Ramesh Chand Jain & Anr. vs Shitam Chand Oswal (Deceased) ...
2011 Latest Caselaw 1052 Del

A-10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 22.02.2011


+                        RSA No.208/2007



RAMESH CHAND JAIN & ANR.        ...........Appellants
            Through: Mr.R. Vasudevan and Mr. Harish
                      Sharma, Advocates.

                   Versus

SHITAM CHAND OSWAL (DECEASED) THROUGH LRs.
                                 ..........Respondent.
             Through: Mr.Rajat Aneja with Ms.Sweta Singh,
                      Advocates for R-1 to R-5.
                      Mr.Sugriva Dubey, Advocate for R-6.


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)

CM No. 16628/2010

1. This is an application filed by Mr. Subhash Chand Jain/

respondent No. 6. In the trial court proceedings, he was arrayed as

defendant No. 2. His contention is that he was not served in the

suit proceedings; no summons had been issued to him; the body of

the application has detailed the various facets of civil proceedings.

It is submitted that each and every defendant is entitled to be

served independently; it goes on to detail the further fact that

defendant No. 2 was never served and this has caused a travesty of

justice. By way of this application, he seeks that the matter be

remanded back to the trial court in order that respondent No. 6/

applicant/ defendant No. 2 is able to put-forth his defence. The

reply filed has belied these contentions raised by the applicant. It

is pointed out by learned counsel for the respondents that on

30.04.1984, defendant No. 2/ respondent No. 6 had put in

appearance before the trial court; he had in fact filed an

application under Order 39 Rule 4 of the Code of Civil Procedure

(hereinafter referred to as the „Code‟) for setting aside the

injunction order dated 26.04.1984. This application had been

accompanied by his affidavit. He had been represented through his

counsel namely Mr. J.P. Jain and Mr. Ravinder Tyagi who had filed

power of attorney on his behalf on 17.04.1989. On 17.10.1990, the

presence of defendant No. 2 had also been noted in the trial court

proceedings.

2. All this is borne out from the record which has been perused.

It is clear that this application has been filed malafide only to delay

the proceedings in this Court. On behalf of the respondents, it is

pointed out that there are two concurrent findings of fact against

the appellant; this application has been collusively filed by Mr.

Subhash Chand Jain along with the appellant only as a delaying

tactic.

3. Be that as it may, the perusal of the record evidences the fact

that the averments made in the present application which have

been supported by the affidavit of the applicant Mr.Subhash Chand

Jain are absolute lies. This is a warning to such a litigant to be

careful in future. Court is not proceeding with perjury but the

malafides of the applicant are writ large and the submission of the

learned counsel for the respondents that this is a delaying tactic is

well substantiated.

4. This application is dismissed with costs of Rs.20,000/- to be

paid within two weeks.

R.S.A.No. 208/2007 & CM No.11271/2007 (for stay)

5. Arguments have been addressed on behalf of the appellant

on the substantial question of law raised in this second appeal.

The plaintiff Shitab Chand Oswal (through his LRs) had filed a

suit for possession against three defendants. Ramesh Chand Jain

was defendant no.1. The contention was that the deceased plaintiff

and defendant no.1 had entered into a partnership dated 27.6.1972

in terms of which the partners had agreed to carry out business

under the name and style of M/s Jain Traders from premises

No.650, Gali No.11, Sadar Bazar, Delhi on a licence fees of `50/-

which was to be paid to the plaintiff who was the owner of the suit

property. In terms of the aforenoted partnership it had been

agreed that in the event of the dissolution of the firm or shift in its

business possession of the shop would remain with the plaintiff

who was the owner and no right, title or interest would vest with

the defendant. In April-May 1973 defendant sought permission

from the plaintiff for taking orders in the name of M/s Jaina

Agencies which was permitted by the plaintiff. In terms

thereof an agreement dated 1.5.1973 was drawn between the

plaintiff and defendant no.1. In terms of this agreement as when

the business of Jain Traders would wind up M/s Jaina Agencies

(proprietorship firm of defendant no.1) would also come to a close.

