Tilak Raj Narula vs Om Prakash
2008 Latest Caselaw 1842 Del

*                 IN THE HIGH COURT OF DELHI

                         Judgment reserved on : October 15, 2008
%                       Judgment delivered on : October 20, 2008

+                      RFA 83/2008

TILAK RAJ NARULA                             ..... Appellant

                  Through:   Mr.D.S. Chauhan, Advocate

            VERSUS

OM PRAKASH                                   ..... Respondent

                  Through:   Mr.Satish Sahai with Mr.Madhur
                             Sapra, Advocates

CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha

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

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. Tilak Raj Narula has lost at the trial. Suit for

possession and damages filed by him against Om Prakash has

been dismissed.

2. Case of Tilak Raj Narula was that Om Prakash was a

tenant under him in respect of the suit property of which he

was the owner and that on 1.8.1998 the parties had agreed

that the rent of the premises would be raised from Rs.162.50

per month to Rs.4,150/- per month. He claimed that pursuant

to the agreement Om Prakash paid him rent for the month of

August 1998 on 1.8.1998 for which a receipt was issued. He

claimed that on 19.5.1999 he terminated the tenancy and

required possession to be delivered to him.

3. In the written statement Om Prakash pleaded that

he was inducted as a tenant about 39 years back and the

agreed monthly rent was Rs.162.50 per month. Om Prakash

denied having entered into any agreement on 1.8.1998 or

having paid rent in sum of Rs.4,150/- per month. He denied

having obtained any receipt in said sum.

4. Tilak Raj Narula sought to prove the agreement in

question as Ex.PW-1/3. The receipt dated 1.8.1998 was sought

to be proved as Ex.PW-1/4.

5. Besides examining himself, Tilak Raj Narula

produced two alleged witnesses to the agreement Ex.PW-1/3.

The same are PW-1 Som Nath Malhotra and PW-2 Joginder

Nath Uppal. Tilak Raj Narula also examined one V.C.Mishra as

PW-4 who claimed to be a handwriting expert and proved his

report to the effect that the disputed signatures of Om Prakash

on Ex.PW-1/3 and Ex.PW-1/4 were those of Om Prakash.

6. It surfaced at the trial that the parties were

embroiled in a series of litigation and as of 1.8.1998 an appeal

filed by Tilak Raj Narula, registered as No.250/1993, was

pending before the learned Rent Control Tribunal. A suit

registered as Suit No.923/1995 was pending before the Court

of Shri L.K.Gaur, Sub-Judge, Delhi. An Eviction Petition filed by

Tilak Raj Narula registered as No.42/1996 was pending before

a learned Additional Rent Controller. An application filed by

Om Prakash under Section 27 of the Delhi Rent Control Act

registered as No.DR-40/1996 was pending. In none of the

aforenoted four proceedings was an application filed drawing

attention of any Court to the settlement alleged by Tilak Raj

Narula.

7. In respect of the suit, it transpired that Rajesh

Narula, Advocate, son of Tilak Raj Narula made a statement on

24.8.1998 simply withdrawing the suit without recording that

on 1.8.1998 a settlement was arrived at between the parties.

Eviction Petition No.42/1996 was listed on 29.7.1998 and was

adjourned thereafter to 20.10.1998 and thereafter to

8.12.1998. On neither date none appeared for Tilak Raj

Narula. Counsel appeared for Om Prakash. The petition was

dismissed in default on 8.12.1998.

8. Petition filed by Om Prakash under Section 27 of the

Delhi Rent Control Act registered as DR No.40/1996 was listed

on 29.7.1998. On said date it was adjourned for 8.12.1998

and thereafter to 26.2.1999. None appeared for Tilak Raj

Narula on 8.12.1998 or 26.2.1999. Counsel had appeared on

both dates for Om Prakash. The learned Additional Rent

Controller disposed of the proceedings permitting Tilak Raj

Narula to withdraw the rent deposited by Om Prakash without

prejudice to the rights of Tilak Raj Narula.

9. The appeal pending before the Rent Control

Tribunal was listed on 8.9.1998, 12.1.1999, 26.2.1999 and

13.5.1999. On neither date Tilak Raj Narula entered

appearance and on all dates Om Prakash or his counsel

appeared. Since on four consecutive dates no appearance was

entered on behalf of Tilak Raj Narula the appeal was dismissed

in default.

10. Om Prakash examined himself as DW-1. He

examined a handwriting expert S.P.Singh as DW-2 who proved

his report to the effect that the signatures on Ex.PW-1/3 and

PW-1/4 were not those of Om Prakash.

11. Discussing the testimony of PW-1 Som Nath

Malhotra learned Trial Judge has held that the witness was

tutored and that his being present when Ex.PW-1/3 was

allegedly executed was doubtful. Reason for disbelieving Som

Nath Malhotra is his statement in examination-in-chief that

was known to the parties. In cross-examination he could not

state that the son of Tilak Raj Narula was an advocate. In

cross-examination he stated that he was neither related to the

defendant nor friendly with him.

