Shri Ramesh Kumar Dhamija vs Smt. Nirmal Ahluwalia
2008 Latest Caselaw 1295 Del

*                    HIGH COURT OF DELHI : NEW DELHI

             Judgment reserved on: August 06, 2008
             Judgment delivered on : August 8, 2008

+                        R.F. A. No. 35/2007

      Shri Ramesh Kumar Dhamija        ...    Appellant
                    Through: Mr.  Valmiki    Mehta,   Senior
                             Advocate with Ms. Madhu Sapra,
                             Advocate.

                                versus

    Smt. Nirmal Ahluwalia               ...   Respondent
                    Through: Mr. H.S. Paul, Advocate.
CORAM:
HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SUNIL GAUR

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?

2.    To be referred to Reporter or not?

3.    Whether the judgment should be reported
      in the Digest?

SUNIL GAUR, J.

1. This is defendant's appeal against judgment and decree

dated 11th October, 2006 vide which defendant has been directed

to pay a sum of Rs.4,60,800/- alongwith pendentelite and future

interest @ 6% p.a for the use and occupation of premises no.

F-14/6, Model Town, Delhi as defendant has been declared as

trespasser after death of his adoptive father Late Sh.Ram Niranjan

who was a tenant under the plaintiff / respondent.

2. The factual scenario of this case is that the plaintiff/

respondent in the suit filed by her, had claimed that defendant /

R.F.A. No. 35/2007 Page 1 appellant's adopted (to be read as adoptive) father was the tenant

in the aforesaid premises under the plaintiff/respondent who

claims that the said tenancy was terminated by a notice prior to a

death of appellant/defendant's father in the year 1988. There is

no averment in the plaint about the date of termination of the said

tenancy or of the service of the notice of termination of tenancy

upon the appellant/defendant. Anyhow, plaintiff/ respondent

proceeded to claim damages for the period from June, 2002 to

May, 2004 for the use and occupation of the premises in question.

In the suit filed by the plaintiff/respondent, decree for damages of

Rs. 4,60,800/- was claimed with interest @ 18% p.a.

3. Aforesaid suit of the plaintiff/ respondent was contested by

the defendant/ appellant by filing a written statement, stating that

the averment of the plaintiff/respondent to the effect that

defendant is the adopted son of the tenant of the plaintiff/

respondent is not denied and in the replication filed by the

plaintiff/ respondent, the factual assertion of the defendant/

appellant being the adopted son of the tenant of the

plaintiff/respondent has not been controverted.

4. The issues framed by the Trial Court reads as under:-

"(i). Whether plaintiff is entitled to a decree for a sum of Rs.4,60,000/-, with pendentelite and future interest @ 8% per annum from the date of filing of the suit till realization? OPD.

(ii). Whether the suit of the plaintiff is not maintainable? OPD

R.F.A. No. 35/2007 Page 2

(iii). Whether the suit is liable to be stayed under section 10 CPC? OPD.

(iv). Whether suit is barred under section 50 of DRC Act? OPD

(v) Relief."

5. The evidence led in this case consisted of the deposition of

the plaintiff/ respondent Mrs. Nirmal Ahluwalia (PW-2) and of her

attorney Sh.P.S.Ahluwalia (PW-1) and that of defendant Ramesh

Kumar Dhamija (DW-1).

6. The suit proceedings stood concluded vide impugned

judgment and decree dated 11th October, 2006 whereby,

appellant/ defendant has been called upon to pay the damages @

of Rs.19,200/- p.m. for the use and occupation of the tenanted

premises i.e appellant/defendant has suffered a decree of

Rs.4,60,800/- with interest @ 6% p.a. from the date of the suit, till

realization. So, this appeal.

7. With the assistance of learned counsels for both the sides, we

have done a strict scrutiny of the pleadings of the parties and the

evidence on record.

