Ashok Kumar Garg vs Anil Kumar Gupta
2010 Latest Caselaw 3455 Del

                                    UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           DATE OF RESERVE: May 12, 2010
                            DATE OF DECISION: July 23, 2010

+                           RFA No. 47/2010


      ASHOK KUMAR GARG                          ..... Appellant
                  Through:             Mr.Neeraj Kumar Singh,
                                       Advocate


                   versus


      ANIL KUMAR GUPTA                        ..... Respondent
                   Through:            Mr.Vikram Nandrajog with
                                       Mr.Sushil Jaswal, Advocates.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

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?


: REVA KHETRAPAL, J.

1. This appeal seeks to challenge the judgment and decree passed by

the learned Additional District Judge, Delhi, dated 21st November, 2009

decreeing the suit of the respondent for possession and damages.

2. The respondent‟s case as set out in the plaint was that he was a

member/shareholder of Amarpali Apartments Group Housing Society

and the allottee of Flat no.152 by the aforesaid Cooperative Society,

which was built on Plot no.56, Patparganj Residential Group Housing

Society Complex allotted to the said Society. The appellant was aware

that the respondent was the owner of the aforesaid flat and requested the

respondent in the first week of April‟1995 that he may be allowed to

temporarily occupy the aforesaid flat for 5-6 months. The appellant

assured the respondent that he would vacate the flat within six months

and would soon arrange an alternative accommodation for his residence.

The respondent allowed the appellant to occupy the flat temporarily on a

purely license basis for six months, and the appellant was asked to pay

the water and electricity charges to the Society. After six months, the

respondent asked the appellant to vacate the flat. The appellant

requested the respondent for some more time for vacating the said flat.

The respondent informed the appellant that he was liable to pay

Rs.5000/- per month as licence fee/damages to the respondent for the use

and occupation of the flat. In January 1996, the respondent again

requested the appellant to vacate the flat as the respondent needed his

flat. The appellant failed to vacate the same on one pretext or the other.

The respondent terminated the licence and since then the appellant is a

tresspasser/unauthorized occupant of the flat in question.

3. It is further the case of the respondent that the appellant continued

to occupy the flat even though the appellant was always promising to

vacate the flat and pay the arrears of damages. In the first week of

January‟98, the respondent along with his wife and brother went to his

flat and again requested the appellant to vacate the flat. The appellant

started misbehaving with them and extending threats. Apprehending

danger at the hands of the appellant and his muscle men who had arrived

at the scene, the respondent made a complaint to the SHO, P.S. Trilok

Puri, Delhi and also to the Society, as by then it had become obvious to

the respondent that the appellant was trying to illegally grab his flat and

to dispose it of. The respondent had also received letters from the

Society that the electricity and maintenance charges from May‟1995 had

accumulated to the tune of Rs.16,959/- upto 30th April, 1998. In the

month of July‟98, the respondent received summons issued in a suit for

injunction being Suit No. 392 of 1998 instituted by the appellant,

alleging that he had purchased the flat from the respondent against a

consideration of Rs.5.45 lakhs through an Agreement to Sell and a

General Power of Attorney both dated 9th May, 1995. The appellant

therein stated that both the documents had been lost and a police report

dated 25th January, 1996 lodged in respect thereof.

4. In the aforesaid circumstances, the respondent was left with no

alternative except to file a suit for possession and recovery of damages

against the appellant.

5. The appellant filed a written statement in the suit stating that the

respondent had no right, title or interest to file the suit in respect of the

flat in question, which he had already sold to the appellant for a total

consideration of Rs.5.45 lakhs. He further stated that, to effect the sale,

the respondent had executed the following documents:-

"(1) Agreement to Sell dated 09.04.1995

(2) General Power of Attorney dated 08.05.1995

(3) Indemnity Bond dated 08.05.1995

(4) Special Power of Attorney dated 08.05.1995

(5) Affidavit dated 08.05.1995.

(6) Receipt dated 08.05.1995.

(7) Bill dated 08.05.1995."

6. It was asserted by the appellant in the written statement that he

was a lawful occupant of the suit property and that the respondent had no

right, title or interest in the same. A counter claim was also filed with

the written statement praying for a direction to the respondent to get the

sale deed registered with regard to the flat in question in accordance with

law.

