Delhi District Court
Rahul Vig vs Mamta Jain on 7 October, 2024
IN THE COURT OF CIVIL JUDGE-01, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Aakash Mohan Singh, DJS
Civil Suit No: 8636/2016
Sh. Rahul Vij
Prop. of M/s. Viz. Auto Store,
K-45, Green Park, New Delhi. ...Plaintiff
Versus
Smt. Mamta Jain
W/o Sh. Rakesh Jain,
R/o 233, Double Storey,
Kabool Nagar, Shahdara,
Delhi-110032. ...Defendant
SUIT FOR DECLARATION, MANDATORY
INJUNCTION, PERMANENT INJUNCTION
AND DAMAGES.
DATE OF INSTITUTION : 26.05.2012
DATE OF ARGUMENTS : 05.10.2024
DATE OF DECISION : 07.10.2024
JUDGMENT
1. The plaintiff has filed this suit against the defendant, seeking reliefs of declaration, mandatory injunction, permanent injunction and damages. The plaintiff, in the present suit, has pleaded in the following terms: -
"(a) It is also prayed that a decree of permanent injunction may kindly be passed in favour of the plaintiff and against the defendant her associates, legal heirs, agents and representative as well as anybody from her behalf thereby restraining them to create any third party interest or to handover the possession of the above noted tenanted premises i.e. Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.1 of 26 property No.1/702, Loni Road Chowk, Shahdara, Delhi-110032, which is shown in the site plan attached herewith.
(b) It is also prayed that a decree of declaration in favour of the plaintiff and against the defendant, her associates, legal heirs, agents and representative as well as anybody from her behalf thereby declaring that the action of the defendant in neither reconstructing the tenanted portion to it's original position nor permitting the plaintiff to reconstruct the same is unjustified and illegal and the defendant is liable to pay damages in this regard.
(c) It is therefore, most respectfully prayed that a decree of mandatory injunction may kindly be passed in favour of the plaintiff and against the defendant thereby directing the defendant to reconstruct the tenanted portion belonging to the plaintiff bearing property no.1/702, Loni Road Chowk, Shahdara, Delhi-110032 to its original position as shownin red colour in the site plan attached herewith.
(d) It is also prayed that a decree for a sum of Rs.1,04,000/- (Rs. one lac four thousand only) may kindly be passed in favour of the plaintiff and against the defendant her associates, legal heirs, agents and representative as well as anybody from her behalf thereby directing the defendant to pay the above amount towards damages to the plaintiff, in the interest of justice.
Any other relief/order that this Hon'ble Court may deem fit and proper may also be granted/passed in favour of the plaintiff and against the defendant."
Plaint
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has inter-alia pleaded in the plaint of the present suit that the plaintiff is a tenant in respect of a godown situated in property no.1/702, Loni Road Chowk, Shahdara, Delhi-110032 at a monthly rent of Rs.70/- since the last more than 36 years; that initially, the suit property was let out Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.2 of 26 by Smt. Shanti Devi to the father of the plaintiff for commercial purpose but after her death, Sh. Narender Kumar started receiving the rent from the plaintiff; that the said Sh. Narender Kumar had sold out the suit property to the defendant; that in the year 2008, Sh. Rakesh Jain, husband of the defendant had filed a suit for permanent and mandatory injunction against the plaintiff for dispossessing the plaintiff from the suit property, however, vide Order dated 06.05.2010, the then Ld. Civil Judge had granted the injunction in favour of the plaintiff herein; that the suit property is an old property and is in dilapidated condition and needed repair work; that the plaintiff had filed a petition under Section 44 of the DRC Act against the defendant; that during pendency of that suit, the plaintiff in collusion with the MCD demolished the suit property on 04.08.2011 after getting it declared dangerous and thereafter, vide Order dated 30.09.2011, the Hon'ble Court had disposed off the said petition; that since then, the defendant intentionally not carrying any repair work; that the plaintiff is not able to use the suit property; that the plaintiff has also served a legal notice dated 31.10.2011 upon the defendant thereby calling her to reconstruct the suit property; that the plaintiff has suffered a loss of about Rs.6000/- per month which comes to Rs.54,000/- w.e.f. August 2011; that the plaintiff has also suffered mental harassment for which the plaintiff claims Rs.50,000/- towards damages in this regard and that the plaintiff has filed the present suit.
