Delhi High Court

Swaran Sehgal (Since Deceased) & ... vs Meenakshi Gupta on 29 November, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment Reserved on: 25.11.2010
                         Judgment Delivered on: 29.11.2010

+                        RSA No.195/2001

SWARAN SEHGAL (since deceased) & ORS.
                                     ...........Appellants
                 Through: Mr.C.P.Vig, Advocate.

                   Versus

MEENAKSHI GUPTA                                ..........Respondent
                         Through:    Ms.Aruna Mehta & Mr.Sanjeev
                                     Mehta, 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.

1. This second appeal has impugned the judgment dated

06.08.2001 vide which the suit of the plaintiff, Meenakshi Gupta,

had been decreed for a sum of Rs. 62,100/- with costs. The cross

objections filed by the respondents had been dismissed. Trial

Judge had held that the plaintiff is entitled to recover a sum of

Rs.1000/- per month for a period of three years less 22 days. This

finding had been modified in the impugned judgment. Impugned

judgment had held that Kishori Lal Sehgal is the tenant of the

plaintiff Meenakshi Gupta; he is liable to pay rent at the rate of

Rs.1500/- per month.

2. Briefly stated the factual matrix of the case is as under:-

(i). Plaintiff, Meenakshi Gupta, was the owner of a MIG flat

bearing No.9, IInd floor in Apna Ghar Cooperative Group Housing

Society opposite Chander Lok Enclave, New Delhi, which she had

rented out to the defendants at a monthly rent of Rs. 1500/-

excluding electricity and water charges. This was with effect from

01.08.1987. Defendant no. 1 paid rent up to 30.11.1989. He was

in arrears of rent w.e.f. 01.12.1989. Legal notice dated 18.04.1992

was served upon the defendant calling upon him to pay the arrears

of rent along with interest. Defendant did not pay the said amount.

An alternate plea had been set up that in case defendant no.1 is

held not to be the tenant, his son Naresh Sehgal arrayed as

defendant no.2 is the tenant. Suit was filed.

(ii). The defendant contended that the plaintiff had been

receiving rent from defendant no. 2 against a receipt; defendant

no. 2 was the tenant. There was no relationship of landlord and

tenant between the plaintiff and the defendant no. 1; rate of rent

was settled at Rs. 1000/- per month.

(iii). Trial Judge framed eight issues which interalia read as

follows:-

"1. What amount is due from the defendant no.1 to the plaintiff towards arrears of rent? OPP

2. To what rate of interest, if any, the plaintiff is entitled to recover from the defendant? OPP

3. Whether the defendant no.1 is tenant under the plaintiff? OPP

4. What is the rate of rent between the parties? OP Parties

5. Whether the suit is not maintainable in the present form? OPD

6. Whether the plaintiff‟s claim is barred by time? OPD

7. Whether the suit is bad for misjoinder of parties? If so, who is the unnecessary party?" OPD

8. Relief?

(iv). Plaintiff had examined three witnesses. Defendant in turn

had examined three witnesses. Trial Judge held that Defendant no.

1 was not the tenant of the plaintiff and defendant no. 2 was the

tenant. Thus defendant no. 1 is not liable; rate of rent was

Rs.1000/-. Plaintiff was held entitled to arrears of rent @ Rs.

1000/- per month w.e.f. 01.12.1989 to 30.11.1992. This judgment

was impugned before the First Appellate Court.

(v). The First Appellant Court re-examined the oral and the

documentary evidence. Admittedly, no rent agreement had been

executed between the parties. The rent receipts proved by

defendant no. 2 exhibit DW 1/1, DW 1/2 and DW 1/3 were

considered. Plaintiff had denied her signatures on the said

receipts. They were disbelieved. The impugned judgment held that

defendant no. 1 Kishori Lal Sehgal is the tenant of the plaintiff and

is liable to pay the arrears in the sum of Rs. 62,100/- to the plaintiff

along with interests.

3. This is a second appeal. It was admitted on 15.1.2002. On

29.10.2010, following substantial question of law was formulated

which inter alia reads as follows:

"Whether the impugned judgment dated 06.08.2001 is perverse as the suit in the present form was not maintainable?"