7. On 20th March, 2004, the following issues were framed in the

Suit: -

"1. Whether the defendant was inducted by the plaintiff in the premises Flat no.152, Amarpali Group Housing Complex, Patparganj, Delhi temporarily for a period of six months as licencee without payment of rent? OPP

2. Whether the suit premises has been sold by the plaintiff to the defendant as alleged for valid consideration for a sum of Rs.5,45,000/- and plaintiff executed documents i.e. agreement to sell etc.? OPD

3. Whether the plaintiff is entitled to possession of the suit property as claimed in the suit? OPP

4. Whether the plaintiff is entitled to damages in respect of use and occupation of property by defendant if so, at what rate and for what period? OPP

5. Whether the suit is bad for non-joinder and mis-joinder of parties as alleged in the written statement? OPD

6. Whether the suit is liable to be dismissed under Order 7 Rule 11 CPC as alleged in the written statement? OPD

7. Relief."

8. The appellant thereafter moved an application under Section 65 of

the Evidence Act for recording secondary evidence on the ground that

the originals of the documents relied upon by him viz., Agreement to

Sell dated 09.04.1995, General Power of Attorney dated 08.05.1995,

Indemnity Bond dated 08.05.1995, Special Power of Attorney dated

08.05.1995, Affidavit dated 08.05.1995, Receipt dated 08.05.1995 and

Will dated 08.05.1995, had been lost and a police report to this effect

was filed. The learned trial court vide order dated 15 th March, 2004

rejected the appellant‟s application on the ground that the appellant had

deliberately not filed the originals of the documents despite being

granted several opportunities.

9. By an order dated 31st May, 2004, the right of the appellant to

cross-examine the respondent‟s witnesses was closed, and subsequently

by an order dated 20th September, 2004, the appellant‟s evidence was

closed and the matter was listed for final arguments.

10. Aggrieved by the orders dated 5th March, 2004, 31st May, 2004

and 20th September, 2004 passed by the trial court, the appellant

preferred a petition under Article 227 of the Constitution of India being

CM (M) No. 1320/2004 for setting aside the aforesaid orders which

came to be heard and dismissed by this Court on 28 th January, 2009.

The relevant extract of the said order is reproduced hereunder: -

"12. From the above mentioned facts, it would be apparent that the originals of the said seven documents were in possession of the petitioner at least from 27th November, 1999 till 24th August, 2002. Moreover, despite the fact that the trial court in the petitioner‟s Suit No.392 of 1998 had been repeatedly directing the petitioner from 24th August, 2000 to file originals of the said seven documents, the petitioner did not comply with the said order and even allowed his suit to be dismissed in default.

13. During the course of arguments Mr. Rawal stated that the petitioner‟s suit was no longer relevant as in that suit petitioner had only prayed for stay of possession in accordance with law and as the respondent had subsequently filed a suit for possession, the petitioner‟s suit had lost its relevance. In my view, even if Mr. Rawal‟s submission is accepted, then also the order sheets of the said case are relevant as they show that non- production of the original documents was due to petitioner‟s default, neglect and failure to produce the same in a reasonable time. In fact, the petitioner‟s version that the originals of the documents were initially lost, subsequently discovered, then mortgaged and once again lost, do not inspire confidence as the petitioner despite being in possession of originals of the documents did not file the same in his suit despite pre-emptory directions by the trial court. I am of the opinion

that as the sine-qua-non for attracting Section 65(c) of the Act is not fulfilled in the present case - as the non-production of the original documents was due to petitioner‟s default, neglect and failure - the petitioner‟s application to lead secondary evidence cannot be allowed. Consequently, I dismiss the present petition with costs of Rs.50,000/- and direct the trial court to finally dispose of the present case within six months from the date of this order."

11. On 6th June, 2009, the learned Additional District Judge decreed

the suit in favour of the respondent and against the appellant. Aggrieved

by the aforesaid decree, the appellant filed a Regular First Appeal before

this Court being RFA No. 306/2009, in which the following order was

passed on 9th September, 2009 :-

"After some arguments, both counsels agree that the case be remanded back to the trial court for fresh adjudication after granting one opportunity to the appellant to cross-examine the respondent, subject to the appellant depositing in this Court Rs.7 lacs towards mesne profits and subject to his making payment of cost of Rs.50,000/- which was imposed upon him by this Court in CM (M) NO.1320/2004 decided on January 28, 2009.

