Delhi District Court
Daryodh Singh (Deceased) vs Anil Kumar & Ors on 9 April, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGEII
(CENTRAL DISTRICT): TIS HAZARI COURTS: DELHI
RCA No. 128/2013
Unique Case ID No.: 02401C0063812010
1. Daryodh Singh (Deceased)
2. Prabh Charan Singh (Son)
3. Daljeet Singh (Son)
4. Tej Pal Singh (Son)
5. Smt. Surinder Kaur (Daughter)
6. Smt. Kuljit Kaur (Daughter)
7. Jagdish Kaur (Daughter)
8. Jasbir Kaur (Daughter)
All residents of D2, Sardar Nagar, Delhi
9. Gursharan Kaur (Daughter) (Deceased)
9.1 Harbhajan Singh (Husband of Gursharan Kaur),
R/o N126, GF, Greater Kailash I,
New Delhi 110048.
9.2 Smt. Amrita Kaur (Daughter of Gursharan Kaur),
R/o N126, GF, Greater Kailash I,
New Delhi 110048.
9.3 Arvinder Singh (Son of Gursharan Kaur),
R/o 1045, Lane, Easton PA 18040, U.S.A.
9.4 Smt. Satinder Kaur (Daughter of Gursharan Kaur),
R/o 13320, W 68th Terr. Shawnee,
K.S. 66216, U.S.A.
......Appellants
Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 1 of 19
Versus
1. Anil Kumar
2. Sunil Kumar
3. Munna Lal
4. Smt. Geeta Rani
LRs of Late Sh. Sita Ram,
All R/o D1/6, Sardar Nagar,
OPP. R.P. Bagh, Delhi09
5. Smt. Asha Rani,
D/o Late Sh. Sita Ram
R/o 63D, Pkt. F, GTB Enclave,
Shahdara, Delhi.
......Respondents
Date of Institution: 19.2.2010
Arguments heard on: 9.4.2015
Date of Decision: 9.4.2015
JUDGMENT (Oral):
This appeal has been filed by the appellant against the judgment/ decree dated 19.1.2010 passed by the Ld. Administrative Civil Judge Cum Addl. Rent Controller (North) in Civil Suit No. 1321/2008 thereby dismissing the suit of the plaintiff/ appellant seeking possession of premises No. D1/5 forming part of D1, Sardar Nagar, Delhi and recovery of Rs.18,000/ as damages.
Various grounds have been raised in the appeal which are not being repeated for the sake of brevity. It is argued that the Ld. Trial Court has seriously erred in dismissing the suit of the plaintiff and not Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 2 of 19 appreciating that the rent note dated 14.6.1985 (Ex.PW1/6) is admitted by Anil Kumar (DW1) in his crossexamination. Ld. Counsel for the appellant has vehemently argued that it is an admitted fact that late Sh. Sita Ram the father of the respondent was a contractual tenant in the premises of late Smt. Amrit Kaur and the in the rent note it has been clearly mentioned that the tenanted premises has been led out only for residential purposes. It is also argued that the provisions of Section 50 of the Delhi Rent Control Act are not attracted and he has in support of his contentions placed his reliance on the case of Krishna Prakash Vs. Dilip Harel Mitra Chinory reported in 2001 (2) RCR 364. It is also argued that the notice dated 7.9.1987 so issued by the appellant is admitted by Anil Kumar (DW1) in his crossexamination and the respondents has taken the ground that factum of termination of tenancy was not mentioned in the notice dated 7.9.1987 but it is an admitted fact that the relationship between the landlord Smt. Amrit Kaur and the tenant Sita Ram has been admitted. It is submitted that under the given circumstances, the service of the summons of the suit can always be treated as a notice terminating the tenancy under Section 106 of Transfer of Property Act. He has placed his reliance on the authorities in the case of Nopany Investments (P) Ltd. Vs. Santosh Singh (HUF) reported in 146 (2008) DLT 217 SC and in the case of Rajpal Singh Vs. Deen Dayal Kapil reported in 207 (2014) DLT 651. It is further argued that the tenanted premises were let out only for the residential purposes and no commercial activity was ever allowed by the appellants and after the death of the tenant Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 3 of 19 the respondents become illegal occupant and there does not exist any landlordtenant relationship between them.
