Delhi High Court
Shri H.S.Mehta & Anr. vs United India Insurance Company ... on 3 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.502/2001
% 3rd March, 2011
SHRI H.S.MEHTA & ANR. ...... Appellants
Through: Mr. G.L.Rawal, Sr. Adv. with Mr.
Kuljeet Rawal, Advocate.
VERSUS
UNITED INDIA INSURANCE COMPANY LTD. ...... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this regular first appeal under Section 96 of
the Code of Civil Procedure, 1908 is to the impugned judgment and decree
dated 18.7.2001 whereby the suit of the appellants/landlords for recovery of
rent of the demised premises from 6.11.1994 to April, 1997 (when the suit
was filed), was dismissed on the ground that the respondent/ insurance
company was not using the premises since the fire broke out in the premises
on 6.11.1994 and the respondent/defendant/insurance company did not get
back the possession after the premises were repaired.
RFA No.502/2001 Page 1 of 4
2. The only issue which was relevant for being decided before the trial
court was whether the respondent had handed over possession of the
premises back to the appellants/landlords. The trial court has dealt with this
aspect of the matter in para 13 of the impugned judgment and decree which
reads as under:-
"13. Further he has drawn the attention of this court to
the statement of the PW-1 in cross examination wherein he
has admitted that possession of the premises was given to
the plaintiff and he after getting the same repaired, handed
over the same to the defendant in the year 1995. Counsel
for the defendant has invited the attention of the court to
the statement of DW1 in chief who has stated that
possession of the premises was handed over to the plaintiff
within 10 days when the fire broke out in the premises in
suit and entire burnt out material including record and
furniture were removed by the defendant from the premises
in suit. Statement of the plaintiff to the effect that the
possession was handed over to him and he after the same
repaired and returned the same to the defendant in 1995 is
also contradicted by the statement of DW-1 who has stated
that in 1995 when he reached the property he found the
Board of „Dilsukh Finance Company‟ at the suit premises
owner of which is Sh. H.S.Mehta plaintiff No.1 and no cross
examination of DW-1 has been done on this point. Further
he has proved on record office memo of defendant being
Ex.DW1/1 dt. 8/2/95 by which the office of the defendant
from the suit address has been shifted to Indira Palace
premises prior to this it was shifted to another places as per
the statement of DW-1 and no cross examination has been
done by the plaintiff of DW-1 on this point also."
3. A tenant is liable to pay rent for a premises which either it is using or
with respect to which possession has not been handed over back to the
landlord. Once, possession of the premises is handed over back to the
landlord in circumstances such as the present, where fire had broken out in
RFA No.502/2001 Page 2 of 4
the premises, obviously, the tenancy would stand determined and no rent
would be payable. In any case, in my opinion, even the principle of
suspension of rent, which is purely a legal issue, can be applied to the facts
of the present case which have emerged on record. The trial court has
rightly arrived at a finding of fact that possession of the premises were
handed over back to the appellant, who himself was a tenant of the subject
premises, and which subject premises were further sub-let to the
respondent/defendant/insurance company. The trial court has noted that the
fact that possession of the premises was given back by the respondent
insurance company to the appellants/landlords becomes clear from the fact
that in the premises in 1995, a company by the name of Dilsukh Finance
Company was being run, and which company was of Sh.
H.S.Mehta/appellant/plaintiff no.1. No cross examination of the witness of
the respondent company was done on this aspect clearly showing that the
possession was not with the respondent company and was handed over back
to the appellants/landlords.
4. In view of the categorical finding of the trial court, and with which I
agree, I do not agree with the contention of the learned senior counsel for
the appellants that the possession of the premises were not delivered back
to the appellants. The argument of the learned senior counsel for the
appellants that there is no pleading that the respondent handed over back
possession to the appellants in the written statement, is once again without
basis because repeatedly, in the written statement, the respondent had
RFA No.502/2001 Page 3 of 4
stated that the appellants/plaintiffs had not been able to repair the premises
and hand over back to the same to the respondent for use.
5. Merely because two views are possible, this court would not interfere
with the findings and conclusions of the trial court unless the findings and
conclusions are wholly illegal or perverse or that grave injustice/prejudice is
caused. I do not find any illegality or perversity in the impugned judgment
and decree and nor any prejudice/injustice has been caused to the appellant
which calls for interference by this court in the appeal. The appeal, being
devoid of merit, is dismissed leaving the parties to bear their own costs.
Trial court record be sent back.
MARCH 03, 2011 VALMIKI J. MEHTA, J.
ib
