Krishan Kumar Aggarwal vs National Manufacturing Corp. & ...
2014 Latest Caselaw 2726 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                           RSA No.113/2010

                                            Decided on : 27th May, 2014

KRISHAN KUMAR AGGARWAL                ...... Plaintiff
            Through: Mr. Sanjeev Sindhwani, Sr.Advocate.
                     with Mr. Arun K. Sharma & Mr. Amiet
                     Andlay, Adv.
              Versus

NATIONAL MANUFACTURING CORP. & ORS. ...... Defendants
             Through: Mr. P.C. Dhingra, Mr.P.S. Bindra &
                      Mr.P.Chaoudhury, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a regular second appeal filed by the appellant against the

judgment dated 31st March, 2010, passed by Sh.Rakesh Kumar, learned

ADJ in RCA No.24/2008 titled M/s.National Manufacturing

Corporation, through, Sh.Vijay Kumar (since deceased) now represented

by Sh.Nitin Mehra versus Sh.K.K.Aggarwal and Ors.

2. The only substantial question of law, which arises for consideration

by this Court is:

"As to whether the judgment dated 31st March, 2010 passed by the learned ADJ suffers from any perversity, in

the light of the evidence produced by the parties and, if so, its effect?."

3. Briefly, stated the facts of the case, are that the present appellant-

herein referred to as "Sh. K.K.Aggarwal" filed a suit for possession and

recovery of mesne profits against one Sh. K.B. Mehrotra (since

deceased), respondent No.2-herein and referred to as "Sh.K.B.Mehrotra"

alleging that he had let out first floor of property bearing No.M-26,

Greater Kailash-I, New Delhi to him at a monthly rent of Rs.5,000/- per

month with effect from 1st October, 1984. The tenanted premises

comprised of drawing room, four bedrooms with attached bathroom,

kitchen, verandah and balcony and stairs from ground to the upper floor

for common use; servant quarter, comprising of a room and verandah

converted into kitchen on second floor over garage block. In addition to

this, there was common independent staircase for servant quarters over

the garage and WC for the servant on the ground floor. Both these

portions are shown in red and green respectively in the site plan Ex.PW-

1/4.

4. It may also pertinent here to mention that Sh. K.B.Mehrotra had

died in 1997 and his four legal heirs; Smt.Saroj Mehrotra (2a), Sh.Sachin

Mehra (2b), Mrs.Monica Sharma w/o Sh.Trilochan Sharma (2c) and

Mrs.Sonica Rana, w/o Sh.Sanjay Rana (2d) were substituted as legal

representatives as 2(a) to 2(d). The premises were alleged to have been let

out for residential purpose commencing from the first day of English

Calendar month, which ended on the last day of the same month.

Sh.K.K.Aggarwal terminated the tenancy of Sh. K.B.Mehrotra by a legal

notice dated 11th July, 1992, which was duly served on him on 14th July,

1992, terminating his tenancy with effect from 31 st July, 1992. Since he

did not vacate the suit premises his possession with effect from 1st

August, 1992 became illegal and, accordingly, the suit for possession was

filed against him in 1992, claiming not only his ejectment but also

recovery of mesne profits at the rate of Rs.30,000/- per month with effect

from 1st August, 1992 on account of unauthorized user of the premises by

him till the time the possession was handed over.

5. Sh.K.B.Mehrotra (since deceased), the defendant in the suit filed

his written statement and admitted the plaintiff Sh. K.K.Aggarwal to be

the owner of the premises but denying that he is the tenant. It was stated

by him that M/s.National Manufacturing Corporation, a partnership firm

in which there were two partners, viz., he himself (K.B.Mehrotra) and

one Sh.Vijay Kumar. It was also stated that Sh.K.K.Aggarwal was

receiving the rent from the partnership firm for the tenanted premises,

which apart from the premises detailed by the appellant, also consisted of

barsati and kitchen on the second floor. It was stated that no notice of

termination of tenancy was ever served on M/s.National Manufacturing

Corporation, respondent No.1, the tenant and, therefore, the tenancy

could have never been terminated.

