Dr. P.L. Bhalla vs Sh. Krishan Lal Wadhwa
2010 Latest Caselaw 1101 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RSA No.73/2008

                                   Date of Decision: February 25, 2010

       DR.P.L.BHALLA                                   ..... Appellant
                                Through:    Mr.M.L. Pahwa,
                                            Advocate.
                       versus

       SH.KRISHAN AL WADHWA                            ..... Respondent
                      Through:              None.

       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)         Whether reporters of local paper may be
                 allowed to see the judgment?
     (2)         To be referred to the reporter or not?
     (3)         Whether the judgment should be reported
                 in the Digest ?

                           JUDGMENT

ARUNA SURESH, J. (Oral)

1. Appellant (plaintiff) filed a suit for recovery of

Rs.41,970/- against respondent (defendant). Case of the appellant in

brief was that he had inducted respondent as a tenant in respect of

one room on the first floor in property bearing No.10875,

Jhandewalan Road, Nabi Karim, New Delhi on rent of Rs.1,210/- per

month excluding water and electricity charges. Earlier rent was

Rs.350/- per month which was enhanced to Rs.500/- per month in the

year 1993 and thereafter it was enhanced to Rs.1,000/-per month.

Rent was increased by 10% on the existing rate of rent of Rs.1,000/-

after commencement of the amended Delhi Rent Control Act w.e.f.

1st April, 1998 to Rs.1,100/- and thereafter at the rate of Rs.1,210/-

per month w.e.f. 1st April, 2001.

2. Respondent was in arrears of rent amounting to

Rs.79,170/- in August, 2002. However, appellant claimed rent only

for last three years amounting to Rs.41,470/-, which respondent

failed to pay despite service of legal demand notice dated 22 nd June,

2001. Respondent in his written statement questioned locus standi of

the appellant to file the suit alleging that he had no right, title or

interest in the property in suit and that there was no privity of

contract of alleged tenancy between the parties. Respondent also

took a plea that the suit property was subject matter of litigation

between one Smt.Kanta Nagpal and the plaintiff since 1997 as both

of them claimed title and ownership in the same.

3. Trial Court after appreciating evidence of the parties

adduced on record, concluded that appellant had failed to prove that

he was absolute owner of the property in suit and also that there was

privity of contract of tenancy between the parties. The court

accordingly dismissed the suit of appellant.

4. Aggrieved by the said judgment and decree of the Trial

Court, appellant filed Regular Civil Appeal being RCA No.53/04

before the Additional District Judge. Having failed in the said

appeal, he has filed present appeal before this Court under Section

100 CPC.

5. Learned counsel for the appellant has submitted that

Trial Court went wrong when it looked into the status, right, title and

interest of the appellant in the suit property without taking into

consideration admission of the respondent made by him before the

Sales Tax Authorities that he was a tenant in the suit property. The

tenant is stopped from challenging the right or title of the appellant

being landlord of the suit property by virtue of Section 116 of the

Evidence Act. It is also argued that Appellate Court erred in law in

not accepting the application of the appellant for additional evidence

and in not remanding back the matter to the Trial Court. He has

referred to "Shyam Gopal Bindal & Ors. Vs. Land Acquisition

Officer & Anr.", I (2010) SLT 18.

6. It is pertinent that in the written statement, respondent

disputed the relationship of landlord and tenant between him and the

appellant. Rather he claimed himself to be in possession of the suit

premises since 1980 exclusively to the exclusion of the owner to the

knowledge of the appellant. Respondent had also alleged that he

never tendered any rent to the appellant at any point of time. In the

impugned judgment, Appellate Court observed that neither in the

plaint nor in the replication, appellant disclosed as to when and how

the tenancy was created and when possession of the suit premises

was delivered by the appellant to the respondent as his tenant.

Appellate Court discussed provisions of Section 105 of Transfer of

Property Act, to come to the conclusion that appellant failed to prove

relationship of landlord and tenant between him and the respondent.

