Gyanender Kumar Verma And Ors. vs Kailash Chand Jain And Anr.
2003 Latest Caselaw 624 Del

JUDGMENT

R.C. Jain, J.

1. This Second Appeal is directed against the judgment of the learned Additional Rent Control Tribunal Delhi dated 22.10.2001, by which the appeal of the present appellants against their eviction from suit premises viz. shop bearing No. 1793, Dariba Kalan, as ordered by the Rent Controller has been dismissed.

2. The relevant facts leading to the present appeal are that Smt. Rajpati, predecessor-in-interest of respondent No. 1 herein had filed an eviction petition under Section 14(1)(b) of the Delhi Rent Control Act, 1958 (in short the 'Act') against Smt. Sharbati Devi (respondent No. 2) in the present appeal and Smt. Shakuntala Devi, predecessor-in-interest of the present appellants alleging that Smt. Sharbati Devi, the tenant in respect of the shop in question had unauthorisedly sub-let the same to Smt. Shakuntala Devi without the written permission of the landlord. According to the petitioner Smt. Rajpati Along with other four ladies, namely, Smt. Inderpati, Smt. Laxmi Devi, Smt. Parkashwati and Smt. Taro Devi were the owners of the suit property and it was managed by one Guljari Lal, husband of Smt. Inderpati. A suit for partition bearing S. No. 470/79 was filed by Smt. Inderpati against the other co-owners in the High Court of Delhi and a preliminary decree for partition came to be passed on 23.7.1980, inter alia, declaring that each co-owner had 1/5th share in the said property. During auction, shop in question was purchased by Smt. Rajpati and in the list of tenants filed in the High Court, Smt. Sharbati Devi was shown as a tenant of the disputed shop No. 1793 at a monthly rent of Rs. 155/- per month. As the shop in question fell under the slum area, the said Smt. Rajpati filed an application under Section 19 of the Slums (Improvement and Clearance) Act, 1959 seeking permission to file the eviction petition against the said tenant Smt. Sharbati Devi. In those proceedings, Smt. Sharbati Devi acknowledged and confirmed her relationship of landlord and tenant with Smt. Rajpati. Smt. Shakuntala Devi, the predecessor-in-interest of the appellants moved an application under Order 1 Rule 10, CPC for impleading her a party before the said Competent Authority (Slum), which application was, however, dismissed. Permission as sought by Smt. Rajpati was granted and on the basis of which eviction petition was filed.

3. Smt. Sharbati Devi, in her written statement filed before the Rent Controller admitted herself to be the tenant of Smt. Rajpati and came forward with the plea that Smt. Shakuntala Devi who was related to her husband had unlawfully dispossessed her from the premises and was thus in unlawful possession of the premises in question. She later absented from the proceedings.

4. Smt. Shakuntala Devi contested the eviction petition and admitted that she was in actual physical possession of the premises in question, but asserted that she was in possession of the premises in her own right as a direct tenant, independent of Smt. Sharbati Devi. She denied that Smt. Sharbati Devi or her husband Sh. Kishan Singh were ever tenant in respect of the suit premises. On the contrary, she had pleaded that the eviction petition was a result in collusion and fraud between Smt. Rajpati and Sharbati Devi with a view to dispossess her from the suit premises. It was further pleaded that initially the tenancy in respect of shop in question was in the name of Shri Bal Kishan Singh Shastri, who died as a contractual tenant in August, 1968 survived by his widow, four sons and four daughters. On his death, the tenancy devolved upon the legal heirs, but as per the mutual settlement between the legal heirs of Bal Kishan Shastri, Smt. Shakuntala Devi alone was treated to be a tenant which position was even accepted by Guljari Lal by issuing rent receipts in her name in the year 1980. Thus, the case of the predecessor-in-interest of the present appellants that she became a direct tenant of the suit property ever since 1980.

5. Parties led voluminous documentary as well as oral evidence in support of their respective pleas and the Controller on a consideration of the same, returned the finding that Smt. Sharbati Devi was the tenant of the suit property and she had unauthorisedly sub-let or otherwise parted with possession of the shop in question to Smt. Shakuntala Devi without the consent of the landlady and consequently passed an eviction order against her. Aggrieved by the said eviction order, the appellants filed appeal before the Rent Control Tribunal, Delhi who vide a detailed judgment has affirmed the finding of the Rent Controller and upheld the eviction order passed against the appellants.