6. On the basis of the averments made by Sh. K.B. Mehrotra, the sole

defendant in the suit an application under Order 1 Rule 10 came to be

filed on behalf of the M/s.National Manufacturing Corporation, through

its, second partner, Sh. Vijay Kumar for being impleaded as a defendant

No.1 to the suit. It was stated in the application that as the firm was

paying the rent to Sh.K.K.Aggarwal, through cheque from the inception

of tenancy and this fact was not denied by Sh.K.K.Aggarwal, therefore,

they are necessary party to the suit for ejectment. The partnership firm

was impleaded as defendant No.1. On the pleadings of the parties, the

following issued were framed:

"(i) Whether the relationship of landlord and tenant exists between the parties in the present suit? OPD

(ii) Whether the suit is bad for mis-joinder and non-

joinder of the parties? OPD

(iii) Whether any legal and valid notice was ever served upon the defendant? OPP

(iv) Whether the suit is for the recovery of part of the tenanted premises? OPD

(v) Whether the plaintiff is entitled or the recovery of possession and mesne profits/damages? OPP.

       (vi)    Whether the plaintiff is the sole owner of the
               premises? OPP

       (v)     Relief."

7. Sh.K.B.Mehrotra died during the pendency of the suit, of course,

after the filing of the written statement and his four legal heirs, viz.,

Smt.Saroj Mehrotra (2a), Sh.Sachin Mehra (2b), Mrs.Monica Sharma w/o

Sh.Trilochan Sharma (2c) and Mrs.Sonica Rana, w/o Sh. Sanjay Rana

(2d). Out of these, legal heirs, three were proceeded ex-parte on

11.04.2001. So far as the fourth is concerned her defence was struck off

on 15.07.2003. These LR's 2(a) to 2 (d) except 2(b), who had migrated to

USA had also chosen to file the written statement stating that

M/s.National Manufacturing Corporation is the tenant in the suit

premises.

8. Later on, on 20th January, 2003, the trial court deleted the issue

No.(i) and (vi) from the issues. Smt.Monica Sharma, defendant No.2(c),

the only legal heir of Sh.K.B.Mehrotra preferred a revision against the

said deletion bearing CRP No.460/2003. The High Court vide its order

dated 21st April, 2004 had observed that in view of the fact that the

defence of the revisionist, i.e., Smt.Monica Sharma, has been struck off

on 15th April, 2003 on account of tenants recalcitrant attitude in not

depositing the rent/damages in consonance and compliance with the

directions passed by the Court despite the fact that the said order was not

challenged.

9. The plaintiff, in order to prove his case, filed his own detailed

affidavit and appeared in the witness box as PW-1 and supported the

contents of the plaint. The evidence of the defendant No.2 was not led in

rebuttal to the statement of the plaintiff. So far as defendant No.1, viz.,

the partnership firm, is concerned its other partner Sh.Vijay Kumar had

also expired and in his place, his son Sh.Nitin Mehra was brought on

record to pursue the matter. He appeared in the witness box and

supported the claim of the firm that it was the firm which was the tenant

in respect of the suit premises. The learned trial Court after discussing the

entire evidence adduced by the parties decided all the issues, except the

ones deleted, in favour of the present appellant Sh. K.K. Aggarwal and

held that the defendant No.1, viz., Sh. K.B.Mehrotra was the tenant in

respect of the suit premises and, accordingly, passed a decree of

possession in respect of the suit premises in favour of Sh. K.K. Aggarwal

not only against the defendant No.2 but the other defendant No.1.

10. So far as payment of mesne profits/damages, on account of the

unauthorized user is concerned, the trial Court directed the payment of

the use and occupation charges @ Rs.10,000/- per month with effect from

1st August, 1992, which was the prevalent market rate till the time the

premises were vacated and increased the same by 10% every year, till the

time the decree was passed.

11. The firm M/s.National Manufacturing Corporation, through Sh.

Nitin Mehra, son of Sh. Vijay Kumar, the deceased partner, filed an

appeal against the judgment dated 14.08.2007 of the trial Court bearing

No.RCA No.24/2008, against Sh.K.K.Aggarwal. The learned ADJ vide

the impugned judgment dated 31.03.2010 set aside the judgments and the

decree of the learned Civil Judge holding that the defendant No.2, viz.,

M/s.National Manufacturing Corporation was prejudiced by the deletion

of the two issues as it could not produce evidence to prove that it was the

tenant nor has the court decided as to who is the tenant in respect of the

suit premises. It has been observed by learned ADJ that not only by

deletion of the aforesaid issue a serious prejudice has been caused to the

defence of the appellant, viz., M/s.National Manufacturing Corporation

by not getting an opportunity to adduce evidence that it is a tenant in

respect of the suit premises but the trial Court has also erroneously placed

reliance on receipts Ex.PW-1/5, produced by the appellant,

Sh.K.K.Aggarwal himself to indicate that Sh. K.B. Mehrotra, the

respondent No.1 and the defendant No.1 in the suit was the tenant. It was

also observed by the learned ADJ that the receipts Ex.PW-1/5, which is

purported to have been issued by Sh.K.B.Mehrotra, respondent No.1,

since deceased, ought to have been with the tenant and not with the

present appellant as what was expected to be with him was only a counter

foil receipt purported to have been issued by him in favour of Sh.