8. The basic issue involved in this appeal is the status of the

appellant in the present proceedings. When the law was set into

motion in the suit proceedings by filing of a plaint by the

plaintiff/respondent, the defendant / appellant was referred to in

the context of his adopted (to be read as adoptive) father being a

tenant in the premises in question. Aforesaid is a clear cut

R.F.A. No. 35/2007 Page 3 admission of the fact of defendant/ appellant being the adopted

son of the tenant of the plaintiff/respondent. There is no ambiguity

about it.

9. The aforesaid admission of appellant/defendant being

adopted son of the tenant of the plaintiff/Respondent is first in

point of time. Plaintiff/ respondent had a second opportunity at

the time of filing of the replication to controvert the specific

assertion of the defendant/appellant in the written statement of

being adopted son of the tenant of the plaintiff/respondent but in

the replication, the fact of appellant/defendant being adopted son

of the tenant of the plaintiff/respondent is not controverted.

10. Non denial amounts to admission of fact. In view of order VIII,

Rule 5 of the Code of Civil Procedure, non denial of averment in a

plaint specially, has to be taken to be the admission of the said

fact. In the instant case, the plaintiff/respondent himself has

defined the status of the appellant /defendant as that of adopted

son of the tenant of the plaintiff/respondent. Needless to say that

admitted facts need not be proved. (Section 58 of the Indian

Evidence Act, 1872).

11. Not only the plaintiff Smt.Nirmala Ahluwalia (PW-2) but even

her attorney Sh.P.S.Ahluwalia (PW-1) in their evidence have

categorically deposed that appellant/ defendant's adopted (to be

read as adoptive) father was a tenant under the respondent/

plaintiff. Both these witnesses have also admitted in their evidence

R.F.A. No. 35/2007 Page 4 that the tenancy in question was commercial. Undisputedly,

commercial tenancies are heritable. (Gyan Devi Anand Vs. Jeevan

Kumar and Ors. (1985) 2 SCC 683).

12. Surprisingly, trial Court has noticed the abovesaid clear cut

admission made in the pleadings as well as in the evidence by the

plaintiff/respondent regarding the status of appellant/defendant

being adopted son of the tenant of the respondent/plaintiff but has

chosen to brush them aside, by going beyond pleadings to rely

upon some statement being made in the probate proceedings

about it being correct that appellant was adopted son of the tenant

as projected by both of them. The finding of the trial Court on this

vital aspect is that it amounts to no admission by the

husband/attorney of the plaintiff/respondent. The view taken by

the trial Court on this crucial aspect is that the abovesaid

admission is qualified to be projected one and the finding returned

is that the mere use of the word 'adopted' in the plaint by the

plaintiff is not sufficient admission to negate the requirement of

the factum of legally being adopted to be proved by the

defendant/appellant.

13. We find it difficult to subscribe the aforesaid view of the trial

Court and to sustain the above referred finding as no party can be

taken by surprise. It is true that there is an exception to the

cardinal rule of admitted facts being relied upon without being

formally proved. Proviso to Section 58 of the Evidence Act gives

R.F.A. No. 35/2007 Page 5 the discretion to the Court to require the facts admitted to be

proved otherwise than by such admissions i.e by evidence. In all

fairness, trial Court ought to have given reasonable opportunity by

putting the party (making the admission) to notice to lead

evidence to prove the admitted fact.

14. Aforesaid is the general rule which could have been applied

to a case where defendant had made an assertion regarding a

particular fact which was not controverted in the replication.

Present case appears to be extra ordinary one, which is an

exception to the aforesaid general rule. Here is a case where

status of the defendant is declared by the plaintiff and the

defendant does not deny it and in the evidence led also, the

plaintiff maintains the status of the defendant to be adopted son of

the tenant of the plaintiff. This is such a peculiar case where even

the proviso to Section 58 of the Evidence Act cannot come to the

rescue of the plaintiff/ respondent because she cannot be called

upon to prove that the defendant/appellant is the adopted son of

the tenant. Had this fact been asserted by the defendant/plaintiff,

then only, the defendant could have been put to proof.

