Delhi High Court
Mrs. Uma Swamy vs Shri Jaspal Singh on 4 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.564/2001
% 4th March, 2011
MRS. UMA SWAMY ...... Appellant
Through: None.
VERSUS
SHRI JASPAL 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 is on the „Regular Board‟ of this Court since 17.1.2011.
Today, it is effective item No.7 and though it is 12.40 P.M. nobody has
chosen to appear for the parties. I have, therefore, perused the record and
am proceeding to dispose of the appeal.
2. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment and decree dated 7.7.2001 whereby the suit of the
appellant/plaintiff for recovery of arrears of rent amounting to
RFA No.564/2001 Page 1 of 4
Rs.1,06,695.04 against the respondent/defendant was dismissed although
the respondent/defendant was proceeded exparte and the appellant/plaintiff
duly proved her case.
3. The respondent/defendant was inducted as a tenant by the
appellant/plaintiff/landlady in flat No.B-2(basement), plot No.A-40-41
measuring 555 sq. ft. at Ansal‟s Commercial Complex, Dr. Mukherjee Nagar,
Delhi as per lease deed dated 1.3.1987. The lease was for commercial
purposes and was initially for a period of five years. The tenancy thereafter
continued month to month after expiration of the fixed period of tenancy
under the lease deed. The appellant/plaintiff claimed that the
defendant/respondent became a defaulter in payment of rent and a sum of
Rs.47,008.38/- became due and payable till 31.8.1994 and a further sum of
Rs.34,219.56/- became due and payable till 31.1.1996. A total amount of
Rs.81,227.94/- became due against the respondent/defendant/tenant upto
31.1.1996. The appellant also claimed that the respondent was liable to pay
and failed to pay the maintenance charges of Rs.25,467.10/- upto 31.1.1996.
The suit was therefore filed after serving the legal notice dated 20.9.1994
upon the respondent/defendant which failed to yield any result. As already
stated above, though the respondent appeared at one stage but
subsequently failed to appear and was, therefore, proceeded exparte on
1.7.1999.
RFA No.564/2001 Page 2 of 4
4. The trial Court has referred to the testimony of PW-1 who has
proved the case with respect to the recovery of rent in para 7 of the
impugned judgment and which reads as under:-
"7. I have heard the ld. counsel and have gone through the
records of the case. On perusing the evidence of PW-1, he is the
power of attorney of the plaintiff and he has proved the power of
attorney as Ex.PW-1/1. According to this witness, plaintiff let out
the suit premises to Shri Jaspal Singh, proprietor of M/s Fashion
Finish Apparela in March, 1987. The rent was agreed at
Rs.1387.50 w.e.f. 1.3.87 to 1.3.90 and thereafter @ Rs.1595/-
w.e.f. 1.3.90 to 1.3.92. The rent was further increased to
Rs.1835/- w.e.f. 1.3.92 to 1.3.95 and thereafter it was agreed to
be increased to 2110 w.e.f. 1.3.95. The premises was let out for
storage of garments. In addition to the rent, it was agreed that
the water and electricity charges would be paid directly to the
authorities concerned and maintenance charges were to be paid
to the maintenancy agency known as SEM Pvt. Ltd. The
defendant has been in continuous use and occupation of the suit
premises since the time of letting out. He has been a defaulter in
payment of rent. The defendant has been paying rent in cash as
well as by cheques. He used to make off and on payment of rent
as and when it was convenient to him. He was making on
account payments. The defendant was in arrears of rent
amounting to Rs.47008/- upto August, 1994. From January, 1993
to August 1994 he was liable to pay Rs.36699/- as arrears of rent
and prior to that it was Rs.10008/- upto January, 1993. After the
plaintiff got a legal notice issued to the defendant demanding the
arrears of rent upto 31.8.1994. The office copy of the said notice
was exhibited as Ex.PW-1/2 which was objected to by the ld.
counsel for the defendant. In cross examination, he deposed
that power of attorney was executed in his presence and he was
witness to the same and regarding the ownership of the premises
in question, he stated that the same is owned by his wife. He
denied that the premises were lying vacant since July 1993 for 18
months."
5. Very surprisingly, the trial Court has in spite of the above
findings dismissed the suit on some very strange reasoning that the
appellant/plaintiff failed to prove the terms and conditions of the tenancy.
RFA No.564/2001 Page 3 of 4
The trial Court has further observed that the statement of the witness of the
plaintiff was not corroborated. The trial Court has referred to some alleged
discrepancies in the witness depositions and held that plaintiff failed to prove
his case as no statement of account of defendant has been filed by the
plaintiff.
I totally fail to understand the reasoning of the trial Court
because the appellant/plaintiff duly proved the arrears due on account of
rent and which issue was discussed by the trial Court in para 7 of the
impugned judgment. There was no rebuttal evidence led on behalf of the
respondent/defendant who remained exparte. There was, therefore, no
reason for the trial Court to disbelieve the stand of the appellant/plaintiff.
6. In view of the above, the impugned judgment and decree is set
aside. Suit of the plaintiff is decreed for recovery of Rs.1,06,695.04/- with
pendente lite and future interest till realization of the decretal amount @ 6%
per annum with costs of the present appeal. Decree sheet be prepared. Trial
Court record be sent back.
March 04, 2011 VALMIKI J. MEHTA, J.
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