000/- but story of handing over possession of the suit shop to the defendant no.1 by breaking open the locks by the police officials led by Shri Om Prakash on 1-5-99 is not substantiated as 22 F.I.R No.119/99 dt. 30-4-99 proved as mark DA by DW2 is against the plaintiffs lodged by defendant no.1 seeking possession of the suit shop as the plaintiffs put on their locks on the suit shop and dislodged the servant of the defendant no.1 after removal of almirah etc. The defendant no.1, on the other hand, deposed about the incident dt. 30-4-99 of lodging of FIR No.119/99 lodged against the plaintiffs under Section 452/448/380/506/341/34 IPC on 30-4-99 itself and filing of the suit No.132/99 wherein the plaintiff counsel made the statement that the plaintiff shall not dispossess defendant no.1 from the suit shop without following the due process of law on which basis the suit was got disposed of in term of the statement. The defendant also proved the said statement, decree of the court as Ex. DW 4/1 (colly) as was also proved by DW4 from the case file of the Learned Civil Judge wherein 23 the statement was made by the Ld. Counsel for the plaintiff no.1 Shri Sushil Chaudhary. The possession of the defendant no.1 in the suit shop is as such established not only as on 30-4-99 but as on date when advance rent of Rs.5,000/- was paid to the plaintiff no.1 who handed over physical possession of the suit shop to the defendant no.1 on 10-3-99 in presence of defendant no.2 who was acting as a mediator between parties to the suit in the matter of letting out of the suit shop. It has been so deposed by defendant no.2 in his affidavit filed in evidence that physical possession of suit shop was handed over to defendant no.1 on 10- 3-99. Nothing material was elicited by the plaintiff from the cross examination of the defendant on the deposition as made in the affidavit and as discussed above. As such, I do not see any reason to disbelieve the factum of possession of the suit premises with the 24 defendant as on date of execution of the receipt dt. 10- 3-99. he evidence on record cannot be discarded mere because no receipt of Rs.3 lacs was received by defendant no.1 from the plaintiff.
17. On the face of the discussion as made above, the issue is decided against the plaintiff and in favour of the defendants holding thereby that there was privity of contract and relationship of landlord and tenant between plaintiff and defendant no.1 with regard to the suit property as on 10-3-99.
ISSUES NO.2 AND 3.
18. In view of my findings on issue no.1, both the issues are in fact stand decided in favour of the defendants and against the plaintiff. The defendant no.1 being tenant of the suit premises as per advance rent receipt mark DA and DB as well as admitted possession of the suit premises with him from the date of execution of 25 the advance rent receipt by plaintiff no.1 in favour of defendant no.1, the suit is barred not only under Section 41 of the Specific Relief Act as efficacious remedy is available under the Delhi Rent Control Act, 1958 but also the suit as filed by the plaintiff for possession against the defendant no.1 against whom relief was claimed is also barred under Section 50 of the Delhi Rent Control Act which reads as under:-
'Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority'.
19. Both the issues are accordingly decided in favour of the defendants and against the plaintiff. ISSUE NO.4.
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20. The issue as framed was based on objection by defendant no.1 that neither any notice under Section 106 of the Transfer of Property Act or under Delhi Rent Control Act has been served upon the defendant by the plaintiff before filing the present suit. The suit as filed by the plaintiff against the defendant was for seeking possession of the suit premises of which possession was taken over illegally by the defendant no.1 in collusion with defendant no.2. In that situation, the plaintiff was not required to serve any legal demand notice either under Section 106 of the Transfer of Property Act or under the provisions of the Delhi Rent Control Act as was pleaded by the defendant. On that plea, it cannot be said that plaintiff has no cause of action to file the present suit against the defendant no.1 which need to be rejected under Order 7 Rule 11 C.P.C. However, in view of findings on issues no.1,2 27 and 3, it is held that plaintiff had no cause of action to file the suit of possession against the defendants. The issue is accordingly decided in favour of the defendants and against the plaintiff.
ISSUE NO.5.
21. In view of the pleadings which are not at all proved on record by the plaintiff so as to say that defendant no.1 in collusion with defendant no.2 who suffered loss with plaintiff in the share business, the issue as framed was rightly framed which on merits as now decided has got no affect on the suit even if it is held that suit was bad for misjoinder of defendant no.2 in view of Order 1 Rule 9 C.P.C.
ISSUES NO.6 TO 10.
22. These issues are in fact relate to the relief as no issue regarding entitlement of the relief claimed need to be framed under the provisions as contained in 28 Delhi High Court Rules. More so, in view of my findings on issue no.1, the plaintiff is not entitled to at all to file a suit for possession against the tenant in a civil court as per Section 50 of the Delhi Rent Control Act as civil court has no jurisdiction to entertain the same. Accordingly, the plaintiff is not entitled to possession of the suit premises, damages, the injunction as claimed in the plaint on the basis of the plea taken therein or interest on the amount claimed in the suit as damages. The issues are accordingly decided in favour of the defendants and against the plaintiff. The suit of the plaintiff is accordingly dismissed. However, No orders as to costs in the facts and circumstances of the case. File be consigned to Record Room.
Announced in open Court Dated: 4-1-2007 (D.C. Anand) Addl. District Judge, Delhi.