6. I have heard Mr. P.C. Chopra, learned Counsel for the appellants, Mr. Ravi Gupta, Advocate, representing respondent No. 1 and Mr. Y.K. Jain, Senior Advocate, representing respondent No. 2 at length and have given my anxious consideration to their submissions.

7. Learned Counsel for the appellants has assailed the findings of the Courts below mainly on the premises that the same are based on incorrect appreciation of the evidence and material brought on record, erroneous approach of the Courts below to the questions involved in the matter inasmuch as Courts below have failed to apply their mind to the admissibility and relevancy and effect of the documentary evidence brought on record on behalf of respondent No. 1 and at the same time ignoring the cogent material and documentary evidence adduced on behalf of the appellants. As against this, the contention of the Counsel for the respondents is that the concurrent findings of the Courts below are based on correct and proper appreciation of the entire evidence and material brought on record and this Court sitting in the second appeal will not like to interfere and upset the said findings of facts, the present appeal being a second appeal, the scope of which is limited to consider the substantial question of law if one is formulated by the Court. It may be noticed that after 1988 amendment in the Delhi Rent Control Act, the provisions of Second Appeal under Section 39 of the said Act has been completely deleted inter-alia giving the finality to the judgment of the Tribunal which itself entertains the first appeal only on question of law. Even Section 39, as it existed on the statute book prior to its deletion in 1988, permitted the second appeal before the High Court only on the substantial question of law. Section 100 of the Code of Civil Procedure dealing with the Second Appeal to the High Court permits only such second appeal to be filed if it involves a substantial question of law. Section 100(4) of the Code of Civil Procedure states that the appeal shall be heard only on a substantial question of law to be formulated by the Court and is, thus, confined only to such question under Section 100(5), CPC, if the appellants is able to show the existence of such a substantive question of law. In this connection it is also submitted that this Court is not expected to reappraise the entire evidence which was before the Courts below so as to reach to a different finding of fact. This position according to the learned Counsel for the respondent is well-settled by a catena of judgments rendered by the Supreme Court and various High Courts.

8. Learned Counsel for the appellants on the other hand contended that the High Court is well within its rights to reappraise the material available on record if the findings of the Courts below are perverse or based on no evidence or the Courts below erroneously relied upon the admission of a third party treating a binding on a defendant or the Courts below failed to apply their mind to the statutory requirements of the relevant provisions of law or where the Courts below fail to apply statutory provisions in its proper perspective. It is also submitted that construction of a document is a substantial question of law and the High Court would be justified in interfering with the finding of the Courts below in Second Appeal. Further that where the Courts below ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential material for coming to its conclusions, the interference would be justified. In this connection, reliance is placed on Supreme Court decisions in the case of Jagdeesh Singh v. Natthu Singh, AIR 1998 SC 394 and the case of Deenanath v. Pooran Lal, . In the later case the Apex Court held that in a case where lower Courts failed to consider requirements and the provisions regarding bonafi.de requirements of landlord because one vacant show room was in occupation of the landlord at the time of filing of the suit and in the course of proceedings, one more show room vacated by tenant, the High Court was justified in setting aside the concurrent judgments of the lower Courts holding that the landlord had proved bow fide requirement and was entitled for eviction.

9. In the case of Shri Meenakshi Mills Ltd. v. Commissioner of Income Tax, 1956 SCR 691, the Supreme Court pointed out that there is a distinction between the pure question of fact and mixed question of law and fact in the following words :

"In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, encalves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession of law. Is the user continuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession, the Court has firstly to find on an appreciation of the evidence what the facts are. So far it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the fact established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law. In this respect, mixed questions of law and fact differ from pure questions of fact in which the final determination equally with the finding or ascertainment of basic facts does not involve the application of any principle of law. The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but not to pure questions of fact:

and summing up the result of the authorities, the Court stated:

"(1) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the Court under Section 66(1).

(2) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final, its decision as to the legal effect of those findings is a question of law which can be reviewed by the Court.