Plaintiff requested defendant no.1 to wind up the business of M/s

Jaina Agencies but the defendant no.1 was evading the issue. On

16.1.1984 defendant no.2 broke open the locks of the shop in

question and illegally trespassed into it. On 20.1.1984 plaintiff

issued a legal notice dissolving the partnership firm M/s Jaina

Traders which was duly received by defendant no.1 on 24.1.1984.

By way of this legal notice plaintiff had called upon the defendant

no.1 to render accounts of the firm with a further direction that the

defendant be restrained from entering into suit premises as the

partnership had come to an end.

6. Defendant no.1 filed written statement wherein he had stated

that M/s Jaina Agencies is a tenant of M/s Jain Traders i.e. the

partnership firm and its eviction could not be ordered. His

contention was that he has an independent right to remain in the

suit property. He relied upon the agreement dated 1.5.1973

whereby as per the defendant he was entitled to retain the

possession of the shop as a tenant of Jaina Agencies. It was

contended that the document is torn and true copy of the original

had not been placed on record by the plaintiff.

7. On the pleadings of the parties, nine issues were framed.

Relevant for the decision of this second appeal is issue no.4 and

issue no.7 which inter alia read as follows:

"..............

4.Whether M/s Jaina Agencies are tenants in respect of shop in question since October 1971? OPD ..........

7.Whether deed dated 1.5.73 was torn in the manner as alleged in para 13 of written statement? If so to what effect? OPD"

8. Oral and documentary evidence was led by the respective

parties. Four witnesses were examined on behalf of the plaintiff.

The partnership deed dated 27.6.1972 was an admitted document.

Plaintiff had produced the subsequent agreement dated 1.5.1973

on record which has been translated by PW-3. The original of the

said document was proved as Ex.PW-3/1 and the translated copy

was proved as Ex.PW-3/2. This document is dated 1.5.1973. This

agreement had noted that Ramesh Chand Jain (defendant no.1)

wants to start his office in the name of M/s Jaina Agencies from the

office place of M/s Jaina Traders to which the partners of the said

firm i.e. Shitab Chand Oswal and defendant no.1 (Ramesh Chand

Jain) are agreeable. This document had further noted that in terms

thereof no commission will be paid by M/s Jaina Agencies to Jain

Traders from its business. The contention of the defendant before

the trial judge was that this document was a torn document and

the original of the same has not been produced; he had produced a

copy of the same which has been proved as Ex.DX8. The only

difference pointed out in the document Ex.PW-3/2 (relied upon by

the plaintiff ) and Ex.DX8 (relied upon by the defendant) was the

insertion of para no.3 in the said document. The said para 3 reads

as follows:

"3.If for any reason, Jain Traders wind up their business, Jaina Agencies will also have to wind up their business and vacant possession of the shop shall be handed over to the owners of shop i.e. the First Party. If this does not happen, Jaina Agencies shall pay Rs.100/- per day to the owners of the premises."

In terms of para 3 it had been agreed that if and when Jain

Traders would wind up their business M/s Jaina Agencies will also

have to correspondingly wind up his business and handover vacant

possession of the shop to the plaintiff i.e. Shitab Chand Oswal; on

non-happening, M/s Jaina Agencies will pay `100/- per day to the

owners of the premises. The partnership of Jain Traders had been

terminated vide notice dated 20.1.1984 which was admittedly

received by defendant no.1 on 24.1.1984. M/s Jaina Agencies,

however, continued to function from the shop and payment of

licence fee was Rs.100/- by M/s Jaina Agencies to the plaintiff is

borne out from the document Ex.DX1 to DX6.

