Delhi High Court

Sher Singh vs Yogesh Aggrawal on 17 December, 2013

Author: Rajiv Sahai Endlaw

             *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Date of decision: 17th December, 2013
+      RFA 565/2013 & CMs No.19293/2013 (for condonation of 183
       days delay in filing the appeal), 19294/2013 (for stay) &
       19295/2013 (for condonation of 52 days delay in re-filing the
       appeal).
       SHER SINGH                                                ..... Appellant
                             Through:      Mr. Braj Kishore Roy, Adv.
                                        Versus
    YOGESH AGGRAWAL                                             ..... Respondent

Through: None.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree (dated 20 th December,

2012 of the Court of Addl. District Judge (Central)-04, Tis Hazari Court,

Delhi in Suit No.98/12 filed by the respondent) of recovery of possession

from the appellant of premises No.5/238, Khichripur, Delhi and of recovery

from the appellant of Rs.18,000/- towards arrears of rent and mesne profits at

Rs.6,900/- per month w.e.f. 5th November, 2004 till 4th November, 2005 and

at the rate increased by 15% every year till delivery of possession minus the

sum of Rs.17,000/- paid by the appellant/defendant to the

respondent/plaintiff during the pendency of the suit.

2. The appeal is accompanied with applications for condonation of 183

days delay in filing and 52 days delay in re-filing the appeal. The delay in

filing the appeal is blamed on the Advocate for the appellant/defendant who

is stated to have not informed the appellant/defendant of the status of the

case and delay in re-filing is attributed to the appellant/defendant not having

sufficient money to pay Court Fees on the appeal. However no name of the

Advocate who misguided the appellant/defendant or the date when the

appellant/defendant may have contacted the Advocate have been given. The

applications thus do not disclose sufficient cause for condonation of delay.

3. The appeal and the applications came up first before this Court on 3rd

December, 2013 when though no prima facie merit was found in the appeal

but the counsel for the appellant/defendant having along with the appeal not

filed the entire Trial Court record, the same was requisitioned for today and

while doing so, by way of abundant caution, notice of the appeal was also

issued to the respondent. The appellant/defendant has however not taken any

steps for service of notice on the respondent/plaintiff, though Trial Court

record has been received and has been perused.

4. The respondent/plaintiff instituted the suit, pleading:-

(a) that he was the owner/landlord of the property;

(b) that the appellant/defendant was inducted as a tenant therein on

a monthly rent of Rs.6,000/- per month vide registered Lease

Deed dated 17th November, 2003 for a period of one year w.e.f.

5th November, 2003;

(c) that the appellant/defendant had failed and neglected to pay the

rent and the cheque dated 20th June, 2004 for Rs.50,000/- issued

by him had been dishonoured for insufficient funds and a

complaint of offence under Section 138 of the Negotiable

Instruments Act, 1881 had also been filed; and,

(d) that the term for which the premises were let out had also

expired on 4th / 5th November, 2004.

accordingly, suit for ejectment and for recovery of arrears of rent of

Rs.72,000/- and for mesne profits of Rs.3,06,000/- was filed.

5. The appellant/defendant contested the suit, by filing a written

statement, on the grounds:-

(i) denying the ownership of the respondent/plaintiff of the

property;

(ii) that the respondent/plaintiff had got documents with respect to

the property signed from the appellant/defendant under the garb

of loan documents;

(iii) that the appellant/defendant had also filed a criminal complaint

before the Court of the Metropolitan Magistrate in this regard;

(iv) that the appellant/defendant was the owner and in possession of

the property since the year 1976;

(v) that the Lease Deed also was a forged and fabricated document;

(vi) that the appellant/defendant is semi literate and the

respondent/plaintiff had given a friendly loan to the

appellant/defendant in the year 2002 and had got prepared some

documents pertaining to the loan transaction and which the

appellant/defendant signed in good faith;

(vii) that similarly the respondent/plaintiff had asked the

appellant/defendant to accompany him to the office of the Sub

Registrar and which also the appellant/defendant did in good

faith;

(viii) that the respondent/plaintiff had also taken some blank cheques

from the appellant/defendant; and,

(ix) that the appellant/defendant had re-paid the full amount of the

loan to the respondent/plaintiff and the respondent/plaintiff was

misusing the documents.

6. The respondent/plaintiff filed a replication admitting having

purchased the property from the appellant/defendant vide Agreement to Sell,

GPA, Will, Affidavit, Receipt, Possession Letter etc. and having inducted

the appellant/defendant as a tenant in the said property vide registered Lease

Deed aforesaid.

7. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 4th August, 2008:-

"1. Whether the plaintiff has no locus standi to file the present suit? OPD

2. Whether the suit is without any cause of action?

OPD

3. Whether the suit has not been properly valued for the purposes of court fee?

4. Whether the plaintiff is entitled to possession of the property in question? OPP

5. Whether the plaintiff is entitled to a recovery of the amount of rent and damages as claimed in the suit? OPP

6. Whether the plaintiff is entitled to any interest on the said amount? If so, its quantum and period? OPP

7. Relief."

8. The learned Addl. District Judge, after trial, has found/observed/held:-

A. that the appellant/defendant during admission/denial of

documents admitted that the documents of sale of property in

favour of the respondent/plaintiff bear his signatures;

B. the onus was thus heavy on the appellant/defendant to prove

that his signatures were obtained by misrepresentation;

C. the appellant/defendant had failed to discharge the said onus

including by not cross examining the witnesses of the

respondent/plaintiff;

D. of the documents of sale, general power of attorney and the

receipt of sale consideration were duly registered before the

Sub Registrar and as per the dicta in Shanti Budhiya Vesta

Patel Vs. Nirmala Jayprakash Tiwari AIR 2010 SC 2132,

some sanctity has to be given thereto;

E. that the appellant/defendant had failed to prove that he signed

the said documents under any disability;

F. that if the respondent/plaintiff had obtained signatures of the

appellant/defendant on the documents fraudulently, the

appellant/defendant ought to have taken recourse thereagainst

but no suit for cancellation of the documents had been filed;

G. that the appellant/defendant is not an illiterate person; he was a

cashier in a Public Sector Bank;

H. no criminal proceedings had been resorted to by the

appellant/defendant against the respondent/plaintiff for the

fraud alleged to have been perpetuated against the

appellant/defendant;

I. that the respondent/plaintiff had also proved the registered

Lease Deeds executed by the appellant/defendant by examining

the witness of the said Lease Deeds;

J. that Section 91 and Section 92 of the Indian Evidence Act, 1872

bar evidence in contradiction to the registered document; and,

K. that though as per the dicta in Suraj Lamp and Industries Vs.

State of Haryana 2012 (1) SCC 656 the respondent/defendant

had not become the owner of the property on the basis of

Agreement to Sell, General Power of Attorney etc., but had

definitely become the landlord.