(3) A finding on a question of fact is open to attract under Section 66(1) as erroneous in law when there is no evidence to support it or if it is perverse.

(4) When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact."

10. Learned Counsel for the appellants has heavily relied upon a Supreme Court decision in the case of Ishwar Dass Jain (dead) through L.Rs. v. Sohan Lal (dead) by L.Rs., , wherein M. Jagannadha Rao, J. speaking for the Court laid down the following two situations in which the interference with findings of fact recorded by the Courts below is permissible. The first is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this court in relation to Section 100, CPC after the 1976 amendment. In Dilbghrai Punjabi v. Sharad Chandra, , and in the case of Jagdish Singh v. Nathu Singh, , Venkatachaliah, J. ruled that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. The Court further ruled that the second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the Appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh, , it was held that the High Court was right in interfering in Second Appeal where the lower Appellate Court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. In either of the above situations, a substantial question of law can arise.

11. The substantial question of law that arises for consideration in this appeal is: "whether the Courts below had failed to consider vital pieces of evidence and whether the Courts relied upon inadmissible evidence while arriving at the corvclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant?"

12. Counsel for the appellants has emphatically urged that this is a fit case where the interference of this Court even in second appeal would be justified because both the Courts below in order to return the finding that Smt. Sharbati Devi was a tenant have erroneously relied upon certain in admissible evidence/documents viz, Ex. AW 1 /5, the proceedings in the partition suit filed in 1979 amongst the co-owners of the suit property where Smt. Sharbati Devi was shown as a tenant in the list of occupants; the copy of the plaint Ex. PW 3/1 in the suit filed by Dharmender Verma acting as the attorney of the tenant Smt, Sharbati Devi against Municipal Corporation of Delhi in 1978; because the appellants or her predecessor-in-interest were not party to those proceedings and, therefore, any admissions made inter se between co-owners or in favor of Smt Sharbati Devi asserting herself as tenant cannot bind the appellants. Similarly, it is urged that the counterfoils of rentreceipts Ex, AW 1/6 alleged to have been issued by Shri Gulzari Lal in favor of Smt. Sharbati Devi during the period 1976-80 were not proved in accordance with law and were not free from doubt firstly because the counterfoils did not bear the printed name of the landladies and they were not written either by Shri Gulzari Lal or Kailash Chand and they bear signatures with different alphabets viz. "Savitri Devi", "Sharbati Devi" and "Shakuntala Devi" etc.

13. It has been next urged on behalf of the appellants that the Courts below have ignored and discarded the public documents viz. the application dated 11th July, 1953 (Ex. R3) moved by Shri Bal Kishan Shastri to Delhi Electricity Board wherein Bal Kishan Shastri was shown as the consumer and Hari Singh & Company as the firm functioning from the shop in question. (Ex. R7) Municipal survey report of the year 1956 showing Hari Singh & Company as occupier of the premises Along with Gyanender Verma, Ex. RS, Municipal report 1964-65 where again Hari Singh & Company was shown as occupying the premises. Similarly various sales tax assessment orders Exs. R1, R2, R3 and R4 showing the business being run by Bal Kishan Shastri and Gyanender Verma unjustifiably ignored. On the other hand learned Counsel for the respondent have urged that the findings of the Courts below are based on correct and proper appreciation of the evidence and material brought on record and no illegality has been committed and both the Courts below had rightly relied and acted upon the evidence produced by the respondents in holding that Smt. Shakuntala Devi was not the tenant of the premises after Bal Kishan Shastri surrendered the tenancy in the year 1958.

