Shama Jolly & Anr. vs Prakash Chandra
2008 Latest Caselaw 1881 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA 146/2007

%                     Date of Decision: 23.10.2008

     SHAMA JOLLY & ANR.               ..... Appellants
              Through: Ms.Anjali Chopra, Adv.


                           versus


     PRAKASH CHANDRA                    ..... Respondent
              Through:     Respondent in person.



     CORAM:
     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


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. Heard learned counsel for the parties.

2. It is urged by learned counsel for the appellants that

the learned Trial Judge has ignored vital evidence pertaining to

the involvement of Shakil Ahmed with whom the respondent had

entered into an agreement to reconstruct the property and that

Shakil Ahmed had inducted the appellants as the tenants of

shop bearing No.510/2, 510/3 and 510/9.

3. Alternative submission made is that if the landlord

does not give the rent receipt the tenant could do nothing for

the reason the landlord always has an upper hand.

4. Relevant facts are that the respondent filed a suit for

possession and mesne profits against the appellants alleging

that he was the owner of shops bearing Municipal No.510/15,

510/9, 515/2 and 515/3.

5. He alleged that he had let out only shop No.510/15 to

the respondents vide rent deed dated 10.8.1999 for a period of

11 months at a rent of Rs.800/- per month and that the

respondents had trespassed into the other three shops. So

stating, suit was filed seeking recovery of possession of shop

No.510/9, 515/2 and 515/3.

6. In the written statement filed by the tenants, it was

admitted that vide rent note dated 10.8.1999, shop No.510/15

was taken on rent by them at a monthly rent of Rs.800/-.

Pertaining to shop No.515/9, 515/2 and 510/10 it was averred as

under:-

"On 15.1.2000, the defendant No.1 had further taken shop No.515/9 and 515/2 measuring 6' x 6 ½' at a monthly rent of Rs.200/-.

On 5.8.2000 the defendant No.1 took another shop bearing No.510/10 measuring 10' x 12' at a monthly rent of Rs.300/-."

7. It was further averred in the preliminary objections as

under:-

"No writing with respect to the tenancy created and rent received in respect of shop No.515/9, 515/2 and 510/10 was executed or issued by the plaintiff. Since plaintiff used to issue rent receipts for the rent received in respect of shop No.510/15, therefore the defendant No.1 demanded that receipts in respect of the rent paid for the other three shops be also issued. The plaintiff refused to issue the rent receipt for the said three shops during the financial year 2000-01 on the ground that his house tax assessment for the said year had already been made on a relatively low rental value and the issuance of the rent receipts would cause financial loss to the plaintiff. He promised to issue rent receipt from the financial year beginning from 1.4.2001 and onwards."

8. In respect to the averments made in the plaint, in

para 1 where the respondent had pleaded that he was the

owner of the shop No.510/5, 510/9, 515/2 and 515/3 it was

averred as under:-

"1. That it is not denied that the plaintiff is the owner and landlord of the property bearing No.510/15, 515/9, 515/2 & 515/3 (510/10) situated at Ganda Nala Bazar, Gali Imli Wali, Mori Gate, Delhi-110 006. However, it is denied that only shop No.510/15 was let out by the plaintiff to the defendant No.1. It is submitted that shops Nos.515/9 & 515/2 were also taken on rent by the defendant No.1 on 15.1.2000 and shop No.510/510 old number which the plaintiff has now renumbered as 515/3 was taken on rent on 5.8.2000 at a monthly rental of Rs.200/- and Rs.300/- respectively by the defendant No.1 from the plaintiff."

9. Thus, the first plea raised by learned counsel for the

appellants that the learned Trial Judge has not considered

evidence relatable to the respondent having got the property re-

developed through Shakil Ahmed and he inducted them as

tenants is of no consequence.

10. Suffice would it be to state that there can be no

variance between pleadings and proof. A party can prove what

is pleaded.

11. A feeble attempt has been made to urge that the

appellants were inducted as tenants in respect of the three

shops in dispute by Shakil Ahmed.

