Delhi District Court
Hariom Sharma vs Sadaram Kadian on 10 June, 2016
IN THE COURT OF SH. R. L. MEENA ADDL. DISTRICT JUDGE02:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI
RCA No. : 19/14
Unique Case ID No. 02405C0071412014
Hariom Sharma,
S/o Sh Ram Prakash Sharma,
r/o RZF25A, Street No.4,
Mahavir Enclave, Palam,
New Delhi110045
... Appellant
VERSUS
1. Sadaram Kadian
s/o Late Sh Girdhari Lal Kadian,
r/o RZD80, Street no.4,
Mahavir Enclave, Dabri Palam Road,
New Delhi110045
2. BSES Rajdhani Power Limited
Through General Manager,
Shakti Bhawan,
Nehru Place,
New Delhi
... Respondent
RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 1/39
Date of institution of Appeal : 19.03.2014
Date of arguments of Appeal : 11.05.2016
Date of judgment : 10.06.2016
Appeal under Section 96 CPC read with Order XLI CPC,
1908, against the impugned judgment and decree dated
dated 31.01.2014 passed by Sh. Vishal Gogne, Learned
SCJ/RC (S/W), Dwarka Courts, New Delhi in CS no.
204/10 titled as "Sadaram Kadian Vs. Hariom Sharma."
JUDGMENT
1. The appellant namely, Hari Om Sharma is the defendant no.1 in civil suit bearing no.204/10 titled as "Sadaram Kadian Vs. Hari Om Sharma and others" pending before the Trial Court and is aggrieved by the judgment/decree dated 31/01/2014 passed by Sh. Vishal Gogne, Senior Civil Judge, Dwarka Courts, New Delhi (hereinafter referred to as the impugned judgment).
2. For the sake of convenience, parties in the judgment are being referred to as per their respective status before the Learned Trial Court.
3. Before adverting to the grounds of the appeal taken in the matter, it would be appropriate to have a brief scrutiny of the RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 2/39 facts as born out from the record. Plaintiff filed suit for possession and mandatory injunction against the defendant in respect of property bearing no. D3/249, Mahavir Enclave, Street no.9, New Delhi110045 (hereinafter referred as suit property). It is the case of the plaintiff that he is the owner of the suit property. In the year 2007, plaintiff is stated to have permitted defendant for carrying on business in the suit property(shop) under the name and style of M/s Balaji Properties w.e.f 6/3/2007 for a period of 11 months @ Rs 10,000/ per month as the commission charges. The said agreement was further renewed vide agreement dated 21/4/2008 and 20/1/2009 for Rs 12,150/ p.m and Rs 15,000/ p.m respectively for the period of 11 months. It is further case of plaintiff that an electricity meter was installed in the suit shop which was burnt in 2007. It is alleged by the plaintiff that defendant no.1 used to take electricity connection by connecting the wires from shop no.2 and shop no.6 of the same premises without any approval. An electricity bill for Rs 50,000/ was also raised against the said meter by defendant no.2 BSES which was also not paid by the defendant no.1.It is further case of RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 3/39 plaintiff that defendant no.1 was indulged in the theft of tampering with the meters as a result of which a show cause notice was also issued to him by defendant no.2. It is further stated that defendant was also indulged in theft of the articles of suit shop therefore, FIR was also registered against him vide order dated 21/8/2009 of Learned MM. It is further case of plaintiff that he also issued a legal demand notice dated 6/7/2009 to defendant no.1 and terminated the agreement on commission basis but he had neither replied the said notice nor complied the directions of the said notice. Even, defendant filed a suit for permanent injunction against him and claimed that he is the tenant in the suit property. It is further case of plaintiff that by way of abundant precautions, he issued another notice to defendant no.1 on 10.06.2010 reiterating the contents of notice dated 06/07/2009 but he had neither handed over the possession nor paid the contract charges despite service of the notices dated 06/07/2009 and 10/06/2010. Plaintiff seeks possession of the suit shop from defendant no.1 and he also seeks relief qua defendant no.2 to place on record the entire proceedings of the raid conducted in the suit shop alongwith the latest RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 4/39 bill qua the purportedly tampered meter. Plaintiff further seeks relief that defendant no.1 will pay the defaulted bills and get the electricity meter restored in his premises.
4. Defendant filed written statement wherein it is stated that he is a tenant of the plaintiff in suit shop since 2007 for monthly rent of Rs 1500/ excluding electricity charges. It is further contended that plaintiff has obtained a security amount of Rs 25,000/ from him while originally letting out of the shop. It is further contended that he was regularly paying rent at the above rate to plaintiff. It is further denied by the defendant that plaintiff is in part possession of the suit shop and claimed that he is exclusive possession and enjoyment of the suit shop. Defendant has also denied the execution of the agreement dated 20/1/2009 and represented the same to be forgery. It has also been denied by the defendant that he had either change the lock of the suit shop or that any document/ fixtures were found missing from the suit shop. He further denied the receipt of the legal notice dated 6/7/2009 and 10.6.2010. It is prayed by the defendant that present suit is liable to be dismissed.
