Delhi District Court
Shri Sushil Garg vs M/S Kausar Properties Pvt. Ltd on 11 October, 2007
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IN THE COURT OF RAJIV MEHRA
ADDL. DISTRICT JUDGE: DELHI.
RCA 4/06
Shri Sushil Garg
S/o Late Shri A.D. Garg
R/o 17-A, Bela Road
Civil Lines
Delhi - 110 054 ......Appellant
VERSUS
1. M/s Kausar Properties Pvt. Ltd.
Flat No.36, Khan Market
New Delhi - 110 003
2. Shri Adnan Hassan Kidwai(since deceased)
S/o Late Shri H.K. Kidwai
R/o 112, Anand Lok
New Delhi - 110 049
3. Shri Shiv Sachdeva
S/o Shri Raj Sachdeva
R/o C-121, Defence Colony
New Delhi - 110 024 ......Respondents
Date of hearing the Arguments : 08.10.2007.
Date of passing the Order : 11.10.2007.
ORDER
This order will dispose of the appeal preferred against the impugned judgment decreeing the suit of the plaintiff for possession, arrears of rent, damages and occupation charges with respect to shop no.36 B situated in Khan Market, New Delhi. 2 The trial could passed a decree for recovery of the possession of this shop to the plaintiff and further held that plaintiff is entitled to get a decree of Rs.24,000/- on account of arrears of rent w.e.f. 1.7.88 to 31.12.88 and Rs.1,38,000/- on account of mesne profits/damages @ 6000/- pm for the use and occupation of the suit shop w.e.f. 1.1.79 to 30.11.90 and also mesne profits for use and occupation of the shop w.e.f 1.12.90 onwards till the possession of the suit shop is given to the plaintiff alongwith pendente lite and future interest @ 12% and cost of the suit.
2. The facts of the case are that Wing Commander P.K. Shastri (Retired) was the owner of the suit property known as Shop No.36, Khan Market, New Delhi (hereinafter to be referred as suit property) which was let out by him to the three defendants in the suit on 1.1.1986 for a period of three years w.e.f. the said date for running "Kabachi Restaurant" in partnership at Rs.4000/- pm as rent vide agreement of lease dated 1.1.86. By notice dated 1.12.88 Wing Commander P.K. Shastri terminated the tenancy and asked the defendants to vacate the suit property and also to clear the arrears of rent. As 3 defendants did not comply with the notice, Sh. P.K. Shastri filed the suit for recovery of possession, arrears of rent and damages.
3. During pendency of suit P.K. Shastri expired and his Lrs were brought on record. During the proceedings itself Lrs of the deceased plaintiff sold the suit property to M/s Kausar Properties Pvt. Ltd. respondent no.1 in this appeal and name of the company was substituted as plaintiff on records. The new plaintiff filed the amended plaint and incorporated the consequential amendments.
4. Defendant no.1 & 3 filed the WS in the trial court. The case was contested only by defendant no.3 who is the appellant herein. Defendant no.2 was exparte. Defendant no.1 who is respondent no.2 herein had admitted the claim of the plaintiff (respondent no.1 herein). It was the stand of the defendant no.3 in the written statement that he is in actual possession of the suit property after the dissolution of the partnership of three defendants in the year 1989. This fact has also been admitted by defendant no.1.
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5. In written statement filed by defendant no.3 before the trial court the preliminary objection was raised that monthly rent of the suit premises is Rs.400/-. The defendant no.3 is statutory tenant protected under the Delhi Rent Control Act. The jurisdiction lies with the Rent Controller alone. This defendant had however admitted the receipt of the notice terminating the tenancy and it was alleged that the owner could not terminate the tenancy by this notice as after the expiry of the contractual tenancy this defendant has become a statutory tenant in the suit property.
