Delhi High Court
M/S Asv Industry & Anr vs Surinder Mohan & Anr on 19 August, 2013
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th August, 2013
+ RFA 357/2013 & CM No.11685/2013 (for stay)
M/S ASV INDUSTRY & ANR ..... Appellants
Through: Mr. Praveen Agrawal, Adv. with
Mr. Hardev Singh, Appellant No.2.
Versus
SURINDER MOHAN & ANR ..... Respondents
Through: Mr. Abhas Mishra, Adv
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This first appeal under Section 96 of the Civil Procedure Code
(CPC), 1908 impugns the judgment and decree (dated 4th May, 2013 of
the Court of Additional District Judge Central-07 in Suit No.246/2012)
on admissions of ejectment of the appellant No.1 (of which the appellant
No.2 Mr. Hardev Singh is the proprietor) from possession of the ground
floor of property No.4A, MCD No.1-A, Street No.2, Railway Line Side,
Anand Parbat Industrial Area, New Delhi.
2. The appeal had come up first before this Court on 31 st July, 2013
when even though prima facie there did not appear any merit in the
appeal but considering the fact that it is first appeal, it was deemed
appropriate to requisition the Trial Court record and issue notice. The
Trial Court record has been received and the counsels have been heard.
RFA No.357/2013 Page 1 of 12
3. The two respondents/plaintiffs had instituted the suit from which
this appeal arises for recovery of possession of the said premises and for
mesne profits/damages for use and occupation and for permanent
injunction pleading that they had let out the premises to the
appellants/defendants at a rent of Rs.31,000/- per month under a Rent
Agreement dated 16th March, 2007 for a period of three years with effect
from 1st April, 2007 and expiring on 31st March, 2010; that after 31st
March, 2010, the appellants/defendants became tenants from month to
month in the premises; that the said tenancy of the appellants/defendants
was determined by the legal notice dated 29th February, 2012 sent on 1st
March, 2012; that the appellants/defendants inspite of determination of
their tenancy had failed to vacate the premises; that the
appellants/defendants had also not paid rent of the premises since June,
2011 inasmuch as the cheques issued by the appellants/defendants
towards rent for the said period had been returned dishonoured.
4. Summons of the suit were issued to the appellants/defendants who
filed a written statement pleading:
(i) that the respondents/plaintiffs have not paid the appropriate
court fees on the plaint;
(ii) that the suit was based on falsehood;
(iii) that the respondents/plaintiffs had approached the
appellants/defendants in the month of February, 2008 and
requested to advance a sum of Rs.10 lakhs; accordingly, in the
RFA No.357/2013 Page 2 of 12
month of April/May, 2008, the appellant/defendant No.2 had given
a sum of Rs.10 lakhs including the sum of Rs.1,25,000/- given as
security deposit at the time of inception of the tenancy and it was
further decided that Rs.31,000/- after deducting TDS would be paid
to the respondents/plaintiffs till March, 2012 and thereafter the said
amount of Rs.10 lakhs shall be treated as interest free security
deposit. It was further assured that the respondents/plaintiffs
would not disturb the possession of the appellants/defendants for a
period of ten years and after a lapse of ten years, the said amount
would be treated as interest free security/earnest money towards
the sale of suit property in favour of the appellants/defendants; it
was further agreed that in case after a lapse of ten years, the
appellants/defendants were not interested to purchase the property,
the respondents/plaintiffs would refund the said interest free
security and the appellants/defendants would vacate the property;
(iv) that the Rent Agreement on which the respondents/plaintiffs
were relying upon could be only for eleven months, though had
been executed mistakenly for three years and it was for this reason
only that a fresh Memorandum of Understanding (MoU) dated 25 th
May, 2008 mentioning certain terms and conditions for a period of
ten years of tenancy in favour of the appellants/defendants was
executed;
(v) that the Rent Agreement dated 16th March, 2007 upon which
the respondents/plaintiffs are relying upon is a forged and
RFA No.357/2013 Page 3 of 12
fabricated document and the true and correct rent agreement in
custody of the respondents/plaintiffs had not been filed;
(vi) that the respondents/plaintiffs had not filed any document of
their title to the property;
(vii) that the appellants/defendants have paid TDS upto March,
2012 and thus payments till March, 2012 stood made;
(viii) that under the MoU aforesaid the appellants/defendants'
possession of the property could not be disturbed for a period of
ten years from March, 2012 and the suit for recovery of possession
filed in May, 2012 was misconceived;
(ix) that the respondents/plaintiffs were not the owners of the
property and were not competent to let out the same;
(x) that the Rent Agreement dated 16th March,2 007 being for a
period of three years was compulsorily required to be registered
and was not registered;
(xi) that no notice dated 29th February, 2012 of determination of
tenancy had been served on the appellants/defendants.
5. The respondents/plaintiffs instead of filing replication filed an
application under Order 12 Rule 6 of CPC. The counsel for the
appellants/defendants chose to address arguments on the said application
without filing a reply.