In view of the above, the case is remanded back to the trial Judge with a direction to him to grant one opportunity to the appellant to cross- examine the respondent and with a further direction to dispose of the suit within three months from today. It is being made clear that in view of the order passed by this Court in CM (M) NO. 1320/2004 dated January 28, 2009, the appellant shall not be entitled to lead any evidence either oral or documentary. He shall however be allowed to summon the official record from the Municipal Corporation of Delhi and Electricity department to confront the respondent with relevant documents in the course of his cross-examination.

The amount of Rs.7 lacs shall be deposited with the Registrar General of this Court within 8 weeks who shall keep the same in fixed deposit in a nationalised Bank initially for a period of one year. The cost of Rs. 50,000/- shall be paid within four weeks.

The parties shall appear before the trial Court themselves or through advocates on September 17, 2009.

In terms of the aforesaid directions, the appeal is disposed of."

12. A Special Leave Petition filed against the aforesaid order was

dismissed by the Hon‟ble Supreme Court. In terms of the aforesaid

order the case was remanded to the trial court, where the respondent was

cross-examined at length by the learned counsel for the appellant. After

considering the evidence on record, the impugned judgment and decree

dated 21st November, 2009 was passed from which the present appeal

arises.

13. Arguments in the appeal were addressed by Mr. Birender Singh,

the learned counsel for the appellant and Mr. Vikram Nandrajog, the

learned counsel for the respondent.

14. The learned counsel for the appellant contended that the impugned

judgment was not sustainable in the eyes of law in view of the fact that

in the course of cross-examination of the respondent on 24th October,

2009, the respondent had unequivocally admitted that the original plaint

was not signed by the respondent. It was further contended that the

respondent was then asked to compare his signature on the plaint with

his signature on the other documents, that is, the Agreement to Sell, the

General Power of Attorney, the Indemnity Bond, the Special Power of

Attorney, the Affidavit, Receipt and Will, and at that time also the

respondent specifically denied his signatures on the plaint as well as on

the other documents.

15. The learned counsel for the appellant in support of his contention

that the onus to prove that the suit has been signed, verified and

instituted by a duly authorised person, was on the respondent relied upon

the judgment of this Court rendered in the case of Bharat Aluminium

Co. Ltd. vs. Maharashtra Aluminium Corporation reported in 159

(2009) DLT 489: (2009(5) AD (Delhi) 719). The learned trial Judge, he

contended, had lost sight of the fact that a plaint has no meaning when it

is without signature or the signature put thereon has been denied by the

signatory himself.

16. It was further contended on behalf of the appellant that the

rejection of his application under Section 65 of the Evidence Act by the

trial court and thereafter by the High Court, and the dismissal of his

Special Leave Petition by the Supreme Court in limine, had resulted in

non-suiting the appellant. It was also contended that the trial court had

failed to appreciate that the respondent, although he claims that he is the

owner of the suit property, has never paid the house tax in respect of the

suit property, and till date it is the appellant who has been paying the

house tax. The trial court had also failed to appreciate that the suit

property was completely inhabitable at the relevant time, and it was the

appellant who had completed the entire construction work and furnished

the suit property at his own expense. As such, under the provisions of

Section 60 (b) of the Indian Easements Act, 1982, the respondent had no

right to revoke the licence of the suit property.