6. On the pleadings of the parties the following issues were framed on 11.4.2001 :-
ISSUES
1. Whether the suit has been signed, verified and filed by a duly authorized person? OPP
2. Whether the plaintiff is entitled to recover the possession of the shop no. 36 B, Khan Market, New Delhi? OPP 5
3. Whether the plaintiff is entitled to recover the arrears of rent of Rs.24,000/- for a period w.e.f. 1.7.1988 till 31.12.1988? OPP
4. Whether the plaintiff is entitled to recover the damages/mesne profits amounting to Rs.1,38,000/-
w.e.f. 1.1.1989 to 30.11.90? OPP
5. Whether the plaintiff is also entitled to recover the damages for use and occupation of the premises @ Rs.6000/- per month w.e.f. 1.12.1990 onwards? OPP
6. Whether the Civil Court has no jurisdiction to entertain and try the present suit being barred by the provisions of Rent Control Act? OPD
7. Whether the rate of rent of the suit premises is Rs.
400/-pm as pleaded by the defendant? OPD
8. Relief.
7. The plaintiff in the suit filed the affidavit of the evidence of his Director Sadeep Sandhu and examined him as PW1. Plaintiff also examined B.L. Nirwan LDC L & DO, 6 Nirman Bhawan, New Delhi and Adnan Hasan defendant no.1 as PW2 and PW3 and also examined Draftsman Bal Kishan Chauhan as PW4. The contesting defendant no.3 examined himself as a witness of his case. The trial court recorded the findings on all the issues in favour of the plaintiff and passed a judgment and decree accordingly. Hence this appeal by defendant no.3 who has impleaded the plaintiff as respondent no.1 and other two defendants as respondent no.2 and 3 in this appeal. Notice of this appeal was issued to the respondents. Reply has been field by the plaintiff/respondent no.1. TCR was summoned.
8. The challenge to the appeal and judgment and decree has been made amongst others on the ground which are as follows:-
1. Suit was abated after the death of original defendant no.1 Sh. Adnan Hasan Kidwai before passing of the judgment and no decree could have been passed without including his Lrs.
According to the counsel share of the deceased defendant was indivisible and the decree in absence of his Lrs in the suit is a 7 nullity.
9. The counsel has relied upon the judgment State of Punjab V. Nathu Ram AIR 1962 SC 89. It was held in this case that Order 22 Rule 4 CPC does not provide for the abatement of the appeal against the co-respondent of the deceased respondent. The only question is whether the appeal can proceed against them. It was held that the provisions of Order 1 Rule 9 CPC also show that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. It was held that the question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. Held that it may however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this 8 question are whether the appeal between the appellant and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent ; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court and
(c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.
10. To the similar effect the other judgment relied by the counsel of the appellant which have been reported in the matter 9 of State of Hyderabad V. Mohd. Afzal AIR 1968 AP 47 where during pendency the death of the two respondents had taken place and it was held that the whole appeal abates applying the test laid down in the judgment of State of Punjab V. Nathu Ram (Supra), upon Innasi Udayar V. S. Chinnaswami AIR 1969 Madras 428 in which two of the appellants had died during the pendency of the appeal and legal heirs of them were not replaced it was held that decree being joined and individual and once appeal has been abated against one or more of the appellants, appeal by other appellants could not be proceeded with. The court held that it cannot be said that there is a class of suits like suit for declaration, for possession and specific performance to which this principle does not apply. There is no scope for such general classification. To a particular case whether this principle will apply or not will depend upon the cause of action, the nature of the relief claimed and the nature of the decree granted, upon Ramesh Chand V. Sant Kumar AIR 2003 HP 66 where two decrees against two defendants were joined and inseparable and because of the death of one of the 10 defendant it was held that appeal file against the decree would abate qua other defendant also since if appeal against surviving defendant is allowed it would result in conflicting decrees, upon T. Raju Setty V. Bank of Baroda AIR 1992 Karnatka 108 in which the suit was filed against principle debtor and sureties and suit was abated against principle debtor. It was held that it abates altogether, upon Satya Narain V. Laljee AIR 1973 Patna 164 where it was held that where from the plaint it cannot be said that one of the plaintiff represented the entire family, non joinders of heirs of deceased plaintiff in the appeal proceeding would render abatement of appeal as a whole. He has also relied upon M. S Pearl Sound Engineer Vs. Pooran Chand AIR 1975 Allahabad 207, Babu Sukhram Singh Vs. Ram Dular Singh AIR 1973 SC 204, Damodar Patra Vs. Kanchan AIR 1963 Orissa 140 and Fakir Mohan Vs. Basanti Devi AIR 1978 Orissa 224 wherein it was held that on death of one of the respondents the legal representatives were not substituted then appeal would abate as a whole.
