Bengali Sweet Corner And Ors. vs Smt. Ishwar Devi And Ors.
2006 Latest Caselaw 1779 Del

JUDGMENT

T.S. Thakur, J.

1. If the tenancy is not protected under the Rent Act, the tenant occupant has very limited defenses open to him. More often than not the receipt or validity of the notice terminating the tenancy is the only question that is raised for determination by the defendant. We have come across cases in which the tenant has denied the title of the landlord to the property in his occupation, Section 116 of the Evidence Act notwithstanding. The defense raised by the defendant-tenant in the instant case is slightly different and if we may say so, somewhat ingenous. The defendant claimed that two tenancies were created in respect of the suit premises comprising the mezzanine floor of the building. One of these comprised an area of 460 sq ft. and commenced on 1st April, 1985 while the other was created just about seven days later on 7th April, 1985 in respect of the remaining 440 sq.ft. of area comprising the said floor. The defense obviously intended to defeat the action brought by the plaintiff on the ground that the two tenancies commencing on two different dates could not be terminated by the landlord by treating them as one nor could the delivery of possession on the same day be demanded in respect of both. The trial court of Additional District Judge, Delhi has, on the basis of the evidence adduced by the parties, rejected the contention that the parties had created two distinct tenancies commencing on two different dates. The trial court held that there was one single tenancy in favor of the plaintiff-respondent in this appeal which commenced on 1st April, 1985 and which stood validly terminated in terms of the notice sent by the plaintiff through his counsel. The court has, on that basis, decreed the suit for possession against the defendant appellant together with compensation for unauthorized use and occupation of the premises @ Rs. 15,000/- per month post termination of the tenancy. The present appeal filed by the defendant-tenant calls in question the correctness of the said judgment and decree.

2. The trial court had on the pleadings of the parties, framed the following issues:

(i) Whether the suit is not maintainable in view of preliminary objection No. 1 taken in the written statement? OPD

(ii) Whether the suit is bad for misjoinder of cause of action as alleged in para 3 and 4 of preliminary objection of WS? OPP

(iii) Whether the plaintiff is entitled to the relief of possession as stated? OPP

(iv) Whether the plaintiff is entitled for arrears of rent as claimed? OPP

(v) Whether the plaintiff is entitled for damages/mesne profits, if so, at what rate and for which period? OPP

(vi) Whether the plaintiff is entitled for interest, if so, at what rate and for which period? OPP.

(vii) Relief.

3. In support of their case, one of the plaintiffs Keshav Das was examined as PW-1. In addition, plaintiffs examined PW-2 Sh. Shashi Tandon, PW-3 Sh. Subhash Chander, PW-4 Ms. Ranjana Singh and PW-5 Sh. Raghubir Singh as their witnesses. In rebuttal, the defendant produced DW-1 Sh. Omkar Singh apart from DW-2 Sh. Jai Prakash who happens to be one of the partners of the defendant firm. A witness from the treasury was examined by the plaintiff in rebuttal.

4. The court below appreciated the evidence so assembled before it and held that the suit filed by the plaintiff was maintainable. So also issue No. 2 was found in favor of the plaintiff by the court below who held that the defendant had failed to prove that two separate tenancies were created in respect of the mezzanine floor. The court was of the view that the entire mezzanine floor had been given as a whole and a single tenancy was created in respect thereof and that the defendants had been using the entire floor as one composite unit and paying rent for the same. Issue No. 3 was also answered by the trial court in favor of the plaintiffs who were held entitled to the recovery of the mezzanine floor of the building in view of its observations made while deciding issues No. 1 and 2. While answering issue No. 4, the court held the plaintiffs entitled to arrears of rent w.e.f. 1st October, 2001 to 30th September, 2002. Issue No. 5 too was found in favor of the plaintiffs and mesne profits payable to the plaintiffs determined at Rs. 15,000/- per month w.e.f. 1st October, 2002 till the date of vacation of the suit premises. The plaintiffs were also held entitled to a sum of Rs. 1,08,615/- towards arrears of rent less the amount paid during the course of the trial.