5. After pleading of both the parties, following issues were RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 5/39 framed by Learned Trial Court which are as under:
(i) Whether the plaintiff is entitled for a decree of possession against defendant no. 1 as prayed for in the plaint? ...OPP
(ii) Whether the plaintiff is entitled for decree of mandatory injunction against defendant no. 2 as prayed for in the plaint? ...OPP
(iii) Whether the present suit is not maintainable in the light of pendency of previous suit bearing no. CS245/09 between the same parties on the same cause of action? ....OPD1
(iv) Relief.
6. Plaintiff, in order to discharge the onus of issues put up on him, examined himself as PW1. He has also placed his reliance on the following documents :
a) Site plan Ex. PW1/1.
b) Agreements dated 20.1.2009, 6.3.2007 and 21.4.2008 are Ex. PW1/2, Ex. PW1/3 and Ex. PW1/4 respectively.
c) Copy of FIR No. 257/09 Ex. PW1/5.
d) Copy of complaint dated 2.2.2009 Ex. PW1/6.
e) Legal notice dated 6.7.2009 and 10.6.2010 is Ex. PW1/7 and Ex. PW1/8.
f) Registered AD and postal receipt Ex. PW1/9.
RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 6/39
g) UPC Ex. PW1/10.
h) Fard mak bujargi agreement Ex. PW1/11.
i) Copy of notice dated 3.3.2011 u/o 12 r 8 CPC u/s 65 and 66 of the Indian Evidence Act Ex. PW1/12.
j) Original speed post receipt Ex. PW1/13.
k) Original courier receipts Ex. PW1/14A and Ex. PW1/14B.
l) POD of speed posts, courier receipts, copy of legal notice dated 3.3.2011, original postal receipts and courier receipts are Ex. PW1/15 to Ex. PW1/21.
7. It is to be note here that counsel for defendant has also raised objections on the mode of proof on all the exhibited documents. It is worth to note here that original documents particularly agreement dated 20.01.2009 and 21.04.2008 were produced in the first civil suit no. 245/09 and same were exhibited as Ex PW 1/B and A respectively. The learned trial court, after seeing the said documents returned the same to the plaintiff. The said documents are also exhibited in the present case as Ex PW 1/2 and Ex PW 1/4 respectively. Original of the said documents have not been produced in the present case.
8. It is further to be note here that learned Predecessor of trial RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 7/39 court vide its order dated 03.10.2013 observed that evidence led by the parties in the present suit and suit no. 245/09 shall be read common in both the suits at the time of passing of judgment. Accordingly, learned trial court has considered the evidence of civil suit no. 245/09 in the present case also.
9. Defendant no.1, in order to constitute his defence, examined himself as DW1. Defendant no.1 has also relied upon copy of statement of bank passbook Ex. DW1/1.
10. Learned Trial Court after considering the entire material on record decided issue no.1 on merit, interalia holding that adjudication of present issue is contingent of proof by the plaintiff that defendant was inducted in the suit shop as a licensee. On the contra, defendant has to prove that he has been enjoying the suit property as a tenant. Having analyzed and appreciated the evidence of plaintiff and defendant, Learned Trial Court came to the following finding on issue no.1:
(a) Plaintiff has been able to prove that defendant was permitted to use the suit property as a licencee vide agreement dated 20.01.2009 Ex PW1/2.
(b) The said fact has also been proved by plaintiff witness RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 8/39 namely Sanjay (PW4).
(c) Defendant has admitted the fact that he did not have any proof that shop was taken on rent by him.
(d) Defendant has also not filed any petition under Delhi Rent Control seeking rent receipt from plaintiff.
(e) Defendant has also not summoned any person residing in the premises of the plaintiff as a tenant to prove that he is also tenant in the suit property.
(f) Defendant has been unable to prove that he is the tenant in the suit property or rent of the suit property was of Rs. 1500/ therefore suit is maintainable and not barred by Section 50 of DRC Act.
(g) It is further observed by Learned Trial Court that since there is no specific denial of defendant regarding service of legal notices dated 06.07.2009 Ex PW 1/7 and dated 10.06.2010 Ex PW 1/8 upon him in respect of termination of licence, therefore, it is deemed to be admitted by defendant.
11. Learned Trial Court after considering the entire material on record decided the issue no. 2 against the plaintiff with the observation that the said issue was not pressed by counsel for plaintiff during the course of final arguments. It is further RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 9/39 observed that even no documentary evidence was led by plaintiff in support of his oral deposition regarding purported theft of electricity by defendant no.1.
12. Learned Trial Court after considering the entire material on record decided issue no.3 on merit inter alia holding that suit for possession is based on the distinct cause of action and is maintainable notwithstanding an earlier suit for arrears of rent/license fee between the same parties and qua the same property. Learned Trial Court, in order to substantiate the abovesaid reasoning has also relied upon citation titled as Girdhari Lal Dhara vs. Amin Chand & Others decided on 28.08.2001 and reported in http://indiankanoon.org/doc/ 1966065.