RFA No.357/2013 Page 4 of 12
6. The learned ADJ has allowed the application under Order 12 Rule
6 of CPC and passed a decree for ejectment on admissions
observing/finding/holding:
(a) that though the appellants/defendants had in their written
statement denied the relationship of landlord and tenant and
pleaded that the Rent Agreement dated 16th March, 2007 relied
upon by the respondents/plaintiffs was a forged and fabricated
document but not denied their signatures thereon;
(b) that though the said Rent Agreement was unregistered but
the same establishes the relationship of landlord and tenant
between the parties;
(c) that the appellants/defendants had in their written statement
referred to an MoU dated 25th May, 2008 whereunder the
respondents/plaintiffs had agreed to allow the
appellants/defendants to remain in the premises for a further period
of ten years but neither the MoU had been filed nor the
appellants/defendants had filed any document to show that they
had paid Rs.10 lakhs to the respondents/plaintiffs as interest free
security deposit;
(d) that though the appellants/defendants were on the one hand
denying the ownership/landlordship of the respondents/plaintiffs of
the suit property but on the other hand they claimed to have entered
into an MoU with the respondents/plaintiffs for remaining in the
RFA No.357/2013 Page 5 of 12
property for another ten years; the same implies that the
respondents/plaintiffs are the owners/landlords of the property and
the appellants/defendants were tenant under the
respondents/plaintiffs;
(e) that the appellants/defendants had also admitted payment of
rent of Rs.31,000/- per month after deducting the TDS;
(f) that thus the existence of the relationship of landlord and
tenant stood established;
(g) that from the copy of the legal notice of determination of
tenancy, its postal receipts and A.D. Cards on record and non-
traverse of signatures on the A.D. Cards, the determination of
tenancy of the appellants/defendants also stood established.
Accordingly, the respondents/plaintiffs were held entitled to
the relief of ejectment.
7. Though, the appellants/defendants had not produced the MoU
dated 25th May, 2008 before the Trial Court but a photocopy thereof has
been filed at page 90 of the appeal paper book.
8. The star defence of the appellants/defendants being of entitlement
to continue in possession of the premises in pursuance to the MoU dated
25th May, 2008, it was at the outset enquired from the counsel for the
appellants/defendants (when the arguments commenced at about 1210
hours) as to how the same was relevant to the matter in controversy; once,
the appellants/defendants are found to be not disputing having come into
RFA No.357/2013 Page 6 of 12
possession of the premises as a tenant under the respondents/plaintiffs,
they are liable to be ejected upon determination of their tenancy, unless
the nature of their possession is found to have been changed from that of
tenant to an agreement purchaser in part performance under Section 53A
of the Transfer of Property Act, 1882; this Court in Jiwan Das Vs.
Narain Das AIR 1981 Del. 291 as reiterated in Sunil Kapoor Vs.
Himmat Singh 167 (2010) DLT 806 has held that an agreement
purchaser has no rights in the property not only till the passing of a decree
for specific performance of the agreement but even till the execution of
the conveyance in pursuance thereto. It was thus put to the counsel for
the appellants/defendants whether he had any answer to the same.
9. Though the counsel for the appellants/defendants did not give any
answer to the query raised but insisted that the decree could not have
been passed on admissions under Order 12 Rule 6 of the CPC. Reliance
in this regard was placed on paras 13 to 16 of the judgment of the
Division Bench of this Court in Raj Kumari Garg Vs. S.M. Ezaz (2012)
(132) DRJ 108 and on para 3 of Jai Mata Builders Vs. National
Insurance Co. Ltd. (2012) 9 AD Delhi 82. The contention is that the
appellants/defendants having controverted, the relationship of landlord
and tenant, the document, being the Rent Agreement dated 16 th March,
2007 under which the respondents/plaintiffs were averring the
relationship of landlord and tenant to have come into existence and
having set up the Agreement dated 25th May, 2008, the learned ADJ
without adjudicating on all these aspects could not have passed a decree
on admissions.
RFA No.357/2013 Page 7 of 12
10. Counsels with their legal acumen can frame a pleading with a large
number of averments, whether they are relevant and germane to the
adjudication of the matter in controversy or not. However, that does not
place any obligation on the Court to, even if the facts germane and
relevant for adjudication of the matter in controversy are not in dispute,
put the matter to trial and to decide issues/aspects or pleas decision
whereof is not relevant for the purposes of grant or non-grant of the relief
claimed in the suit.
11. As far as the star defence point aforesaid of the
appellants/defendants is concerned, even though the language used in the
written statement is very guarded and the appellants/defendants have
shied away from even calling themselves as agreement purchasers and
have at best described themselves as agreement holders with right to enter
into an Agreement to Sell (and which agreement to enter into another
agreement, in law has been held to be non-enforceable) but even if the
appellants/defendants were to be treated as purchasers, in the light of the
legal position aforesaid as laid down in Jiwan Das supra, it is felt that the
plea of the appellants/defendants of an MoU dated 25 th May, 2008
whereunder the respondents/plaintiffs are alleged to have agreed to after
March, 2012 allow the appellants/defendants to continue in occupation of
the premises for a period of ten years to enable them to decide whether to
purchase the property or not, is not found relevant for adjudication of the
present lis filed by the respondents/plaintiffs as landlord for ejectment of
the appellants/defendants after determination of tenancy of the
appellants/plaintiffs.