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11. Counsel for the appellant further submitted that alternatively the impugned judgment may be treated as non existent and matter may be remanded back for rehearing to the trial court. In support he has relied upon Satnam Singh V. Mohinder Singh AIR 1975 Delhi 104 and also on Choyyeri Abdulla Vs. Eranchery @ Illath Damodaran Namudari AIR 1972 Kerala 116.
12. On the other hand counsel for the respondent no1/plaintiff has relied upon the judgment in the matter of Badami Lal V. Harshvardhan AIR 1994 Rajasthan 9 which was a case where defendant was exparte and no WS was filed by the defendant and before judgment the defendant had expired and his Lrs were not substituted on record. The passing of the judgment was held proper without replacement of the Lrs of the deceased defendant. The court held that in the said case that defendant Kuri Lal has not at all appeared after service and did not file any WS he was proceeded exparte. In that view of the matter it was not necessary to substitute his legal representatives 12 on his death and the pronouncement of judgment and decree against him has the same force as if the same were pronounced before his death.
13. As it may be seen from the records on this ground deceased Adnan Hasan Kidwai was defendant no.1 in the main suit. He has filed the WS supporting the case of the plaintiff. He has appeared as one of the witness of the plaintiff supporting his case. In written statement it was stated by Adnan Hasan Kidwai that he is not in possession of the suit property after the dissolution of the partnership business which is now in control and possession of the defendant no.3 i.e the appellant herein. The same was the stand of the defendant no.3 in the written statement filed before the trial court. This shows that both defendant no.1 and 3 are unanimous on the point that partnership has dissolved and suit property is in control and possession of the defendant no.3. The defendant no.1 in the written statement has not claimed any right, title or interest in the the suit property. The death of defendant no.1 went unnoticed on record . 13
14. Counsel for the appellant submits that factum of death of defendant no.1 was within knowledge of the plaintiff in the suit but the plaintiff has deliberately not substituted his Lrs on record. In the considered opinion of this court this contention of the counsel of the appellant that plaintiff was aware of the death of the defendant no. 1and despite that has not substituted his Lrs on record would not be of much relevance at this stage. The effect of non substituting the Lrs of the deceased respondent on record in the light of the judgment of the Supreme Court in State of Punjab V. Nathu Ram (Supra ) as relied by appellant himself will not in every case be of abatement of the suit as a whole. As held in that judgment it is a question of the facts to be considered in the light of facts of each case. It may be noted from the record of this case that the deceased defendant in the written statement or through evidence had nowhere claimed any right, title or interest in the suit property and according to the deceased defendant the partnership had dissolved and appellant was having interest and possession of the same. As a result it may be presumed that the deceased defendant has left with no right, title or interest left in the suit property. This is rather the 14 own case of the appellant in the written statement filed by him before the trial court. In view of this factual background since deceased defendant having ceased to have any interest in the suit property which now had devolved upon the appellant, the non substitution of his Lrs would not have any adverse impact in passing of the decree. The reliance may also be placed on a judgment Shahazada Bai V. Halimabi AIR 2004 SC 3942 where it was held that if interest of co defendant is separate the suit will abate only as regards the interest of the deceased defendant. It was held that Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule as held does not provide that by the omission to implead the legal representatives of a deceased defendant the suit will abate as a whole. What was the interest of the deceased defendant in the case whether, he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case.
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15. In view of this legal preposition laid down in the judgment above there is no merit in the first ground raised on behalf of the appellant to the impugned judgment. 2nd GROUND
16. The second ground of appeal is that suit had automatically abated on the death of original plaintiff Wing Commander (Retired) P.K. Shastri and his Lrs were not brought on record to continue with the suit within the prescribed period of limitation.
17. It may be seen from the record of the trial court that vide order dated 22.9.1995 the trial court had allowed the application of the Lrs of the deceased plaintiff to bring them on record in place of the plaintiff deceased. This order was passed within the presence of the defendants.
18. According to the counsel for the appellant since no application for substitution of the Lrs of the deceased plaintiff was filed within the prescribed period of 90 days from the date 16 of death of the plaintiff the suit as a result had abated thereafter automatically and this question may be raised by him in the present appeal.