13. The order of Learned Trial Court has been challenged by the defendant on the following grounds :
a) Learned Trial Court has erred in holding that defendant is a licensee in the suit property by ignoring the legal position.
b) Learned Trial Court has erred in holding that the evidence of first and second civil suit be read in common in both the suits, though, both the suits were different and RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 10/39 judgment and decree was separately passed in both the suits.
c) Learned Trial Court has wrongly relied upon the two agreements dated 21.04.2008 and 20.01.2009 though in the first civil suit agreement dated 21.04.2008 was not relied upon on the ground that same is out of pleading and the learned trial court has passed the impugned judgment on the basis of the evidence led in earlier suit.
d) Learned Trial Court has also wrongly relied upon the said agreement dated 21.04.2008 and 20.01.2009 whereas the said documents were never exhibited on original or certified copies and only certified copies of these documents were filed on 27.01.2014 on the date of final arguments at the back of appellant.
e) Learned Trial Court has also wrongly relied upon two agreements dated 21.04.2008 and 20.01.2009 though in the crossexamination of PW1/4, one of the witness to the agreement has only stated to have been witnessed the agreement dated 21.04.2008. Even the affidavit of the said witness is also incomplete as there is no proper exhibition of document. In the affidavit of evidence of the said witness, the exhibit is mentioned as PW1/...... The said fact indicates RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 11/39 that it is not clear as to which document is relied upon by the said witness.
f) Learned Trial Court passed the impugned judgment and decree upon probabilities erroneously while deciding issue no.1.
g) Learned trial court has erred in holding that present suit is not barred by the Order 2 Rule 2 CPC.
h) Learned trial court manifestly erred by not appreciating that suit is barred u/s 50 of DRC Act.
14. In the light of the said grounds of appeal, it is prayed by the appellant that present appeal be accepted and impugned order dated 31.01.2014 be set aside along with the cost of the appeal.
15. I have heard the arguments advanced by Sh. Mahesh Sharma Learned counsel for appellant and Sh. Ranjan Kumar Learned counsel for respondent and perused the record carefully.
16. During the course of arguments, it is vehemently argued by counsel for defendant/appellant that Trial Court has wrongly determined the relationship between the parties as licensor and licencee. In fact, relation between the parties are as RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 12/39 lessor and lessee. It is further submitted that defendant has neither executed any agreement dated 20.01.2009, 06.03.2007 and 21.04.2008 Ex PW 1/2 to Ex PW 1/4 respectively nor the rent/alleged licence fee of suit property was ever fixed at Rs 15000/ per month. Rather, the rent of the suit property was of Rs. 1500/ per month. Counsel for defendant further submits that since defendant had never executed the abovesaid agreement therefore, the said documents are forged and fabricated and same cannot be relied upon. Counsel for defendant further submits that even perusal of the alleged agreement shows that the said documents were prepared by the plaintiff only for manipulating the facts. The particular word "commission" has been used in the alleged agreement for showing that the said shop has been given to defendant on commission basis but plaintiff has not explained the meaning of commission as to whether plaintiff and defendant were running the business jointly or whether plaintiff was receiving the commission on the basis of the business profit of defendant or whether defendant was employee of the plaintiff. It is further submitted by counsel for defendant if the answers of the said RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 13/39 questions are coming in the affirmative then the said commission could not be stable per month i.e Rs. 15,000/ p.m as claimed by the plaintiff. It is further submitted by counsel of defendant that plaintiff, in order to establish the alleged relationship between the parties as licensor and licencee and proving the agreement Ex PW 1/2 summoned the witness Sanjay (PW4) but he did not support the case of plaintiff. Rather, he has conceded during his course of cross examination that he had not gone through the contents of the said agreement dated 20.01.2009 Ex PW 1/2. It is further submitted that in view of the said evidence of plaintiff witness (PW4) it is apparent that plaintiff has failed to prove the relationship between the parties as licensor and licencee by oral and documentary evidence. Counsel for defendant in order to substantiate his arguments has relied upon the law laid down in the following citations titled as
(i) Associates Hotel of India Limited Vs. R.N Kapoor decided by Hon'ble Supreme Court on 19/5/1959.
(ii) Khatri Hotels Pvt. Ltd Vs. Union of India 163(2009) DLT 226 Delhi High Court.
iii) State Bank of India Vs. Gracure Pharmaceuticals Pvt RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 14/39 Ltd 2014 (1) Civil Court cases 65(SC)
iv) M/s Virgo Industries Engineers Pvt Ld Vs. M/s Venturetech Solutions Pvt Ltd decided by 7/9/2012 (SC).
v) K.V. Ramireddi Vs. Prema 2008 SCCR 498 (SC)
vi) Swaran Lata Ghosh Vs. H.K. Energy and ors decided on 12.03.1969 by Hon'ble Supreme Court.
vii) Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar 2013 (3) Civil Court Cases 270 SC.
viii) Retanamma Vs. Mehboob 2013 (3) Civil Court Cases.
ix) Union Bank of India Vs. Vasavi Cooperative Housing Society 2014 (1) Civil Court Cases 836.
