Friends Foundation vs Nar Bahadur
2013 Latest Caselaw 824 Del

$~9
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA 203/2011

%                   Judgment reserved on 14th February, 2013
                    Judgement delivered on 19th February, 2013

FRIENDS FOUNDATION                                 ..... Appellant
             Through:           Mr. Rajesh Gupta, Mr. Sandeep
                                Puri, Advs. along with Mr.
                                Narender     Singh-Attorney        of
                                Appellant in person.
                   Versus

NAR BAHADUR                                      ..... Respondent
                   Through:     Mr. R.M. Sinha, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Appellant-plaintiff has preferred this appeal against the

judgment and decree dated 7th January, 2010 passed by the trial

court whereby suit for possession, mesne profit, damages and

permanent injunction filed by the appellant against respondent-

defendant has been dismissed.

2. Appellant alleged in the plaint that it was a charitable society

registered under the Societies Registration Act, 1860 having its

registered office at 313/1, Inderlok, Delhi. Appellant was

exclusive owner of property bearing no. 5354, First Floor, Ward

No. XV, Ladoo Ghatti, Pahar Ganj, New Delhi - 110055. Suit was

being filed by it through its manager Narender Singh, who was

duly authorized to do so vide Board Resolution dated 7 th

December, 2007 passed by the appellant. M/s Runwell India

Private Limited was sister concern of appellant. Respondent was

employee of the said company and was permitted to reside in two

rooms at the first floor of appellant's aforesaid property.

Permission so granted to respondent was co-terminus with his

employment. Respondent was permitted to occupy the suit

property on a license basis at the pleasure of appellant. On 8th

September, 2006 respondent voluntarily left his job, thus,

permission granted to him to occupy the said two rooms came to an

end with effect from 8th September, 2006. Respondent while

leaving the job undertook in writing to vacate the suit property by

23rd September, 2006. On humanitarian grounds appellant allowed

the respondent to occupy said two rooms till 23rd September, 2006.

However, respondent did not honor his commitment and declined

to vacate the said rooms despite repeated requests of appellant.

On 18th November, 2006 Narender Singh visited the said property

to take over the possession but respondent refused to vacate,

inasmuch as, forcibly occupied open verandah in front of the said

rooms (hereinafter the two rooms and open verandah are being

referred to as the "suit property"). Respondent also removed steel

fixtures, electric fittings, water pipes etc., thereby compelling the

appellant to lodge complaints at police station Pahar Ganj on 2nd

December, 2006 and 25th December, 2006 respectively. Vide

notice dated 29th May, 2007 respondent was called upon to vacate

the suit property but to no effect. Hence the suit.

3. Respondent filed written statement alleging therein that he

was never an employee of M/s Runwell India Private Limited nor

was ever put in possession of suit premises during the course of

alleged employment. He alleged that he was working as a driver

with Kishore Lal right from 1994 onwards. In fact he had worked

almost in all the concerns/ companies with which Kishore Lal was

associated. Respondent was inducted in the suit property as a

tenant by Kishore Lal and his daughter, namely, Anu Sabharwal in

the year 2005 on a monthly rent of Rs.400/- . Respondent was also

paying Rs.100/- towards electricity and water charges. Thus, the

suit was barred under Section 50 of Delhi Rent Control Act, 1958.

Respondent was depositing Rs.500/- per month with Kishore Lal

right from 1998 onwards and when he asked Kishore Lal to refund

the said amount so that he could invest the same in interest

generating FDR in some bank, an altercation broke out between the

respondent and Kishore Lal and the present litigation is outcome of

the said altercation. Narender Singh was accountant of Kishore

Lal. Narender Singh obtained signatures of respondent on number

of blank papers and the same have been misused. Respondent

denied that suit property was given to him by the appellant on

license basis. It was further alleged that M/s Runwell India Private

Limited was a necessary party and in its absence suit was liable to

be dismissed. Respondent further alleged that Kishore Lal and his

muscle men tried to forcibly evict him and his family members but

they could not succeed in their ill designs. Respondent denied that

he had agreed to vacate the suit property by 23 rd September, 2006.

Respondent denied that he had removed steel fixtures, electric

fittings, water pipes etc. It was further alleged that Kishore Lal in

collusion with police officials tried to dispossess him and his

family members on 21st December, 2006 but could not succeed in

their effects. Respondent stated that notice dated 29th May, 2006

was based on concocted facts. Respondent denied that he was in

illegal use and occupation of suit property with effect from 24 th

September, 2006. It was prayed that suit be dismissed.

4. In the replication, appellant denied allegations levelled in the

written statement and reiterated and reaffirmed the averments made

in the plaint.