19. Section 105 CPC is relevant for the answer to this ground. Sub Section (1) of Section 105 CPC reads that save as otherwise provided no appeal shall lie from any order made by a court in the exercise of his original or appellate jurisdiction; but where a decree is appealed from any error, defect, or irregularity in any order, effecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
20. It may be seen that no revision was preferred immediately after passing of the order substituting the Lrs of the deceased plaintiff. Section 105 CPC indicates that for importing the assistance the error, defect etc should effect the decision of the case. Only in a case where the decision is affected, the provision under Section 105 CPC can be invoked with the main appeal to challenge the order passed by the court below as held in Chami Narain V. V.R. Krishna Iyer AIR 1998 Kerala 365. 17 It was held in this case that impleading of party does not effect the merits of the case and Section 105 CPC cannot be invoked. The decision accordingly meets the objection so raised in this appeal to the order of the substitution of the Lrs of the deceased plaintiff, after the expiry of the prescribed period of limitation.
21. The objection of the appellant to the substitution of the transferee of the interest in the suit property as plaintiff who is the respondent no.1 here in this appeal for the similar reason as in ground number two above would also meet with the same fate for the same reasons.
22. The property was purchased by Kausar Properties Pvt Ltd from the legal representatives of the original plaintiff and accordingly his substitution on record vide order dated 11.8.97 allowing the application under Order 22 Rule 10 CPC which was not challenged at that point of time is not open to challenge now in terms of Section 105 CPC. To the same effect is the ratio in the judgment in the matter of Bharosi Sahu V. Manik Chand AIR 1986 Patna 24. It was held in this case that order of the 18 trial court allowing the transferee to be added as a co-plaintiff in the suit did not effect the decision of the case so as to attract the operation of Section 105 CPC.
23. The appellant has not shown in the instant case what prejudice has been caused to him if any by the transfer of Kausar Properties Pvt Ltd on record replacing the Lrs of the original plaintiff. The reliance placed by the counsel of the appellant on Amit Kumar Shaw V. Farida Khatoon III 2005 SLT 705 that no detailed inquiry u/O 22 Rule 10 is required to be made at the stage of granting leave and court would only has to make a prima facie satisfaction were the observations of the Hon'ble Apex Court in the context in the said case but would not be of any help to the appellant in the instant case.
24. The judgment has also been challenged on the ground that relinquishment deed dated 23.11.1994 Ex.PW1/7 executed by Sh. Pardeep Shastri through alleged attorney has not been proved in accordance with law and also sale deed dated 19 27.10.1995 Ex.PW1/8 executed on behalf of Smt. Sharad Shastri by her attorney in favour of the respondent no.1 in this appeal could not have been validly executed and the same has not conferred any title qua the premises in suit upon the respondent no.1 M/s Kausar Properties Pvt Ltd. For the similar reasons the challenge has also been made to the mutation of the property in favour of respondent no.1 by Land and Development Office.
25. In view of the fact that the appellant being a tenant in the property he has no locus to challenge the validity to the execution of relinquishment deed or sale deed or to the mutation as above. The objection has no merit and is rejected.
26. The challenge has also been made on the ground that resolution authorising Sh. Sadeev Sandhu to prosecute the matter for and on behalf of Kausar Properties Pvt Ltd has not been proved in accordance with law and it could not be said that amended plaint has been signed, verified or instituted for and on behalf of the company by a duly authorized person. It may be 20 seen from the record of the trial court that issue no.1 was to the effect whether the suit was signed, verified by a duly authorized person. Sudeep Sandhu was examined as PW1 before the trial court. He had made a statement on oath that he is the director of the plaintiff company. He had brought the minute book. He had proved the copy of the resolution as Ex.PW1/1 which was showing that in the board meeting of the plaintiff company held on 22.1.1996 it was resolved that Sadeep Sandhu is authorized to sign and verify the suit. It was further stated by Sh. Sadeep Sandhu that amended plaint is signed and verified by him.
27. Order XXIX Rule 1 of the CPC provide that in suit by or against a Corporation any pleading may be singed or verified by and on behalf of the corporation by the secretary or by any director or any other principle officer of the Corporation who is able to depose to the facts of the case.