17. On the contra, counsel for plaintiff/respondent submitted that plaintiff has been able to prove the relationship between the parties as licensor and licencee by oral and documentary evidence and the said fact has been proved by the plaintiff and his witnesses. Counsel for plaintiff further submitted that plaintiff's witness Sanjay (PW4) has not only identified his signature as a witness on document Ex PW 1/2 but specifically deposed that the said agreement was on RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 15/39 commission basis. It is further submitted by counsel for plaintiff that deposition of plaintiff witness (PW4) with this effect that he has not gone through the contents of the agreement does not render the document inadmissible. Counsel for plaintiff in order to support the abovesaid argument has relied upon the law laid down in following case titled as:
(i) Samriti Bhasin Vs. Union of India RFA No. 334/2008 decided by Hon'ble High Court of Delhi on 19.11.2008"
(ii) Smt. Chander Kant Ben and others Vs. Vadilal Bhapalal Modi and others Civil Appeal no. 418 and 520 decided by Hon'ble Supreme Court on 30.03.1989
(iii) Sedh Benichand Vs. Smt. Kamla Kuwar and others decided by Hon'ble Supreme Court on 14.09.1976.
18. After having gone through the submissions of counsel for both the parties, I find that finding of learned trial court regarding status of defendant as licencee in the suit property has been challenged by the defendant on the following grounds:
i) The plaintiff's witness namely Sanjay (PW4) did not RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 16/39 support the plaintiff's case and document dated 20/1/2009 Ex PW1/2.
ii) Defendant has never executed any alleged agreement dated 6/3/2007, 21/4/2008 and 20/1/2009 with plaintiff, therefore, the said documents are forged and fabricated.
iii) Defendant is occupying an exclusive possession of the suit property just like other tenants who are residing in the property of plaintiff.
19. Now coming on the first arguable point of defendant regarding relying upon the deposition of plaintiff's witness namely Sanjay (PW4) in respect of agreement dated 20/1/2009. It is vehemently argued that agreement dated 20/1/2009 Ex PW1/2 could not be proved by plaintiff and his witness Sanjay PW4. Counsel for defendant, in order to substantiate his arguments, has drawn the attention of the court on the evidence of plaintiff witness Sanjay (PW4) stating that since the said witness has deposed in his course of cross examination that he had not gone through the contents of agreement dated 20/1/2009 Ex PW1/2, therefore, the said witness could not be relied upon by trial court.
20. Perusal of the trial court record, I find that Learned Trial RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 17/39 Court observed that the said witness PW4 has identified his signature as witness on document Ex PW1/2 and specifically deposed that said agreement was on commission basis. It is further observed by the Trial Court that deposition of PW4 has not diminished the evidenciary value only because he admitted during the course of examination that he has not gone through the contents of the agreement particularly when the said witness denied the suggestion that no such agreement had been executed or he had signed it at later stage.
21. In view of said observations of Learned Trial Court, now one question is required to be posed as to whether deposition of witness cannot be relied upon particularly if he testifies that he has not gone through the contents of the documents.
22. For answering the said questions, I rely upon the law laid down in the following citations referred by counsel for plaintiff titled as:
i) Samriti Bhasin Vs. Union of India decided by Hon'ble High Court of Delhi on 19/11/2008 wherein Hon'ble High Court held that there is no presumption that an attesting witness of the document must be assumed to be aware of its RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 18/39 contents
ii) Seth Berichand Vs. Smt Kamla Kunwar and others (1976) 4 Supreme court cases 554 wherein it is held that by attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document and by section 63(c) of the Succession Act, an attesting witness is one who signs the documents in the presence of executants after seeing the execution of the document or after receiving a personal acknowledgment from the executants as regards the execution of documents.
23. In the light of law laid down in the said cases, it is apparent that there is no necessity that witness of document must be aware about the contents of the documents, however, it is required that document has been executed by the executant in the presence of attesting witness or witness has received a personal acknowledgment from the executant as regard to the execution of the document. In the present case, plaintiff's witness Sanjay (PW4) has denied the suggestions that no such document had been executed or that he had signed it at a later stage. In the light of the evidence of PW4 Sanjay, it is apparent that plaintiff and his witness Sanjay PW4 have RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 19/39 proved the execution of agreement dated 20.01.2009 Ex PW 1/2. Accordingly, learned trial court has correctly relied upon the evidence of the PW4 Sanjay.
24. Now coming on the second arguable point of defendant regarding the agreements relied upon by the plaintiff being forged. It is vehemently argued by the counsel for defendant that since defendant has never executed the agreement dated 6/3/2007, 21/4/2008 and 20/1/2009 with plaintiff, therefore, the said agreements are forged and fabricated.
25. Perusal of Trial Court record, I find that defendant in order to substantiate the said allegations, has neither summoned any expert witness for proving that the said documents are not genuine documents nor he could bring any material from the evidence of plaintiff or his witnesses suggesting that the said documents were never executed.