15. In our considered opinion, trial Court has transgressed its

limits in ignoring the admission made in the pleadings as well as in

evidence regarding appellant/defendant being adopted son of the

tenant of the respondent/ plaintiff and by returning a finding of

there being no admission of this fact by attorney of the plaintiff by

R.F.A. No. 35/2007 Page 6 referring to some statement made in other proceedings by the

attorney of the plaintiff (which is not duly proved on record)

regarding adoption being correct as projected by them.

Therefore, we have no hesitation in holding that the aforesaid

finding of the trial Court of there being no categoric admission of

the fact of adoption is unsustainable and is hereby set aside.

16. We fail to understand as to what was the need for the trial

Court to return a finding regarding assignment of tenancy through

Will in favour of the defendant/appellant by the tenant of the

plaintiff/ respondent being illegal, when neither the Will nor the

probate was before the trial Court for adjudication. In any case,

this aspect is not required to be gone into as in the pleadings as

well as in the evidence, the status of the appellant/defendant

stood defined by the respondent /plaintiff as that of adopted son of

the tenant and since the tenancy is commercial and heritable by

virtue of being adopted son of the tenant, therefore, appellant

does not lose the status of being a tenant as after the death of

statutory tenant, his successor-in-interest would continue to have

estate in the tenanted premises (Sarwan Kumar and another

Vs.Madan Lal Aggarwal (2003) 4 SCC 147).

17. The question of termination of the tenancy in question by a

notice has been casually and vaguely pleaded in this case and in

fact there are no averments regarding the service of notice to

terminate the tenancy of tenant during his life time but still the

R.F.A. No. 35/2007 Page 7 trial Court has proceeded to decide it without there being any issue

or evidence on this aspect and has jumped to a wild conclusion of

appellant being a trespasser in the tenanted premises after the

death of his adoptive father. We are constrained to observe that in

the impugned judgment, trial Court has noticed that the appellant/

defendant had contended before it that the notice did not validly

terminate the tenancy and despite the said notice being not on

record, trial Court has held that the tenancy of the adoptive father

of the appellant / defendant stood validly terminated during his life

time.

18. In the face of the evidence on record, we find that the

aforesaid finding of the Trial Court declaring Appellant/defendant

to be a trespasser in the tenanted premises is nothing but

perverse and we unhesitatingly set it aside and we hold that the

Appellant is successor-in-interest, being adopted son of Late Shri

Ram Niranjan, statutory tenant of the plaintiff/Respondent. As a

consequence thereof, the grant of damages by the Trial Court to

the Respondent/plaintiff are rendered unsustainable and the

impugned judgment and decree is accordingly set aside and the

suit of the Respondent/plaintiff is dismissed leaving the parties to

bear their own costs. Trial court record be remitted back.

19. During the pendency of this appeal, 50% of the decretal

amount, i.e., Rs.2,64,961/- was deposited by the Appellant with

the Registrar General of this Court and in terms of order dated 14 th

R.F.A. No. 35/2007 Page 8 November 2007, of this Court, Respondent was permitted to

withdraw the aforesaid amount subject to furnishing of the

security to the satisfaction of the Registrar of this Court. As this

appeal succeeds, the Registrar of this Court is directed to invoke

the bank guarantee furnished by the Respondent and thereafter to

release the aforesaid amount with interest if so accrued, to the

Appellant within six weeks from today. In case the needful is not

done, as directed above, then the aforesaid amount would carry

interest @ 9% per annum for the delay, if any, is there on the part

of the respondent.

20. With the abovesaid directions, this appeal is disposed of.

                                            SUNIL GAUR, J




                                            T.S. THAKUR, J

August 8, 2008
PKB




R.F.A. No. 35/2007                                            Page 9