28. In the present case there is no challenge that PW1 was not a director. He was authorized by the board of directors of the plaintiff company. There is no cross examination of PW1 21 by defendant no.3 who is appellant herein that copy of the board resolution was not authentic. No inquiry was made who were the other directors present in the board meeting held on 22.1.1996. There is a sufficient compliance to the requirement of Order 29 Rule 1 CPC and any challenge on the point of authority to sign or verify the plaint is not sustainable on facts as well as under the law.
29. The objection that M/s Kausar Properties Pvt Ltd or Mr. Sadeep Sandhu has no authority to continue with the suit is without substance on facts and law. M/s Kausar Properties has purchased the suit property vide sale deed dated 27.10.1995 Ex.PW1/8. The company was transferee in the right, title or interest of the suit property and has every right to continue with the suit and rather it was the company alone in view of this fact situation had got such right to continue the contest and none else.
30. One of the challenge to the judgment is that in para 5 of the sale deed Ex.PW1/8 the defendants were shown as a contractual tenant upto 31.12.1991 which was a date subsequent 22 to the filing of the suit.
31. It may be seen from the record that original plaintiff Sh. P.K. Shastri had served the defendants with a legal notice dated 1.12.1988 during his lifetime terminating the tenancy of the defendants including the appellant and after that the present suit was filed. Sh. P.K. Shastri expired during the pendency of the case and his Lrs were substituted on record. As it may be seen Lrs had transferred the property to M/s Kausar Properties Pvt. Ltd and the said company was thereafter brought on record.
32. In view of this factual background it may be seen shat M/s Kausar Properties were contesting the case as initiated by Sh. P.K. Shastri on the same facts and records in which Sh. P.K. Shastri has terminated the tenancy of defendants including appellant on 31.12.88. The mention of the date of tenancy upto 31.12.1991 in para 5 of the sale deed is only a clerical error and nothing more and be of no benefit to the case of the appellant.
33. The other challenge to the impugned judgment is 23 on the ground of rate of rent, which as per the claim of the plaintiff in the suit was 4000/- pm whereas appellant says it is Rs.400/- pm. The defendant no.3 in the written statement has submitted that rate of rent was Rs.400/- and issue no.7 was accordingly framed to the effect whether the rate of rent of the suit premises is Rs.400/- as pleaded by the defendant (OPD). The trial court returned the finding on this issue against the defendant no.3 i.e. appellant herein.
34. The challenge has been made to this finding of the trial court on the grounds that :-
(i) The evidence to prove this issued before the trial court was hearsay;
(ii) The original plaintiff having died during the pendency of the case neither his Lrs, nor anybody who have been a witness to the negotiations between the landlord and tenant at the time of inception of tenancy was produced to prove what was the contractual rate of rent.
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(iii) There was no mention of the rate of rent in quick notice dated 1.12.88 Ex.PA.
(iv) The trial court erred in placing reliance upon the resolution of NDMC which was passed much after the institution of the suit and even after the death of the original plaintiff.
(v) The evidence of PW1 on this point was no evidence.
(vi) That the trial court erred in relying upon the lease deed dated 1.1.1986 when this document was inadmissible in evidence as it was neither stamped nor registered.
(vii) That after the dissolution of partnership the suit property had fallen to the share of the appellant and for that reason the other defendants in the suit were colluding with the plaintiff i.e. Respondent no.1 herein so as to oust the appellant from the suit property.
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35. The lease deed dated 1.1.1986 Ex.PW1/2 is at the center stage of the controversy. It was an unregistered lease deed. However, as it may be notice it was the first document by which the original plaintiff Sh. P.K. Shastri had inducted the defendants as tenant in the suit property. In this lease deed Ex.PW1/2 the rent per month was typed Rs.4000/- in figure but while typing in words the hundred was typed. As may be seen this error was corrected by putting initials by cutting the word hundred and writing thousand by the parties in the suit. The appellant seems to be taking advantage of this typing mistake.
36. To support that rent was Rs.4000/-pm and not Rs.400/-pm the statement of Adnan Hasan defendant no.1 in the suit and who was one of the three partners is also relevant. Sh. Adnan Hasan was examined before the trial court by the plaintiff/respondent herein as PW3 and he stated on oath that rent was Rs.4000/- pm. He has further explained in his statement on oath about the initial writing of Rs.400/- in words instead of 4000/- which according to him was a typographical 26 error and the same was corrected at the time of signing by P.K. Shastri then and there and initials of the three partners were also put against the said correction. There is no cross examination of PW3 that rent was not Rs.4000/- and because of his colluding with the plaintiff he is saying so. This unrebutted statement of the PW3 thus supports the lease deed Ex.PW1/2 that rent of the suit property was Rs.4000/- and not Rs.400/- per month. In the presence of Ex.PW1/2 and the statement of PW3 on record the objection of the appellant that there is no evidence to prove the rate of rent is without basis.