5. Following issues were framed by the trial court on 17 th

March, 2009:-

1. Whether the suit is barred by Section 50 of the Delhi Rent Control Act? OPD

2. Whether the suit has not been filed by a duly authorized/competent person? OPD

3. Whether the suit is bad for non-

joinder of necessary parties? OPD

4. Whether the proper court fee has not been affixed by the plaintiff? OPD

5. Whether the plaintiff is entitled to a decree for possession in respect of the suit premises? OPP

6. Whether the plaintiff is entitled to a decree for damages/mesne profits w.e.f. 24.09.2006 pendente lite and future, in respect of the suit premises? OPP

7. Whether the plaintiff is entitled to a decree for permanent injunction in respect of the suit premises? OPP

8. Relief.

6. Appellant examined himself as PW1. Examination-in-chief

of this witness by way of affidavit supports the version as

contained in the plaint. Photocopy of sale deed in respect of

property bearing no. 5354, First Floor, Ward No. XV, Ladoo

Ghatti, Pahar Ganj, New Delhi - 110055 has been proved as Ex.

PW5/A. Original sale deed was produced in Court at the time

when copy was exhibited. Site plan has been proved as Ex.

PW1/A. Memorandum of Association and Rules and Regulations

of appellant have been proved as Ex. PW1/2. List of Members of

appellant as on 7th December, 2007 has been proved as Ex. PW1/3.

Certificate of registration has been proved as Ex. PW1/5. Extract

of Board Resolution dated 7th December, 2007 has been proved as

Ex. PW1/6. Letter-cum-undertaking dated 8th September, 2006,

duly singed by the respondent and counter signed by Narender

Singh and one Nitin Gupta, has been proved as PW1/7. Copies of

complaints dated 2nd December, 2006 and 25th December, 2006

made to police station Pahar Ganj have been proved as Ex. PW1/8

and Ex. PW1/8-A respectively. Copy of legal notice dated 29th

May, 2007 together with postal receipts including A.D. card has

been proved as PW1/10 to PW1/12 and Ex. PW1/14 respectively.

Courier receipt has been proved as PW1/13. PW1 was cross-

examined at length but his statement in examination-in-chief has

remained unshaken and unshattered.

7. Respondent had examined himself as DW1. His

examination-in-chief is in line with the defence taken by him in his

written statement. However a careful perusal of his cross-

examination shows that the defence taken by him has fallen flat on

account of inconsistent and vague stand taken by him. Answers

given by him in his cross-examination also make him

untrustworthy and unreliable witness. Though in his written

statement and examination-in-chief he had feigned ignorance about

M/s Runwell India Private Limited and his association with the

said company but his cross-examination indicates that he was

employed as a driver in the said company. In the written statement

respondent had categorically denied that he was associated with the

said company, inasmuch as his case was that he was working with

Kishore Lal as a driver and it is said that Kishore Lal let out the

suit property to him on a monthly rent of Rs.400/- plus Rs.100/-

towards electricity and water charges. But in his cross-examination

he has stated that suit property was given to him by M/s Runwell

India Private Limited for residential purpose. He volunteered that

the said company used to deduct rent of Rs.400/- and also Rs.100/-

towards electricity from his salary. His answer in his cross-

examination completely demolished his plea of being tenant of

Kishore Lal, inasmuch as, he failed to produce any rent receipts.

At one point in his cross-examination he stated that suit property

was given to him by M/s Runwell India Private Limited for

residence but in his answer to a subsequent question he gave an

evasive reply by saying that he was not aware whether he was

working with M/s Runwell India Private Limited or not. At the

same time, he admitted that he left his job with M/s Runwell India

Private Limited in October, 2006. He admitted that he did not

work with M/s Runwell India Private Limited after 8th September,

2006. He further admitted that he had asked 15 days time from

M/s Runwell India Private Limited to vacate the suit property. He

admitted that he had received legal notice Ex.PW1/10 from the

appellant but had not given any reply to the said notice. Though in

his affidavit, respondent had claimed that he was employed with

Kishore Lal, however, in his cross-examination he has admitted

that he used to receive payments from Narender Singh; but at the

same time he feigned ignorance about the fact that Narender Singh

was working as Manager with the appellant.

8. After scrutinizing the evidence adduced by the parties trial

court has decided issue nos. 1, 2 and 4 in favour of the appellant.

Findings on the above issues have remain unchallenged in this

appeal since same have neither been challenged by the appellant

nor by the respondent as respondent has neither filed any appeal

nor the cross-objections. Trial court has categorically held that

respondent had failed to prove that there existed relationship of

landlord-tenant between the respondent and Kishore Lal, thus, suit

was not barred under Section 50 of Delhi Rent Control Act.

However, suit has been dismissed only on account of finding

returned by the trial court on issue no.3.

9. Trial court has held that respondent was allowed to stay in

the suit property by M/s Runwell India Private Limited being its

employee. Occupation of respondent in the suit property was co-

terminus with his employment. Appellant was nowhere in picture.

