Vinod Kumar Bakshi vs Rajan Kapoor & Ors.
2014 Latest Caselaw 6761 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : December 15, 2014

+                       FAO(OS) 140/2014

      VINOD KUMAR BAKSHI                             ..... Appellant
              Represented by:       Mr.Rajesh Gogna, Advocate

                                    versus

      RAJAN KAPOOR & ORS                             ..... Respondents
              Represented by:       Mr.Vikas Dhawan, Advocate with
                                    Mr.S.Panda, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE R.K.GAUBA

PRADEEP NANDRAJOG, J. (Oral)

1. Vide order dated November 26, 2013 various applications have been decided by the learned Single Judge, two of which are IA No.853/2013 and IA No.11351/2013. Whereas IA No.853/2013 was filed by plaintiff No.1, IA No.11351/2013 jointly by plaintiff No.2 and defendants No.1 and 3. The former application was filed under Order XII Rule 6 of the Code of Civil Procedure, the latter was filed under Order XXIII Rule 3 of the Code of Civil Procedure. IA No.853/2013 has been allowed. Decree on admission has been passed in favour of plaintiff No.1. IA No.11351/2013 has been dismissed.

2. Laying a challenge to the impugned order in so far IA No.853/2013 was allowed, the appellant had filed RFA (OS) No.8/2014 which was

dismissed vide order dated January 13, 2014. In the instant appeal the impugned order has been challenged in so far IA No.11351/2013 has been dismissed. Hearing of the instant appeal was being deferred because the Division Bench was informed that the appellant has filed a petition for Special Leave to Appeal before the Supreme Court against the decision dated January 13, 2014 dismissing RFA (OS) No.8/2014 inasmuch as learned counsel for the parties conceded that the issue raised in the instant appeal is squarely covered by the decision dated January 13, 2014 in RFA (OS) No.8/2014, but today learned counsel for the appellant disputes said fact and urges that the instant appeal may be heard on merits. Thus, we proceed to note the facts relevant for adjudicating the present appeal.

3. The parties to the suit would be : Sh.Rajan Kapoor (plaintiff No.1), Sh.S.N.Puri (plaintiff No.2), M/s.Simran Rasoi and Caterers, a partnership firm (defendant No.1), Dev Dass Bhalla, partner of defendant No.1 (defendant No.2) and Vinod Kumar Bakshi, the second partner of defendant No.1 (defendant No.3). The appellant in the appeal is Vinod Kumar Bakshi.

4. Being relevant for the purposes of admission of S.N.Puri who, as noted above was plaintiff No.2 and is a co-signatory to IA No.11351/2013, we need to note that in paragraph 1 of the plaint it has been categorically averred that plaintiff No.1 is the owner of property No.IV/1/73, Gopi Nath Bazar, Delhi Cantt - the suit property.

5. The plaintiffs who have been impleaded as respondents No.1 and 2 in the appeal had filed a suit for recovery of possession and mesne profit/damages pertaining to property No.IV/1/73, Gopi Nath Bazaar, Delhi Cantonment, New Delhi. As per the plaint, the respondents No.1 and 2, pleaded that on February 15, 2004 they had entered into a lease agreement

with Simran Rasoi and Caterers through its partners, the appellant and respondent No.3. A written lease deed was executed in respect of the ground floor portion of property No.IV/1/73, Gopi Nath Bazaar, New Delhi ad- measuring 500 sq.ft. at a monthly rent of `25,000/-. It was further pleaded that later on the respondents No.1 and 2 came to know that the appellant, without prior permission, had started utilizing the second floor of the premises and had raised temporary structure on the second floor. Pleading the same to be an act of trespass and breach of the terms of the lease, decree for possession of the ground floor as also the second floor as also arrears of rent and damages were prayed for.

6. The plaint is a little inartistically drafted for the reason what has actually happened is that the lease-deed in question has been executed on behalf of respondent No.1 by respondent No.2 on the strength of a power of attorney executed by the former in favour of the latter. In paragraph 1 of the plaint, as noted above, after pleading that respondent No.1 is the owner of the suit property, it has been pleaded that the plaintiffs let out the same to Simran Rasoi and Caterers. Meaningfully read, the pleadings in the plaint would be that respondent No.1 is owner of the suit property and let out the ground floor thereof to Simran Rasoi and Caterers through respondent No.2.