26. Now coming on the third arguable point of defendant regarding exclusive possession of the suit property. It is vehemently argued by counsel for defendant that since defendant has been in exclusive possession of the suit property since 1997 at the rent of Rs. 1500/ p.m just like the other tenants are residing/occupying in the premises of the RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 20/39 plaintiff.
27. On the contra, counsel for plaintiff has denied the said submissions of counsel of defendant and submitted that plaintiff and defendant both were in joint possession of suit property for running their business activities. Counsel for plaintiff in order to substantiate the said argument has also relied upon agreement dated 20.01.2009 Ex PW 1/2.
28. Before appreciating the submissions of counsel for both the parties, it is to be note here that it is admitted fact that defendant in order to prove his exclusive possession in the suit property has not summoned any witness or person residing in the premises of the plaintiff as a tenant to prove that he is also residing in the suit property as a tenant. On the contrary, plaintiff, in order to substantiate his claim has not only summoned the witnesses PW2, PW3 and PW4 but also filed the documentary evidence, particularly agreement dated 20.01.2009 PW 1/2.
29. In order to appreciate the relationship between the parties as licensor and licensee or lessor or lessee. I rely upon the law laid down in case titled as Associates Hotel of India Limited Vs. R N Kapoor decided by Hon'ble Supreme RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 21/39 Court on 19/5/1959 referred by counsel of defendant. In the said case, the Hon'ble Supreme court held that following factors are to be considered while determining the relationship between the parties as licensor and licensee or lessor and lessee :
i) to ascertain whether a document creates a license or lessee the substance of document must be preferred to the form .
ii) the real test is the intention of the parties whether they intended to create the lease or license .
iii) if the document creates an interest in the property, it is lease but if it only permits another to make use of the property of which the legal possession continues with the owner, it is license.
iv) If under the document a party creates exclusive possession of the property, prima facie , he is considered to be a tenant, but circumstances may be established which negative the intentions to create a lease.
30. Bare perusal of law laid down in Associates Hotel of India Limited (supra) it is apparent that the substance of document and intention of parties are the main ingredients to identify the relation between the parties as a licensor and RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 22/39 licensee or lessor and lessee.
31. In the present case, plaintiff has relied upon the agreements particularly renewed agreement dated 20/1/2009 Ex PW1/2. the relevant para of the said document needs to be reproduced for appreciating the relations between the parties: "Clause 4: That both the parties will deal all the activities of the said office individually/separately and second party shall pay Rs. 15,000/ per month to the first party as the contract charges."
32. Bare perusal of the said para of document Ex PW1/2 it is apparent that both the parties have been running their business from the suit property. It further indicates that when plaintiff is in joint possession of suit property then suit property is also under his control and supervision. The said fact strengthen the plea of plaintiff that defendant is a licensee in the suit property. It is to be note here that the word commission mentioned in the agreement Ex PW1/2 has been explained by the plaintiff during the course of his cross examination, he stated that the commission means license.
33. Now coming on the other arguable point of defendant RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 23/39 regarding relying of evidence of other suit. It is vehemently argued by counsel for defendant that Learned Trial Court has erroneously read the evidence of first civil suit bearing no. 245/09 in the present case.
34. On the contra, counsel for plaintiff submits that plaintiff filed two suits against the defendant in respect of the suit property on the basis of distinct cause of action. In both the suits, the fact in issue and witnesses are common, therefore, plaintiff has only examined three witnesses namely Prem Chand, Shashank Yadav and Sanjay in the first civil suit bearing no. 245/09 but not examined the said witnesses in the present case only for avoiding delay and repetition of evidence. It is further submitted that in view of the aforesaid facts and circumstances, learned trial court has correctly observed in order dated 03.10.2013 that since subject matter and parties are the same, therefore, evidence adduced in both the suits be read common.
35. Perusal of the trial court record, it reveals that plaintiff has filed two suits against the defendant. First civil suit bearing no. 245/09 is for recovery of Rs. 1,40,000/ and mandatory injunction. Second civil suit (present) is for recovery of RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 24/39 possession of suit property. It is to be note here that plaintiff, in the first civil suit, examined himself as PW1 and examined three witnesses namely Prem Chand, Shashank Yadav and Sanjay for proving the agreement dated 06.03.2007, 21.04.2008 and 20.01.2009. In the present suit, plaintiff has only examined himself as PW1 and not examined the said witnesses in the present suit. However the affidavit of the said witnesses are on record in the present suit.
36. Perusal of the trial court record, I find that since fact in issue in both the suits are common to this effect as to whether defendant is occupying the suit property as lessee or licensee. Even, in both the suits the witnesses of the plaintiff are the same for proving the agreement allegedly entered by both the parties. In view of the said facts and circumstances, I am of the considered view that Predecessor of trial court has correctly observed that since subject matter and parties in both the suits are common, therefore, evidence led in both the suits be read common. The said approach of learned Predecessor of trial court does not seem erroneously, rather it avoids delay and repetition of evidence. Moreso, learned RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 25/39 Predecessor of trial court passed the said order dated 03.10.2013 in the presence of counsel of defendant but he didn't raise any objection at the time of said order. Now, he cannot be allowed to agitate the said issue before this court.
