Delhi High Court

Sh. Mohd. Taj vs Sh. Miraz Ahmed & Another on 27 April, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment : 27.4.2011


+      R.S.A.No. 459/2006 & CM No. 17688/2006 (for stay)

       SH. MOHD. TAJ                             ...........Appellant

                         Through:    Mr. Sudhir Nandrajog, Sr.
                                     Advocate along with Mr.
                                     Nishant Nandan, Advocate.

                   Versus

       SH. MIRAZ AHMED & ANOTHER        .......Respondents
                    Through: Mr. G.K. Shrivastava, Advocate
                             along with Mr. Daleep Singh,
                             Advocate.

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 appeal has impugned the judgment and decree dated

19.09.2006 which had endorsed the finding of the trial judge

dated 25.08.2004 whereby the suit filed by the plaintiff Sh. Mohd.

Taj seeking recovery of possession of the suit property bearing no.

856 Haveil Azam Khan, Chitli Qabar, Delhi along with the

damages and mesne profits had been dismissed.

2. The plaintiff had averred that his father had started a

factory of nickie polish and lathe in two rooms and dochatti on the

ground floor of the suit property. The charge of running the

factory was handed over to defendant no. 1 who was working as

an apprenticeship with the father of the plaintiff. In 1974,

defendant no. 1 asked the father of the plaintiff to allow him to

run the said factory at his own risks and costs, which was

accordingly permitted; defendant no. 1 was the licensee of the

father of the plaintiff. After the death of the plaintiff's father, on

08.04.1981, plaintiff requested the defendant no. 1 to stop the

user of the said factory; at request of defendant no. 1, plaintiff

permitted him to continue the user; plaintiff used to open and lock

the main doors of the rooms and dochatti. In March 1984,

defendant no. 1 did not allow the plaintiff to put the lock over the

rooms; he put his own locks, this was with a dishonest intention;

plaintiff terminated the licence of the defendant no. 1 vide notice

dated 06.07.1984. Defendant had failed to vacate the suit

property; he was liable to stop the user of the suit premises and

deliver its possession along with factory installations and pay

damages for use and occupation at the rate of Rs. 300/- per

month. Suit was filed.

3. In the written statement, preliminary objection was that the

suit is barred under Section 50 of the Delhi Rent Control Act

(DRCA). The defendant no. 1 was the tenant of the father of the

plaintiff and in fact, the rent receipt was also issued by him in his

favour. Defendant no. 1 had purchased the machinery in the

factory and gave it to defendant no. 2; defendant no. 1 had all

along requested the father of the plaintiff to execute the rent

receipt in the name of the defendant no. 2; father of the plaintiff,

however, did not execute the rent receipts in the name of

defendant no. 2 but continued to consider him as his tenant; he

was accepting rent of the suit premises from defendant no. 2.

Defendant no. 2 was the lawful tenant in the suit premises and

was running the machinery owned and possessed by him. Suit

was liable to be dismissed.

4. On the pleadings of the parties, the following issues were

framed:-

(i) Whether father of plaintiff allowed defd. No. 1 to run the factory as licencee? OPP.

(ii) Whether the present suit is barred under Section.

50 of the D.R.C. Act? OPD.

(iii) Whether defendant no. 2 is tenant? OPD

(iv) Whether the defd. No. 1 was a tenant under the plaintiff in respect of the premises in suit as

alleged? OPD.

(v) Whether the machinery in respect of which the relief is claimed was installed by plaintiff's father & belongs to him? OPP

(vii) Whether the machinery in question was purchased by defendant no. 1 and was delivered to deft. no. 2? If so, the effect thereof? OPD.

(vii) Whether pltff is entitled for the relief claimed in the plaint? OPP.

(vii) Relief.

5. Oral and documentary evidence was led. Plaintiff had

examined himself and produced the sale deed Ex. PW 1/1 in the

name of his father. He had terminated the purported licence of

the defendant vide legal notice Ex. PW 1 /2. The receipt of this

notice was even otherwise not denied. In defense, the

defendants had produced the statement of account of the firm

from 1974 to 1982 i.e. M/s Fine Electro Plating as Ex. DW 2 /2

showing that this factory was being run from the aforenoted suit

premises. DW 3 had proved the details Ex. DW 3 /1 and Ex. DW

3/2 showing the purchase of the machinery by defendant no. 2.