Ld. Counsel for the respondents on the other hand has vehemently argued that there is no illegality in the order of the Ld. Trial Court which is a detailed speaking order. He has pointed out that there has been a deliberately concealment by the appellant who intentionally did not join the Legal Heirs of Late Smt. Gurcharan Kaur (daughter of late Smt. Amrit Kaur) whereas she was made a party in the eviction petitioner before the court of Sh. V.K. Bansal, the then Ld. ARC Delhi, which has been done only to conceal and withheld the findings of the competent court as regards the additional line being typed on tenancy agreement. Ld. Counsel for the respondent has reaffirmed that the suit before the Ld. Civil Court was barred under Section 50 of the DRC Act and even otherwise the tenancy rights have devolved upon the respondents being heritable. In this regard reliance is placed on the judgment of Smt. Gian Devi Vs. Jeewan Kumar & Ors. reported in 27 (1985) DLT P 640. Reliance is also placed on the judgment in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal reported in (2003) 8 SCC 745 and Pritpal Singh Vs. Ranjit Rai & Ors.
reported in 25 DLT (1984) Page 462.
I have considered the rival contentions, the material placed on record and the testimonies of the various witnesses. I have also gone through the impugned judgment and at the very Outset I may hold that the Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 4 of 19 Ld. Trial Court has elaborately discussed not only the evidence produced before it but also the existing law as regards the various issues which came before it while holding that the suit of the plaintiff was barred under Section 50 of the DRC Act and the tenancy being commercial cum residential purposes and finally held that the plaintiff/ appellant was not entitled to the relief of possession and damages as asked for as in the plaint.
Coming first to the issues no. 1, 2 and 3 framed by the Ld. Trial Court i.e. with regard to bar under Section 50 of DRC Act; the nature of tenancy of late Sh. Sita Ram (predecessor in title of defendants) i.e. whether it was for residential or for residentialcumcommercial purpose and if this tenancy of Late Shri Sita Ram stood validly terminated during his life time and if so its effect on the rights and liability of the parties in suit. The relevant observations are reproduced as under:
"...... The bone of contention in between the parties to the suit is as to whether the jurisdiction of this court is bared under Section 50 DRC Act and as to whether the tenancy of late Sh. Sita Ram was validly terminated by notice dated 07.09.1987. Further the crux of the controversy in between the parties to the suit is that as to whether the suit premises was let out for residential purposes only as alleged by the plaintiffs or as to whether the suit premises was let out for residentialcum commercial purposes as is the stand of the defendants.
The factual matrix of the present suit is within a narrow compass. It is not in dispute in between the parties to the suit that late Sh. Sita Ram was a tenant in respect of one room no. D1/5 forming part of house no.
Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 5 of 19 D1, Sardar Nagar, Delhi @ Rs. 45 per month. It is also not in dispute that in the year 1985 one room, kitchen, WC and stair case on the ground floor and one room, a covered verandah and a bathroom on the first floor were constructed and same were also let out to late Sh. Sita Ram. Though there is a difference on the point as to whether the same were constructed by the plaintiffs as alleged by the plaintiffs or as to whether some contribution was also made by late Sh. Sita Ram as is the stand of the defendants but there is no dispute that the aforesaid additional accommodation was also let out to late Sh. Sita Ram. It is also not in dispute that in the year 1990 two separate eviction petitions titled Amrit Kaur vs. Sita Ram u/S 14 (1) (a) DRC Act for nonpayment of rent were filed. The plaintiffs have alleged that vide notice dated 07.09.1987 the tenancy of Sita Ram was validly terminated whereas the defendants have taken the stand that the tenancy was not terminated vide aforesaid notice dated 07.09.1987.