5. Appearing for the appellant, Mr. Andley did not assail the finding recorded by the trial court on any issue except issues No. 2 and 5. He strenuously argued that the finding recorded by the trial court in regard to the number of tenancies created in favor of the defendants was against the weight of evidence on record. He submitted that since the lease deed dated 1st April, 1985 marked Ex.PW1/2 purported to create a tenancy for a period of 3 years, the same could not be read in evidence for want of registration. The terms of a lease deed did not, according to the learned Counsel, constitute a collateral purpose for which a document compulsorily registrable but not so registered could be read in evidence. Reliance was in support of the submission placed upon the decisions of the Supreme Court in Satish Chand v. Govardhan Das , Delhi Motor Co. and Ors. v. U.A. Basrurkar , and decision of this Court in Zarif Ahmad v. Satish Kumar (All.) 1983 (2) RLR 164 (Delhi).

6. He further argued that a document compulsorily registrable but not so registered could not even have the effect of creating a month to month tenancy. He submitted that the defendant's version that two tenancies had been created was proved by the evidence adduced by him. He referred to the copies of the lease deeds produced from the record of the House Tax Department of the MCD in this regard. He contended that although the said two lease deeds were also compulsorily registrable but not so registered, yet the existence of the documents in the record of the House Tax Department went a long way in proving that the said documents had been executed and that instead of one tenancy as alleged by the plaintiff-respondent, there were in fact two distinct tenancies in respect of two different portions of the mezzanine floor. Award of mesne profits/compensation for unauthorized use and occupation @ Rs. 15,000/- per month was also assailed by Mr. Andley on the ground that the same was on the higher side and deserved to be suitably reduced.

7. On behalf of the plaintiff-respondent, it was on the other hand submitted by Mr. Singhal that the finding recorded by the trial court on the question whether one or more tenancies were created in favor of the appellants was based on a proper and careful appreciation of the evidence on record which did not suffer from any error to warrant interference in appeal. He urged that the theory of two tenancies had been propounded by the defendant-appellant only to drag on the eviction proceedings and thereby perpetuate their possession over the demised premises. The execution of the lease deed set up by the plaintiffs having been fully established, there was no room for holding that two tenancies and not one were created by two other deeds fabricated by the defendant-appellant and somehow smuggled into the record of the House Tax Department. The defendants had, it was argued, miserably failed to prove the existence of two tenancies in their favor especially when there was no reason why the parties should have created two tenancies in respect of one single floor with one single access to the same. There was also no question of the plaintiff relying upon any such deeds for purposes of assessment of house tax when the total rent payable on the basis of the single deed set up by the plaintiffs and that payable on the basis of the two separate lease deeds propounded by the defendants was the same. The award of mesne profits @ Rs. 15,000/- per month was also fully justified according to the respondents.

8. We have given our anxious consideration to the submissions made at the Bar. We have also been taken through the record of the case including the judgment under appeal.

9. The short question that falls for our consideration is whether the notice of termination of tenancy, admittedly served upon the defendant-appellant, is valid and whether the suit is bad for misjoinder of causes of action having regard to the allegation made by the defendant-appellant that there exist two tenancies in respect of the mezzanine floor of the building and not one as alleged by the plaintiff. PW-1 Keshav Dass, who happens to be one of the plaintiffs has in his deposition stated that the lease deed marked Ex.PW1/2 in respect of the entire mezzanine floor as shown in the site plan marked Ex.PW1/1 had been executed between the parties creating a tenancy in favor of the defendants on a monthly rental of Rs. 4500/- w.e.f. 1.4.1985. He further stated that a notice marked Ex.PW1/3 dated 12th August, 2002 had been sent by the plaintiffs' through their counsel to the defendants to which the defendants had sent a reply. In cross-examination, he has struck to his stand that there was only one tenancy in respect of the entire mezzanine floor which stood terminated by service of the notice aforementioned.

10. PW-2 Shashi Tandon, who is the son of late Shri C.S. Bahri, an attesting witness of the lease deed dated 1.4.85 relied upon by the plaintiff has identified the signature of his father on the said deed.