K.B.Mehrotra. Therefore, this was unbelievable and not worth credence.

12. The learned ADJ has also observed that by deleting the issue

regarding relationship of landlord and tenant between the parties,

M/s.National Manufacturing Corporation was deprived of the chance to

prove its stand that their existed a relationship of landlord and tenant

between the plaintiff and M/s.National Manufacturing Corporation so far

as the suit premises is concerned. As regards the service of legal notice

on M/s.National Manufacturing Corporation, no notice of termination

was ever alleged to have been sent much less having been served on the

M/s.National Manufacturing Corporation and consequently no petition

for eviction could have been filed against it. It was also observed that the

learned trial Court has also wrongly relied upon the testimony of PW-1 to

conclude that barsati and kitchen on the second floor of the terrace was

not a part of tenanted premises.

13. As regards, the quantum of damages/mesne profits, it was observed

that the learned trial Court, without there being any evidence, had

directed partnership firm and the defendants to pay damages/mesne

profits at the rate of Rs.10,000/- per month with effect from 1st August,

1992 and further passed the order increasing the rent/damages @

Rs.1,000/-per month without any basis and such an order could not be

held to be sustainable in the eyes of law.

14. Feeling aggrieved by the judgment of the learned first appellate

Court, the appellant-landlord, Sh.K.K.Aggarwal has preferred the present

second appeal.

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

respondent. I have also gone through the record.

16. The learned counsel for the appellant has contended that the

learned first appellate court has fallen into the grave error by observing

that by deletion of the issue with regard to the relationship of the landlord

and tenant between the parties a serious prejudice has been caused to M/s.

National Manufacturing Corporation is without any merit. It has been

contended that the plaintiff's case was definite that the premises were let

out by him @ Rs.5,000/- per month to M/s.K.B.Mehrotra vide an oral

agreement and Sh.K.B.Mehrotra has denied that he was inducted as a

tenant. Sh.K.B.Mehrotra took the plea that it was M/s.National

Manufacturing Corporation, in which he was a partner, apart from

another partner by the name of Sh.Vijay Kumar which was the tenant.

Merely because the tenant Sh.K.B.Mehrotra had taken a plea that

partnership firm was a tenant. It was not necessary for them to implead

the firm as a party to the suit. The plaintiff is the dominius litus. It is for

him to decide whom he wants to sue. The only question involved was that

he was to follow the dictum that 'one who asserts must prove'. So, he

had to prove that Sh.K.B.Mehrotra was his tenant which in my opinion he

has sufficiently proved from his testimony. It is because of this stand

having been taken by the defendant-Sh.K.B.Mehrotra that M/s.National

Manufacturing Corporation filed an application for being impleaded as

party to the suit, which was allowed. In my opinion, it ought to have not

been allowed by the Court, since the partnership firm consisting of two

partners only, viz., Sh.K.B.Mehrotra and one Sh.Vijay Kumar. This plea

was obviously taken by Sh.K.B.Mehrotra to put a spoke in the effort of

the plaintiff to get back the possession. Not only this, an application of

impleadment was got allowed, which was filed through another partner.

Both the partners are now dead. The partnership firm could have easily

led evidence from record in order to show that it was a tenant in the suit

premises. The case of the partnership firm was that it was paying rent by

way of cheques to the plaintiff and, therefore, the firm was a tenant.

Nothing prevented the firm to adduce such evidence notwithstanding the

fact that an issue with regard to the existence of the relationship between

the parties was deleted.

17. This plea was contested by the learned counsel for the respondent-

M/s.National Manufacturing Corporation, who tried to vehemently

support the judgment passed by the learned single Judge.

18. I have carefully considered these submissions made by the learned

counsel for the parties and gone through the record.