17. Mr. Vikram Nandrajog, the learned counsel for the respondent, on

the other hand, contended that the respondent had never sold the flat in

question to the appellant and, therefore, the seven documents mentioned

hereinabove were never executed. He stated that the appellant and the

respondent were known to each other as they had shops in the same area,

i.e., in the Hauz Kazi Market, Delhi and the respondent had on a

personal request of the appellant allowed the latter to reside in his flat for

a period of about six months. He further stated that when the respondent

asked the appellant to vacate the suit premises, the latter filed a suit for

injunction in July 1998, seeking protection against dispossession. In the

said suit, the appellant in support of his claim stated that he had

purchased the flat in question from the respondent, filed only the

photocopies of the seven documents referred to hereinabove, and did not

file the originals on the ground that these has been misplaced/lost by

him, and for this purpose the appellant placed on record a police report

dated 21st January, 1996. Subsequently, the appellant filed an

application dated 1st December, 1999 under order XIII Rule 2 read with

Order XVIII Rule 17-A read with Section 151 CPC seeking the

permission of the Court in the said suit to file the originals of the

aforesaid documents on the ground that the originals had been found by

him in his house, and the earlier police complaint dated 25th January,

1998 had been withdrawn by him.

18. The trial court by an order dated 24th August, 2000 allowed the

appellant‟s aforesaid application and directed him to produce the original

documents. Thereafter the appellant‟s suit was repeatedly adjourned on

several dates, that is, on 17th November, 2000, 15th January, 2001 and 8th

February, 2001 to enable the appellant to file the originals of the

aforesaid documents. On 16th March, 2001, the trial court recorded in its

order the fact that the appellant had not filed the original documents

despite having been given a last opportunity and since on the said date

neither the appellant nor his counsel appeared, the trial Court dismissed

the suit of the appellant in default.

19. Subsequently, on an application for restoration moved in the

aforesaid suit i.e. Suit No. 392/1998, the trial court, by an order dated

23rd August, 2001 restored the suit subject to the condition that the

original documents would be produced by the appellant on the next date,

i.e. on 24th August, 2001. The trial court further stated that if the

original documents were not produced on the next date, the suit would

be treated as dismissed in default. However, the appellant again sought

further time on 24th August and 27th August, 2001 for filing the original

documents. On 3rd September, 2001, the petitioner filed an application

seeking extension of time to file the original documents till 15th

September, 2001 on the ground that the said documents had been

mortgaged for raising a loan to meet the expenses incurred on account of

his wife‟s illness and that the said loan was to be repaid by 15 th

September, 2001. He stated that as soon as the documents were

realeased, he would file the originals before the trial court.

20. Mr. Nandrajog contended that the appellant even thereafter

continued to concoct stories, this time spinning a story that though he

had on 24th August, 2002 brought the original documents to the Tis

Hazari Courts, Delhi, for the purpose of filing the same in the suit filed

by the respondent, but his bag (allegedly containing the original

documents) was stolen when he went to the urinal, after parking his

scooter. It was on this basis that the appellant filed an application under

Section 151 CPC read with Section 65 of the Evidence Act, referred to

hereinabove, for leading secondary evidence which was rejected by the

trial court. A challenge to the said order, as already stated, was raised

by the appellant by way of CM(M) No. 1320/2004, which was dismissed

by this Court on 28th January, 2009. A Special Leave Petition arising

therefrom also having been dismissed, Mr. Nandrajog contended that the

said order had attained finality.

21. It is submitted by Mr. Nandrajog that the entire conspectus of

facts thus amply demonstrates that the appellant all along was

hoodwinking the court. Different versions were raised by him from time

to time, none of which inspired the confidence of the Court. Mr.

Nandrajog also submitted that the lifeline offered to the appellant by the

order dated 9th September, 2009 passed by this Court, in RFA No.

306/2009, whereby the matter was remanded back to the learned trial

court for being decided afresh, after affording to the appellant an

opportunity to cross-examine the respondent, also proved to be of no

avail to the appellant. The aforesaid cross-examination of the appellant

did not yield the desired results, and nothing emerged on the record to

controvert the respondent‟s case that the appellant was a licensee and

that the ownership vests in the respondent. The seven documents relied

upon by the appellant with a view to grab the property of the respondent

indubitably were unregistered documents and the evidence on record

proved that the documents were not even submitted to the Society, or to

the DDA, or to the MCD, or to any other department. Had there been a

trace of these documents with the Society or with any Department, the

appellant could have summoned them. The clincher was that though the

appellant summoned a witness from the MCD, he did not confront the

respondent with any of the documents produced by the said witness from

the MCD.

22. The entire appeal of the respondent, Mr. Nandrajog, contended

was predicated only on one ground, viz., that when the respondent-

plaintiff was cross-examined he denied his signatures on the plaint.