After reiterating the aforesaid factual matrix of the present suit, now let us examine the evidence led by both the parties as well as the stand taken by both the parties in their written final arguments.
In the written final arguments filed on record by the plaintiffs, the plaintiffs have submitted that the plaintiff no. 1 Daryodh Singh appeared as PW 1 and deposed on the lines of the plaint. It has been argued that in his affidavit dated 16.04.2004 filed in evidence, the PW 1 proved the following documents : Certified copy of judgment dated 05.11.1999 passed by the court of Ms. Neena Bansal Krishna, the then ARC, Delhi as Ex. PW 1/1, petition filed in the said court as Ex. PW 1/2, Written Statement filed in that petition as Ex. PW 1/3, site plan as Ex. PW 1/14, the copy of the order passed on Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 6 of 19 application u/S 340 CrPC as Ex. PW 1/5, rent noted dated 14.06.1985 executed by late Sh. Sita Ram in favour of late Smt. Amrit Kaur as Ex. PW 1/6 mentioning the rate of rent Rs. 300/per month up to 30.06.1986 and Rs. 500/per month w.e.f. 01.07.1986, the copies of the eviction petition bearing no. E140/ 90 in respect of the said accommodation as Ex. PW 1/7 to PW 1/10 and the legal notice dated 07.09.1987 served upon late Sh. Sita Ram as Ex. PW 1/11.
It has been argued that all the defendants residing in the premises are tresspassers and they are liable to pay damages. It has been argued further that the aforesaid witness was cross examined at length on several dates i.e. 06.12.2007, 15.02.2008, 27.03.2008 and 28.03.2009 but nothing material has come out from his cross examination. It has also been argued that plaintiffs have filed certain photographs which were marked as Mark X, Y, Z which clearly show that the defendants used to iron the clothes outside the tenanted premises by putting a wooden table in the Gali. It has also been argued that the testimonies of DWs are not reliable and as such plaintiffs have been able to prove their case.
Whereas in the written final arguments filed on record by the defendants, it has been submitted that in December 1999 Sita Ram expired during the pendency of the eviction petition u/S 14 (1)(a) DRC Act and all the defendants were substituted as legal heirs in that petition. It has been stated further that not even a single document except the orders / judgments of the courts has been proved by the plaintiff and not even the site plan has been filed alongwith the plaint by the plaintiff. It has been argued further that the plaintiffs have simply exhibited the copies of documents without proving single document as per the Evidence Act and hence all the Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 7 of 19 documents so exhibited have no evidential value and are liable to be ignored. In this regard, the defendants have placed reliance on judgment 1995 RLR 286 Sudhir Engg. Co. vs. Nitco Roadways wherein it has been held that :
"Evidence Act, Ss 3, 65, 68 ; Civil P.C., O 13 R 4 : O.S. Practice Direction 3/74, para 6 & 7. When a document is produced in evidence and is marked as an exhibit then it is only for identifying the document and is not its proof. Proof of contents of the document must be proved established by independent evidence."
It has been argued further that PW 1 in his cross examination has admitted that the rent receipts Ex. PW 1/D1 to PW 1/D12, written by him and signed by Smt. Amrit Kaur and the mere reading of the said receipts proved on record shows that the tenanted premises is commercial in nature and was let out for commercial cum residential purposes. It has been argued further that the plaintiffs have himself admitted that the entire block consisting of nos. D1/2 to D/16 are commercial in nature and were let out for commercial purposes to different tenants. It has been stated further that the plaintiffs have miserably failed to prove on record the notice dated 07.09.1987. It has been argued further that the original notice dated 07.09.1987 has been filed on record by the defendants as Ex. DW 1/1 and the perusal of the notice dated 07.09.1987 Ex. PW 1/11 clearly shows that there are some additions and forgery committed by the plaintiffs. It has been submitted that in Ex. DW 1/1 there is no mention about the termination of the tenancy at all. It has been argued further that the commercial tenancy as well is heritable and in this regard reliance has been Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 8 of 19 placed on judgment cited as 27 (1985) DLT 640 Smt. Gian Devi Anand vs. Jeevan Kumar and Ors. wherein it has been held that :
"Supreme Court - Held - High Court not right
- Tenancy right heritable - Demised premises may be residential or commercial - Tenant may be statutory or contractual - The tenancy right which is heritable - Devolves on the heirs under the ordinary law of succession."