The rent receipt executed by the father of the plaintiff in favour of

the defendant no. 1 had been proved as Ex. DW 5/1. On the

preponderance of probabilities and in view of the oral and

documentary evidence, the trial judge was of the view that the

factory was, in fact, being run by defendant no. 2; defendant no. 2

had, in fact, purchased the machinery for the factory; rent receipt

Ex. DW 5/1 was also adverted to. Defendants were held to be in

occupation in the premises as tenants and not as licensees. Suit

of the plaintiff was dismissed.

6. This was endorsed in first appeal.

7. This is a second appeal had been admitted and on

25.05.2010, the following substantial question of law had been

formulated.

It interalia reads as follows:-

"Whether the impugned judgment is perverse inasmuch as the contradictory plea of the defendant that either defendant no. 1 or defendant no. 2 is a tenant of the plaintiff? If so, its effect?"

8. On behalf of the appellant, it is urged that the judgment of

the two courts below suffers from the perversity; defendant in his

written statement is not clear as to who is the tenant; he has been

blowing hot and cold; whether defendant no. 1 was the tenant of

the plaintiff or whether defendant no. 2 was the tenant has not

been explained in the written statement. Even otherwise,

contrary pleas could not have been set up by the defendant.

Attention has been drawn to the amended written statement as

also to the unamended one; it is pointed out that it is necessary to

advert to the unamended written statement to show the

circumstances under which the defendant had amended his

written statement; it is pointed out that DW-5 in his cross-

examination had admitted that in 1967-68 when the premises in

dispute had been let out, his son i.e. defendant no. 2 was aged 14

to 15 years; it is submitted that in these circumstances, the

written statement had been amended to include the plea that

defendant no. 2 was the tenant as a minor could not enter into a

contract. Attention has also been drawn to the reply to the legal

notice Ex. PW 1/7 wherein the reply states that it is defendant no.

2 who was the tenant; it is pointed out that even in this reply at

this time (which was in August 1984), the defense of the

defendants had been that defendant no. 2 is the tenant.

Defendants now setting up the plea in the amended written

statement that defendant no. 1 is the tenant is clearly an

afterthought; it was in fact a false plea.

9. Arguments have been rebutted. It is pointed out that all

along the case of the defendant was that defendant no. 1 was the

initial tenant; tenancy had been created in the year 1967-68;

defendant no. 1 was an uneducated man; his son, defendant no. 2,

was educated up to 10th standard; defendant no. 1 had requested

the plaintiff for creating of tenancy in favour of his son, defendant

no. 2 who was actually carrying on the business of the factory and

defendant no. 2 was treated as the tenant of the plaintiff; there

has been no shifting in the stand. It is further submitted that

scope for interference in a second appeal is limited. Impugned

judgment calls for no interference. Record has been perused.

The amended written statement had been rightly considered.

Once permission has been granted by the court to amend the

written statement, the said document had to be read. In para

2(a), it has been stated that the defendant no. 1 was negotiating

with the father of the plaintiff for the tenancy to be created in the

name of defendant no. 2; the first rent receipt had been issued by

the father of the plaintiff in the name of defendant no. 1.

10. In his deposition, DW-5 has explained the circumstances as

to why only a single rent receipt had been issued. DW-5 had, on

oath, deposed that Ex. DW 5/1 was the rent receipt issued in 1971

by Mirajuddin (father of the plaintiff) in his favour; he had

explained that the Government had issued a scheme to allot place

for factory to persons who were running business in the walled

city of Delhi; they had been asked to annex proof of occupation;

at request of DW-5, Mirajuddin had issued this single rent receipt.

PW 1/7 dated 7.08.1984 was the reply given by the defendant to

the legal notice of the plaintiff where it had been stated that

defendant no. 2 is the tenant of the plaintiff and he has been

running this factory at the aforenoted suit premises. This reply

can, in no manner, be said to be contrary to the plea in the

amended written statement. In the written statement, it had been

stated that defendant no. 1 had been negotiating with the father

of the plaintiff to treat defendant no. 2 as his tenant and, in fact,

he was also been so treated; single rent receipt Ex. DW 5/1 in the

year 1971 had been issued in the name of defendant no. 1 only for

the purposes of the allotment of a plot in terms of the policy of the

Government; the issuance of a single rent receipt has adequately

been explained in the testimony of DW-5. The pleas of the

defendant can, in no manner, be said to be contrary. His case all

along as is evident from the record is that defendant no. 1 was

initially the tenant of the father of the plaintiff; this was in the

year 1967-68; rent receipt Ex. DW 5/1 dated 12.08.1971 had been

issued in the name of defendant no. 1 for the purposes of

allotment of factory and this was at the request of defendant no.

