Nand Kishore vs Shree Sanatan Dharam Sabha Laxmi ...
2013 Latest Caselaw 4881 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                   RSA 59/2013 & CM No.4786/2013 (Stay)

                                     Decided on : 24th October, 2013

     NAND KISHORE                                   ..... Appellant

                    Through        Mr.R.D.Sharma, Mr.Rajat
                                   Sharma, Mr.Chetan Sharma and
                                   Mr.Manish, Advocates.

                          versus

     SHREE SANATAN DHARAM SABHA LAXMI NARAYAN
     TEMPLE TRUST                     ..... Respondent
              Through Mr.Sanjay Aggarwal, Advocate.
                      Mr.V.K.Mishra, AR of the Respondent.


     CORAM:
     HON'BLE MR. JUSTICE V.K. SHALI

     V.K. SHALI, J. (ORAL)

1. I have heard the learned counsel for the appellant as well as

the learned counsel for the respondent.

2. Vide order dated 20.03.2013, the following question was

framed:

"Whether the concurrent finding of fact arrived at by the two courts below with regard to the appellant being a licensee in the premises in question is substantiated by any evidence on record or not?"

RSA 59/2013 Page 1

3. Before dealing with the aforesaid question, it may be

pertinent to give the brief background of the case.

4. The respondent herein is a registered society under the

Societies Registration Act, 1860 and is running a temple known

as Birla Mandir, Mandir Marg, New Delhi. A suit for possession

and recovery of damages/mesne profits came to be filed on behalf

of the respondent/society through one of its trustees who was duly

authorized vide the resolution dated 15.03.2004. The allegation

made by the respondent/society against the appellant herein was

that the father of the appellant was allotted a shop purely on a

licence basis for selling flowers and garlands on the periphery of

the mandir on a monthly licence fee of `40. It was alleged that

the licence fee of `40 was being reflected as bhaint/offering on

the receipts issues to the father of the appellant. After the demise

of the father of the appellant, the appellant continued to be in

occupation of the premises in question in the capacity of the

licensee and the licence fee was enhanced to `600/- per month in

December, 2003. It was also alleged in the plaint that with effect

from 01.01.2004, the licence fee was further enhanced to `1,000/-

per month on a mutual understanding between the appellant and

RSA 59/2013 Page 2 the respondent apart from the payment of `20 per month by way

of electricity charges but the said amount was never paid and

since the appellant had run into arrears of payment of licence fee

with effect from 01.01.2004, at the aforesaid rate of `1,000 per

month, consequently the suit for possession and damages/mesne

profits was filed against him.

5. The present appellant defended the claim of the

respondent/plaintiff. It was averred by him that he was a tenant in

the suit premises just as his father was a tenant. It was stated that

the amount of rent which was paid by him was reflected as an

bhaint/offering by the respondent which is stated to have been

done by the respondent only with a view to save the income tax

liability. It was further stated by the appellant that he was

compelled to file a petition under Section 45 of the Delhi Rent

Control Act, 1958 on account of disruption of essential amenities

by the respondent/plaintiff as well as a petition under Section 27 of

the Delhi Rent Control Act, 1958 depositing the rent in the court of

ARC. On the completion of pleadings of the parties, the following

issues were framed:

"1. Whether the defendant is the licensee in the suit property? OPP.

RSA 59/2013 Page 3

2. Whether the suit of the plaintiff liable to be dismissed under Section 41(f) (g) & (h) of Specific Relief Act? OPD

3. Whether the plaintiff has any cause of action to file the present suit? OPD

4. Whether the plaintiff is entitled to decree of possession in respect of the suit property? OPP

5. Whether the plaintiff is entitled to mesne profit, if so at what rate and for what period? OPP

6. Whether the plaintiff is entitled to arrears of licence fee and arrears of electricity charges to the tune of `11,000/- and `1722/- respectively? OPP

7. Relief."

6. Out of the above issues, the most important issue was as to

whether the appellant/defendant was a licensee in the suit

property in question. This issue has been decided by the trial court

in favour of the respondent/plaintiff. The respondent/plaintiff in

support of its case had filed an affidavit Ex.PW 1/A of Mr. Vinod

Kumar Mishra who was subjected to extensive cross-examination

on behalf of the appellant/plaintiff. In the affidavit, the said

witness had supported the case set up in the plaint by the

respondent/plaintiff that the appellant/defendant was a licensee in

respect of the property in question. It was also admitted by him RSA 59/2013 Page 4 that there was no formal licence deed signed by the parties in this

regard and the licence fee which was being paid by the appellant

to the respondent was being reflected in the receipts as

bhaint/offering and that at no point of time, the word „rent‟ was

used in in any of the receipts issued to the appellant/defendant.