4. On behalf of the appellant it has been urged that the finding

of the appellate court is illegal and arbitrary. The impugned

judgment had decreed the suit in favour of the plaintiff without any

interest; thereafter on an application under Section 152 of the

Code of Civil Procedure (hereinafter referred as „the Code‟),

interest had been awarded which the court was not legally entitled

to do. This has raised a substantial question of law. It is pointed

out that the alternate pleas taken by the plaintiff in her plaint were

inconsistent; she was blowing hot and cold; she has given two

classes of tenant; she was not sure as to whether Kishori Lal

Sehgal was her tenant at the rate of Rs.1500/- per month or his son

Naresh Sehgal was her tenant at the rate of Rs.1000/- per month.

Not only were the names of the two tenants different and distinct

but the rate of rent was also different; such inconsistent pleas are

wholly unsustainable; they should not have been answered; this

has also raised a substantial question of law. It is pointed out that

the possession letter dated 14.7.1987 upon which the impugned

judgment has placed reliance was a photocopy of a document

which was not proved in accordance with law; it was objected to

by the appellant; the impugned judgment has relied upon this

document which it could not do. This was a misreading of the

evidence and calls for an interference. Reliance has been placed

upon a judgment of the Apex Court reported in (2006) SCCR 541

Hero Vinoth (Minor) vs. Seshammal as also another judgment of

the Apex Court reported in 2009 RLR 39 (SC) Narendra Gopal

Vidyarthi vs. Rajat Vidyarthi to substantiate the submission that

misreading of evidence by the Court below raises a substantial

question of law calling for interference by the second appellate

court.

5. Arguments have been countered. It is pointed out that the

first appellate court had decreed the suit of the plaintiff on

6.8.2001; this was without interest; subsequently on an application

preferred by the plaintiff under the provisions of Section 151 & 152

of the Code, the order was modified and interest at the rate of

Rs.1500/- was awarded in favour of the plaintiff; this was after

notice to the appellant/defendant. This order of 8.10.2001 was

passed in the presence of both the parties. It is pointed out that

the possession letter dated 14.7.1987 has been proved as per the

law of evidence and no objection having been raised to such a

mode of proof at that time, it cannot now be raised. There has

been no misreading of evidence. It is submitted that alternate

pleas are permitted to be taken by a party and there is no such bar.

For this proposition, reliance has been placed upon a judgment of

the Apex Court reported in AIR (38) 1951 SC 177 Firm Sriniwas

Ram Kumar vs. Mahabir Prasad & Ors., 1996 RLR 77 (DB) Jai

Kishan Mehta vs. Ram Prashad as also another judgment of this

court reported in 1974 RLR 491 Kartar Singh vs. Sir Subha Singh

& Sons. Reliance has also been placed upon 73 (1998) DLR 680

(SC) Umesh Verma vs. Jai Devi Bhandari & Anr. wherein in an

eviction petition the Apex Court had held that where the landlord

petitioner had joined two persons as respondents, one of whom

according to the petitioner was the tenant and the other claimed

himself to be the tenant; in such a case the title as to who the real

tenant was loses its relevance.

6. Perusal of the record shows that parties are facing a long

drawn-out inter se litigation between themselves. Plaintiff

Meenakshi Gupta is admittedly the landlord. She had filed an

eviction petition against Kishori Lal Sehgal which eviction petition

is pending before the Rent Controller as on date. In this eviction

petition the contention of Kishori Lal Sehgal was that he is not a

tenant of Meenakshi Gupta; his son Naresh Sehgal is a tenant at

the rate of Rs.1000/- per month. This was the averment of the

appellant in the application for leave to defend which he had filed

before the Rent Controller (certified copy of the same has been

placed on record). It is thus clear that the contention of the

defendant Kishori Lal Sehgal was that the tenant of Meenakshi

Gupta was his son Naresh Sehgal. It was in these circumstances

that an alternate plea had been set up by the plaintiff and while

reiterating that she was claiming arrears of rent at the rate of

Rs.1500/- per month from her tenant Kishori Lal Sehgal, she had

set up an alternate plea that in case the Court is of the view that

Kishori Lal Sehgal is not her tenant; the second alternate plea that

Naresh Sehgal be treated as her tenant at the admitted rate of

Rs.1000/-. It was in these circumstances that these alternate pleas

had been set up and taken by the plaintiff in her plaint.

7. Trial judge had framed the aforenoted eight issues. Issue

no.3 was disposed of along with issue no.1. While dealing with

these issues trial judge was of the view that defendant no.1 i.e.