1; negotiations were going on between the father of the plaintiff

and defendant no. 1 to treat defendant no. 2 as the tenant;

defendant no. 2 was actually running the business; he was

educated up to 10th standard and doing the business. The plaintiff

was actually treating defendant no. 2 as his tenant and was

receiving rent from him.

11. PW-1 was the son of the plaintiff Mirajuddin. He had

admitted that the terms of settlement between his father and

defendant no. 1 were not settled in his presence; he had been

informed by his father that the place has been given on license;

his testimony is necessary in this Court. PW-1 has also admitted

that his father, Mirajuddin, was carrying on the business of

electroplating with Mhd. Ahmad at Kali Masjid which admittedly

is at the distance from the suit property. Defense of the defendant

was that plaintiff had given the suit property to the defendant on

rent as he was carrying on his business from another location;

testimony of PW 1, on this count, supports this defense of the

defendant.

12. The impugned judgment had noted all the aforenoted

arguments and had answered them against the appellant. The

finding returned is as follows:-

7. The emphasis of the learned counsel for appellant is on inconsistent defence of the defendants/respondents as the reply to the notice is the basis of the defence of the defendants which was in consonance with the plea as was taken before amendment in the written statement. In the amended written statement, the defendants/respondents have changed the stand which according to appellant cannot be permitted. This argument does not lie when the amendment has been permitted and the case was contested by the defendants/respondents on the plea as was taken in the amended written statement. The notice Ex. PW 1/2 and the reply thereto Ex. PW 1/7 read with amended written statement are in consonance with each other wherein the defendants pleaded that negotiation of tenancy for the suit premises was

made by the defendant no.1 and father of the plaintiff for and in the name of defendant no.2 as the defendant no.1 was looking after defendant no.2 and the first rent receipt was executed by the father of the plaintiff in the name of defendant no.1 and the defendant no.1 requested the plaintiff's father to execute the rent receipt in future in the name of defendant no.2 as it was earlier agreed between the plaintiff's father and defendant no.1 but the plaintiff's father refused to execute the receipt in the name of defendant no.2 who, however, continued to consider defendant no.2 as his tenant and was accepting rent for the suit premises from defendant no.2 directly without any rent receipt. It was also pleaded that in case defendant no.2 is not considered as tenant then in the alternative defendant no.1 continued to be a lawful tenant with respect to the suit premises. In the notice Ex. PW 1/7 the defendant no.1 had replied through the counsel that defendant no.2, son of defendant no.1, has been a tenant of the suit premises on monthly rent of Rs. 120/- exclusive of electricity and water charges and defendant no.2 has been carrying on business of electroplating in the said premises in the name and style of M/s Fine Electroplating Works as sole proprietor since inception of the tenancy. Defendant no.1 in fact had denied himself to be a tenant or licensee besides the plea as has been taken in the plaint against him. The defendant no.1 has also denied possession over the suit premises. More so, the defendants are within their rights to take alternative pleas in their defence which may be inconsistent inter se so as to contradict the case of the plaintiff. The submissions by learned counsel for appellant that defendants cannot change stand in the written statement to that of reply to the notice in itself is not sufficient to accept the case of the plaintiff that defendants were licensee of the suit premises whose license was terminated vide notice Ex. PW 1/2.

13. In 2006 RLR 267 (SC) Gurdev Kaur & Ors Vs. Kaki & Ors,

the Apex court had reiterated that under the amended provisions

of Section 100 of the Code, a second appeal would lie only if a

substantial question of law arises. It is only when there is

perversity and there has been an utter disregard of important

material on record that interference is called for. No such

perversity had been pointed out. Moreover, the defendant had

also produced cogent documentary evidence to show that he had

purchased machinery which had been installed in the suit

property and which was being used to run this business. These

documents had been proved as Ex. DW 3/1 and Ex. DW 3/2. The

impugned judgment calls for no interference on any count.