7. The appellant filed a written statement claiming that the respondent No.3 had no relationship with Simran Rasoi and Caterers, which partnership firm had been dissolved, and that all rights had vested in the appellant. It was further pleaded that the appellant purchased the ground floor and the second floor of the suit property vide memorandum of understanding-cum- agreement to sell and GPA dated January 24, 2004 i.e. documents allegedly executed in favour of the appellant by the owner of the property. Hence, it

was claimed that the appellant is the sole and exclusive owner and in possession of the ground floor and the second floor of the suit property. Accordingly, the relationship of landlord and tenant, between the appellant and respondents No.1 and 2 was denied. It was averred that the appellant never paid any rent to respondent No.1 and 2. It was pleaded that the alleged lease-deed dated February 15, 2004 relied upon by respondents No.1 and 2 was forged and fabricated.

8. Defendant No.2/respondent No.3 (the erstwhile partner of Simran Rasoi and Caterers) filed a separate written statement wherein he admitted that respondent No.1 is the owner of the property and that the lease-deed was executed between the appellant, himself and the respondents No.1 and

2.

9. Respondent No.1 filed I.A. No.853/2013 relying upon certain admissions/statements made by the appellant in his pleadings in WP(C) No.170/2008 in which respondent No.1 had admitted the lease-deed in question.

10. The said writ petition was filed by the appellant along with his wife and children against Delhi Cantonment Board seeking a mandamus that the Delhi Cantonment Board be directed to include the name of the appellant in the electoral list, alleging that the appellant and his family were residents on the second floor of the property in question.

11. In the counter affidavit filed, the Delhi Cantonment Board pleaded that the appellant and his family were residing at Pankha Road, New Delhi, and that there existed a lease agreement, copy of which was annexed with the pleadings. It was pleaded that in the lease-deed in question the appellant had disclosed his address as resident of RZ-H/19 Raghu Nagar, Pankha

Road, New Delhi. The copy of the lease-deed was annexed as Annexure R-2 to the counter affidavit.

12. In the rejoinder filed to the counter-affidavit filed by the Delhi Cantonment Board, the appellant had admitted the lease-deed being executed by him, and its contents.

13. Treating the same as an admission, notwithstanding the pleadings in the written statement filed, the learned Single Judge decreed the suit for possession by allowing IA No.853/2013.

14. In RFA (OS) No.8/2014, the learned counsel for the appellant had vehemently argued that the said writ petition dealt with the issue of deletion of appellant's and his family's name from the electoral rolls and that is why the writ petition was filed to point out that the appellant and his family were residing on the second floor of the suit property and that the names have been wrongly deleted from the electoral rolls. It was urged that the occupancy of the ground floor was not in issue in the said writ petition. It was argued that there was no admission to warrant IA No.853/2013 to be allowed.

15. Before proceeding to deal with the arguments advanced by the learned counsel for the appellant, the Division Bench highlighted one fact. The lease-deed, which is the foundation of the plaint is dated February 15, 2004. As per the appellant he had purchased the property under a Memorandum of Understanding-cum-Agreement to Sell and a General Power of Attorney dated January 24, 2004. Thus, it was highlighted that if an admission is to be found in the pleadings of the appellant that he had executed the lease-deed dated February 15, 2004, which records the respondent No.1 and 2 to be the lessors, estoppel would come in the way of the appellant to plead a title of

somebody else and through him of his. He would be stopped from challenging the title of the lessors.

16. It being settled law that an admission can be found in any document executed by the parties, it could be pleadings in some other proceedings as well, the Division Bench noted in its order dated January 13, 2014 that it is trite that unless explained, a proved admission by a party on a fact in issue can be used as evidence against the maker of the admission. It was noted that based on an admission a suit can be decreed without a trial.

17. To look into the plea of admission the Division Bench called for the records of WP(C) No.170/2008. The said writ petition was filed by the appellant seeking the following relief:-

"a) That by issuance of a Writ of Mandamus, Prohibition or Certiorari or any other appropriate Writ or directions, the decision of the Respondent No.1 sustaining the objections as contained in the Annexure P-3 (Colly.) be quashed/set aside and the Respondent No.1 be further directed to include the names of the Petitioners in the electoral roll/list for the year 2007, Ward No.3 of Delhi Cantonment Board published on 02.01.2008 under Rule 17 of the Cantonment Electoral Rules 2007.

b) That the Respondents be further directed/restrained not to take any further action on the electoral rolls for Ward No.3 of Delhi Cantonment Board published on 02.01.2008."

