Sushil Garg vs Kausar Properties Pvt. Ltd. And ...
2008 Latest Caselaw 392 Del

JUDGMENT

Kailash Gambhir, J.

1. By way of the present Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the impugned judgment/order and decree dated 11th October, 2007 passed by the learned Additional District Judge, Delhi in RCA No. 4/2006 whereby the learned Additional District Judge has upheld the judgment and decree of possession and recovery of money passed by the Trial Court and has dismissed the first appeal filed by the appellant.

2. Mr. Sudhir Nandrajog counsel appearing for the appellant made his submissions on various issues raised in sub paras (A) to (Q) of para 2 of the present appeal. The entire controversy raised in the present appeal revolves around three main questions, firstly whether the rent of the property in question was Rs. 400/- per month and not Rs. 4,000/- per month as claimed by the respondents and consequently the tenancy of the appellant is duly protected under Section 50 of the Delhi Rent Control Act. Connected with the same, the other issue taken up by the appellant is that no terms of the Lease Deed insufficiently stamped and unregistered could have been relied upon even for collateral purposes as such a lease deed is inadmissible in evidence and no term of same could be looked into for any purpose whatsoever. The other issue raised by the counsel for the appellant relate to the question as to whether the suit got abated on the death of the original plaintiff on account of the failure of legal heirs of the deceased plaintiff to apply for their substitution within the period of limitation and similarly non-impleadment of the legal heirs of the deceased defendant No. 1 by the plaintiff.

3. Delving his arguments on the aforesaid issues Mr. Sudhir Nandrajog, counsel appearing for the appellant vehemently contends that the respondents had failed to prove the rent of the property in question at Rs. 4,000/- per month ignoring the fact that the rent of the property in the lease deed was mentioned as Rs. 400/-. Expanding his arguments further, the counsel contends that Rs. 400/- was mentioned in the said unregistered lease deed in words while Rs. 4,000/- was typed in numerical. The contention raised by the counsel is that in the case of discrepancy between the words and figures the amount mentioned in the words should prevail over the figures. The counsel thus contends that the tenancy of the appellant could not have been terminated and the termination notice sent by the original landlord was without any authority and inconsequential. Alternative plea of the appellant is that even if the figure of Rs. 4,000/- as alleged by the respondent is accepted as correct then covenant relating to fixation of rent in the lease deed being one of the essential and basic term of the contract could not have been read into the evidence on the premise of the same being a collateral term due to the admitted fact of the lease deed being insufficiently stamped and unregistered. Counsel thus contends that the decree passed by both the Courts below based on such an inadmissible evidence is unsustainable in the eyes of law. Counsel for the appellant further contends that the suit filed by the respondents had abated when no steps were taken to bring on record the legal heirs, after the death of the original plaintiff within the prescribed period of limitation and later on when no legal heirs of the deceased defendant No. 1 in the main suit were brought on record and therefore, due to the non-impleadment of the legal heirs of defendant No. 1 also the suit got abated against all the defendants against whom common relief was being sought.

4. I have heard Mr. Sudhir Nandrajog, counsel for the appellant and Mr. Amarjit Singh Chandiok, Senior Advocate with Mr. Raman Kapur counsel for the respondents.

5. It is a settled legal position that the existence of a substantial question of law is sine qua non for the exercise of jurisdiction by the High Court under the amended provision of Section 100 CPC. It is thus not open to the High Court to interfere with the pure findings of the facts arrived at by the Courts below unless such findings of facts arrived at by the Courts below are merely on conjectures and surmises or such facts are not backed by sufficient material on record in the shape of documentary evidence or such findings are totally perverse, which can result in vitiating the entire proceedings. The rent of the property whether it was Rs. 400/- or Rs. 4,000/- is a pure question of fact. Both the Courts below have concurrently upheld the said rent of the premises at Rs. 4,000/- p.m. The Appellate Court has held that the error in typing the words in the lease deed was duly corrected by putting initials after cutting the word four hundred and writing four thousand by parties in the suit. Counsel for the appellant has failed to persuade the Court on what grounds the said finding of the fact should be interfered with. Not only this the statement of one of the defendants Mr. Adnan Hasan Kidwai who was one of the three partners along with the appellant, in his deposition had also confirmed the rent at Rs. 4,000/- per month. The testimony of Adnan Hasan Kidwai remained unrebutted, therefore, also the argument of the counsel for the appellant to assail the said finding of the fact in the second appeal does not hold any water.

6. On the question of whether the term relating to covenant of rent in unregistered and insufficiently stamped registered lease deed could be looked into for collateral purposes, the learned Trial Court and the first Appellate Court has threadbare gone into the said question after placing reliance on various judgments of this Court and of the Supreme Court and then reached to the conclusion that for the purpose of looking into the rate of rent, the same being a collateral purpose even unregistered lease deed and insufficiently stamped lease deed could be taken into consideration. Paras 38 to para 40 of the judgment of the first appellate Court are relevant in this regard and the same are reproduced as under:

38. On the other hand, the defendant No. 3 has not produced any receipt or document to show that he had paid any rent to the original plaintiff for the period w.e.f. 01/07/1988 to 31/12/1988. Consequently, it is obvious that no rent was paid for the said period and the defendants are in arrears of rent for the said period. Therefore, I hold that the plaintiff is entitled to get a decree of recovery of Rs. 24,000/- w.e.f. 01/07/1988 to 31/12/1988 @ Rs. 4,000/- per month as arrears of rent. Hence, issue No. 3 is decided in favor of the plaintiff and against the defendants.

39. Further, in issue No. 4, the plaintiff has claimed the damages/mesne profits w.e.f. 01/01/1989 to 30/11/99 for the use and occupation of the suit shop in question from the defendants. Now, after going through the cross examination of DW 3, Sh. Sushil Garg, I find that he has admitted that he is receiving around Rs. 80-85,000/- from M/s Addidas as commission. According to him, he had entered into an agreement with M/s Addidas, Now according to the plaintiff, the amount of Rs. 80-85,000/- are only rent as the defendant No. 3 was not involved in the business. On the other hand, the defendant No. 3 has not placed any document on record to show that he has been involved in the business with M/s Addidas.

40. Keeping in view the above mentioned circumstances and the value of the suit shop in question as situated in one of the top commercial areas of Delhi, I find that the plaintiff is also entitled to get mesne profits/damages for the use and occupation of the suit premises from the defendant as claimed. Hence, issue Nos. 4 & 5 are also decided in favor of the plaintiff and against the defendant.

7. With regard to the other issues raised by the counsel for the appellant on the abatement of the suit due to the failure of the plaintiff to bring on record the legal heirs of the deceased defendant No. 1 and also the failure on the part of the plaintiff to bring on record the legal heirs of the deceased plaintiff, I find myself in agreement with the reasoning given by the first Appellate Court, who has extensively dealt with the said issues. The learned Counsel appearing for the appellant has not been able to persuade this Court to take any contrary view to the one as arrived by the Courts below. No substantial questions of law arise in the present appeal.

8. There is no merit in the present appeal. The same is hereby dismissed.