7. It is noted that appellant in his cross-examination

unequivocally admitted that property in question belonged to DDA

and DDA neither sold the same to him, nor the said property was

leased out by DDA to anyone. Appellant did admit that one Laxman

son of Sh.Shiva was in unauthorised occupation of the suit property

and Shiva and Laxman had sold the same to him in 1978 without

executing any registered document. Trial Court and the Appellate

Court, therefore, rightly held that appellant was in unauthorised

occupation of the suit property, having allegedly purchased it from

Laxman who had no title in the land to transfer the same in favour of

the appellant. The property in suit admittedly belong to DDA.

Hence, after the alleged purchase of the property, appellant became

unauthorised occupant of the suit property. Trial Court and the

Appellate Court did take note of the fact that appellant, being an

income-tax payee, did not disclose his alleged rental income from the

suit property in his income-tax returns.

8. Under these circumstances, courts below rightly

concluded that appellant failed to prove privity of contract of tenancy

between him and the respondent. It was for lack of evidence on the

part of the appellant that the Appellate Court in impugned order

observed that appellant had failed to prove that he had handed over

possession of the tenanted premises to respondent in 1980, as

claimed.

9. An application was filed by the appellant under Order

41 Rule 27 CPC before the Appellate Court seeking permission to

produce additional evidence in the form of statements made by

respondent and his son before the Sales Tax Department. The said

application was dismissed with the observations that the alleged

documents dated 10th July, 1987 revealed that said statements were

not made on oath and were contrary to the plea taken by the

appellant before the Trial Court. In the alleged statements, rent is

stated to be Rs.200/- per month, whereas according to the appellant,

initially rent was Rs.350/- per month. Therefore, claim of the

appellant is belied by the contents of these documents. Any

statement made by the respondent before Sales Tax Department

wherein appellant was not a party has no bearing on the facts and

circumstances of this case. This statement can be used by the

appellant for confrontation of the respondent during his cross-

examination.

10. Hence, under the facts and circumstances of this case,

Shyam Gopal Bindal & Ors. (supra) is of no assistance to the

appellant. In the said case, original plaintiff had died and after his

death, legal heirs were impleaded in the array of plaintiffs. The

added plaintiffs filed an application under Order 41 Rule 27 CPC in

the appeal seeking permission to adduce additional evidence.

Observing that the documents were sought to be brought on record

by the legal heirs of deceased plaintiff at the earliest opportunity

available to them and therefore, it could not be said that appellants

had not given any reason as to why the documents had not been

produced before the Trial Court. Court had also noted that Trial

Court had dismissed the suit on ground of non-production of

evidence in a mechanical manner. In the case in hand, courts below

have properly assessed and discussed evidence of the parties adduced

on record to conclude that appellant was not entitled to the relief as

claimed. Therefore, Appellate Court rightly rejected the

application of the appellant.

11. As discussed above, Appellate Court in the impugned

order also took into consideration the fact that property belonged to

DDA and therefore, rightly observed that appellant had no right to

create tenancy of the property belonging to the Government.

12. It is a settled principle of law that appeal must disclose

not only that a question of law is involved, but such question of law

should be a substantial question of law. Under Section 100 CPC,

interference by the Court is permissible only in cases involving

substantial questions of law. The High Court would be justified in

admitting the second appeal only when a substantial question of law

is involved. Reference is made to "Narayanan Rajendra & Anr. Vs.

Lekshmey Sarojini & Ors., JT 2009 (4) SC 62.

13. Under these circumstances, when judgment of the Trial

Court and that of the Appellate Court is well balanced on

appreciation of oral and documentary evidence and certain

admissions made by the appellant in his statement on oath as his own

witness, I am of the view that no substantial question of law arises in

this appeal. Hence, none can be formulated.

14. In the present appeal, I do not find any substantial

question of law involved, which may need adjudication. Hence,

appeal, being devoid of merits, is hereby dismissed.

ARUNA SURESH, J.

FEBRUARY 25, 2010 sb