Sarla Wati Dewan vs Mangal Sain Bahri And Anr.
1987 Latest Caselaw 33 Del

JUDGMENT

N.N. Goswamy, J.

(1) This second appeal by the landlord is directed against the judgment and order dated 17-11-79 passed by the Rent Control Tribunal whereby the appeal filed by the tenant against order passed under Section 15(2) of the Delhi Rent Control Act was set allied and consequently, it was further held that since respondent No. 1 was not proved to be the tenant, the eviction petition itself was also dismissed.

(2) The appellant/landlord had filed a petition for eviction under Clauses (b) & (e) of Section 14(1) of the Act. An application under Section 15 of the Act was also filed on the ground that no rent have been paid to the landlord from 1st August, 1973. It was alleged that respondent No. 1 namely Shri Mangal Sain was the tenant of the premises in dispute and subsequently he inducted his brother who was respondent No. 2 and after respondent No. 1 had retired he plaited in possession in favor of his brother respondent No. 2. The benefits requirements of the landlord were also pleaded.

(3) In defense it was stated that respondent No. 1 was never the tenant and the premises were taken on tenancy by respondent No. 2, Parties bad led evidence on the question as to who was the tenant. The learned Addl. Rent Controller after referring to the entire evidence led by the parties came to the conclusion that the premises bad been handed over to respondent No. 1 and as such he was the tenant. Consequently he allowed the application under Section 15(2) of the Act and directed respondent No. 1 to pay the arrears of rent with effect from 1-8-73 and to continue to deposit the future rent by the 15th of each month. The respondent No. 1 was further directed to deposit the water charges at the rate of Rs. 4.37 p. per month. Respondent I and 2 filed a joint appeal before the Rent Control Tribunal. The Rent Control Tribunal re-appraised the entire evidence and reversed the findings recorded by the Addl. Rent Controller. It was held that respondent No. 2 was the tenant and as such the eviction petition against respondent No. 1 was not maintainable. Consequently the order under Section 15(2) of the Act was set aside and the petition for eviction was also dismissed.