11. PW-3 Subhash Chander has proved a cash memo marked Ex.PW3/1 as having been issued by him. The cash memo relates to purchase of cement from M/s. Lokesh Trading Agencies for a sum of Rs. 21,000/- in terms of bills marked Ex.PW3/1 and Ex.PW 5/1.

12. PW-4 Ms. Ranjana Singh is a Record Keeper from the Sales Tax Department who has produced the sales-tax record with respect to the sales tax No. that was allotted to the defendants Bengali Sweet Corner, whereas PW-5 Shri Raghubir Singh is the proprietor of Maruti Traders who has testified that bill marked Ex.PW 5/1 had been issued by their staff.

13. In rebuttal, the defendant produced Mr. Om kar Singh, Assistant Zonal Inspector, Special Assessment Cell. The witness testified that P1/D1 and P1/D2 had been issued by the Department from the xerox copy available on their record. He has also proved the assessment orders passed by the department dated 30th August, 1985 and 10th January, 1996 which have been marked Ex.DW 1/1 and Ex.DW 1/2. DW-2 Jai Parkash who happens to be one of the partners of the defendant firm has deposed that there were two lease deeds executed between the parties, copies whereof marked P1/D1 and P1/D2. According to this witness, lease deed marked Ex.PW1/2 was forged and did not bear the signatures of Shri Subhash Chander on any page. It is also stated by the witness that Shri Tirlochan Singh, who is said to be an attesting witness of PW1/2 was never the partner of the defendant.

14. The plaintiff has produced a witness from the treasury along with the record relating to the sale of stamp papers marked Ex.RP-1 on which lease deeds Ex.P 1/D1 had been written. The witness has stated that the stamp paper has been issued by the treasury at Serial No. 59 in the Cash Register for a sum of Rs. 540/- in favor of the defendant Bengali Sweets. Entry No. 59 dated 31st January, 1985 has been marked as Ex.RP-2.

15. The lease deed relied upon by the plaintiff has been produced in original. Its execution is proved not only by the statement made by PW-1 Shri Keshav Dass but also by the proof of signatures of Shri C.S. Bahri, who was one of the attesting witnesses on the said deed. The fact that the stamp paper on which the lease deeds were written has been purchased from a source that is legitimate is evident from the deposition of the witness from the treasury and the proof of the sale of the stamp paper in favor of the defendant. There is, in our opinion, no reason to disbelieve or suspect the execution of the lease deed relied upon by the plaintiff. The document having been produced in original and properly proved, the Court below was justified in accepting the same to be authentic. That is not, however, true about the documents which the defendants have placed on record and sought to prove by producing secondary evidence. The defendants have relied upon certified copies of the document issued by the property tax department. These copies were in turn issued on the basis of a photocopy of the said documents allegedly found in the department's record. According to defendants, the said documents had been produced by the plaintiff in the assessment proceedings before the property tax authorities and, should, therefore, be held reliable for purposes of determining whether there existed one or more tenancies in respect of the mezzanine floor.

16. The argument, though attractive, does not stand closer scrutiny. In the first place, the defendants have not been able to give any logical explanation for the creation of two tenancies in respect of the same floor on two different dates. If the defendants' version were to be accepted, 460 sq. ft. of mezzanine floor was let out to them on 1st April, 1985. The copy of the lease deed relied upon by the defendants does not, however, identify the said area on the mezzanine floor. Not only that, it is common ground that there is only one access to the mezzanine floor in which event the lease deed set up by the defendants for an area of 460 sq.ft. would have identified not only the area but also made a provision regarding the common use of the only access to the floor. The deed does not, however, make any mention of either one of these aspects which renders the version of the defendant highly doubtful. There is also no explanation as to why the parties had excluded the remaining part of the mezzanine floor comprising 440 sq.ft. at the time of the execution at the first lease deed. Nor is there any explanation as to why the parties changed their minds about that part to enter into a separate lease deed for that portion within just one week or so. In the absence of any plausible explanation, the entire version given by the defendants regarding creation of two lease deeds for two different portions of the same floor serviced only by one access through the stairs is highly improbable.