37. So far as the question that PW1/2 could not be seen for the want of deficient stamp and registration, it has been held in the matter of Javer Chand Vs. Pukhraj Surana AIR 1961 Supreme Court 1655 that once a document has been marked as an exhibit in the case and has been used by the parties in cross examination of their witnesses Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence as aforesaid it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such 27 an order is not one of those judicial order which are liable to the reviewed or revised by the same court or a court of superior jurisdiction. Accordingly this judgment would meet the objection of the counsel for appellant so far as the lease deed Ex.PW1/2 being deficiently stamped.
38. On the question of whether this lease deed Ex.PW1/2 which is an unregistered lease deed can be looked into in evidence, it was held in Dr. Chander Mohan Arora V. Sunil Jain 111 (2004) DLT 462 DB that even if the lease deed is unregistered still it could have been looked into by the court for collateral purpose i.e. for determining the agreed rate of rent and other terms and conditions. It was held in Raichand Jain Vs. Chanderkanta Khosla AIR 1991 SC 744 that unregistered lease deed can be looked into for collateral purpose.
39. The appellant on the other hand has relied on the judgment of the Hon'ble Supreme Court in the matter of Bajaj Auto V. Bihari Lal AIR 1989 SC 1806 where it was held that 28 whether a lessee is entitled to create a sub lease or not is undoubtedly a term of the transaction of lease. If document is inadmissible for non registration, all its terms are in admissible including the one dealing with landlord's permission to his tenant to sublet. He has also relied upon the judgment of our own High Court in M/s Dayagen V. Union of India 1994 III AD (Delhi) 1479 where unregistered lease deed was not allowed to be taken for any purpose including to prove the rate of rent. He has relied upon the judgment in Harbans Singh V. Tekamani Devi & Ors. AIR 1990 Patna 26. He has also relied upon Sardar Amar Singh Vs. Surender Kaur 1975 MP 230 and on Chandrawati Vs Laxmi Chand AIR 1988, Delhi 13. It was held in this case that unregistered document of partition is not admissible in evidence to prove any of its terms contained in the document.
40. In view of the judgment of the Division Bench of our own High Court as relied upon by the respondent (supra) and which is directly touching the point in question and also in view 29 of the judgment of the Supreme Court that for collateral purpose unregistered lease deed can be examined, there is no infirmity in the order of the trial court taking into account the lease deed for the purpose of determination of the rate of rent being Rs.4000/- per month. Even judgments relied upon by the counsel of the appellant himself in AIR 1975 MP 230 and in AIR 1990 Patna 26 also admits that for collateral purpose unregistered lease deed can be looked into and in both these cases the collateral purpose was the nature and character of possession of the tenant.