It has been further argued that the defendants have examined two witnesses i.e. defendant no. 1 as DW 1 and one more independent witness as DW 2 and they have fully supported the case of the defendants and proved their case beyond any shadow of doubt. It has been argued further that nothing has come out from the cross examination of said witnesses. It has been stated further that the plaintiffs are habitual in forging the documents and it was so held by Sh. V.K. Bansal, Ld. ARC in para no. 15 of the judgment Ex. PW1/10. Now let us discuss the point / controversy as to whether the notice dated 07.09.1987 (filed by the plaintiffs as Ex. PW 1/11 and by the defendants as Ex. DW 1/1) was duly served upon late Sh. Sita Ram and as to whether the tenancy of late Sh. Sita Ram was validly terminated or not.
Plaintiff no. 1 Daryodh Singh has examined himself as PW1 and has filed his evidence by way of affidavit reiterating and reaffirming the stand taken by the plaintiffs in the plaint and has proved on record the certified copy of judgment dated 05.11.1999 as Ex. PW1/1, the petition as Ex. PW 1/2, Written Statement as Ex.PW1/3, site plan as Ex.PW1/4, order dated 05.11.1999 as Ex.PW1/5, rent agreement dated 14.06.1985 as Ex.PW1/6, certified copy of petition as Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 9 of 19 Ex.PW1/7, certified copy of Written Statement as Ex.PW1/8, certified copy of site plan as Ex.PW1/9, certified copy of judgment dated 05.03.2002 as Ex.PW1/10, certified copy of notice dated 07.09.1987 as Ex.PW1/11 and the site plan of the suit property as Ex.PW1/12.
In his cross examination PW 1 has stated that he cannot tell as to whether in the eviction petition filed by him on 13.09.1988 he has mentioned or not about the notice dated 07.09.1987. Defendant no. 1 has also examined himself as DW 1 and has filed his evidence by way of affidavit reiterating and reaffirming the stand taken by the defendants in their Written Statement. In para no. 8 of his affidavit, this witness has stated that late Sh. Sita Ram was served with the notice dated 07.09.1987 through registered post. It has been stated further that Ex. PW 1/11 is a fabricated and forged document and the plaintiffs forged the copy of the notice dated 07.09.1987 by adding the following words in para no. 6 by hand :
" Your tenancy is hereby determined. You are to handover possession on or before 30.09.87."
It has been stated further that original notice dated 07.09.1987 was received through registered post and is placed on record and the same is signed by Sh. Ram Pal Sharma, advocate at point X and same was exhibited as Ex, DW 1/1.
In his cross examination DW 1 has stated that :
"It is correct that the notice dated 07.09.1987 for termination of the tenancy was given by Daryodh Singh to my father. When the aforesaid question was repeated by the court in Hindi to the witness at the request of the Ld. counsel for the defendant, the witness Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 10 of 19 stated that the factum of termination of the tenancy was not mentioned in the notice dated 07.09.1987. It is correct that the notice dated 07.09.1987 was sent by registered AD Post to my father and my father had received the same. I had not read the notice dated 07.09.1987 at the time when my father received the same. I had read the aforesaid notice dated 07.09.1987 in the year 2008. My advocate had told me that factum of termination of the tenancy was not mentioned in the notice dated 07.09.1987.....