However, a perusal of the record shows that no such plea was taken in

the written statement filed by the appellant. The appellant and the

respondent were admittedly known to each other and were neighbours

and friends, and as such the appellant must be deemed to be acquainted

with the signatures of the respondent. Despite this there is no plea raised

in the written statement by the appellant that the plaint was not signed by

the respondent. Furthermore, no evidence was led by the appellant that

he got executed any work in the flat, either of a temporary or a

permanent character, and as such clause (b) of the Section 60 of the

Indian Easement Act, 1982 cannot come to the assistance of the

appellant and could not have been invoked by him.

23. After hearing the parties at length and perusing the records, I find

no infirmity, illegality or perversity in the order of the trial court. The

respondent has proved on record that he was the allottee of the flat, in

question from the Amarpali Apartments Group Housing Society and that

the appellant and he being neighbours in the Hauz Qazi Market, he had

inducted the appellant into his flat at a time when the appellant was

looking for a residential accommodation, on the assurance of the

appellant that he would vacate the premises latest within six months.

The appellant, with a view to grab the suit property, has put forth a

counter claim to the effect that there was a sale transaction between him

and the respondent. The appellant has, however, failed to prove even a

single document executed by the respondent in this regard or that the

sum of Rs.5.45 lakhs or any other amount whatsoever was received by

the respondent, which amount is stated to have been handed over by the

appellant to the respondent in cash.

24. Had the appellant entered into a sale transaction with the

respondent, in my view, it is unbelievable that the Society would not

have been apprised of the same. The appellant also failed to bring on

record any evidence from the side of the Society or from the DDA or the

MCD to support his assertion that there was a sale transaction between

the parties. This Court, in order to ensure that no injustice was caused to

the appellant, and keeping in view the fact that the application of the

appellant for leading secondary evidence under Section 65 of the

Evidence Act was rejected from the trial court till the Supreme Court,

gave the appellant another opportunity to cross-examine the respondent

by order dated 9th September, 2009 passed in RFA no. 306/2009. The

records reveals that pursuant to the said order the respondent was

subjected to extensive cross-examination on a number of occasions. The

record also reveals that though a witness was present from the MCD

before the trial court the appellant did not choose to confront the

respondent with the records of the MCD, presumably for the reason that

the same would have resulted in completely falsifying the case of the

appellant. Thus, there is not even an iota of evidence, either oral or

documentary, to prove that the respondent sold the flat in question to the

appellant at any point of time or that he got any work executed to make

the flat habitable.

25. Adverting to the contention raised by the counsel for the appellant

with regard to the respondent having failed to discharge the onus of

proving that the plaint was signed, verified and instituted by him, a

careful reading of the evidence shows that the question posed to the

respondent (PW1) was not whether he had signed the plaint. But it was

put to him as to whether the document Mark „G‟ (the plaint) was signed

by him. Significantly, this question was posed by inserting the plaint

(Mark G) with seven other documents bearing Mark „A‟ to Mark „F‟.

The respondent who had denied his signatures on documents Mark „A‟

to Mark „F‟, apparently on account of confusion denied his signatures

on Mark „G‟ as well. Thus, the statement of the respondent that none of

the documents to prove the sale were signed by him cannot be

misconstrued and read out of context. All the more so, as it is evident

from the record that the signature of the respondent appears on the plaint

at two places and on the vakalatnama as well as on the affidavit by way

of evidence. The evidence must therefore be read in its entirety. Merely

because the plaintiff in cross-examination inadvertently denied his

signatures on the plaint, the impugned judgment cannot be overthrown

on this ground alone.

26. To conclude, the appellant has, in my considered opinion, failed

to make out that the impugned judgment and decree warrant interference

from this Court. The entire version of the appellant is uncorroborated

and unproved on record and there is neither any oral nor any

documentary evidence to support his claim that a sale transaction was

entered into between the respondent and him. The ownership of the flat

thus clearly vests in the respondent-plaintiff, who appears to have been

deprived of its possession by the appellant-defendant concocting one

story after another.

27. Resultantly, the appeal fails and is dismissed.

REVA KHETRAPAL (JUDGE) July 23, 2010 sk