37. Now coming on the other arguable points of defendant regarding relying upon the agreement dated 21.04.2008 and 20.01.2009 by the trial court. It is vehemently argued by counsel for defendant that learned trial court has wrongly relied upon the two agreements dated 21.04.2008 and 20.01.2009. In the first civil suit, learned trial court has observed that since agreement dated 21.04.2008 was out of pleading, therefore, same cannot be relied upon. Contrary to the said observations, learned trial court relied upon the said agreement dated 21.04.2008 in the present suit and passed the impugned judgment.
38. On the contra, counsel for plaintiff submits that since defendant has admitted in his written statement that he is in the suit property since 1997 therefore learned trial court ought to have relied upon agreement dated 21.04.2008. Moreso, the plaintiff is also relying upon the renewed agreement dated 20.01.2009 in the first civil suit bearing no.
RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 26/39 249/09 as well as in the present suit, therefore, no error has been committed by learned trial court by relying upon the agreement dated 20.01.2009.
39. After having gone through the rival submissions of counsel for both the parties, I find that plaintiff is relying upon the agreements dated 06.03.2007, 21.04.2008 and 20.01.2009. It is correct that once it has been observed by learned trial court that agreement dated 21.04.2008 cannot be relied upon as same is out of pleading of first civil suit then same cannot be also relied upon by trial court in the second suit (present suit). It is to be note here that non relying of said document dated 21.04.2008 in the present suit does not affect the case of plaintiff as plaintiff is also relying upon the renewed agreement dated 20.01.2009 Ex PW 1/2 which is the foundation of both civil suits, therefore, said document has been correctly relied upon by the trial court.
40. Now coming on the other arguable point regarding relying upon agreement dated 21.04.2008 and 20.01.2009. It is vehemently argued by counsel for defendant that the said agreement dated 21.04.2008 and 20.01.2009 were wrongly relied upon by trial court as the original of the said RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 27/39 documents were never filed before the court nor the certified copies of the same. It is further submitted that plaintiff has also deposed in his examinationinchief that both the said agreements are with the investigating officer while in the crossexamination he deposed that they have been sent to the CFSL.
41. On the contra, counsel for plaintiff submits that plaintiff has filed two civil suits against the defendant. In the first civil suit, the original documents including the said agreements were produced before the court and after seeing the said documents same were returned to the plaintiff by the learned trial court, therefore, the submissions of counsel for defendant is devoid of merits.
42. After perusal of the trial court record, I find that the original agreement dated 21.04.2008 and 20.01.2009 were produced before the learned trial court and same were exhibited as PW 1/A and PW 1/B respectively in the first civil suit. It is to be note here that since there is an endorsement on the copies of the said documents Ex PW 1/A and Ex PW 1/B respectively with this effect "OSR"(original seen and returned) then it cannot be said that original documents were not produced by RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 28/39 the plaintiff before the trial court. In the light of the said facts, I am of the considered view that learned trial court has correctly relied upon the said documents.
43. Now coming on the other arguable point of defendant regarding relying upon two agreements dated 21.04.2008 and 20.01.2009. It is vehemently argued by counsel for defendant that one witness of plaintiff i.e PW 1/4 has deposed in his affidavit and crossexamination that he is the only witness of agreement dated 21.04.2008 but in the impugned judgment learned trial court is stated to have witnessed the agreement dated 20.01.2009. It is further submitted that affidavit of the said witness is also incomplete as there is no proper exhibition of document. In the affidavit of evidence of the said witness, the exhibit mentioned as PW 1/ .... The said fact indicates that it is not clear as to which document is relied upon by the said witness.
44. On the contra, counsel for plaintiff submits that there is no such witness PW 1/4 as claimed by the defendant. The witnesses of the plaintiff are Prem Chand (PW2), Shashank Yadav (PW3) and Sanjay (PW4). It is further submitted RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 29/39 that the said witnesses have categorically deposed about the documents in which they are witnesses. Therefore, the said argument of counsel of defendant is devoid of merits.
45. After perusal of the trial court record, I find that there is no such witness PW 1/4 as claimed by the defendant. The sequence of the plaintiff's witnesses are Prem Chand (PW
2), Shashank Yadav (PW3) and Sanjay (PW4). Perusal of the affidavit of evidence of the said witnesses, I find that there is ambiguity of numbering of exhibits as mentioned PW1/........... but said ambiguity does not affect the case of the plaintiff on merit. The said witnesses have categorically deposed that they are the witness of documents dated 21.04.2008 and 20.01.2009 respectively and they have also identified their signatures on the documents Ex PW1/A and B respectively. It is to be note here that no suggestions have been put to the plaintiff's witness particularly PW4 with this effect that the agreement dated 20.01.2009 was not executed between the parties, therefore, merely not mentioning proper exhibit on document does not render document inadmissible in evidence.