19. No doubt, the learned trial Court had framed an issue as the

existence of relationship of landlord and tenant between the parties as

well as ownership of the property that ought not to have been deleted but

even if it is deleted the said issue could have been re-framed by the first

appellate court and the matter remanded back. The issue could have been

framed or the existing evidence, which was produced by the party,

analyzed and the first appellate court could have come to an independent

conclusion as to who was the tenant. It was not open to the learned first

appellate court to contend that because of the deletion of this issue with

regard to the relationship of landlord and tenant between the parties, any

serious prejudice has been caused to M/s.National Manufacturing

Corporation because it was admitting that it was the tenant. As a matter of

fact, the plaintiff-Sh.K.K.Aggarwal had set up a case that

Sh.K.B.Mehrotra was a tenant in respect of the suit premises and he had

filed his affidavit supporting the same stand in his examination-in-chief

and he was subjected to cross-examination also in which his testimony

was unscathed. In addition to this, he had also produced a receipt

Ex.PW1/15, which showed that Sh.K.B.Mehrotra was the tenant in

respect of the suit premises and the said receipt could not have been

disbelieved by the learned first appellate Court on the spacious ground

since that was a receipt, which was in original, it ought to have been with

the tenant rather than with the landlord, viz., Sh.K.K.Aggarwal and if, at

all, it had to be with the landlord-Sh.K.K.Aggarwal, it ought to have been

only the counter foil. Mr.Aggarwal has given an explanation in his

statement the receipt Ex.PW1/5 was drawn in duplicate one of which was

taken by the respondent and the other was with the plaintiff. It is

admittedly not the case of either Sh.K.B.Mehrotra, through his legal heirs

in the cross-examination or even of the defendant No.1, M/s.National

Manufacturing Corporation that the receipt Ex.PW1/15 is a forged receipt

or is not a genuine receipt issued by Sh.K.K.Aggarwal in favour of

Sh.K.B. Mehrotra. Therefore, this receipt cannot be brushed aside in the

light of the testimony of the PW1-Sh.K.K.Aggarwal.

20. The defendant No.1, viz., M/s.National Manufacturing Corporation

admittedly consisted of two partners, viz., Sh.K.B.Mehrotra and Sh.Vijay

Kumar both of whom are now dead. Once both the partners have died, the

partnership by operation of law is deemed to have been dissolved

although no partnership deed has been placed on record yet the son of

Sh.Vijay Kumar, viz., namely, Sh.Nitin Mehra has entered into the

witness box and stated that M/s.National Manufacturing Corporation was

a tenant in respect of the suit premises, however, he has not produced

even a single piece of evidence to support his contention that it was

M/s.National Manufacturing Corporation, which was the tenant in respect

of the suit premises. He has stated in his statement that the rent was being

paid, through cheque but no entry from the records of the bank of the firm

or any other document has been produced. Tenancy was created

admittedly in 1984 while as he was born in 1979. Therefore, in 1984 he

was just five years old. How did he know that the premises was let out to

the firm. He does not seem to have ever lived in the premises, which was

let out for residential purposes. This is evident from his admission in

cross-examination, where he is not able to describe the property and after

the death of his father he is living in Faridabad. He cannot tell the period,

when he lived in the suit premises or give the dimensions, which clearly

shows that he is put up witness to defeat the case of the appellant.

21. Therefore, I feel that this was only a ploy, which was set up by the

partnership firm M/s.National Manufacturing Corporation to deprive the

appellant-herein of his allegedly retrieval of possession.

22. So far as the framing of issue is concerned this second appellate

court, where the substantial question of law is involved also has not only

the power but also a duty to see through the game of the defendants, viz.,

Sh.K.B.Mehrotra and M/s.National Manufacturing Corporation that by

hook or crook they wanted to deprive the appellant of all the benefit of

retrieving the possession by taking all these frivolous pleas when

admittedly he has been able to prove on record that it was Sh.K.B.

Mehrotra, who was the tenant.

23. It may be pertinent here to refer to Section 103 of the Civil

Procedure Code, which reads as under:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--