41. Even apart from the above evidence taken into account by the trial court for reaching to the conclusion that rate of rent was Rs.4000/-pm the bank statement of the defendant firm proved as Ex.PW1/9 showing the receipts of few of the cheques total amounting to Rs.17,000/- for the month of July, 1987, August 1987, September 1987 and January 1988 made through four cheques is the another important piece of evidence and has been rightly taken into consideration by the trial court. This document Ex.PW1/9 itself would disprove the contention of the appellant that rent was Rs.400/- per month because by this 30 rate the total amount of rent for three years would come to Rs.14,400/- only and whereas the four payments as aforesaid totaling Rs.17,000/- as shown in Ex.PW1/9 exceed to the amount of rent for the entire period of three years as claimed by the appellant. The appellant has not been able to prove any books showing payment of rent. He has not been able to produce any document ever submitted by the appellant to any independent department showing that rate of rent was Rs.400/- per month as claimed by him. Then moreover, the appellant himself has accepted in cross-examination as correct that Sh. P.K. Shastri has not issued to him any rent receipt showing that rent was Rs.400/- per month nor this receipt was issued by him to any of the other two defendants. Then at the same time the appellant has evaded the reply to the question by submitting that he cannot tell the date, month and the year when he paid the rent of the suit shop first time. The appellant has produced the receipt Ex.DW3/B dated 15.09.1988. This receipt canceled the previous temporary receipt dated 10.08.1988. The receipt dated 10.08.1988 was not produced by the appellant himself copy of which has been put mark A which reads "received from Sushil 31 Garg (appellant) partner Kabachi restaurant 36B Khan Market Rs.4000/- on 27.07.1988 and Rs.4000/- on 08.08.1988 as part payment of rent. It may be noted that these two payments made on 27.07.1988 and 08.08.1988 have not been shown in bank statement Ex.PW1/9 and at the same time it also confirms that the rent was also being paid in cash. Accordingly this establish that amount paid to Sh. P.K. Shastri from the bank statement by cheques and from the receipt Ex.DW3/B dated 15.09.1988 in cash comes to Rs.29,000/- (i.e. 17,000/- through bank statement ExPW1/9 + Rs.12,000/- through Ex.DW3/B). This further supports that rent was Rs.4,000/- as claimed by the plaintiff/respondent no.1 herein.
42. The copy of the lease agreement produced by the appellant on record which is Ex.DW3/A bears the same typographical error as appears in the original lease deed except that there is no correction in ink and for that reason there is no initials of the parties. This rather would support more the case of the plaintiff/respondent no.1 than of the appellant. The reliance also been placed on the document Ex.PA which is a certified 32 copy of the resolution of the NDMC in which the rate of rent was mentioned as Rs.4000/-. It cannot be said that there was any error on the part of the trial court to take into account this document at the time of consideration of the question of the rate of rent of the suit property. The house tax challan being bill no.23-A/66 dated 09.08.1989 showing that Rs.97/- were paid as house tax in the year 1989-90 for the suit property by Sh. P.K. Shastri and which has been proved as Ex.PW3/F would not be of any help to the case of the appellant as this document nowhere shows what is the rate of rent in the suit property. Similarly the deposit of the rent @ Rs.400/- per month before rent controller vide treasury challan Ex.DW3/D will not be of any help to the case of the appellant. Section 29 of DRC Act provides that even the withdrawal of this rent deposited u/s 27 DRC Act shall not operate as an admission against the person withdrawing it for the correctness of the rate of rent, the period of default, the amount due or any other facts stated in the application for deposit of rent.
43. For the foregoing reasons there was no error in the 33 finding recorded by the trial court on the fact that rent of the suit property was Rs.4000/- per month and not Rs.400/- per month as pleaded by the appellant.
44. Next challenge to the judgment is that notice to quit dated 01.12.1988 Ex.PW1/3/mark A was no notice in the eyes of Law and it was not complying with the requirement of Section 106 Transfer of Property Act. It has been submitted that tenancy of the appellant was not validly terminated in terms of the said notice and the same was not proved in accordance with law. It has also been pleaded that this notice was never acted upon and it stood waived inter alia by delay on part of original plaintiff- landlord Sh. P.K. Shastri in as much as the suit was instituted by the original plaintiff/landlord only on 15.01.1991 i.e. More than 2 years after the issuance of notice.
45. The receipt of the notice was not disputed. There was no issue framed on this point by the trial court as sought to have been raised now. The plea of waiver of notice is a mix question of facts and law and the appellant cannot be allowed to raise the 34 same in the first appeal. As per the requirement of Section 106 T.P Act the 15 days notice was required to be served. The notice in this case was dated 01.01.1988 requiring the defendants to vacate the suit premises as lease was expiring w.e.f. 31.12.1988. The plaintiff in the suit has proved the notice and also the postal receipts and nothing more was required to be done on his part. For the similar reasons the plea that the appellant was a tenant by holding over after the expiry of the lease has to be rejected as it is a mixed question of facts and Law and there was no such plea in the WS and than moreover there was no such evidence on this point.
46. In view of the discussion there is no merit in either of the grounds in this appeal. Same is dismissed. Ordered accordingly. TCR be sent back alongwith the copy of this order. Appeal file be consigned to record room.
Dictated and announced in the open Court on 11.10.2007.
( RAJIV MEHRA ) ADDL. DISTRICT JUDGE: DELHI 35