9. There are two concurrent findings of fact against the

appellant. Both the Courts below have held that the defendant

no.1 had no right to retain the suit premises; decree of permanent

injunction had been passed in favour of the plaintiff and against the

defendant restraining the defendant from interfering into the suit

property. Decree of rendition of accounts and damages was also

passed.

10. On behalf of the appellant four substantial questions of law

are urged. Firstly that the appellate court had merely endorsed

the finding of the trial judge; it has not re-appreciated the oral and

documentary evidence which is a perversity. Secondly, the

document Ex.PW-3/1 could not have been read in evidence as PW-3

who had translated this document has in his cross-examination

admitted that he does not remember if he had seen the original or

not. Thirdly, defendant no.2 Subhash Chand Jain had filed a suit

for injunction against the plaintiff seeking a decree that the

plaintiff be restrained from interfering with his possession which

suit had been withdrawn on the statement made by the plaintiff

that he will not dispossess Subhash Chand Jain without due

process of law. This substantiates the submission that in fact

Subhash Chand Jain and defendant no.1 were tenants in the suit

property. Lastly, it has been urged that the Courts below had

failed to appreciate that M/s Jaina Agencies was an independent

tenant of M/s Jain Traders; even assuming it was not a tenant; he

was a licencee and he could not be evicted without terminating his

licence.

11. These contentions raised by the appellant are all bereft of

merit. The impugned judgment is dated 4.7.2007; it runs into 32

pages. It has in detail examined the oral and documentary

evidence led by the respective parties and this is evident from its

findings which are contained in para 10 onwards. Pleadings and

the arguments raised by the respective parties had been correctly

noted in the earlier paras of the judgment. The documentary

evidence which included Ex. PW-3/1 has also been scrutinized. It

had noted that the submission of defendant in its written statement

that he was a tenant in the shop since 1971 which was belied by

the partnership deed dated 27.6.1972 wherein it has been agreed

that the parties had entered into a partnership business from that

date. The Rent Controller vide its judgment Ex.PW-4/8 in an

eviction petition had also returned a finding in favour of the

plaintiff that M/s Jaina Agencies was not a tenant of the suit

premises which finding had been endorsed by the Rent Control

Tribunal. Ex.PW-3/1 was the original of the document dated

1.5.1973; the translated copy was exhibited as Ex.PW-3/2 which

was duly proved through the version of PW-3 who was the official

translator of the said document. PW-3 on oath had deposed that he

had translated this document and when it had been produced

before him for translation, it was not torn. The translated

document Ex.PW-3/2 was the true and correct translation of the

original Ex.PW-3/1. In his cross-examination, PW-3 had denied the

suggestion that the document produced before him was not the

original. A reference to mere a one line in this cross-examination

that PW-3 was not sure whether the said document was produced

before him would not and cannot tarnish the credibility of this

witness who has no axe to grind. Furthermore the testimony of a

witness has to be read as a whole and no one line can be

segregated and read in isolation and against the tenor of the rest of

the statement. The suit for permanent injunction filed by

defendant no.2 i.e. Subhash Chand Jain had been dismissed on the

statement of the plaintiff that he will not dispossess him except in

accordance with law; this does not create any right of tenancy in

favour of either defendant no.1 or defendant no.2. The last

contention of the appellant that he was a licencee in the suit

property is clearly contrary to his earlier plea wherein he has

stated that he is tenant in the suit property. He cannot be allowed

to blow hot and cold in same breath; he cannot approbate and

reprobate. His partnership deed had been validly dissolved by

notice dated 20.1.1984; after dissolution of this firm (in terms of

Ex.PW-3/1 dated 1.5.1973) M/s Jaina Agencies had also to

necessarily wind up its business and in the event of not doing so it

was liable to pay `100/- per day as penal charges. This is evident

from Ex.PW-3/1 which stood proved. No substantial question of

law has arisen in this appeal.

12. The appeal as also the pending application is dismissed

limine.

INDERMEET KAUR, J.

FEBRUARY 22, 2011 A/nandan