M/S. Equipment Conductors & ... vs Kiran Suneja
2010 Latest Caselaw 5709 Del

21
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 15.12.2010

+                    R.S.A. No.226/2007

M/s. EQUIPMENT CONDUCTORS & CABLES LTD. .....Appellant
                  Through: Mr.Rajesh Banati, Advocate.

                    Versus

KIRAN SUNEJA                                      ..........Respondent
                         Through:      Mr.Rajesh Yadav & Mr.Rajesh
                                       Bhardwaj, Advocates.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?               Yes

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

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

31.5.2007 which had reversed the finding of the trial judge dated

4.5.2005. Vide judgment and decree dated 4.5.2005, the suit of the

plaintiff Kiran Suneja seeking possession and recovery of

rent/mesne profits had been dismissed.

2. This is a second appeal. It is yet to be admitted. On behalf of

the appellant it has been urged that substantial questions of law

have arisen which are embodied on page 1 of the appeal. They

have been termed as 'question of law'. Nevertheless, in view of the

oral submission made by learned counsel for the appellant they

have been argued as substantial questions of law. It has been

urged that the judgment reported in 2001 V AD (Delhi) 291

Suchitra Pradhan & Ors. vs. M/s U.P.Twiga Fibreglass Ltd. & Ors.

has illegally been ignored in the impugned judgment; it was a

binding precedent and could not have been overlooked. Perusal of

this judgment and the finding in the impugned judgment qua this

proposition has been dealt with in paras 16, 17, 25 & 26 of the

impugned judgment. The first appellate court had reappreciated

the oral and documentary evidence led before the trial judge. It

had recorded that prior to the present suit which had been filed by

Kiran Suneja, she has also filed a suit for recovery of rent against

the defendant which suit had been decreed; defendant had not

taken any plea that Kiran Suneja is a joint owner with Santosh

Suneja or that the suit filed by Kiran Suneja alone was not

maintainable. In the course of trial before the trial judge

Ex.PW1/DX1 had been proved. This was a letter dated 26.2.1986

written by Kiran Suneja and Santosh Suneja to the builder of

S.K.Constructions Pvt.Ltd. stating that the suit flat will henceforth

be exclusively in the name of Kiran Suneja and Santosh Suneja has

no interest left in the said flat. Endorsement at the bottom of the

said document was confirmed by the builder. PW-1 had not raised

any query on this document. However, a court observation had

been recorded. Observation was that whether this document

creates or extinguishes any right in favour of any person would be

considered at the time of final arguments and parties were

permitted to argue this at the said time. Counsel for the appellant

has vehemently urged that Ex.PW-1/DX1 which was an

relinquishment deed by Santosh Suneja in favour of Kiran Suneja

was necessarily required to be registered as it created a transfer of

interest in immovable property. This document could not have

been read in evidence. If this document is not read in evidence,

the judgment of Suchitra Pradhan (supra) would be directly

applicable and a suit filed by one co-owner without joining the

other would not be maintainable.

3. This argument of learned counsel for the appellant is without

any merit.

4. Apart from the fact that Kiran Suneja had earlier filed a suit

aforenoted for arrears of rent where the defendant had raised no

such objection, even otherwise in view of the judgment of the Apex

Court reported in AIR 2004 SC 1321 M/s India Umbrella

Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (dead) by

L.Rs. & Ors. it has been held that one of the co-owners can file a

suit for eviction of a tenant in the property owned by co-owners;

this principle is based on the doctrine of agency; one co-owner

filing a suit for eviction against the tenant does so on his own

behalf in his own right and on behalf of the other co-owner. This

judgment would be squarely applicable even presuming that the

document Ex.PW1/DX1 is to be ignored. In view of the ratio of this

judgment of M/s India Umbrella Manufacturing Co. (supra) the suit

in the present form filed by Kiran Suneja alone would also be

maintainable.

5. It is further argued that the plaintiff Kiran Suneja had not

come into the witness box; her power of attorney holder i.e. her

husband had come to depose in her place which evidence could not

have been read. This contention of learned counsel for the

appellant has been dealt with in paras 22 & 23 of the impugned

judgment. The court has held that PW-1 had come into the witness

box and deposed on personal knowledge; he was the person who

was in fact receiving the rent from the defendant and personally in

know-how in the matter. This fact-finding answers this query.

6. It has lastly been argued that mesne profits had been granted

to the plaintiff at the rate of `20,000/- when there was no evidence

to this effect and the impugned judgment in relying upon the

judgment of 2004 RLR 467 Phool Rani vs. Sh.Sheel Chandra has

committed a grave error as facts of one case cannot be transposed

into another. On this count, the impugned judgment had noted

that apart from the plaintiff statement of PW-2 Surinder Singh, a

property broker had been recorded. Court in the case of Phool

Rani (supra) had taken judicial notice of the area, dimensions and

location of the flat which was in a posh colony of South Delhi which

was in occupation of the defendant/tenant and which he had not

vacated even after the expiry of the lease deed by efflux of time. It

was in these circumstances that mesne profit had been awarded at

the aforenoted rate. The present is a suit property is in a

commercial area situated in the posh area of Nehru Place, South

Delhi. It is a 750 sq. yds. flat situated on the sixth floor in the

building known as Eros Apartments. It is a commercial holding.

The flat had initially been leased out in the year 1979 when the

rate of rent was `3653.80. The impugned judgment has been

delivered in the year 2007 i.e. after more than 28 years of the

initial lease entered into between the parties. The court took

judicial notice of these facts. This is implicit in the import of the

order which had granted mesne profits at the rate of `20,000/- per

month. There is no perversity in this finding.

7. No other argument has been urged. Questions of law albeit

substantial questions of law as embodied on page 1 of the appeal

are all factual; no question of law much less any substantial

question of law has arisen. Appeal is dismissed in limine.

INDERMEET KAUR, J.

DECEMBER 15, 2010 rb