Written Statement
3. Upon service of summons for settlement of issues of this suit, the present suit has been contested by the defendant. In order to defend the present suit, the defendant has inter alia pleaded in her written Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.3 of 26 statement that the plaintiff has no locus standi to file the present suit as there is no relationship of landlady and tenant between the parties; that the plaintiff had filed a suit before the Court of Sh. N.K. Malhotra, the then Ld. Civil Judge wherein the defendant was not a party although the suit was related to the suit property; that the petition of the plaintiff under Section 44 of the DRC Act was dismissed by the Court as the building in question was not in repairable condition; that the plaintiff had also filed a suit against the MCD wherein the defendant has been impleaded as the defendant no.4 but the question of relationship of landlord and tenant is yet to be decided by the said Court; that at the time of purchase of the suit property, the plaintiff was nowhere as the suit property was in dilapidated condition and the previous owner has given the suit property to the defendant as vacant property; that the suit property has already been demolished by the previous owner before selling it; that on the basis of old rent receipts, the plaintiff wants to grab the suit property; that the present suit is barred under Order II Rule 2 of the CPC as the plaintiff has already filed a suit on the same cause of action; that the portion which has been demolished by the MCD has the value of more than Rs.25 lacs and this Court has not jurisdiction to entertain the present suit; that the plaintiff has not placed any documentary proof in support of his business loss and therefore, the defendant is not liable to pay any damages to the plaintiff and that the present suit is liable to be dismissed.
Replication
4. In the replication, the plaintiff has traversed the contents of the written statement of the defendant, made the necessary denials and reiterated the contents of the plaint.
Civil Suit No.8636/2016Sh. Rahul Vij v Smt. Mamta jain Page No.4 of 26 Issues
5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 29.01.2013-
"1. Whether the plaintiff has no locus standi to file the present suit as no relationship of landlord- tenant exists between the parties qua the suit property? OP parties
2. Whether the present suit is barred u/O 2 R 2 CPC? OPD
3. Whether the present suit of the plaintiff is bad for misjoinder/non-joinder of the necessary parties? OPD
4. Whether the plaintiff is entitled to the decree of permanent injunction as prayed" OPP
5. Whether the plaintiff is entitled to the decree of declaration as prayed? OPP
6. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed? OPP
7. Whether the plaintiff is entitled to the decree of damages of Rs.1,04,000/- as claimed? OPP
8. Relief."
Plaintiff Evidence
6. During the course of trial, three witnesses viz. PW1 Sh. Rahul Vij, PW2 Sh. Trilok Raj Chitkara and PW3 Sh. Bharat Bhushan have been examined in support of the case of the plaintiff.
7. In order to prove his case, the plaintiff has examined himself as PW1. PW1 Sh. Rahul Vij has tendered his evidence by way of affidavit, Ex.PW1/A and relied upon the documents viz. photocopy of site plan Mark A, certified copy of order dated 30.09.2011 Ex.PW1/2, photocopy of legal notice dated 12.12.2011 Mark B, rent receipts Ex.PW1/5 (colly), challan Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.5 of 26 dated 16.07.2010 issued by the MCD Ex.PW1/6, electricity bills Ex.PW1/7 (colly), copy of order dated 06.05.2010 passed in CS No.131/2009 Ex.PW1/8, certified copy of kalandara prepared in this matter along with statement and other proceedings Ex.PW1/9 (colly), legal notice dated 12.12.2011 Mark PW1/10, reply dated 19.12.2022 Ex.PW1/11, certified copy of order dated 29.10.2010 Ex.PW1/12, receipts against deposit of rent before the ARC Ex.PW1/13 (colly).
