Shri Krishan Mohan & Others vs Mandodri Devi & Others
2011 Latest Caselaw 2956 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 01.06.211


+     R.S.A.No. 135/2010 & CM No. 12250/2010

SHRI KRISHAN MOHAN & OTHERS
                                         ...........Appellants
                        Through:    Mrs. Mala Goel and Mr.
                                    Yashpal Singh, Advocates.

             Versus
MANDODRI DEVI & OTHERS
                                             ..........Respondents
                        Through:    Mr.V.B. Andley, Sr Advocate
                                    with Mr. Rajinder Mathur
                                    and Ms. Priyank Sharma,
                                    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. (Oral)

1 This appeal has impugned the judgment and decree dated

17.04.2010 which had reversed the finding of the trial judge

dated 29.08.2009. Vide judgment and decree dated 29.08.2009,

the suit filed by the plaintiff seeking possession of the suit

property (property depicted in red colour in the site plan Ex. P-2

being 4 servant quarters in property No. 4, University Road,

Delhi) had been decreed; damages at the rate of Rs. 300/- per

month along with the interest at 18% per annum had also been

awarded. Impugned judgment had reversed this finding; suit of

the plaintiff stood dismissed.

2 Krishan Mohan after the death of D.R. Gupta claimed

himself to be the karta of the joint Hindu family; property no. 4,

University Road, Delhi belonged to the family. This property

comprised of various servant quarters; four servant quarters (as

depicted in the site plan Ex. P-2) are the subject matter of the

present suit. Late D.R. Gupta was the Managing Director of M/s

Motor & General Finance Limited (MGF). The defendant Sh.

Yad Ram being an employee of the MGF was retained as a driver

and in that capacity he was permitted to occupy these four

servant quarters along with his family. In 1969, Sh. Yad Ram,

suffered a heart attack; he was asked by the plaintiff to produce

a fitness certificate recording his fitness to drive the vehicle

which he failed to do; he abandoned the services of the plaintiff

and absented himself from the duty. Late Sh. D.R. Gupta had

allowed Shri. Yad Ram to continue to stay in the suit property till

the time he was able to shift to an alternate accommodation.

Sh. Yad Ram died on 19.01.1972; he, however, did not vacate

the suit property. His widow and sons continued to remain in

the property. Despite the demise of Sh. Yad Ram, because of

the fact that he was serving late Sh. D.R. Gupta as a driver, his

family was allowed to remain in the suit property. On

26.04.1973, legal notice was served upon the defendants calling

upon them to vacate the suit property. Electricity and water

charges were also claimed. However, to no avail. Reply to the

legal notice had been sent on 15.05.1973 where for the first

time, defense was taken by the defendants that they were

tenants in the suit property. Present suit was filed.

3 In the written statement contention of the defendants was

that they are tenants and governed by relationship of the

landlord and tenant. The present civil suit was not

maintainable; there was a bar under the Delhi Rent Control Act

(hereinafter referred to as DRC Act). On merits, it was denied

that Sh. Yad Ram was attached as a driver to late Sh. D.R.

Gupta. It was contended that Sh. Yad Ram was occupying this

property in his independent capacity as a tenant on a monthly

rent of Rs. 15/-.

4 On the pleadings of the parties, following issues were

framed:-

i. Whether the suit is bad for non-joinder of necessary

parties? OPP.

ii. Whether the plaintiff has the locus standi to institute the

present suit? OPP.

iii. Whether the suit is hit by Section 50 of Delhi Rent

Control Act? OPP.

iv. Whether the suit property was allotted to deceased Yad

Ram during the course of his employment in the manner

pleaded in para 3 of the written statement? OPP.

v. If Issue No. (iv) is held in affirmative, what is the effect of

death of deceased Yad Ram on the suit property? OPP.

vi. Whether the defendants are tenants in the suit property?

OPD

vii. If the plaintiff is entitled to the possession of suit

property from the defendant? OPP

viii. Whether the plaintiff is entitled to any mesne profits from

the defendant? If so, at what rate and what amount? OPP.

      ix.     Whether the suit is properly valued for the purpose of

              court fees and jurisdiction? OPP


      x.      Relief."


5     Oral and documentary evidence was led.


6     Trial judge had disbelieved Ex. D-1 to Ex.D-3 which was a

letter and 2 rent receipts purported to have been issued by Sh.

J.N. Gupta (son of Sh. D.R. Gupta); court was of the view that

they are fabricated. Defendant had failed to establish that he

was a tenant in the suit property. Suit stood decreed.

7 The appellate court had reversed this finding. The first

appellate court was of the view that the defendant is a tenant;

Ex. D-1 to Ex.D-3 had been relied upon. Defendant being a

tenant in the suit property, a civil suit was not maintainable.