(4) The landlord has come up in this Second Appeal to this Court. I have been taken through the entire evidence on record. Ordinarily a second appeal is maintainable only if it involves a substantial question of law and it is not open to this Court to re-appraise the evidence on record. However, in the present case the findings are vitiated in as much as the material evidence to which I shall refer has cither been misread or ignored. The landlord had placed reliance on a survey report recorded by the official concerned who had conducted the survey of the premises in dispute. The official concerned had visited the premises on 10th July, 1968. It was recorded in the register that the tenant of the premises was one Shri Mangal Sain i.e. respondent No. 1. The register was signed by respondent No. 2. This document was exhibited as Aw 2/1. The learned Addl. Rent Controller relied on the said document but the learned Tribunal was of the opinion that since the entire register bad not been produced and it could not be found whether it was signed by respondent No 2 or not, it was not safe to rely on the said evidence. This appeal came up for hearing before Yogeshwar Dayal. J. and the matter seems to have been argued at length. The learned Judge was of the opinion that it would be in the interests of Justice to record some further evidence and he directed that an official from the Municipal Corporation along with the complete register should be produced. He further directed that the previous tenants of the premises who had also executed receipts should be produced and they be examined as court witnesses. Consequently, further evidence in this matter was recorded by Yogeshwar Dayal, J. in December, 1984. Three witnesses were examined as court witnesses. Shri Amar Singh appeared with the j concerned record from the Tax Department of Municipal Corporation of Delhi. He produced the entire register of assessment. He further stated that the certified copy Ex. Aw 2/1 was correct and was in accordance with the entries contained in the register. The register was shown to respondent No. 2 who was present in Court and he confirmed that the document Ex. Public Witness 2/1 was signed by him. It would be worthwhile to State that respondent No. 2 is a practicing Advocate. He bad signed the register after having seen that Mr. Mangal Sain was described as a tenant/occupier in the register. Ibis entry was made on 10th July, 1968 when there was no apprehension in the mind of the respondents that the landlord may seek eviction. There is no other survey report on the register and as such no other copy could be produced. Similarly, the appellant/landlord had produced a bound book of counter-foils of receipts. The very first receipt regarding this property was issued in favor of one Shri Harnam Singh on 6-8-63. The receipt book contains the counter-foils of receipt dated 16-7-64 which was the first receipt in favor of respondent No. 1. That receipt bears some initials. According to the landlord the initials were of Mr. Mangal Sain. However, the two courts below on the basis of evidence including that of the handwriting expert have recorded that the initials do not seem to be of Shri Mangal Sain. It is not necessary to record any finding whether the initials were forged or not because it is difficult to arrive at a finding of forgery in case of only initials. All the same I find that the entire counter-foils book is on record and all the receipts after 16-7-64 indicate that Shri Mangal Sain was the tenant who paid the rent. There is not a single receipt in favor of respondent No. 2. No receipt has been produced by either respondent No. 1 or respondent No, 2 on the ground that the receipt was not being issued. The learned Tribunal has not preferred to the entire receipt book and has not recorded any finding that the receipt book itself is not genuine. In order to know the genuineness of the said receipt book, the other two court witnesses were examined. Cw 1 is Shri Harnam Singh, a retired officer of III. He deposed that he was a tenant in the premises from July/August. 1963 to March/April, 1964 when he shifted to the official accommodation allotted to him. He further deposed that the rent receipts used to be issued to him and he never signed the counter foils. He proved the receipt book Ex. Cw 1/1 and the counter foils of the receipts issued to him To the same effect is the statement of Cw 2 Shrimati Raj Rani, the wife of the next tenant of the premises. She also proved the counter foil of the receipt from the receipt book which was signed by her. Thus there can be no doubt about the genuineness of the receipt book. The learned Tribunal also came to the conclusion that respondent No. 2 had shifted the venue of bids legal practice from Dehradun to Delhi much prior to the date of the letting while Sbri Mangal Sain bad been transferred to Delhi after the letting. This finding is again contrary to the evidence on record. Sbri Mangal Sain as his own witness and respondent No. 2 both have admitted in categorical terms that Shri Mangal Sain had been transferred to Delhi latest in April, 1964 while letting is admittedly in July, 1964. Shri Mangal Sain was a Senior Officer in as much as he was a Engineer in 1964 and respondent No. 2 had just gendered the profession. Sbri Mangal Sain was a family person while respondent No. 2 was unmarried at that time. Admittedly the ration card at the premises also shows that Shri Mangal Sain was shown as Head of the family. In the circun.stances after giving my careful consideration to the entire material on record, I am of the opinion that the Addl. Rent Controller was right in holding that Shri Mangal Sain was the tenant and he bad inducted respondent No. 2 with him. It is true that respondent No. 2 has been in the premises atleast from 1965 because there are unimpeachable documents to that effect. However, there is nothing to show that he was in the premises in 1964 except the oral statements.

(5) It is also a pity that the landlord has not been paid the rent for the last 14 years or so as admittedly rent is due from 1-8-73. It is not understandable as to why neither the rent was paid nor deposited by the respondents. The landlord is entitled to the recovery of rent if nothing else.

(6) For the reasons recorded above the appeal is allowed. The impugned order passed by the Tribunal is set aside and that of the Addl. Rent Controller is restored. The respondent No. 1 is directed to deposit the rent under Section 15(2) of the Act within a period of one month from today. He will further deposit the water charges @ Rs. 4.37 p. as directed by the Addl. Rent Controller. The future rent will also be paid on or before the 15th day of each month. The parties are directed to appear before the Rent Controller on 23rd February, 1987 and the Rent Controller will either keep the case with himself or assign it to any Addl. Rent Controller. These observations, however, will not influence the Addl. Rent Controller while deciding the question whether respondent No. 1 had parted with possession in favor of respondent No. 2 or not.

(7) The learned counsel for the respondent who is accompanied by respondent No. 2 in Court states that since the rent has accumulated into a large amount he may be allowed some further indulgence to deposit the arrears of rent. In case the respondent deposits the 50 per cent amount of arrears within one month, the learned Rent Controller would grant a further period of 2-3 months to deposit the remaining arrears.