It was not the case of appellant that respondent was living as a

licensee of appellant. Though appellant had claimed M/s Runwell

India Private Limited to be its sister concern but no evidence was

led to prove this fact. M/s Runwell India Private Limited was a

separate legal entity. There was no privity of contract between the

appellant and respondent. Even license was terminated by the

appellant vide legal notice Ex. PW 1/10 and not by M/s Runwell

India Private Limited. Since appellant had not impleaded M/s

Runwell India Private Limited in the suit, therefore, no relief could

have been granted to appellant as the suit was bad for non-joinder

of necessary party. In view of this finding trial court has concluded

that plaintiff cannot claim decree of possession, mesne profit and

permanent injunction, consequently, had failed to discharge onus to

prove issue nos. 5, 6 and 7 as well.

10. From the above, it is clear that appellant has been non suited

to seek relief of possession, damages/mesne profit and permanent

injunction only on the ground that there was no privity of contract

between the appellant and respondent since respondent was put in

possession of the suit property by M/s Runwell India Private

Limited being its employee and it is only the said company which

was entitled to claim possession, damages/mesne profit and

permanent injunction.

11. A careful perusal of trial court record makes it clear that

findings returned by the trial court on issue no.3 are contrary to the

evidence adduced on record. Trial court has fallen in grave error in

holding that there was no privity of contract between the appellant

and respondent and that suit was bad for non-joinder of necessary

party, that is, M/s Runwell India Private Limited. The case set up

by the appellant in the plaint is that respondent was put in

possession of the suit property being employee of its sister concern,

that is, M/s Runwell India Private Limited. It has nowhere been

pleaded in the plaint that M/s Runwell India Private Limited had

put respondent in possession of the suit property. Appellant is

owner of the suit property, as is evident from the sale deed Ex.

PW1/5. PW1 Narender Singh is Manager of appellant and has

categorically deposed that respondent was an employee of M/s

Runwell India Private Limited and was permitted to reside in the

suit property being an employee of the said company. Said

permission was co-terminus with his employment. Permission was

a mere license and respondent's occupation in respect of the suit

property was at the pleasure of appellant. His this deposition has

remained unchallenged in his cross-examination and there is no

reason to disbelieve the same. Statement of a witness in respect of

a fact in examination in chief, if remains unchallenged in his cross-

examination, has to be accepted as correct.

12. That apart statement of PW1 being credible has to be

accepted as against the non-creditworthy statement of DW1. In his

written statement respondent alleged that he was inducted in the

premises as a tenant by Kishore Lal. In his cross examination, he

deposed that he was put in possession by M/s Runwell India

Private Limited. He again said in answer to a question that he used

to pay rent to plaintiff (appellant). He again said that he used to be

paid salary by Narender Singh (PW1) and rent used to be deducted

from his salary. He admitted a suggestion that PW1 Narender

Singh was Manager of appellant. Respondent neither produced nor

proved any rent receipt. The answers given by the respondent also

support the appellant's version that respondent was put in

possession of the suit property on a license basis by the appellant.

13. Above all, Ex. PW1/7 duly signed by the respondent at point

A also indicates that he admitted appellant to be licensor, inasmuch

as respondent undertook to vacate the suit property by 23 rd

September, 2006. PW1 has also signed Ex. PW1/7. It has been

categorically stated by the respondent in Ex. PW1/7 that he would

vacate the suit property by 23rd September, 2006. This letter also

strengthens the case of the appellant that respondent was permitted

to live in the suit property as a licensee by the appellant. From the

evidence available on record it can safely be inferred that

respondent was put in possession of the suit property as a licensee

by the appellant being an employee of its sister concern, thus, it

was competent to terminate the license and to seek possession of

the suit property. M/s Runwell India Private Limited is neither

necessary nor a proper party. Accordingly, finding on issue no. 3

is returned in favour of appellant.

14. Ex. PW1/10 is the legal notice whereby license was

terminated. Thus, respondent had no right to retain possession of

the suit property and his status was rendered to be that of an

unauthorized occupant in the suit property. Thus, he is also liable

to pay mesne profit for the unauthorized use and occupation of the

suit property with effect from 1st June, 2007 till he hands over

vacant possession of the suit property. Though, appellant has

claimed Rs.5,000/- per month towards mesne profit, however,

except oral statement of PW1 no other evidence has been adduced

to show the prevailing market rent which the suit property could

have fetched. Be that as it may, court can still take judicial notice

of the fact that two rooms with open verandah in a centrally located

area such as Pahar Ganj could easily fetch Rs.2000/- per month.

15. In the light of above discussions, a decree of possession is

passed in favour of appellant and against the respondent, in respect

of the suit property, forming part of property bearing no. 5354,

First Floor, Ward No. XV, Ladoo Ghatti, Pahar Ganj, New Delhi -

110055, and more particularly shown in red colour in the site plan

Ex. PW1/1. Respondent shall pay Rs.2,000/- per month to the

appellant towards use and occupation of suit property with effect

from 1st June, 2007 till he vacates the suit property. Respondent is

also restrained from creating any third party interest in the suit

property. Appellant shall pay court fee on the mesne profit.

16. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

FEBRUARY 19, 2013 ga