Suit was dismissed.

8 This is a second appeal. It has been admitted and on

22.12.2010, the following issue was framed:-

"Whether the findings in the impugned judgment dated

17.04.2010 on the construction of the documents Exs. D-1, D-2

and D-3 are perverse? If so, its effect?"

9 On behalf of the appellant, it has been urged that

documents Ex.D-1 to D-3 are clearly forged and fabricated; it is

pointed out that these documents had seen the light of the day

for the first time when they were confronted to PW-2 in his

cross-examination; it is pointed out that these documents did not

find mention in the reply filed by the defendant (dated

15.05.1973) where although defendant had taken up the plea

that his father Yad Ram was a tenant in the suit premises yet he

had failed to disclose what is the rate of rent or since when his

deceased father was the tenant. It is pointed out that evidence

which is contrary to the pleadings cannot be read. To support

this proposition, reliance has been placed upon the judgment

reported in AIR 1979 SC 882 Rajender Singh Yadav Vs. Chandra

Sen and other. Reliance on the aforenoted documents in the

impugned judgment is clearly a perversity; finding in the

impugned judgment calls for an interference.

10 Arguments have been rebutted. Attention has been drawn

to Order 6 Rule 2 of the Code of Civil Procedure (hereinafter

referred as the „Code‟). It is pointed out that pleadings have to

be specific and evidence does not form a part of the pleadings. It

is pointed out that the finding in the impugned judgment calls

for no interference.

11 The trial Judge had decreed the suit of the plaintiff. The

trial Judge had repelled the documents Ex.D-1 to D-3. Ex. D-1 is

a letter dated 23.07.1973 purported to have been written by

J.N. Gupta (PW-2) to Mandodri Devi (widow of Yad Ram)

wherein it is recorded that after consultation with the family

Mandodri Devi had been accepted as a tenant and the rent of

`15/- per month should be tendered by her; Ex.D-2 is a receipt

dated 25.07.1973 signed by PW-2 purporting to have been

received an amount of `465/- for 31 months; Ex.D-3 is also a

receipt dated 02.08.1977 issued by PW-2 receiving rent for the

preceding 36 months @ `15/- per month from Mandodri Devi.

12 The tenor of Ex. D-1 appears to be suspicious. This is a

communication purported to have been addressed by PW-2 (son

of the Managing Director of the plaintiff company) writing to the

widow of his driver and addressing her as

„Respected Smt Mandodri Devi...

It has thereafter been signed by J.N. Gupta after thanking her & has noted as:

Yours faithfully,

Sd./ (J.N. Gupta)‟.

13 The submission of learned counsel for the appellant that

the son of the Managing Director of the employer company even

presuming was communicating with the widow of his driver

would not be addressing the communication in the manner in

which it has been done. There is force in this submission. The

surrounding circumstances also throw suspicion on this

document. Admittedly Yad Ram had been employed with the

MGF Company of whom D.R. Gupta was the Managing Director;

Yad Ram„s services were personal to D.R. Gupta, being his

driver; D.R. Gupta was a resident of 4, University Road, New

Delhi; the aforenoted servant quarters had been given to Yad

Ram and his family to occupy them in that capacity. Yad Ram

was an employee of the plaintiff company since 21.11.1941. He

had died in 1972. Being an old employee his family was

permitted to occupy the suit premises till 26.04.1973 (Ex P-3)

when notice had been sent to his widow asking them to vacate

the suit premises along with damages failing which a civil suit

will be initiated against them. In the reply dated 15.05.1973

(Ex.P-4), the defendants had set up a plea of tenancy stating

therein that Yad Ram was a tenant in the aforenoted premises

and after his death, the premises were being occupied by them

in their capacity as tenants; it was further clarified by a

statement that the defendants have never avoided or denied to

make the payment or other charges. Admittedly no rent had ever

been tendered by the defendant on any date either prior to this

letter and or even later. In a subsequent letter dated 19.08.1974

addressed by the defendants to the plaintiff company no such

plea of tenancy had been advocated; contention of defendants in

this letter was that Yad Ram had expired and after his death a

sum of `24,149/- was due and payable from the company which

amount was recoverable. The present suit was filed in the year

1982. Written statement had been filed on 11.10.1983; even in

the written statement no details of the alleged tenancy had been

given i.e. the date from which Yad Ram had become a tenant or

the rate of rent. The documents Ex.D-1 to Ex.D-3 had been filed

on 03.02.1984 i.e. at the time of framing of issues; although

there was no specific bar for tendering documents upto the date

of framing of issues (in view of the unamended Code); the said

documents surfaced for the first time when they were

confronted to PW-2 in his cross-examination.

