Delhi High Court
Gaurav Kapoor & Anr. vs Shiv Kumar on 24 November, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 24.11.2010
+ RSA No.217/2010 & C.M.20998/2010
GAURAV KAPOOR & ANR. ...........Appellants
Through: Mr.Sandeep Kumar, Advocate.
Versus
SHIV KUMAR ..........Respondent
Through: Nemo.
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 second appeal has impugned the judgment and decree
dated 7.10.2010 which has endorsed the finding of the trial judge
dated 2.8.2010 whereby the suit of the plaintiff seeking possession
of the suit property i.e. property bearing no.5126, Rui Mandi,
Sadar Bazar, Delhi had been decreed under Order 12 Rule 6 of the
Code of Civil Procedure (hereinafter referred to as 'the Code') in
his favour.
2. The suit property had been let out by the plaintiff to the
defendant in terms of a registered rent agreement dated
21.11.2008 for a period of 11 months expiring on 31.8.2009. This
document is an admitted document. It is also admitted that in
terms of the aforenoted rent agreement, rent of Rs.20,000/- was
being paid by the defendant to the plaintiff. It is also not in dispute
that a legal notice dated 2.9.2009 had been served by the plaintiff
upon the defendant terminating his tenancy.
3. This is a second appeal. On behalf of the appellant it has
been urged that a substantial question of law has arisen as
admittedly prior to this registered rent agreement dated
21.11.2008 there was another agreement of tenancy between the
parties which was dated 21.9.2007 and on its termination this fresh
rent agreement was entered into between the parties. At this time,
the defendant had paid a sum of Rs.10 lakhs in cash to the plaintiff
as a security money and there was a mutual understanding
between the parties that this security of Rs.10 lakhs would not be
mentioned in the present rent agreement i.e. agreement dated
21.11.2008. This has raised a substantial question of law and this
point has not been considered by both the courts below. Decree
could not have followed under Order 12 Rule 6 of the Code.
4. This argument is bereft of any merit. It is relevant to
mention that this defence had not been set up by the defendant in
his written statement. Thereafter, an application for amendment of
the written statement had been preferred which was dismissed.
These submissions which all border on oral understandings
between the parties cannot be given effect to in view of the clear
statutory provision of Section 91 of the Evidence Act. When a
written document has been created no oral evidence can be led
which is contrary to its terms. The registered rent agreement
dated 21.11.2008 is an admitted document. There is no mention of
any such security of Rs.10 lakhs deposited in the aforenoted
document.
5. The admissions in the written statement are otherwise clear
and categorical. Neither is the rent agreement in dispute nor is
the receipt of legal notice nor is rate of rent; relationship of
landlord-tenant is admitted. Submission now raised is untenable.
The course adopted by the courts below was legally sound and calls
for no interference. Admissions in the written statement were
clear, unambiguous, cogent and categorical. Decree for possession
had to follow. There is no merit in the appeal; appeal as also the
pending application is dismissed in limine.
INDERMEET KAUR, J.
NOVEMBER 24, 2010
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