Delhi High Court
Sh. R.S. Jaiswal & Anr. vs Sh. Bakshish Singh on 3 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.580/2001
% 3rd March, 2011
SH. R.S. JAISWAL & ANR. ...... Appellants
Through: Dr. Anurag Kumar Aggarwal,
Advocate.
VERSUS
SH. BAKSHISH SINGH ...... 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. This case has been on the 'Regular Board' of this Court since
17.1.2011. Today, it is effective item No.10. Although it is 2.50 P.M. nobody
has chosen to appear for the respondent. I have therefore after hearing the
counsel for the appellants perused the record and am proceeding to dispose
of the appeal.
2. The facts of the case are that the appellants/plaintiffs filed the
suit for possession and damages on 3.4.1996 against the
respondent/defendant with respect to a portion of the premises on the
RFA No.580/2001 Page 1 of 4
ground floor of the property bearing No.231/D-14, Sector-VIII, Rohini, Delhi.
The site plan of the premises was filed with plaint and has been exhibited as
Ex.PW1/1. The appellants claimed that defendant was a mere licencee in the
premises for a period of two months without any charges and who failed to
vacate the premises even after the service of notice dated 7.2.1996 and
therefore the subject suit was filed. Though the defendant originally
appeared and contested the suit on the ground that he is a tenant at
Rs.1600/- per month, subsequently, on the failure of the
respondent/defendant to deposit the charges as ordered by the Court his
defence was struck of and he was proceeded exparte. I may note that the
respondent/defendant had also filed two petitions before the Additional Rent
Controller under the Delhi Rent Control Act, 1958. The first petition was for
fixation of the standard rent and second was for recovery of the alleged
excess rent paid. Both these petitions have been dismissed now by the
orders dated 23.10.1999 and 17.11.1999 of the ARC holding that the
premises are not covered under the Delhi Rent Control Act, 1958 because
they are new premises for which there is an exemption for a period of ten
years for application of the Rent Act.
3. The trial Court has dismissed the subject suit on the ground that the
appellant failed to prove the ownership of the property because only a
photocopy of the original perpetual lease deed was filed which has been
marked as Mark A. Quite clearly this finding of the trial Court is illegal and
perverse because if the defendant himself laid a case that he was a tenant,
RFA No.580/2001 Page 2 of 4
the ownership of the appellants/plaintiffs could not be disputed as per
Section 116 of the Evidence Act, 1872. In any case, the appellants entered
into the witness box and proved their case and there is no evidence in
rebuttal of the respondent/defendant and therefore there was no reason to
disbelieve the testimony of the appellants/plaintiffs. I may note that the
Supreme Court in the case of R. VE. Venkatachala Gounder Vs.
Arulmigu Viswesaraswami & V.P. Temple and Another 2003 (8) SCC
752. has held that merely because a document is a photocopy cannot mean
that the same would not be treated as evidence and the same can be
exhibited unless there is objection to the exhibition of the document by the
opposite party. In the present case, there was no valid objection to the
exhibition because the defence of the defendant was struck off. In any case,
as I have already stated above, the respondent is estopped from challenging
the ownership of the suit premises. So far as the issue of the rate of mesne
profits is concerned, I note that the claim of the appellants was for Rs.2,000/-
originally and then Rs.4,000/-. Since, there is no evidence on record except
the oral statement of the plaintiffs, I find that the damages/mesne
profits/charges for use and occupation of the premises should be fixed @
Rs.1600/- per month till the date of filing of the suit (being the rate of rent
admitted by the respondent/defendant) and thereafter at Rs.3,000/- per
month pendente lite and future till possession is handed over taking note of
the fact that Court is entitled to draw a judicial presumption of increase of
rent in terms of Sections 57 and 114 of the Evidence Act, 1872. This is also
RFA No.580/2001 Page 3 of 4
the ratio of the decision of a Division Bench of this Court in the case of
S.Kumar Vs. G.R.Kathpalia, 1999 RLR 114.
I also deem it fit that the respondent should pay interest @ 6%
per annum on the mesne profits for arrears of mesne profits and future
mesne profits and the interest will be payable with respect to each month's
mesne profits from 30th of the month for which the mesne profits are
payable.
4. In view of the above, the appeal is accepted. The impugned judgment
and decree is set aside. The suit of the plaintiffs for possession of the suit
premises shown in the site plan Ex.PW1/1 marked in red being part of
property 231/D-14, Sector-VIII, Rohini, Delhi is decreed alongwith mesne
profits @ Rs.1600/- per month till filing of the suit and thereafter @
Rs.3,000/- per month pendente lite and future till the possession is handed
over to the appellants. The appellants will also be entitled to interest @ 6%
per annum till realisation simple for each month's mesne profits and which
interest will be payable from the end of the month for which the present
profits are payable. Decree sheet be prepared. Trial Court record be sent
back.
March 03, 2011 VALMIKI J. MEHTA, J.
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