8. PW2 Sh. Trilok Raj Chitkara and PW3 Sh. Bharat Bhushan have tendered their evidence affidavits as Ex.PW2/A and Ex.PW3/A respectively.
9. PW4 Sh. Babu Shankar Yadav, Asstt. Personal Officer, BYPL (D), G.T. Road, Dilshad Garden, Delhi had submitted that despite best efforts, the summoned record is not traceable in their department.
Defence Evidence
10. In support of the case of the defendant, the defendant has examined four witnesses viz. DW1 Sh. Rakesh Jain, DW2 Sh. Rajender Gupta, DW3 Sh. Rakesh Sharma and DW4 Sh. Krishan Kumar. The testimonies of the aforesaid witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.
11. The defendant in order to prove her defence has examined her SPA holder Sh. Rakesh Jain as DW1. DW1 Sh. Rakesh Jain has tendered his evidence by way of affidavit, Ex.DW1/A and relied upon the documents viz. certified copy of special power of attorney, Ex.DW1/1, Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.6 of 26 certified copy of proceedings in civil suit, Ex.DW1/2, summons of that petition, Ex.DW1/3, certified copy of civil suit, Ex.DW1/4, photographs, already exhibited as Ex.PW1/D1 (colly) and photocopy of award no.1/2008-2009, Mark B.
12. DW2 Sh. Rajender Gupta has tendered his evidence affidavit as Ex.DW2/A.
13. DW3 Sh. Rakesh Sharma has not brought the summoned record viz. documents qua demolition of the suit property, however, he has brought the documents downloaded from the online database with respect to the file of the suit property Ex.DW3/1(colly).
14. DW4 Sh. Krishan Kumar, Kanungo from the Office of ADM/LAC, Distt. Shahdara, Nand Nagri, Delhi has brought the summoned record viz. certified copy of Award No.01/2008-09/East Village Chandrawali @ Shahdara along with position report Ex.DW4/A(OSR)(36 pages).
Final Arguments
15. In order to adjudicate upon this suit, I had heard Sh. Mayank Mahendru, Ld. Counsel for the plaintiff and Sh. M.L. Sharma, Ld. Counsel for the defendant, on 05.10.2024. Ld. counsel for the plaintiff has argued that the present suit is liable to be decreed on the ground that the plaintiff has proved her statutory tenancy and possession in the suit property prior to the demolition of the tenanted premises by the MCD and in view of the settled law that the tenancy extends not only to the building but also to the Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.7 of 26 land underneath, the defendant is liable to reconstruct the tenanted premises and handover the same to the plaintiff. He has also relied upon the judgments of Janki Vashdeo Bhojwani v IndusInd Bank Ltd., 2005 AIR (SC) 439, Kondeti Suryanarayan & Ors. V Pinninthi Seshagiri Rao, Civ Appeal No.9987 and 9989 of 1995 and Shaha Ratansi Khimji v Proposed Kumbhar Sons Hotel P. Ltd., 2014 (14) SCC 1.
16. Per contra, Ld. counsel for the defendant has argued that present suit is not maintainable as the plaintiff has failed to prove his possession in the claimed area i.e. godown forming part of the suit property. He further argued that the plaintiff has failed to establish the existence of landlord-tenant relationship between the parties at any point of time. He lastly argued that the since the plaintiff has claimed to be a statutory tenant, he cannot seek repossession under general law and ought to have sought his remedy under the Rent Act in light of the judgment of Abdul Khuddus v. H.M.Chandiramani, CA No.1834/2008 of the Hon'ble Supreme Court.
17. I have heard both the counsels at length and carefully perused the record of the case.
The issue wise findings, in this case, are as follows : -
ISSUE NO.2 "2. Whether the present suit is barred u/O 2 R 2 CPC? OPD"
18. By way of the present issue, the defendant has claimed that the present suit is barred as the plaintiff has failed to seek the present Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.8 of 26 relief in previous litigation and therefore has relinquished his right to claim the same in subsequent proceedings.