46. Now coming on the other arguable point of defendant RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 30/39 regarding principle of preponderance of probabilities. It is vehemently argued by counsel for defendant that learned trial court has not appreciated the evidence of plaintiff as well as defendant in the correct perspective. Defendant, in order to substantiate his plea of lessee, has brought on record that he is the lessee in the suit property as he is in exclusive possession of the suit property since 1997 at rent of Rs. 1500/ p.m.
47. On the contra, counsel for plaintiff submits that learned trial court while considering the entire oral and documentary evidence led by the parties has correctly observed that defendant is a licencee in the suit property.
48. Learned trial court, after analyzing and scrutinizing the evidence of both the parties, came on the following findings:
(a) Plaintiff has been able to prove that defendant was permitted to use the suit property as a licencee vide agreement dated 20.01.2009 Ex PW1/2.
(b) The said fact has also been proved by plaintiff witness namely Sanjay (PW4).
(c) Defendant has admitted the fact that he did not have any proof that shop was taken on rent by him.
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(d) Defendant has also not filed any petition under Delhi Rent Control seeking rent receipt from plaintiff.
(e) Defendant has also not summoned any person residing in the premises of the plaintiff as a tenant to prove that he is also tenant in the suit property.
(f) Defendant has been unable to prove that he is the tenant in the suit property or rent of the suit property was of Rs.
1500/ therefore suit is maintainable and not barred by Section 50 of DRC Act.
(g) It is further observed by Learned Trial Court that since there is no specific denial of defendant regarding service of legal notices dated 06.07.2009 Ex PW 1/7 and dated 10.06.2010 Ex PW 1/8 upon him in respect of termination of licence, therefore, it is deemed to be admitted by defendant.
(h) It is further observed by learned trial court that defendant claimed that an amount of Rs. 3500/ was paid by him as a rent to the plaintiff on 04.07.2008 as rent for two months. Learned trial court observed that when he being asked by the court, DW1 (defendant) conceded that he could not establish from his bank pass book that the said amount was towards rent for two months. Resultantly, there exists no RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 32/39 evidence of payment of rent by defendant to plaintiff.
49. In view of the said findings of learned trial court, I am of the considered view that ample opportunities have been given to the parties to lead evidence in respect of their claims. Defendant has failed to produce any documentary evidence/rent note/receipts or circumstances suggesting that there was relationship between plaintiff and him as landlord and tenant.
50. It is to be note here that judgment of civil courts is based upon the principle of preponderance of probabilities. In the present case, learned trial court, after analyzing and appreciating the evidence led by both the parties has correctly observed that plaintiff has been successful to prove that defendant is a licencee in the suit property. With the said observations, I find that learned trial court has correctly observed the principle of preponderance of probabilities.
51. Now coming on the other arguable point of termination of the agreements of licensee. It is vehemently argued by the counsel of defendant that since plaintiff issued first legal notice dated 6/7/2009 to the defendant but he had not sought the possession of the suit property, therefore, same cannot be RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 33/39 demanded in the second legal notice dated 10.6.2010 as same is also barred by Order 2 Rule 2 CPC. As I have already observed that plaintiff filed two suits against the defendant first for recovery of commission charges and second suit for recovery of possession, both suits are based on distinct cause of action, therefore, second notice dated 10.06.2010 could be issued by the plaintiff against the defendant for demanding the possession of the suit property. As far as service of legal notice dated 06.07.2009 and 10.06.2010 upon the defendant is concerned, I find that Learned trial court has correctly observed that since there is no specific denial of defendant regarding service of legal notices dated 06.07.2009 Ex PW 1/7 and dated 10.06.2010 Ex PW 1/8 upon him in respect of termination of licence, therefore, it is deemed to be admitted by defendant.
52. Now coming on the other arguable point of defendant regarding suit of plaintiff is barred by DRC Act. Since I have already observed that defendant has failed to prove that he is a tenant in the suit property at the rent of Rs. 1500/ per month, therefore, the said argument is devoid of merits.
53. With these observations, I find that learned trial court has RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 34/39 correctly decided the issue no.1 in favour of plaintiff and against the defendant no.1.
54. Now coming on the other arguable point of defendant regarding bar of second suit in view of the Order 2 Rule 2 CPC. It is vehemently argued by counsel for defendant that since the plaintiff had purportedly terminated the contract dated 20/1/2009 through legal notice dated 6/7/2009, therefore, it was incumbent upon him to have sought the relief of possession of the suit shop in the previous suit no. 245/09 itself but present suit has been filed for recovery of possession of suit property which is barred u/o 2 Rule 2 CPC. Counsel for defendant, in order to support said arguments has relied upon the law down in the following citations:
i) Khatri Hotels Pvt. Ltd Vs. Union of India 163(2009) DLT 226 Delhi High Court.
ii) State Bank of India Vs. Gracure Pharmaceuticals Pvt Ltd 2014 (1) Civil Court cases 65(SC)
iii) M/s Virgo Industries Engineers Pvt Ld Vs. M/s Venturetech Solutions Pvt Ltd decided by 7/9/2012 (SC).