Kishori Lal Sehgal is not the tenant of the plaintiff. The trial judge

was of the view that in view of the admission of the defendant and

the rent receipts Ex.DW1/1 to Ex.DW1/3 relied upon and issued to

him; rate of rent had been established at the rate of Rs.1000/- per

month being paid by Naresh Sehgal to the plaintiff. Suit was

decreed for the said amount.

8. The appellate court modified the finding of the trial judge. It

held that the possession letter is dated 14.7.1987; if possession of

this property had been received by the plaintiff only on 14.7.1987

the plea of Naresh Sehgal that he was in possession this property

since April, 1987 was negatived. It was held that Kishori Lal

Sehgal was the tenant of the plaintiff. The evidence led by the

plaintiff which was her oral version that the rate of rent was

Rs.1500/- per month was accepted. It was held that Kishori Lal

Sehgal is liable to pay balance arrears of rent to the plaintiff at the

rate of Rs.1500/- per month. The impugned judgment had

examined the rent receipts Ex.DW1/1 to Ex.DW1/3 which had been

denied by the plaintiff; the said documents were discarded. The

impugned judgment had also noted the admission of DW1 Naresh

Sehgal wherein he had admitted that he had not claimed

reimbursement of rent from his Department on the receipt

Ex.DW1/1 issued on 15.4.1987. Ex.DW1/1 casted a doubt on the

veracity of this witness. The statement of DW2 Kishori Lal Sehgal

had also been adverted to. It was held that there was no

explanation forthcoming as to how DW2 alleged to be living in a

government accommodation had no ration card on that address, no

bank account or even a voter address; no gas connection or

correspondence had also been received at this address. On a bail

bond furnished by Kishori Lal Sehgal in a criminal complaint on

6.3.1991 he had given his address as that of the suit premises. All

these cumulative factors had weighed in the mind of the appellate

court to draw a conclusion that Kishori Lal Seghal had never lived

in the government accommodation.

9. On the possession letter dated 14.7.1987 the impugned

judgment had noted that Ex.P1 (which was statement of Tirath

Ram, Secretary of the Apna Ghar Cooperative Group Housing

Society in the eviction petition) evidenced that the possession of

the flat had been received by the plaintiff only on 14.7.1987.

Further Naresh Sehgal (examined as DW1) had himself admitted

that the electricity connection in the flat was given on 14.7.1987; if

the electricity was not in the flat prior to 14.7.1987, the contention

of Naresh Sehgal that he was living there since April, 1987 further

fortified the Court to hold that this was a false stand. It was in this

background that the Court had drawn a conclusion that Kishori Lal

Sehgal is the tenant in the suit property.

10. In Jai Kishan Mehta‟s case (supra) the Bench of this court

had held that if plaintiff had not been granted his primary relief but

is given an alternate relief he is a "person aggrieved" entitling him

to file an appeal. In the instant case, the primary relief sought by

the plaintiff was that his suit be decreed for arrears of rent at the

rate of Rs.1500/- against Kishori Lal Sehgal. He had however been

granted the alternate relief. Being aggrieved by this alternate

relief he had preferred an appeal which he was entitled to do so.

In the judgment of Kartar Singh (supra) it has been held that the

provision of Order 7 Rule 7 of the Code entitles a party to set up

inconsistent pleas in the alternate if the same are otherwise

maintainable. In that case the defendant had put up two pleas

about two different rates of rent; he was permitted to do so. In

Firm Sriniwas Ram Kumar (supra) the Supreme Court has held as

follows:

"A plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant‟s own plea cannot possibly be regarded with surprise by the latter and no

question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances, when no injustice can possibly result to the deft., it may not be proper to drive the plaintiff to a separate suit."

11. The first argument of the learned counsel for the appellant is

also without any merit. On an application under Section 151 & 152

of the Code read with Section 26 of the Delhi Rent Control Act,

1958 (hereinafter referred to as „the DRCA‟), the judgment and

decree dated 6.8.2001 which had inadvertently not granted any

interest had been modified and interest at the rate of 12% per

annum was awarded on the arrears of rent. This was in the

presence of both the parties. Section 26 of the DRCA in fact

creates a statutory liability on the tenant to pay simple interest at

the rate of 15% per annum on arrears of rent and this is immaterial

as to whether there is any stipulation in the agreement of tenancy

to pay the interest at a lesser or a higher rate.