RFA No.357/2013 Page 8 of 12
12. It was in this context enquired from the counsel for the
appellants/defendants that since the appellants/defendants have pleaded
payment of rent of Rs.31,000/- after deducting tax, to whom the rent was
paid and in whose name was the tax deducted.
13. The counsel for the appellants/defendants, in this manner, is forced
to admit that the payment till March, 2012 at the rate of Rs.31,000/- per
month after deduction of tax at source was in the name of the
respondents/plaintiffs. In the face of the aforesaid, it does not lie in the
mouth of the appellants/defendants to deny the relationship of landlord
and tenant. Significantly, the appellants/defendants have while vaguely
denying the relationship of landlord and tenant and while admitting
themselves to be tenant not stated as to under whom they were the tenant
if not under the respondents/plaintiffs. Clever drafting by counsels, the
Supreme Court in T. Arivandamdam Vs. T.V. Satyapal (1977) 4 SCC
467 has held, cannot come in the way of the court seeing though such
pleadings and determining as to what is the real case or defence of a
litigant before it is.
14. At this stage, the counsel for the appellants/defendants points out
that rent has been paid to the respondents/plaintiffs till
October/November, 2011 but tax till the month of March, 2012 was
deducted at source.
15. Finding the defence of the appellants/defendants to be fantastic,
farfetched and a case of adopting legalese to have the matter, somehow or
the other, listed for trial and to prevent the court from taking the right
RFA No.357/2013 Page 9 of 12
decision, it was enquired from the counsel for the appellants/defendants
whether the appellants/defendants was present in Court. Need for the
presence of the appellants/defendants was also felt since the
appellants/defendants claimed payment of Rs.10 lakhs in cash without
any receipt and the counsel was unable to answer whether the said
amount of Rs.10 lakhs claimed to have been paid was reflected by the
appellants/defendants who were admitted to be income tax assesses in
their Income Tax Returns. The counsel for the appellants/defendants was
as such asked to call the appellant/defendant No.2 to this Court post-
lunch with proof, whether the amounts were reflected in the ITRs. I may
notice that the counsel for the appellants/defendants pre-lunch had stated
that he had knowledge that the amount of Rs.10 lakhs had been
withdrawn in cash from the bank accounts of the appellants/defendants
for payment to the respondents/plaintiffs.
16. The appellant/defendant No.2 has appeared before this Court after
lunch and since several of the questions put thereafter were also found to
be evaded, it is deemed expedient to record the statement of the
appellant/defendant No.2 in this Court in exercise of powers under
Section 165 of the Indian Evidence Act and the statement has been so
recorded and which shows a very sad state of affairs. It shows that the
defence taken in the written statement is totally false and not based on
what the appellant has today deposed.
17. At this stage, the counsel for the appellants/defendants under
instructions from the appellant/defendant No.2 states that the
RFA No.357/2013 Page 10 of 12
appellants/defendants do not press this appeal and do not want to
challenge the judgment and decree of their ejectment from the premises
and only seek one year time to vacate the premises.
18. The counsel for the respondents/plaintiffs states that the
respondents/plaintiffs are willing to grant only six months time to the
appellants/defendants to vacate the premises, that too subject to the
appellants/defendants giving an undertaking to this Court and further
subject to the appellants/defendants paying the arrears at the rate of last
paid rent with effect from the date since when they are due and till the
date of vacation of the premises and subject to determination of mesne
profits.
19. It is deemed expedient to grant time to the appellants/defendants to
vacate the premises on or before 31st May, 2014.
20. The undertaking of the appellant/defendant No.2 for himself and on
behalf of the appellant/defendant No.1 is recorded separately. The
appellants/defendants are ordered to be bound by the same and cautioned
of consequences of breach thereof. The appellant/defendant No.2 has
been explained the said consequences in vernacular also.
21. The appeal is accordingly dismissed as withdrawn. The
undertaking of the appellant/defendant No.2 is accepted and subject to the
appellants/defendants complying therewith, the decree for ejectment is
made un-executable till 31st May, 2014. The appellants/defendants are
also burdened with costs of Rs.50,000/- of this appeal, of which
RFA No.357/2013 Page 11 of 12
Rs.10,000/- be paid to the counsel for the respondents/plaintiffs and the
balance Rs.40,000/- be deposited with the Delhi High Court Bar
Association Lawyer's Social Security & Welfare Fund, New Delhi,
within two weeks of today. Receipts be filed in Registry. The Registry is
directed to put up this file if proof of payment of costs is not furnished.
Decree sheet be drawn.
RAJIV SAHAI ENDLAW, J.
AUGUST 19, 2013 bs RFA No.357/2013 Page 12 of 12