...On account of the lapse of time, I do not remember as to whether the notice dated 07.09.1987 was received by my father by way of UPC as well or not. No cutting / correction was there in the notice dated 07.09.1987 received by way of registered AD. It is wrong to suggest that I have deliberately not filed on record the corrected copy of the notice dated 07.09.1987 which was allegedly received by way of UPC. (Vol. The fact is that UPC was never received). I do not remember as to whether the reply to the aforesaid notice was sent or not by my father....."
Now it has to be seen that the plaintiffs have proved on the record the certified copy of the aforesaid notice dated 07.09.1987 as Ex. PW 1/11. In the aforesaid notice the words " Your tenancy is hereby determined. You are to handover possession on or before 30.09.87." are written in hand. Whereas the defendants have filed on record the original notice dated 07.09.1987 as Ex. DW 1/1, in which no such words are there. No factum of Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 11 of 19 termination of tenancy has been mentioned at all in the aforesaid notice Ex. DW 1/1.
It has to be seen that the plaintiffs have no where denied that Ex.DW1/1 is not the original notice. In the entire cross examination no such suggestion has been given to DW 1 at all by the Ld. counsel for the plaintiffs. Further more, it is not the case of the plaintiffs that two notices were sent to late Sh. Sita Ram, one Ex.DW1/1 and thereafter the corrected copy Ex.PW1/11 was sent. It has to be seen that no proof of delivery of notice Ex.PW1/11 has been placed on record. As such, I have no hesitation to hold that the plaintiffs have miserably failed to prove on record that the Ex.PW1/11 was duly served upon late Sh. Sita Ram, leading to the inevitable conclusion that the tenancy of late Sh. Sita Ram was not validly terminated by notice dated 07.09.1987 Ex.PW1/11.
DW1 has categorically admitted the receipt of notice Ex.DW1/1 but as stated earlier, the factum of termination of tenancy was not mentioned at all in the aforesaid notice.
Now let us come to the controversy as to whether the plaintiffs have been able to prove that the tenanted premises was let out to late Sh. Sita Ram for residential purposes or as to whether the defendants have been able to prove on record that the premises in question was let out for commercialcumresidential purposes.
In this regard, in his cross examination PW 1 has categorically admitted the rent receipts Ex.PW1/D1 to PW1/D12 and signatures of his wife has been admitted by PW1 on the aforesaid rent receipts. PW 1 has stated further stated in his cross examination that Sh. Ram Kohli is his tenant and is in possession of front portion of the suit premises, which is a factory and the address of Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 12 of 19 the said property which is in possession of Sh. Ram Kohli is D1/ 6. PW 1 has further stated that D1/ 5 is in possession of Sh. Pradeep and the same is a garage. PW 1 has stated further in his cross examination that Dhani Ram is a tenant in D1/4 and the same is a factory. PW 1 has further admitted that Paradise Enterprises is his tenant in D1/1. He has stated further that D1/2 is in possession of Ramesh who is brother in law of Grover. It has been stated further by PW1 in his cross examination that Sita Ram was not doing the work of ironing clothes and washing clothes since 1966. He has denied the suggestion that sons of the defendants were doing business in the suit property when Sita Ram was ill. PW 1 has stated there is a Haudi on the ground floor for washing the clothes, which has been erected by his other tenant namely Sh. Ram Kohli and the said Haudi is in D1/ 6. The witness was shown two photographs Ex.PW1/D13 and PW1/D14, the negatives of which are Ex.PW1/D15 and PW1/D16, and was asked that Anil Kumar is washing and ironing the clothes in photographs but the witness has replied in negative as is apparent from his cross examination.
In his cross examination, DW 1 has again reiterated the facts that the business of ironing is being running in the premises in the room itself. DW 1 has denied the suggestion that they do the ironing of the clothes only on the ground floor on a table kept outside the tenanted premises.