17. The defendants' version that the two lease deeds relied upon by them had been produced by the plaintiff before the house tax authorities while seeking rectification of an order passed by them also does not get any support from the order passed by the said authorities. A careful reading of the order passed by the house tax authorities would show that the said order meticulously deals with each portion of the property being assessed and states precisely the date on which the tenancy in regard to the same commenced and the rent payable for the demised portion. In so far as mezzanine floor is concerned instead of mentioning two different lease deeds commencing on two different dates, the order simply refers to a tenancy commencing on 1st April, 1985 with a monthly rental of Rs. 4500/-. If the assessing authority had before it two distinct lease deeds for two different portions of the mezzanine floor one stipulating rent of Rs. 2300/- and the other a rent of Rs. 2200/- as alleged by the defendant, there was no reason why the authority would not have noticed the said difference and accordingly made a mention not only about two separate deeds executed by the parties but also two separate rates of rent payable in respect thereof and two separate dates of commencement of such tenancies. Absence of any mention in the order passed by the assessing authority about the existence of any lease deed other than the one dated 1st April 1985 set up by the plaintiff belies the version of the defendants that two lease deeds had been executed and then produced before the assessing authorities for getting the ratable value of the property assessed.

18. Super added to the above is the failure of the defendants to explain as to why should the plaintiff fabricate a document, showing the existence of only one tenancy. If the rent for the entire mezzanine floor was according to the two lease deeds allegedly executed by them, the same as was stipulated by the lease deed set up by the plaintiffs neither for purposes of fixing the rateable value of the property nor for purposes of eviction of the defendant-tenant would any such fabrication help the plaintiff. That is because by the time the suit was filed, rent for both the alleged lease deeds was Rs. 3500/- per month thereby taking the tenancy out of the purview of the Delhi Rent Control Act. If there were indeed two tenancies as alleged by the defendants, one starting on 1st April and the other on 7th April, 1985, the plaintiff could conveniently terminate both by independent notices. There was no impediment in either the termination of the tenancy or the eviction of the defendants even assuming that there were two tenancies. All this shows that the alleged fabrication was a meaningless exercise, which no prudence person would undertake.

19. Mr. Singhal was, in our opinion, right in contending that if there were actually two tenancies as alleged by the defendants, the first occasion for setting up that case was when the plaintiff's sent to the defendants a notice terminating the tenancy. The notice received by the defendants was replied on their behalf by their counsel. If there were two tenancies and not one as alleged by the plaintiff, the reply notice would have certainly mentioned so and questioned the validity of the termination. Nothing of that sort is, however, found in the reply sent by the defendants. On the contrary, a reading of the reply to the notice clearly suggests that even according to the defendants, there was only one tenancy. The theory of there being two tenancies was, in these circumstances, an ingenuity which was introduced at a later stage.

20. The above circumstances apart, the defendants have not produced the best evidence that was in their possession to establish that two tenancies, as alleged by them, were created. It is common ground that the defendant is maintaining proper accounts regarding its business. It is also not in dispute that the defendants had deposited a sum of Rs. 13,500/- towards security in connection with the tenancy created in their favor. According to the defendants, the said amount of security was deposited with the plaintiff on two occasions, one in connection with the lease deed dated 1st April, 1985 and the other in connection with the alleged lease deed dated 7th April, 1985. A sum of Rs. 6900/- and Rs. 6600/- were, according to the defendants, deposited towards security on the above two occasions. The best evidence available with the defendants to prove this fact was their own account books which the defendants did not produce despite a notice given to them to do so. Ex.PWD-2/P-1 is the copy of the notice sent to the defendants in that regard, despite receipt whereof, the defendants did not produce before the Court the account books to support their version. On the contrary, the defendant gave an evasive reply in regard to the deposit of security. This is evident from the following portion appearing in his cross-examination:

The security was given, i.e., Rs. 6900/- qua the premises taken firstly and Rs. 6600/- for premises taken on 7.4.85. I am aware whether it was paid in cash or cheque. I cannot say whether one cheque of Rs. 13,500/- on 1.4.85 was given as security of the premises. Whatever has been given was entered in the accounts of defendant No. 1. I have not brought the account books. The notice Ex.DW2/PW1 was received by me vide AD Card Ex.DW2/P2.

