Delhi District Court
Sh. Naziruddin Ansari vs Smt. Shanti Devi (Now Deceased) on 24 April, 2017
In the court of Sh. A.S. Jayachandra, Ld. District &
Sessions Judge, Shahdara, Karkardooma Courts, Delhi
RCA No.47/2017
Sh. Naziruddin Ansari
S/o Sh. Munne Hassan
R/o B-76, Vikram Enclave,
Shalimar Garden, Sahibabad,
Ghaziabad, U.P.
Also At :
Shop situated at : Ground Floor,
Plot No. A-171, Dilshad Colony,
Delhi-110095. .....Appellant
Vs.
Smt. Shanti Devi (now deceased)
Through her LRs
1. Sh. Jitender Kumar Taneja
S/o late Sh. Om Prakash Taneja,
R/o E-182, Second Floor, West Patel Nagar,
New Delhi - 110008.
2. Sh. Satish Taneja
S/o late Sh. Om Prakash Taneja,
3. Smt. Bobby Arora
W/o Sh. Jitender Arora
D/o Late Sh. Om Prakash Taneja
Both R/o 11/16, First Floor, Moti Nagar,
New Delhi-110016. .....Respondents
Date of institution : 24.01.2017
Order reserved on : 24.04.2017
Date of Order : 24.04.2017
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Judgment :
1. This is an appeal challenging the judgment and decree
dated 5.12.2016 in suit No. 9037/16 on the files of the Sr. Civil
Judge, Shahdara, Delhi. The appellant herein is directed to quit and
deliver the vacant possession of a shop premises and also fastened
with the liability to pay rent @ Rs.4,000/- per month from the
21.8.2013 till the date of handing over the possession. Though the
decrees show that the plaintiff is entitled to the mesne profits, the
rate of such mesne profits is not incorporated into the decree nor in
the judgment.
Brief facts :
2. One lady by the name Shanti Devi instituted a suit for
eviction pertaining to a shop contending the rate of rent as Rs.4,000/-
per month based on the rent agreement dated 21.11.2012. It is also
in the suit pleadings that the arrears of rent is Rs.16,000/- and she
had also claimed mesne profits @ Rs.10,000/- per month.
3. The defendant who appeared in the trial court
contended that there was no agreement to pay rent of Rs.4,000/- pm.
The previous landlady by the name Seema inducted him on
31.1.2011. Agreed rent is Rs.2,800/- per month. This plaintiff later
purchased the property. There was an oral agreement between him
and the landlord Shanti Devi showing the rate of rent as Rs.2,800/-
per month. He also contended that the alleged rent agreement dated
21.11.2012 as pleaded by the plaintiff, is bogus and the defendant
never signed it. There are other contentions which are extraneous
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for the purposes of this appeal. The defendant has sought for
dismissal of the suit mainly on the ground that the civil court lacked
jurisdiction and the Delhi Rent Control Act would come into play; the
rate of rent denied and defendant prayed for dismissal of the suit.
Issues before the trial court :
1. Whether the plaintiff is entitled to a decree for recovery of
possession of the premises in question as prayed? OPP
2. Whether the plaintiff is entitled to a decree for recovery of
rent as claimed along with arrears of rent? OPP
3. Whether the plaintiff is entitled to a decree for recovery of
damages/mesne profits as claimed? OPP
4. Whether the plaintiff is entitled to a decree of permanent
injunction as prayed? OPP
5. Whether the rent of the premises in question is Rs.2800/-
pm as claimed by the defendant? OPD
6. Whether this court has no jurisdiction to try and entertain
the present case as alleged? OPD
7. Relief.
Evidence before the trial Court :
4. The original plaintiff during the pendency of the suit
expired. Her three LRs were brought on record. One of the LRs by
name Jitender Kumar Taneja is examined as PW-1.
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5. There is no evidence on behalf of the defendants. It is
found from the record that there was an order by the court below
dated 18.10.2015 to deposit the admitted arrears @ Rs. 2,800/- PM
within one month. However, the same was not deposited in time.
Therefore, by an order dated 20.10.2016, the defence of the
appellant in the court below was struck off. Thereafter, by the
impugned judgment dated 5.12.2016 and consequent decree was
passed.