19. Per contra, the plaintiff has contested the same on the ground that the said bar would not apply as the subsequent proceedings have been warranted by change of circumstances and the present relief could not have been sought in previous litigation.
20. Reliance is placed upon the scope of application of the bar of Order II Rule 2 CPC as under:-
"2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
21. The relevant para of the judgment of Inacio Martins Deceased Through LRs v. Narayan Hari Naik & Ors., 1993 AIR 1756 are reproduced as under :-
"Now Order 2 concerns the framing of a suit. Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit. Sub-rule (1) of Rule 2, inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit. However, sub-rule (3) of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.9 of 26 omitted. It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court. But the Rule does not preclude a second suit based on a distinct cause of action. It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiff's duty to exhaust all available grounds in support (if his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material. Now, in the fact-situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court's assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.10 of 26 court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act.
Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court's assistance to be restored to possession.
Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent. suit was not identical to the relief claimed in the previous suit. The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant. In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession. That makes all the difference. We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code."
22. The relevant paras of the judgment of Inbasegaran & Anr. v. S. Natarajan(Dead) Through LRs, 2014 AIR SCW 6316 are reproduced as under:-
"If the two suits and the relief claimed therein are based on the same cause of action then only will the subsequent suit become barred under Order 2, Rule 2 of the CPC. However, when the precise cause of Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.11 of 26 action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical.
A perusal of the pleadings in the two suits and the cause of action mentioned therein would show that the cause of action and reliefs sought for are quite distinct and are not same. On reading of the plaint of the suit for injunction filed by the plaintiff, there is nothing to show that the plaintiff intentionally relinquished any portion of his claim for the reason that the suit was only for injunction because of the threat from the side of the defendant to dispossess him from the suit property. It was only after the defendant in his suit for injunction disclosed the transfer of the suit property by the Housing Board to the defendant and thereafter denial by the defendant in response to the legal notice by the plaintiff, the cause of action arose for filing the suit for specific performance."
23. Similar has been held in the judgments of Rathnavathi & Anr. v. Kavita Ganashamdas, 2014 AIR SCW 6288 and R. Vimalchand And M. Ratanchand v. Ramalingam T. Srinivasalu And T, (2002) 3 MLJ
177.
24. In order to prove the present issue, the defendant has led Ex.DW1/4 i.e. certified copies of previous litigation amongst the parties in CS No.217/2010 wherein the plaintiff had sought the relief of declaration Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.12 of 26 of a notice of the MCD dated 09.06.2010 as null & void and further permanent injunction to the effect of restraining the defendant herein from taking forcible possession of the suit property.
25. The defendant has also relied upon another petition u/s 44 of the DRCA, 1958 beaning no.R.03/11 wherein the first page of the pleadings and the last order has been filed. Although without going through the pleadings, the claimed bar cannot be gauged, in view of the petition being u/s 44, the same should have pertained to the landlord's duty to keep the tenanted premises in good repair.
26. The defendant has also filed photocopies of CS No.131/2009 wherein again, only the first page of the pleadings has been filed. However, perusal of para no.2 of the Order dated 06.05.2010 of the said case reveals that the plaintiff has sought an injunction seeking to restrain the defendant from dispossessing the plaintiff and further be restrained to create obstruction in ingress/egress.
27. Vide the present suit, the plaintiff has sought the relief of declaration of the act of the defendant as to non-construction over the suit property as illegal and further mandatory injunction seeking direction of reconstruction, permanent injunction seeking barring of creation of any third party interest and damages.
28. The previous suit bearing CS No.131/2009 was filed on 26.03.2009, bearing CS No.217/2010 was filed on 01.07.2010 and petition no.03/2011 was filed on 30.07.2010 respectively. The suit Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.13 of 26 property has been stated to have been demolished on 04.08.2011. The cause of action vide the present suit is based upon the purported liability of the defendant to reconstruct the property after such a demolition. On the date of filing of previous suits/petition, the suit property had not been demolished. Therefore, the cause of action of the present suit is distinct from that of the previous suits and had not arisen on the date of filing of the previous suits. Therefore, there is no question of relinquishment of the same in the previous suit.
29. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. It is held that the present suit is not barred under Order II Rule 2 of the CPC.
ISSUE NO.3 "3. Whether the present suit of the plaintiff is bad for misjoinder/non-joinder of the necessary parties? OPD"
30. In order to prove the present issue, the defendant has pleaded that the MCD was a necessary party to the present suit and since the plaintiff has failed to implead it, the present suit is bad for non-joinder of a necessary party.
31. Per contra, the same is contested by the plaintiff on the ground that since no relief has been sought against the MCD, it was not a necessary party.Civil Suit No.8636/2016
Sh. Rahul Vij v Smt. Mamta jain Page No.14 of 26
32. It is pertinent to discuss the law relating as to who is a necessary and proper party in a suit. The Apex Court in the case of Thomson Press (India) Ltd. vs. Nanak Builders & Investors P. Ltd. and others, 2013 (3) ALD 111 (SC) while reviewing the entire law on the subject reiterated the broad principles laid down in Vidhur Impex's case (2012 (8) CC 384) governing the disposal of application for impleadment:
1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit.
2. A necessary party is the person who ought to be joined as party and in whose absence an effective decree cannot be passed, the Court.
3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all mater and issues, though he may not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation."
33. Under the circumstances of the present case, the plaintiff has not sought any relief against the MCD. Absence of MCD as a party in the present case has no bearing on merits. No issue has been framed in relation to the MCD. Accordingly, MCD is not a necessary party to the present suit. Even assuming it to be a proper party, the same does not go to the root of the matter.
Civil Suit No.8636/2016Sh. Rahul Vij v Smt. Mamta jain Page No.15 of 26
34. In view thereof, the present issue is decided in favour of the plaintiff and against the defendant. It is held that the present suit is not bad for misjoinder/non-joinder of the necessary parties.
ISSUE NO.1 "1. Whether the plaintiff has no locus standi to file the present suit as no relationship of landlord-tenant exists between the parties qua the suit property? OP parties"
35. In respect of the present issue, the plaintiff has pleaded that he is a tenant in the suit property under the landlordship of one Smt. Shanti Devi, upon her demise her son Narender Kumar and upon purchase of the suit property, the defendant.
36. Per contra, the defendant has denied the said tenancy while stating that the issue has remained undecided in the previous litigations, no rent has been accepted by the defendant at any point of time and the plaintiff was not in the possession of the alleged tenanted premises being already demolished.
37. In order to prove his claim qua the present issue, plaintiff has primarily led documentary evidence viz. Ex.PW1/5 i.e. four rent receipts issued by the purported previous landlord in favour of the plaintiff.
38. Reference is craved to the case law on the point of proving of documents as under:-Civil Suit No.8636/2016
Sh. Rahul Vij v Smt. Mamta jain Page No.16 of 26
39. The Supreme court in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745 has held that "16....The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue...".
40. Further reliance is placed upon the leading judgment of Madholal Sindhu v. Asian Assurance Co. Ltd.,1945 SCC OnLine Bom 44 wherein it has been held as under:-
"5. This proposition sounded to me a novel one. I had in fact never heard any such argument be fore. Section 67, Evidence Act only permitted the proof of the signature or handwriting of the person signing or writing the document to be given and considered it to be sufficient in those cases where the issue between the parties was whether a document was signed or written wholly or in part by that person. It did not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof in so far as it was sought to be given in the evidence of Balkrishna Bhagwan Deshmukh of the signature or handwriting of the said various documents could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamna-das; but the matter could rest there and would carry the plaintiff no further.