The perusal of the rent receipts Ex.PW1/D1 to PW1/12 reveals the mentioning of the fact that back portion of the shop no. 6 at D1, Sardar Nagar, Delhi was on rent. I am of the opinion that in the cross examination PW 1 has admitted that the entire block consisting of D1/2 to D1/ 6 are commercial in nature. The aforesaid Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 13 of 19 rent receipts mention the word "shop" giving the indication that the tenanted premises was commercial in nature and as such, I am of the opinion that the plaintiffs have miserably failed to prove on record that the tenanted premises was let out to Sita Ram for residential purposes only and on the other hand, the defendants have been able to prove on record that the tenanted premises was let out for commercialcumresidential purposes........"
It is in this background that the Ld. Trial Court then concluded that the suit of the appellants (plaintiffs before the Ld. Trial Court) was barred under Section 50 of DRC Act and the tenancy of Late Sh. Sita Ram which was for commercial cum residential purposes had not been validly terminated during his life time and hence concluded above that the appellants before this Court were not entitled for the decree of possession with respect to the suit premises and rightly so.
Coming next to the issues relating to the recovery of Rs.
18,000/ as damages for use and occupation of the premises and the interest thereof, the said issues were again elaborately dealt with by the Ld. Trial Court which I reproduce as under:
"......... In the present suit the plaintiffs have claimed for recovery of Rs.18,000/ as damages for use and occupation of the suit premises @ Rs.500/ per month w.e.f. 01.04.2000 to 30.04.2003 and the interest @ 15% per annum on the aforesaid amount from the date of institution of suit till the date of decree. The plaintiffs have further claimed the damages @ Rs.3000/ per Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 14 of 19 month for use and occupation of the suit premises from the date of institution of suit till the date of decree.
In the Written Statement filed on record by the defendants, it has been submitted that in the year 1996 the rate of rent was Rs. 45/ per month and in the year 1985 when additional accommodation was also let out on rent the rate of rent was increased to Rs. 300/ per month. It has been stated further by the defendants that their father had paid the rent till his death and the defendants have taken the stand that they had paid/ deposited the rent @ Rs. 300/ per month up to 31.05.2003 before the filing of the present false and frivolous suit.
So far as rate of rent is concerned, it has to be seen that the plaintiffs have themselves filed on record the copy of the orders dated 05.03.2002 passed by Sh. V.K. Bansal, Ld. ARC, Delhi in eviction petition no. E 140/90 as Ex. PW 1/10. The para no. 15 of the aforesaid judgment Ex. PW 1/10 reads as under :
"I have gone through the rent agreement and on the face of it, it appears that it has been type written on two different occasions or on two different typewriters. There are certain additions in that also and certain lines have been introduced in between the lines. It is more significant that all these additions are made on the point where it is shown that rate of rent is increased to Rs. 500/ and in the circumstances, in my opinion, this document does not inspire confidence. It is not safe to base reliance on a document which is shadowed by manipulations, additions and therefore, I am of the considered opinion that the rent remained Rs. 300/ only and not Rs.
Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 15 of 19 500/ p.m."
Going by the aforesaid findings recorded by the Ld. ARC and in the absence of any more evidence led by the plaintiffs on this aspect of the matter, I am of the opinion that rate of rent was Rs. 300/ and not Rs.500/ per month as claimed by the plaintiffs in the present suit.
Now coming to the controversy as to whether the rent stand paid up to May 2003 or as to whether the defendants are in arrears of rent w.e.f. 01.04.2000 to 30.04.2003. The defendants have proved on record the certified copy of the order dated 04.07.2003 as Ex. DW 1/2 passed in a petition u/S 27 DRC Act covering the rent w.e.f. July 2003 @ Rs. 300/ per month. The defendants have further placed on record the certified copy of the order passed by Sh. Sanjay Sharma, Ld. ARC as Ex.DW1/3 in petition u/S 27 DRC Act and the certified copy of the orders dated 30.05.2003 passed by the court of Sh. V.K. Bansal as Ex.PW1/4 in a petition u/S 27 DRC Act, and the certified copy of the orders dated 12.09.2003 as Ex.PW1/5 covering the rent for the period 01.02.2003 to 31.03.2003 and the certified copy of the orders dated 21.11.2003 as Ex.PW1/3 in a petition u/S 27 DRC Act covering the rent w.e.f. 01.04.2003 to 31.05.2003. All the aforesaid certified copies of the orders are in the petitions u/S 27 DRC Act.