Grounds in the appeal :
6. Appellant contends that the impugned judgment is not in
accordance with law; based on conjectures, surmises and
presumptions. The evidence was not properly appreciated. There is
no evidence placed by the plaintiffs to show that the rent is
Rs.4,000/- per month. The pleadings of the parties were not gone
through. The impugned judgment is opposed to facts and law. The
other grounds concerning the facts and the defence raised are
superfluous on record. It is pleaded that the court below failed to
appreciate that Ex.PW1/2 the rent agreement is a concocted
document. It is also pleaded that this defendant had filed a suit for
injunction in which the plaintiff had taken a different narration.
Therefore, it is prayed that the appeal be allowed.
Issues in this appeal :
7. Upon notice, the defendant appeared through the
counsel. The trial court records are secured. Perused the same. In
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the light of submissions made on either side, the following issue
arises for determination in this appeal :
"Whether the impugned judgment is opposed to the fact
situation, law applicable, perverse and liable to be set
aside?"
Contentions of the appellant :
8. The Ld. Counsel for the appellant Sh. Sachit Sharma
submits that the Ex.PW1/2 which is signed by the deceased Shanti
Devi is in English language whereas the said Shanti Devi had signed
the vakalatnama and the plaint in Hindi language. This itself will
prove that the document is concocted as contended by him in the
written statement. According to him, this fact is ignored by the court
below. He also submits that only one witness who is the son of the
original plaintiff is examined and the document at Ex.PW1/2 is not
proved. Further, he submits that the entire findings of the court
below are not based on any sound reasoning.
9. The Ld. Counsel Sh. R.C. Sharma appearing for the
respondents supports the impugned judgment on the grounds that :
(a) the tenant did not pay the rent @ Rs.4,000/- w.e.f. 21.8.2013;
plaintiff issued notice on 30.11.2013; the same was replied on
9.12.2013; the defendant has taken false contentions of having paid
the rents upto April, 2014 which he has not paid and his defence is
thus rightly struck off;
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(b) it is further urged that the defence in the trial court that the rate
of rent is Rs.2,800/- is not properly substantiated by any document
which the defendant ought to have filed;
(c) it is also contended that the Ex.PW1/2 cannot be termed
bogus since the stamp papers were purchased on the same day of
the purchase of the property. It is also submitted that the tenant is an
attesting witness to the sale deed and he willingly signed Ex.PW1/2.
It is also argued that late Shanti Devi used to sign both in English
and Hindi.
Answers to the issue in appeal :
10. As noted above, this court has to find out the legality
and validity of the impugned judgment. It is seen from the record
that the defence is struck off for non-compliance of the order dated
18.11.2015. However, only during February, 2016 a sum of
Rs.53,000/- is deposited towards the arrears of rent. The rate of rent
is in dispute.
11. While answering the issues with regard to the quantum
of rent and the jurisdiction of the court, the Ld. Court below at para
16 of the impugned judgment had come to the conclusion as under :
"16.Ld. Counsel for defendant vehemently urged that the rent
agreement Ex.PW1/2 has not been proved as only PW1 has
been examined in the instant suit who is not an attesting
witness to the rent agreement. No doubt, PW1 is not an
attesting witness to the rent agreement Ex.PW1/2. PW1 has
also admitted in his cross-examination that he was not
present at the time of execution of rent agreement. Even if
the rent agreement Ex.PW1/2 is ignored in toto, monthly rate
of rent of Rs.4,000/- stands established. A suggestion has
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been given to PW1 to the effect that at all times only he had
received rent from the defendant whenever he paid the
same. The said suggestion is admitted by PW1. By putting
such a suggestion, the defendant has admitted that the
monthly rent was collected by PW1. PW1, during his
evidence, has repeatedly reiterated the monthly rent to be
Rs.4,000/- pm. There is no reason to disbelieve his version."
12. After reading this finding, at one end the Ld. Court below
admits that PW-1 is not the attesting witness to the rent agreement.
It comes to the further finding that even if the rent agreement is
ignored in toto, the rate of rent is Rs.4,000/- stands established. The
Ld. Court having ignored the entire document, could have not held
the rate of rent as proved in the absence of any other material.