It certainly could not prove that the contents of those various documents which were thus proved Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.17 of 26 to have been signed or written by Deshpande, Paranjape or Jamnadas were correct, and unless the plaintiff succeeded in proving the correctness of the contents of those various documents, he would not advance any step towards proving his case. Mr. Taraporewalla for the bank and Jamnadas supported Mr. Somjee in his submission. He submitted that once the signatures were proved the letters as a whole were proved, though the Court might say that the contents thereof were not proved in the sense that they were true. He submitted that the Court could admit those documents in evidence with that reservation, a reservation which to my mind went to the root of the whole matter and deprived the documents of all value whatsoever even if they might be admitted by the Court in evidence."
41. Furthermore, in Mohd. Yusuf v D, AIR 1968 BOM 112 of the Hon'ble High Court of Bombay, it has been held as under:-
"(17) The issue under consideration in that case was whether the internal evidence afforded by the contents of the document amounted to the proof of the authorship of the document and, therefore, their Lordships held that the evidence of the recipient of the document would be material to establish the authorship of the document. This was the real decision that was given by the Supreme Court in Mubarik Ali's case. Even the general observations viz, "It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in sections 45 and 47 of the Indian Evidence Act" are not of much help to Mr. Gupte. As pointed out above, at the initial stage D tried to resort to the mode of Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.18 of 26 proving spoken of in section, 47 of the Evidence Act but at a latter stage, shifted the ground and tried to five direct evidence of the execution of the document. It is true that proof of the signature or of the handwriting by one acquainted with the handwriting is a recognised mode of proof under section 47 of the Evidence Act. Therefore, is so far as D says that he recognised the signature of Abreo, the latter's signature can be taken to have been proved under section 47 of the Act. but the proof of the signature on the basis of opinion evidence, however, is not proof of the handwriting of the document. Mr. Gupte pointed out that the body of the document as Ex. 28 is typewritten.
Therefore, there is no question of proving the writing of that document. At the same time, it must not be forgotten that the figure and letters '1st' are written in hand and in pencil. D has not attempted to identify the figure and letters. The whole document, therefore, cannot be said to have been even formally proved. Apart from this aspect of the matter, it is clear to us that the decision in Mubarik Ali's case does not affect the decision given by Bhagwati J. viz., that the proof of the document does not amount to proof of the contents thereof. The only question that arose in Mubarik Ali's case related to the formal proof of the document and, therefore, their Lordships of the Supreme Court held that the letters and telegrams could be said to have been formally proved by reason of internal evidence provided by the documents and the positive evidence given by the recipient of those documents. Once the letters and telegrams were held proved, the further question about the proof of the contents did not arise in Mubarik Ali's case, because himself and the statements contained therein would amount to his admissions. In our view, therefore, the decision of Bhagwati J. is still good law."
Civil Suit No.8636/2016Sh. Rahul Vij v Smt. Mamta jain Page No.19 of 26
42. Applying the law discussed above to the facts of the present case, the plaintiff has failed to prove the execution of the said rent receipts let alone the contents of the same.
43. The plaintiff has also relied upon Ex.PW1/6 viz. a challan issued by the Health Deptt of the MCD dated 16.07.2010. Careful perusal of the same merely shows the possession of the plaintiff and does not prove his tenancy.
44. He has further relied upon Ex.PW1/7 viz. an electricity bill dated 14.07.2010 which also does not prove the tenancy of the plaintiff and merely his possession. Further, the description of the address of the consumer in the said bill pertains to the entire plot of land and not the particular godown, the claimed area under tenancy.
45. He has also relied upon Ex.PW1/9 i.e. a kalandara u/s 107/151 CrPC which also does not pertain to the tenancy of the plaintiff and is merely a possession document.
46. He has also relied upon Ex.PW1/12 and Ex.PW1/13 wherein an order has been passed by the Ld.ARC/NE directing deposit of interim rent in the Court. It is to observe that the said order is an interim order having been passed without any prejudice to the rights of the respondent (defendant herein) and no categorical finding has been given by the Court as to the existence of a landlord-tenant relationship amongst the parties.