21. The defendant's version regarding two tenancies must get totally discredited by the above statement which not only shows that the defendants had failed to produce the account books despite a notice to that effect but also because the defendant has not been able to specifically deny that only one cheque of Rs. 13,500/- towards security was given to the plaintiff on 1st April, 1985. The legal position regarding withholding of best evidence available to the party is fairly well-settled.

22. Reference may in this connection be made to the decision of the Supreme Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. , where the Apex Court declared that if a party, in possession of evidence which could throw light on a controversy, withholds the same, the Court must draw an adverse inference against him even if the onus of proof did not lie on him. The Court observed:

Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

23. It is also useful to refer to the observations made by the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi AIR 1917 PC 6 in this regard. The court observed:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough - they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.

24. To the same effect are the decisions of this Court in Bansidhar Ganga Pershad Agency v. Chanan Lal and Anr. and Hari Kumar v. Sat Narain Mehra .

25. Last but not the least is the admission made by defendant in his cross-examination that the lease deed marked Ex.PW1/2 bears the signature of Shri Subhash Chander at point A. This is clear from the following words appearing in the cross-examination of Shri Jai Prakash Gupta, partner of the defendant.

I have seen Ex.PW1/2 which bears signature of Subhash Chander at point A on 1st Page and there is no signature of Subhash Chander on all the other pages. It is incorrect to suggest that on each page at Point A of Ex.PW1/2, there is signature of Subhash Chander. Again said, the signature at Point A on 1st Page is also not that of Subhash Chander. It does not bear my signature though I was present there.

26. The above portion of deposition of the witness again shows how the witness is trying to equivocate. The witness first admits the signature of Subhash Chander at point 'A' of lease deed and turns around to deny even that signature. There is, therefore, an attempt at every stage to withhold the truth from the court and to distort the true facts.

27. As regards purchase of the stamp paper of Rs. 540/- on which the lease deed Ex.PW1/2 was executed, the witness has stated:

Satish Chander was partner of defendant No. 1 and brother of Subhash Chander. I do not know if Satish Chander bought stamp paper of Rs. 540/- pertaining to Ex.PW1/2 from the treasury. I do not know if the said expenditure is shown in our Accounts Vol. We have not brought the stamp papers.

28. In the totality of the above circumstances, we find that the deposition of Shri Jai Prakash, DW-2 who is a partner of the defendant-appellant is thoroughly unworthy of any credence not only because of the improbability of the version given by the defendant but also on account of the fact that the defendants have deliberately withheld the best evidence available with them regarding the existence of the alleged two tenancies.

29. In the circumstances, we have no hesitation in affirming the finding recorded by the trial court that there existed only one tenancy in favor of the defendant-appellant for the entire mezzanine floor and that the said tenancy was created in terms of lease agreement dated 1st April, 1985. The said tenancy being a month to month tenancy and the same having been already terminated by a service of the notice upon the defendants, the court below had no option but to decree the suit. The first limb of the argument advanced by Mr. Andley, therefore, fails and is hereby rejected.

30. That brings us to the question whether the trial court committed any mistake in awarding mesne profits/compensation for unauthorized use and occupation at the rate of Rs. 15,000/- per month. The court below has, while discussing the issue relating to award of mesne profits/damages, taken into consideration the fact that the admitted rent of the premises was Rs. 9051.25 per month in the year 2000. Even if the enhancement in the rental value is taken at the rate stipulated by the Delhi Rent Act, the amount payable would work out to Rs. 13,500/- approximately. Award of Rs. 15,000/- per month is not, therefore, excessive to warrant any interference.

31. In the result, this appeal fails and is hereby dismissed with costs assessed at Rs. 10,000/-.