Except PW1, no other witness is examined. Ex.PW1/2 the rent
agreement is perused. The same is signed by the deceased landlord
in English. The pleadings of the suit and vakalatnama is signed by
her in Hindi. In this context after perusal of the documentary
evidence on record, the contention of the defendant-appellant herein
that the document is concocted is to be understood in its proper
sense for which the defendant is to be given an opportunity to
adduce his evidence.
13. Further more, section 101 of the Evidence Act mandates
that the material points of facts averred by a party must be proved by
such a party. Ex.PW1/2 though states that the rate of rent is
Rs.4,000/- per month, no counterfoil receipts are filed by the plaintiff
since it is of common prudence that a landlord obedient to law issue
rent receipts and keep accounts thereof. The issue no.1 mandates
that onus to prove the entitlement of the plaintiff to seek decree of
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possession and arrears of rent as claimed for which issue no.2 is
framed and issue no.3 with regard to the entitlement of mesne profits
are all fastened upon the plaintiff to prove the rate of rent and the
arrears (the defendant in the trial court has not challenged the
relationship of landlord and tenant). Therefore, the evidence
adduced by PW-1 is insufficient to prove the rate of rent and the
arrears. Therefore, the findings of the court below with regard to the
quantum of rent and the arrears are not supported by the cogent,
sufficient and reliable evidence especially in the backdrop of
observations of the Ld. Court below at para 16 which is mentioned
supra.
14. Having thus come to the conclusion that the quantum of
rent and the arrears as reckoned by the Ld. Court below, being not
based on cogent evidence, this court is of the opinion that the same
is opposed to the facts on record, rendering the findings perverse.
15. Further, as regards the issue no. 3 in the suit concerning
the entitlement of the mesne profits and damages, this court is
constrained to observe that :
(a) the ld. Court below had observed in para 27 that the
plaintiff has not led any cogent evidence as to what rentals the
suit property would have fetched during the pendency of the
present suit. The plaintiff has not examined any person who
was well versed with the rentals prevailing in the area in which
the suit property is situated.
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(b) however, the court came to the conclusion that a sum of
Rs.4,000/- would suffice the mesne profits/damages but while
granting the relief, the same is left out and the decree does not
mention the same. Therefore, even on this count the decree
suffers from uncertainty.
16. As submitted by the Ld. Counsel for the appellant that
the decree is assailable since no opportunity to lead his evidence, is
also a matter of concern. It becomes so when the order was
complied of course belatedly. There is one more order dated
27.1.2016 wherein the court below had extended the opportunity to
the defendant to comply with the order within 15 days by a separate
order dated 27.1.2016. Therefore, the contentions of the Ld.
Counsel for the respondents that the arrears were not deposited is to
be again re-examined in light of the pass-book entries filed on
20.10.2016 by the defendant. However, the Ld. Counsel for the
defendant fairly submits that the matter may be remitted back for
fresh trial with an opportunity to the defendant to lead the evidence
but subject to costs. Ld Counsel Sh. R.C. Sharma submits that he
may be also given an opportunity to lead additional evidence to
prove the issues in case the matter found to be fit for remittance to
the court below.
17. For the aforesaid reasons, this court is of the considered
opinion that the impugned judgment and decree of the court below
cannot be sustained in law. Consequently, the following order :
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ORDER :
Appeal stands allowed. The judgment and decree dated 5.12.2016 in Suit No. 9037/16 on the files of Ld. Sr. Civil Judge, Shahdara, Delhi is hereby set aside with the following directions :
(a) that both the parties may lead evidence in their power and possession;
(b) the court below after reception of such evidence, dispose off the suit after hearing both the parties on merits without being influenced by any of the observations made in this appeal;
(c) The plaintiff in the court below may withdraw the arrears of the rent amounts and the defendant shall regularly deposit the admitted rent of Rs.2,800/- on or before 15th day of every month;
(d) The opportunity to lead the defence evidence to the appellant shall be subject payment of cost of Rs.5,000/- payable to the plaintiff in the court below before leading evidence.
No order as to costs in this appeal. Decree be drawn accordingly. Parties are directed to appear before the court below on 24.7.2017.
Trial court records be sent back alongwith a copy of this judgment. File be consigned to Record Room.
Announced in open court (A.S. Jayachandra) on 24th April, 2017 District & Sessions Judge, Shahdara/KKD Courts, Delhi.
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