14. The next ground pressed for by the learned Counsel for the appellants is that a systematic fraud has been perpetuated by the respondents by joining hands and colluding with each other against the appellants so much so that a calculative attempt was made a project Smt. Sharbati Devi as the tenant to begin with from the proceedings in the partition suit and thereafter by getting a suit filed on her behalf through Dharmender Verma as attorney for the sole purpose of creating evidence in their favor. It was pointed out that the plea taken by Smt. Sharbati Devi before the Competent Authority as well as before the Rent Controller should not leave any doubt that the respondents herein were in hand in gloves with the sole object of evicting the appellants from the shop in question. On the other hand, the contention of the Counsel for the respondents is that respondent No. 2 is closely related to the appellants and, therefore, it was impossible to believe that she would have colluded with the landlady. There is ample evidence on record which suggests that Smt. Sharbati Devi and her attorney Dharmender Verma though closely related with the appellants were having strained relations with them and in such a situation no wonder that Smt. Sharbati Devi and Dharmender Verma who had otherwise migrated to the United States several years back, would have joined hands with the landlady to the detriment of appellants. Direct evidence of fraud in such a situation is hard to be found and it is to be gathered from the attendant circumstances, This Court is, therefore, of the opinion that keeping in view the entire of the facts and circumstances and the various developments which have taken place at different stages, the possibility, of landlady having exploiting the situation of strained relationship between Smt. Sharbati Devi, Dharmender Verma and the appellants cannot be ruled out.

15. Besides, it is apparent from the record that the plea of the appellants about she having become a direct tenant in 1980 through two rent receipts Exs. R-A and R-B issued by Shri Gulzari Lal attorney of the landlady in her favor has not received the requisite attention of the Courts below and the statement of Gulari Lal that the said rent receipts are not signed by him has been believed as gospel truth and the two rent receipts discarded on that basis alone despite a fervent plea made by the appellants before the Rent Control Tribunal through an application under Order 41 Rule 27, CPC for permission to get the signatures of Gulzari Lal appearing on the said rent receipts examined and compared through a Hand Writing Expert. The request was lightly turned down by the Appellate Court on the premises that the expert evidence is of a weak and frail nature and even if such an evidence has been produced ultimately it will be for the Court to give its finding as to the genuineness or otherwise of the signatures appearing on the two rent receipts. In the opinion of this Court once the appellants had set up a specific plea about Smt. Shakuntala Devi having become a direct tenant of the shop in question under the landlady in the year 1980 by means of these rent receipts, these rent receipts assumed much greater importance and mere denial of Gulzari Lal of his signatures on the receipts particularly in view of the earlier pleas and developments it was imperative that an expert opinion ought to have been obtained about the author of these rent receipts. In the opinion of this Court the Rent Control Tribunal was not justified in rejecting this prayer of the appellants on the ground that it was made belatedly at a stage when arguments had been heard.

16. Having considered the matter in its entirety, this Court is of the opinion that both the Courts below have erred in relying and acting upon certain pieces of documentary evidence relatable to certain judicial proceedings to which the appellants or their predecessor-in-interest were not a party and still reading the same against the appellants and at the same time ignoring and discarding several public documents filed on behalf of the appellants on certain untenable premises in arriving at the finding that to begin with Shri Kishan Singh and later Smt. Sharbati Devi was the tenant of the shop in question. No concrete finding has been returned about the genuineness or otherwise of the two rent receipts Exs. R-A and R-B. If the said rent receipts are genuine, perhaps the fate of eviction petition would not have been the same. In the opinion of this Court this course has occasioned in the failure and miscarriage of justice in the present case. The same needs to be undone and remedied. This is possible if the case is remanded back to the Trial Court for fresh decision.

17. In the result, the appeal is partly allowed and the orders of the Courts below, i.e. the Rent Controller and Rent Control Tribunal are hereby set aside and the matter is remanded back to the Rent Controller for deciding the eviction petition afresh after affording an opportunity to the appellants to get the signatures of Gulzari Lal appearing on rent receipts Exs. R-A and R-B compared and examined with his admitted signatures through a Hand Writing Expert preferably by an expert of CFSL. If such an opportunity is availed by the appellants and an expert is produced, the respondents shall also be entitled to produce their evidence in rebuttal by examining their own expert. Based on such evidence and the evidence and material already brought on record, the Rent Controller shall proceed to decide the eviction petition afresh bearing in mind the settled principles of relevancy and admissibility of the documentary evidence filed by the parties on record. As there has already been considerable delay in the disposal of the eviction petition, the Rent Controller may as far as it may be practicable shall dispose of the eviction petition within a period of six months from the receipt of this order.

18. Let the record of the case be returned to the Rent Controller, Delhi for taking further necessary action in accordance with law. Parties are directed to appear before the Rent Controller, Delhi on 4th June, 2003 for receiving further directions in the matter.