18. The Division Bench thereafter noted that in its reply to the Writ Petition, in Preliminary Objection No.4, the Delhi Cantonment Board pleaded as follows:

"4. That the Petitioners have also concealed the material fact

that Petitioner No.1 had entered into a Lease Agreement with respect to property bearing No.IV/1/73, Ground Floor shop for carrying out commercial activity and in the said Lease Deed the Petitioner No.1 has shown his residence to be that of RZ- H/19, Raghu Nagar, Pankha Road, New Delhi-46 (copy of Lease Deed is enclosed and marked R-2). Thus it is evident that the Petitioners are not residing in the Cantonment as alleged by them. The Petitioner No.1 is in fact running a shop in the name of M/s Bikaner Sweets and Snacks corner (Simran Rasoi and Caterers) at IV/1/73, Gopi Nath Bazaar, Delhi Cantt and for that he has a trade license also. Copy of grant of trade license for the year 2004-05 is enclosed and marked as R-3."

19. The Division Bench noted that a typed copy of the lease-deed dated February 15, 2004, executed by respondent No.1 and 2 in favour of Simran Rasoi and Caterers, a partnership firm of the appellant and respondent No.3 was filed and attached with the said counter affidavit as Annexure R-2.

20. The Division Bench thereafter noted that in para 4 of the rejoinder filed by the appellant, which is a reply to the aforesaid paragraph of the counter affidavit of the Delhi Cantonment Board, the appellant pleaded as follows:-

"4. In reply to para 4 it is submitted that there is no question of concealment of Lease Agreement of premises bearing No.IV/1/73, of the ground floor where the Respondent is being his business. It is submitted that the premises bearing No.IV/1/73 is a residential-cum-commercial as per the lease of the land, copy of which is enclosed as ANNEXURE P-6 to the writ petition and the ground floor lease is only for running the business whereas the present claim of the Petitioner is related to the second floor not that of the ground floor as such all allegations are full of falsehood and is of no consequence. Moreover, nothing is to be looked into the merit once the objections are not preferred in a valid manner."

21. The Division Bench thereafter opined in paragraph 17 as under:-

"17. A perusal of the said rejoinder filed by the appellant unequivocally demonstrates that the appellant did not deny the execution of the lease agreement dated 15.2.2004. His only plea was that the lease-deed pertained to the ground floor. The appellant forgot that at that stage of the litigation, with reference to the lease-deed the Delhi Cantonment Board was trying to establish the fact that as on the date when the lease- deed was executed i.e. 15.2.2004, the appellant disclosed his residential address to be RZ-H/19, Raghu Nagar, Pankha Road, New Delhi. Be that as it may, there is a clear admission by the appellants that under the lease-deed in question the partnership firm of which he was a partner took on rent a portion of the ground floor from respondents No.1 and 2."

22. Making a reference thereafter to the provisions of Order XII Rule 6 of the Code of Civil Procedure and noting various judgments, the Division Bench opined that the appellant not having denied in the said pleadings of the writ petition the execution of the lease-deed dated February 15, 2014, the due execution thereof would be an admission and thus the appellant would be precluded from relying upon a title document in his favour which precedes the date of the lease-deed. Thus, the decree on admission granted by the learned Single Judge was upheld.

23. As far as this Court is concerned, the decision dated January 13, 2014 binds it.

24. The logical corollary of the decision would be that the second plaintiff would have no right, title or interest in the suit property and thus cannot be the co-signatory to any application conceding to a claim in favour of the appellant.

25. For the reason one of the partner of M/s.Simran Rasoi and Caterers :

Dev Dass Bhalla admitted the claim of respondent No.1 to be the owner of the suit property as also the execution of the lease-deed dated February 15, 2004, the plaintiff No.2 who was the mere attorney of plaintiff No.1 cannot enter into any settlement admitting ownership of the appellant in the suit property or admitting any interest of the appellant in the suit property.

26. Before bringing the curtains down we would only add that the decision dated January 13, 2014 in RFA (OS) No.8/2014 binds the parties as far as this Court is concerned and the present decision is the logical corollary of the decision dated January 13, 2014.

27. The appeal is dismissed but without any order as to costs. CM Nos.4967/2014 & 5440/2014 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(R.K.GAUBA) JUDGE DECEMBER 15, 2014 mamta