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47. The other documentary evidence led by the plaintiff i.e. Ex.PW1/2 viz. an order disposing off the petition of the plaintiff as infructuous and Ex.PW1/11 viz. Reply to legal notice also do not prove the existence of landlord-tenant relationship amongst the parties. Mark A and Mark B are not read being secondary evidence.
48. The plaintiff has also lead his evidence as a witness as PW1 wherein he has deposed in line with the plaint. In his cross examination, on the present issue, the plaintiff has admitted that he has not claimed that proprietorship documents of the firm or other documents showing any sale/purchase of goods vide which he is claiming his tenancy. He has further admitted that he does not have any document of occupation, ledger account, rent receipts etc. after the year 2009. Most importantly, he has admitted that he has never tendered rent qua the suit property to the defendant. He has also pleaded ignorance qua the period and the mode of tendering of arrears of rent. He has also admitted that he had not attempted to tender rent after the year 2006 either to the previous owner or to the defendant. He has also admitted to have not paid any rent after the demolition of the impugned tenanted premises.
49. He has led his uncle as PW2 who has also deposed in favour of the plaintiff. In his cross examination, he has admitted that he was not a tenant in the shops as claimed by him, but his brother. It has been categorically observed by the Court that the witness is unable to answer about the mode, period and the landlord qua the tenancy of the plaintiff.
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50. The plaintiff has also led the testimony of his another uncle as PW3 who has supported the narrative of the plaintiff. In his cross examination, no question was asked qua the tenancy of the plaintiff.
51. Per contra, the defendant has relied upon Ex.DW1/1 certified copy of proceedings in civil suit, Ex.DW1/2, summons of that petition, Ex.DW1/3, certified copy of civil suit, Ex.DW1/4, photographs, already exhibited as Ex.PW1/D1 (colly) and photocopy of award no.1/2008-2009, Mark B. The said documents appear to have been relied upon in order to support the claim that the present suit is barred by Order II Rule 2 CPC and do not have any relevance in disproving the claim of tenancy of the plaintiff.
52. The defendant has led testimony of her husband as DW1 being SPA holder of the defendant who has deposed in line with the WS. His testimony would only be read to the extent of his personal knowledge in view of the settled law. In his cross examination, he has stated that he has never witnessed the plaintiff as a tenant in the suit property. He has also stated that the erstwhile tenants in the suit property have already obtained Land Acquisition Compensation. He also unequivocally stated that the plaintiff is not his tenant in the suit property.
53. The defendant has also led a neighbor of the suit property as DW2 wherein he has supported the defence of the defendant. During his cross examination, he has stated that the plaintiff was a tenant of a shop in the suit property. He has denied the suggestion of the tenancy of the plaintiff in the godown. He has pleaded ignorance as to various facts.
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54. The defendant has also examined a summoned witness as DW3 who has produced the building sanction plan of the suit property.
55. She has further examined another summoned witness as DW4 who had brought the record of land acquisition award and possession report.
56. In the facts of the present case, since the plaintiff has essentially sought the possession of the land underneath the suit property on the basis of his tenancy, he was required to prove a landlord-tenant relationship between himself and the defendant or his predecessors in interest. Further, he was required to prove the subsistence of such a tenancy till the date of demolition of the tenanted premises. Further, he was required to prove his statutory tenancy under the DRC Act, 1958 as pleaded by him.
57. However, in view of the entire evidence led by the plaintiff, the rent receipts to prove the relationship of a landlord-tenant between the plaintiff and the predecessors in interest of the defendant remains unproved as observed above. Further, the plaintiff has failed to put on record any document showing that he is/was the proprietor of the tenant firm.
58. Insofar as the subsistence of tenancy is concerned, the plaintiff has admitted in his cross examination that he has never tendered any rent to the defendant. Although he has qualified the same while stating that the rent was paid in Court, the payment of rent of intermediate period Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.23 of 26 has not been explained. It has also been admitted by the plaintiff that he had not attempted to pay any rent after the year 2006. Therefore, whether the tenancy of the plaintiff even if assumed to be existing was a month to month tenancy and upon non-payment of rent for a considerable period of time, had ceased to exist.