55. On the contra counsel for plaintiff submitted that the said RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 35/39 issue had already been decided by Learned Predecessor of this court while dismissing the application of defendant u/o 7 Rule 11 CPC read with Section 10 CPC vide order dated 16/11/2012. It is further submitted that present suit was founded on fresh legal notice dated 10/6/2010 as against the previous notice dated 6/7/2009 which formed the basis of previous suit no. 245/09.
56. It is to be note here that Learned Predecessor of Trial Court, vide order dated 16/11/2012 has elaborately discussed pleading of both the suit to arrive at the finding that the two suits are not based on the same cause of action. The court further noted that previous notice dated 6/7/2009 sought payment of outstanding commission charges and the vacation of the suit shop whereas the fresh notice dated 10/6/2010 mentioned in the para no.12 that " to avoid any technical problem that may be faced by my client in future for recovery of possession". The subsequent notice be served upon the defendant.
57. Learned Trial Court, while dealing the said issue observed that since the said controversy involved in issue no.3 has already been decided by the Learned Predecessor while RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 36/39 deciding the application of defendant no.1 u/o 7 Rule 11 CPC, therefore, there is no reason for fresh consideration of the said controversy. Learned Trial Court, while deciding the said issue has also relied upon the law laid down in case titled as Girdhari Lal Dhara vs. Amin Chand & Others decided on 28.08.2001 and reported in http:// indiankanoon.org/doc/1966065. In the said case, the court has discussed the question whether a suit for possession of property was barred under Order II Rule 2 CPC when an earlier suit has been filed seeking arrears of licence fees/mense profits for the same property and held as under:
"6............There has been conflict of judicial opinion on the question whether claim for possession of property and claim for mesne profits arising there from are two distinct and separate causes of action or both these claims constitute a single undivisible cause of action. Decisions other than in Naba Kumar Hajra and Mohd. Khalil Khan's cases (supra), relied on behalf of defendants, are by Allahabad, Sind and Peshawar High Courts. It may be noticed that Naba Kumar Hajra's case had been brought to the notice of court on behalf of appellants in Sadhu Singh's case (supra) and in Para no.31 of the decision (on page
46) it was observed that there was nothing to indicate that Privy Council intended to depart from the settled principle (both in Indian and English laws) that an action for mesne profits and an action for recovery of immovable property were founded on distinct causes of action. Mohd. Khalil Khan's case was taken note of by this court in Prem Nath Kapoor's case (Supra). In RFA No. 499/79 S. Santokh Singh & another vs. S. Gurbax Singh, decided on 16 th July 2001 a Division Bench of this court taking note of the ratio of aforesaid two RCA No.19/14 Hariom Sharma Vs. Sadaram Kadian & Ors Page No.: 37/39 Full Bench decisions rendered by Punjab and Haryana and Bombay High Courts, has affirmed the judgment rendered by single Judge of this court in Prem Nath Kapoor's case holding that suit for possession of immovable property is based on a distinct cause of action and is thus note barred by Order 11 Rule 2 CPC. Following these two decisions the relief with respect to possession of suit land and construction raised thereon must be held to be not barred by Order II Rule 2 (3) CPC."
58. In the light of law laid down in the said case, learned trial court has observed that the settled proposition of the law is that the suit for possession is based on the distinct cause of action and is maintainable notwithstanding an earlier suit for arrears of rent/licence fee between the same parties and qua the same property.
59. In the light of observation of Learned Predecessor of Trial Court made in order dated 16/11/2012 on the application under Order 7 Rule 11 CPC and the observation of Trial Court on the said issue, I am of the same view that suit for possession is based on the distinct cause of action and same is maintainable despite the fact of pendency of the previous suit regarding arrears of licence fee/rent.
60. With these observations, I find that learned trial court has correctly decided the issue no.3 in favour of plaintiff and against the defendant no.1.
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61. Now coming on the issue no.2. It is to be note here that the said issue was not pressed by counsel for plaintiff during the course of final arguments before learned trial court. Even, it is further observed that even no documentary evidence was led by plaintiff in support of his oral deposition regarding purported theft of electricity by defendant no.1. Accordingly, the said issue was correctly decided by the trial court against the plaintiff. Before parting the present appeal, it is to be note here that the judgments relied upon by the counsel of defendant are not applicable on the facts and circumstances of the present case.
62. From the aforesaid discussions, it is hereby held that impugned judgment passed by the Learned Trial Court is legally correct and same requires no interference. The appeal being devoid of merits stand dismissed, leaving the parties to bear their own costs.
63.The Trial Court record be sent back forthwith to the Learned Trial Court along with the copy of this judgment. Appeal file be consigned to record room.
Pronounced in the open (R.L. Meena)
court on 10/06/2016 Addl. District Judge02/South West
Dwarka Courts Complex, New Delhi
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