12. Learned Trial Judge has questioned the presence of

Som Nath Malhotra in the shop because as per his cross-

examination he was not friendly with Om Prakash. His stand

that he was known to the parties since long has been

disbelieved when he could not even state any fact about the

vocation of the son of Tilak Raj Narula.

13. PW-2 Joginder Nath Uppal has been disbelieved

because he has not been recorded as a witness to the

agreement Ex.PW-1/3. His testimony that he had gone to

Central Market, Lajpat Nagar for shopping and was called by

the plaintiff inside the shop has been disbelieved by the

learned Trial Judge as being an unnatural conduct of a person

who would just enter a shop to witness something and then

walk out, more so when said person is not an attesting

witness.

14. But, what has substantially weighed with the

learned Trial Judge is the self examination by the learned Trial

Judge and comparison of the disputed signatures of Om

Prakash vis-à-vis his admitted signatures; with a finding that

the same do not match. The second reason is that if there

was a settlement between the parties there was no reason

why the same was not brought to the notice of any Judge who

were dealing with the four proceedings noted above; namely,

a suit for injunction, a petition for eviction, an appeal before

the Rent Control Tribunal and a proceeding under Section 27

of the Delhi Rent Control Act. Further, the fact that the

counsel for Om Prakash continued to appear in the

proceedings much after 1.8.1998 and none appearing for Tilak

Raj Narula resulting in the proceedings being dismissed in

default has been found to be a circumstance wherefrom an

inference could be drawn that no such agreement was arrived

at.

15. Lastly, the learned Trial Judge has opined that a

person would settle a dispute where some benefit would flow

to the person. That Om Prakash was a tenant for over 39

years at a rent of Rs.162.50 per month and that Ex.PW-1/3

enhances the same to Rs.4,150/- per month has resulted in a

finding that this makes the execution of the agreement Ex.PW-

1/3 highly doubtful.

16. Learned counsel for the appellant, Shri D.S.

Chauhan urged that a visual comparison of the disputed

signatures of Om Prakash on Ex.PW-1/3 and Ex.PW-1/4 with his

admitted signatures show complete identity. Counsel urged

that there was no reason for Tilak Raj Narula to abandon the

proceedings initiated by him except the reason that the parties

had settled the disputes.

17. None of the submissions urged by learned counsel

for the appellant are sufficient to over rule the impugned

judgment and decree.

18. It is settled law that where there is no material

infirmity in the appreciation of evidence by the learned Trial

Judge, the Appellate Court would not re-appreciate the

evidence. It has to be shown in appeal that the Trial Judge has

ignored relevant evidence or circumstance or has considered

an irrelevant evidence or irrelevant circumstance while

appreciating evidence or that the finding returned is perverse.

19. At a civil trial the evidence has to be evaluated on

the test of preponderance of probability.

20. Indeed, if there was a settlement between the

parties as alleged by Tilak Raj Narula we see no reason why

the same was not brought to the notice of either Court which

was seized of the four proceedings noted above. Further, the

fact that counsel for Om Prakash continued to appear in the

four proceedings much after 1.8.1998 shows that there was no

settlement between the parties for had there been one, Om

Prakash would have told his counsel not to appear before any

court.

21. We are also in agreement with the appreciation of

the testimony of PW-1 and PW-2 by the learned Trial Judge.

Indeed, PW-1 appears to be a tutored witness for the reason

recorded by the learned Trial judge and briefly noted

hereinabove by us. Indeed, the presence of PW-2 at the shop

of Om Prakash on 1.8.1998 is highly doubtful.

22. There is one more facet which needs to be

highlighted. The notice dated 19.5.1999 determining the

tenancy referred to by Tilak Raj Narula in his plaint has been

proved as Ex.PW-1/9. The same nowhere alleges to any

written agreement dated 1.8.1998. While determining the

tenancy it simply states that Om Prakash was a tenant at a

monthly rent of Rs.4,150/- as mutually agreed between the

parties on 1.8.1998.

23. Even in the notice determining the tenancy Tilak

Raj Narula nowhere referred to a written agreement between

the parties.

24. Om Prakash replied to the notice Ex.PW-1/9 vide his

reply Ex.PW-1/15. He reiterated that he was a tenant at a

monthly rent of Rs.162.50 per month. He denied any mutual

agreement on 1.8.1998 to enhance the rent to Rs.4,150/- per

month. Tilak Raj Narula responded to the reply on 26.7.1999

vide Ex.PW-1/16. In the reply he never referred to any written

agreement entered into on 1.8.1998.

25. We find it extremely strange that having received a

response vide Ex.PW-1/15 in which Om Prakash refuted any

mutual agreement entered into on 1.8.1998 to increase the

rent to Rs.4,150/- per month, Tilak Raj Narula while responding

vide Ex. PW-1/16, did not refer to any written agreement

between the parties.

26. We find no merit in the appeal. The appeal is

dismissed with costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

October 20, 2008 rk