The appellant/defendant filed his own affidavit refuting the claim

of the respondent/plaintiff. He supported his statement by stating

that he was a tenant in the property in question. The documents in

this regard Ex.DW-1/PX-1, Ex.DW-1/PX-2 and Ex.DW-1/PX-3

were admitted by him having his signatures at point A. These

documents show that the rate list of various items purported to

have been sold by the appellant/defendant were got approved by

him from the respondent/plaintiff.

7. The trial court accepted the plea of the respondent/plaintiff

that the appellant was a licensee in respect of the shop in question

on the basis of receipts having been produced. A reliance was

placed in this regard on the documents admitted by the appellant

in his cross examination with regard to the approval of the rate

list. It was a finding which was affirmed by the first appellate

court as well.

RSA 59/2013 Page 5

8. The main contention of the learned counsel for the

appellant is that there is no evidence on record to show that the

appellant/defendant was a licensee in respect of the shop in

question and the onus in respect of proving that the appellant was

a tenant in the shop in question was wrongly put on him.

Accordingly, the finding returned by the two courts below was

irrational.

9. This court formulated a question after preliminary hearing

only with regard to the concurrent finding having been returned

by the two courts below as to whether the appellant was a licensee

or not. The basic dictum of rule of evidence is that „one who

asserts must prove‟. The respondent/plaintiff having filed a suit

for possession and recovery of damages/mesne profits against the

appellant claiming him to be a licensee in respect of the shop in

question, was required to prove the same. The trial court had

rightly framed an issue as to whether the appellant was a licensee

in the shop in question and placed onus on the

respondent/plaintiff. This onus was discharged by the respondent

by filing an affidavit of PW-1 Mr. Vinod Kumar Mishra who

supported the averments made in the plaint that the appellant was

RSA 59/2013 Page 6 a licensee in the shop in question and the amount which was being

paid by way of licence fee was being shown as bhaint/offering in

the receipts. The onus having been discharged by the respondent,

it shifted to the appellant to prove that he was not a licensee but a

tenant. In this regard, no doubt he had made a statement in his

affidavit exhibited as ExDW1/1 that he is a tenant and paying rent

in respect of the shop in question, but one must not lose sight of

the fact that in his cross-examination he has admitted the

documents ExDW-1/PX-1, ExDW-1/PX-2 and ExDW-1/PX-3

which show that the rates of the items sold by him at the shop in

question were being got approved by him from the

respondent/plaintiff. If the appellant was a tenant in respect of

the shop in question, then he would never have been required to

get the rates approved from the respondent/plaintiff. The very

fact that the rates were got approved, lends credence or

corroboration to the case of the respondent that he was a licensee.

In addition to this, it is also admitted by the appellant that the

shop in question was being opened and closed according to the

timings fixed by the respondent. That was another factor which

shows that though the appellant may be in physical possession of

RSA 59/2013 Page 7 the shop in question, the nature of business, the rates of the items

sold at the shop in question, the time of opening and closing of

shop in question were all effectively being regulated by the

respondent/plaintiff. This can only happen if a person who is in

occupation is a licensee and not tenant. Accordingly, I feel that

the concurrent finding returned by the two courts below was

absolutely right that the appellant was a licensee and not the

tenant.

10. The last submission which has been made by the learned

counsel for the appellant is that he had filed an application under

Order 41 Rule 27 CPC seeking permission to adduce additional

evidence during the stage of appeal. However, the said

application has not been decided. The learned counsel for the

respondent has refuted this contention of the learned counsel for

the appellant that the application under Order 41 Rule 27 CPC has

not been decided.

11. I have perused the record. The application under Order 41

Rule 27 CPC of the appellant seeking permission to adduce

additional evidence was rejected by the first appellate court on

17.09.2012. The reason given for the rejection of the application

RSA 59/2013 Page 8 under Order 41 Rule 27 CPC by the first appellate court was that

the said provision permits a party to adduce additional evidence

by way of documents while as in instant case, the appellant in the

application had not sought permission to place any documents on

record, but had only urged that he may be permitted to prove the

record of the income tax authorities in order to show that in the

returns filed by the respondent/plaintiff, the amount of money

which was being received by the respondent/plaintiff, was

reflected as rent. The first appellate court had concluded that

since no document along with the application had been placed on

record, therefore, the application could not be allowed. In any

case, the first appellate court had rejected the application by an

independent order and if the appellant felt aggrieved by the said

order, he could have assailed that order. Having chosen not to do

so, it is not open to the appellant to now contend that the said

application has not been decided by the first appellate court and,

therefore, the concurrent finding returned by the two courts below

is not sustainable.

12. In view of the aforesaid discussion, I am of the considered

opinion that there is no infirmity in the concurrent finding

RSA 59/2013 Page 9 returned by the two courts below with regard to holding that the

appellant was a licensee in respect of the shop in question.

13. Accordingly, the question which was framed by this court

on 20.03.2013, is answered in the negative and the appeal is

dismissed.

                                                   V.K. SHALI, J
     OCTOBER 24, 2013/dm




RSA 59/2013                                                         Page 10