12. Learned counsel for the appellants has not been able

to show to us any pleading in the written statement where the

appellants have pleaded that under the collaboration agreement

Shakil Ahmed became the owner of the three disputed shops

and he inducted the appellants as the tenants in the said three

shops.

13. On the contrary, pleadings of the appellants in the

written statement as reproduced herein above show that the

appellants claims to be the tenants under the respondent.

14. It would not be out of place to record that issues

were settled between the parties on 13.1.2004. No issue was

settled whether the respondent was not the owner of the three

shops in dispute. No issue was settled whether the appellants

were inducted as tenants in the three shops by Shakil Ahmed.

15. Thus, the first contention urged is without any

substance.

16. Pertaining to the second contention urged the

evidence considered by the learned Trial Judge may be noted.

17. At the trial, the rent agreement dated 10.8.1999

wherein with effect from 1.8.1999 the respondent let out Shop

No.510/15 to the appellants for a period of 11 months was

proved as Ex.PW-1/4. The counter foil of the rent receipts issued

by the respondent to the appellant when rent was tendered for

shop No.510/15 were proved as Ex.PW-1/5, Ex.PW-1/6, Ex.PW-

1/7, Ex.PW-1/8, Ex.PW-1/9 and Ex.PW-1/10. These counter foils

are dated 1.8.1999, 28.10.1999, 10.1.2000, 28.2.2000,

20.4.2000 and 30.12.2000.

18. The respondent also proved the counter foils of rent

receipt Ex.PW-1/11 and Ex.PW-1/12 in favour of the tenants of

the other shops.

19. In fact, the respondent produced the counter foils of

the receipt book to show that at no point of time did he ever

issued a rent receipt in respect of Shop No.510/9, 515/2 and

515/3.

20. From the aforesaid twin fact i.e. the lease deed

executed in respect of Shop No.510/15 and the counter foils of

the rent receipts the respondent sought to urge that his conduct

consistently showed that whenever he lets out a property he

does so under a written lease and issues rent receipts to the

tenant as and when the rent is paid. Since there was no lease

deed in respect of Shop No.510/9, 515/2 and 515/3 and the

counter foil in his rent receipt book an inference was sought to

be drawn that the respondent never let out the three shops in

question.

21. The appellant could produce no documentary

evidence and save and except evidence by examining

themselves as their witness and reiterated their version in the

written statement could no more.

22. Probablizing the evidence, the learned Trial Judge has

held in favour of the respondent.

23. Indeed, the fact that the shop No.510/15 was let out

under a written lease shows that the respondent does enter into

written lease whenever he lets out his property and this

evidence is admissible of his conduct.

24. That the counter foils of the rent receipt book shows

that the respondent issues a rent receipt as and when a tenant

pays rent, again evidences the conduct of the respondent of

giving rent receipt to a tenant who tenders the rent.

25. It is strange that whereas the appellants received the

receipts by the landlord and when they tendered the rent for

shop No.510/15 they did not insist for one when they allegedly

paid rent for shop No.510/9, 515/2 and 515/3. Meaning thereby,

there is evidence that no rent was tendered for the said three

shops as indeed the same were never let out.

26. It is settled law that where the Trial Judge probablizes

the evidence as a reasonable and prudent person would so do

and while so doing neither excludes relevant evidence nor

includes irrelevant evidence or circumstance, the Appellate

Court would not interfere with a finding of fact recorded by the

learned Trial Judge.

27. We find no merits in the plea urged by the appellants

that a tenant has no option but to live by the dictates of the

landlord. The evidence on record shows that in the instant case

the landlord was dictating no terms to the tenant. As and when

the tenant would tender rent he was issued a rent receipt and

the landlord obtained the signatures of the tenant on the

counter foil. Indeed, payment of rent by the appellants only in

respect of Shop No.510/15 proves that no other shop was ever

let out.

28. No other contention has been urged in the appeal

and hence we need not note any further fact relatable to the

other issues which were settled between the parties.

29. We find no merits in the appeal. The same is

dismissed with costs.

PRADEEP NANDRAJOG, J.

SIDDHARTH MRIDUL, J.

OCTOBER 23, 2008 DK