14 The gamut of the evidence adduced both oral and

documentary has to be looked into before the Court can return a

finding one way or the other. Ex.D-1 to Ex D-3 were purported to

have been executed by J.N. Gupta (PW-2); PW-2 had come into

the witness box; he had denied the execution of the aforenoted

documents. DW-2 was the handwriting expert who had tendered

his report Ex. DW-2/12 wherein after examination of the

questioned signatures (Q-1 to Q-3 on Ex. D-1 to Ex. D-3) with the

specimen signatures (S-1 to S-5) and the admitted signatures (C-

1 to C-5) had returned an opinion in favour of the defendant; his

opinion was that the disputed signatures Q-1 to Q-3 are the

genuine signatures of J.N. Gupta. This witness had come into the

witness box as DW-2. His cross-examination is relevant. In the

opening line of his cross-examination he had admitted that he

does not have any degree or diploma from any government

university; his father is a photographer and is working with

handwriting experts operating from Tis Hazari Courts; he

admitted that he always gives a report in favour of a party who

engages him; he further volunteered that if he gives a report

against the party it will be torn. This evidence of DW-2 had been

considered by the trial Court to return a finding that the report

of the handwriting expert (which is even otherwise only a

relevant fact under Section 45 of the Indian Evidence Act) in

view of this categorical admission holds no water. This report

had been rightly rejected.

15 Learned counsel for the respondent has submitted that

even assuming that this report has to be disregarded , trial

Judge had not returned any finding as to whether Ex.D-1 to Ex.

D-3 were forged or fabricated documents; attention has been

drawn to para 23 of the judgment of the trial Judge. The trial

Judge had noted therein that documents Ex. D-1 to Ex. D-3 are

not worthy of credence as they had not been proved in

accordance with law; but the question whether Ex.D-1 to Ex.D-3

are forged or fabricated had not been gone into.

16 Admittedly the plea of the defendant that his father Yad

Ram was a tenant had not been substantiated by any other

document; it has also not been pleaded or averred in the written

statement as to since when Yad Ram was a tenant; written

statement shows that the date of tenancy or the rate of rent has

not been given; these averments also do not find mention in the

reply filed by the defendant to the legal notice dated

15.05.1973; therein also the defendant had given no details

since when Yad Ram was a tenant or what was rate of rent.

17 Admittedly Yad Ram was a driver employed with the MGF;

D.R. Gupta was the Managing Director of MGF; he was

performing the duties of a driver of D.R. Gupta; it also not in

dispute that D.R. Gupta was a resident of 4, University Road,

New Delhi; in these circumstances, it is difficult to perceive of a

situation that a man of a stature owning a property at 4,

University Road, New Delhi would have allotted 4 servant

quarters in his residential block to his personal driver at a rent

of `15/- per month. That apart if the defendant was a tenant

nothing prevented him from coming forward with all details in

the first instance; even on the date of filing of written statement

(10.01.1983) these details did not surface; they surfaced for the

first time only on 03.02.1984 when Ex. D-1 to Ex. D-3 were

confronted to PW-2. The report of handwriting expert Ex. DW-

2/12 as aforenoted had rightly been rejected. Counsel for the

respondent is also not pressing his claim on this report.

18 The further contention of the respondent is that the

relationship of parties had in fact stood established as landlord

and lessee and in the absence of documentary evidence the

conduct of the parties deciphered their relation to be that of

lessor-lessee; for this proposition learned counsel for the

respondent has placed reliance upon the judgment reported in

AIR 1976 Bombay 417 M/s Mohan Sons (Bombay) Private Ltd.

Vs. Lady Sonoo Jamsetji Jejeebhoy & others & AIR 1959 SC 1262

Associated Hotels of India Ltd. Vs. R.N. Kapoor. This submission

is to be noted only to be rejected. As already aforenoted this

defence of the defendant that he was a lessee stands refuted.

Circumstances show that the defendant had been given

permissive user of the suit property only in his capacity as an

employee of MGF and his personal attachment as a driver of

D.R. Gupta who was a resident of 4, University Road, New Delhi

in whose residential block these servant quarters are located; in

no manner can it be said that there was any intention to create a

lease; judgments relied upon by learned counsel for the

respondent in M/s Mohan Sons (Bombay) Private Ltd (Supra)

and Associated Hotels of India Ltd. (Supra) have no application

to the facts of the case. The impugned judgment reversing the

finding of Trial Judge without any cogent reason was a

perversity. It calls for an interference.

19 Learned counsel for the appellant under instructions from

her client states that the claim for mesne profits is not been

pressed.

20 The substantial question of law is accordingly answered in

favour of the appellant and against the respondent. Appeal is

allowed. Suit is decreed for possession.

INDERMEET KAUR, J.

JUNE 01, 2011 a