59. As far as the claim of statutory tenancy of the plaintiff is concerned, the same has merely been claimed and has not been proved. In order to prove the same, the plaintiff was required to show that the rent was below the ceiling limit as well as the suit property fell in scheduled area or notified area as per Section 1(2) of the DRC Act, 1958. The plaintiff has relied upon the petition filed before the RC in order to prove the same. However, the same would not ipso facto amount to proving of a statutory tenancy as no specific finding has been arrived by the said Court and only an interim order was passed without going into merits. The issue of jurisdiction remains undecided before the Rent Controller.
60. Although the plaintiff has been able to show his possession in the suit property, the same would not be sufficient as long as his tenancy is not proved as the tenancy of the plaintiff is of essence in the present suit.
61. The judgments of Kondeti Suryanarayan & Ors., T Lakshmipathi v P. Nithyanand Reddy, Rejender Singh Yadav v MCD, CW No.5848/1999 and Shaha Ratansi Khimji (supra) relied upon by the plaintiff pertain to the responsibility of a landlord to reconstruct the tenanted premises in case of a statutory tenancy when the same has been Civil Suit No.8636/2016 Sh. Rahul Vij v Smt. Mamta jain Page No.24 of 26 demolished by the act of the landlord. The same are distinguished in the facts of the present case as the tenancy of the plaintiff remains unproved. The judgments of Janki Vashdeo Bhojwani and S Kesri Hanuman Goud v Anujm Jehan, CA No.2885-2887/2005 pertaining to the scope of deposition of a SPA holder have been applied at the time of appreciation of the testimony of DW1.
62. The judgment of Abdul Khuddus (supra) is also distinguished in the facts of the present case as the same pertains to a statutory tenant. The statutory tenancy of the plaintiff in the facts of the present case remains unproved.
63. In view of the discussion made above, the plaintiff has failed to prove his tenancy in the suit property especially the claimed area of godown forming part of the suit property. Accordingly, the present issue is decided in favour of the defendant and against the plaintiff. It is held that the plaintiff has no locus standi to file the present suit because there is no landlord-tenant relationship between the parties.
ISSUE NO.4, 5, 6 & 7"4. Whether the plaintiff is entitled to the decree of permanent injunction as prayed" OPP
5. Whether the plaintiff is entitled to the decree of declaration as prayed? OPP
6. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed? OPP
7. Whether the plaintiff is entitled to the decree of damages of Rs.1,04,000/- as claimed? OPP"Civil Suit No.8636/2016
Sh. Rahul Vij v Smt. Mamta jain Page No.25 of 26
64. In view of the findings in issue no.1 wherein it has been decided that the plaintiff is not a tenant of the defendant, the same being the foundation of the reliefs sought vide the present issues, there is no reason as to why the present issues should be decided in favour of the plaintiff.
65. Accordingly, the present issues are decided in favour of the defendant and against the plaintiff. It is held that the plaintiff is not entitled to mandatory injunction, permanent injunction, declaration and any damages.
RELIEF
66. As a net result of the aforesaid findings, the present suit is hereby dismissed with no order as to costs.
67. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
AAKASH Digitally
by AAKASH
signed
MOHAN MOHAN SINGH
Date: 2024.10.07
SINGH 17:35:18 +0530
Pronounced in open Court (Aakash Mohan Singh)
today on 07.10.2024 Civil Judge-01/Shahdara District
Karkardooma Courts/Delhi
Note : This Judgment contains 26 pages and all the pages have been checked and signed by me.
AAKASH Digitally
by AAKASH
signed
MOHAN MOHAN SINGH
Date: 2024.10.07
SINGH 17:35:22 +0530
(Aakash Mohan Singh)
Civil Judge-01/Shahdara District
Karkardooma Courts/Delhi
Civil Suit No.8636/2016
Sh. Rahul Vij v Smt. Mamta jain
Page No.26 of 26