I am of the opinion that the perusal of all the aforesaid orders lead to the conclusion that rent was deposited by the defendants in that petitions before the Rent Controller u/S 27 DRC Act and as such the plaintiffs have failed to prove on record that the defendants are in arrears of rent......."
It is in this background that the Ld. Trial Court held that the Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 16 of 19 appellant was not entitled to any recovery of damages as claimed being rank trespassers themselves.
Ld. Counsel for the appellant has not been able to specifically highlight any illegality in the said order which is a detailed speaking order and I find no reason to substitute my view with that of the Ld. Trial Court for the following reasons:
➢ Section 50 of the DRC Act bars the jurisdiction of Civil Court in respect of certain matters does not in any way discriminate between a so called statutory tenant and a contractual tenant. The Act proceeds to treat both alike and hence the jurisdiction of civil court is barred under Section 50 of DRC Act.
➢ The legal heirs and legal representatives of the tenants step into his position and they are entitled to the benefit and protection of the Act, whether the place is residential or commercial.
➢ It is a settled principle of law that if the tenanted premises is commercial, then the termination of the tenancy does not create any hurdle in inheritance of the tenancy by the LRs of the contractual tenant.
➢ The relationship between the landlord and the tenant survives even after termination of tenancy of the contractual tenant (though there is no termination of tenancy in the present case in hand) and hence the jurisdiction of the civil Court is barred under Section 50 of DRC Act [Ref: Smt. Gian Devi Vs. Jeewan Kumar & Ors. reported in 27 Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 17 of 19 (1985) DLT P 640].
➢ The defendants/ respondents have examined two witnesses i.e. defendant no.1 Anil Kumar as DW1 and an independent witness Narender Kumar Sharma (DW2) and nothing much has come out of their crossexaminations. Rather, the defendant no.1 has proved the notice dated 7.9.1987 vide Ex.DW1/1 received by them which establishes the additions in para 6 of the notice.
➢ Perusal of the notice dated 7.9.1987 which is Ex.PW1/11 shows that some additional were made in para no.6 later on and apparently this being a forgery by the plaintiff/ appellant cannot be ruled out because the respondents had placed the original notice dated 7.9.1987 on record as Ex.DW1/1 which revealed that the sentence "Your tenancy is hereby determined your are to handover premises on or before 30.9.1987" appears to be added later on and hence there was no termination of the tenancy of the Late Shri Sita Ram in the original notice Ex.DW1/1.
➢ The plaintiff/ appellant Daryodh Singh (PW1) in his affidavit of evidence exhibited certain documents relating to some other case which are Ex.PW1/2 to Ex.PW1/4, Ex.PW1/6 to Ex.PW1/9, PW1/11 and Ex.PW1/12 which were duly objected to by the defendants/ respondents either not being pleaded in the plaint (pleadings) or not being proved as per Evidence Act and therefore all Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 18 of 19 these documents cannot be considered in terms of the provisions of Order 6 Rule 1 and Sections 61, 62, 65 and 68 of Evidence Act.
[Reference in this regard is made to the cases of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal reported in (2003) 8 SCC 745, Sudhir Engg. Co. Vs. Nitco Roadways reported in 1995 RLR 286 and Pritpal Singh Vs. Ranjit Rai & Ors. reported in (25 DLT (1984) Page 462].
In view of the aforesaid, I find no illegality in the judgment/ decree dated 19.1.2010. The appeal is hereby dismissed. Trial Court Record be sent back along with the copy of this order.
Appeal file be consigned to Record.
Announced in the open court (Dr. KAMINI LAU) Dated: 9.4.2015 ADJII(CENTRAL)/ DELHI Daryodh Singh & Ors. Vs. Anil Kumar & Ors., RCA No. 128/13 Page No. 19 of 19