(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

24. Therefore, in the light of the Section 103 CPC, I feel the first

appellate Court has committed an illegality by not determining the issue

as to who is the tenant in respect of the suit premises and wrongly

observing that the defendant No.2 M/s.National Manufacturing

Corporation has been prejudiced. As a matter of fact, the case of the

plaintiff was that Sh.K.B.Mehrotra was the tenant which he has been able

to prove by preponderance of probabilities. Even if it is assumed that the

rent was paid from the firm's account, even then the rent was paid for and

on behalf of Sh.K.B.Mehrotra being the partner in the firm although this

was not pleaded. It is once again reiterated that the case of the plaintiff is

established by all preponderance of probabilities that Sh.K.B.Mehrotra

was the tenant inducted on monthly rent of Rs.5000/- in respect of the suit

premises other than the barsati and kitchen on the Second floor as

claimed by him and his tenancy having been terminated vide a notice

dated 11th July, 1992, which is Ex.PW1/6, postal receipt is Ex.PW1/7,

AD Card Ex.PW1/8 and UPC is Ex.PW1/9 which are not in dispute and

he was under an obligation to have vacated the premises with effect from

1st August, 1992 as his possession became unauthorized. This is on

account of the fact that PW1-Sh.K.K.Aggarwal has filed his affidavit. He

has been subjected to cross-examination and in his testimony, in my

considered opinion, has remained shaken on all these counts. So far as

Sh.K.B.Mehrotra's legal representatives are concerned, who are four in

number; three have been proceeded ex-parte, who have not chosen to

adduce any evidence or cross-examine the witness and the fourth,

Mrs.Monica Sharma's, defence was struck off because even during the

pendency of the suit before the learned trial court, his defence was struck

on account of the fact that she did not challenge the order passed by the

trial court with regard to the payment of rent and thus the testimony of

Ms.K.K.Aggarwal remains un-rebutted and the evidence of Mr.Nitin

Mehra, who appeared for his father in the capacity of a partner in

M/s.National Manufacturing Corporation cannot be given any credence

because his testimony is totally lacking any corroborative support by way

of any document to show that M/s.National Manufacturing Corporation

was the tenant. No rent receipt has been produced. There is no bank

statement that the rent was flowing from the account of M/s.National

Manufacturing Corporation. No water bill, electricity bill or any

documentary evidence has been produced that the firm was a tenant in

respect of the suit premises and when admittedly the firm was consisting

of two partners, the intention of Sh.K.B.Mehrotra was to harass the

appellant and deprive him of not only the possession of the suit premises

but also of his legitimate dues of rent or the damages, which were ordered

to be paid by the Court, therefore, on the face of it the defence of the

defendants are totally false. So far as payment of damages is concerned,

the learned trial court has directed the damages to be paid @ Rs.10,000/-

per month with effect from 1st August, 1992 and further directed an

increase of rent by Rs.1,000/- per month despite the fact that he has

claimed damages/mesne profits @ Rs.30,000/-. The learned first appellate

Court has observed that there is no evidence, in this regard, before the

learned Civil Judge in as much as no rent agreement has been proved.

The plaintiff has appeared in the witness box and stated that as to what

will be the prevalent market rate with regard to the corresponding

premises in the locality. This evidence, prima facie, was sufficient for the

Court to form an opinion that, at least, the damages/mesne profits in

respect of the suit premises would have been at least the total of the

amount, when the defendant No.1, viz., Sh.K.B.Mehrotra, who himself

was inducted as tenant almost eight years earlier almost half of the age of

the his son. I feel the plaintiff had discharged his onus and the Court

rightly has taken judicial note and prevalent market rates and arrived at a

modest figure of damages, which have been awarded to the appellant at

the rate of Rs.10,000/- w.e.f. the date of termination of tenancy with an

incremental increase of 10% per annum thereafter every year till the time

decree is passed.

25. The net result of this litigation has been that despite the fact that

more than 22 years have elapsed, the landlord, viz., the appellant, poor

fellow has not only been able to get the possession of the suit premises

back from these unscrupulous persons, who are unfortunately no more

but even from the successors and legal heirs of these two unscrupulous

person on the basis of false defence in Court but have only prolonged the

agony of the appellant, who is, in the evening of his life. I feel that the

judgment passed by the learned first appellate Court is suffering from

perversity as is not in consonance with the evidence produced by the

appellant before the Court and the testimony of Defendant No.1 before

the trial Court. I, accordingly, set aside the judgment and the decree

passed by the first appellate Court on 31st March, 2010, and restore the

judgment and the decree passed by the learned Civil Judge on 14 th July,

2007 on all counts holding that there existed a relationship of landlord

and tenant between the appellant and Sh.K.B.Mehrotra in respect of the

first floor and the garage portion, servant quarter with common access to

these through stairs as more particularly shown in red and green in the

plant Ex. PW-1/4. Further, the barasati room or the kitchen never formed

a part of tenancy. Since both the defendant No.1 & 2 through their

unauthorized occupation are using the premises they are liable to pay

damages, user charges or mesne profits as determined by the trial Court.

Ordered accordingly. Let a decree be drawn in favour of the appellant.

V.K. SHALI, J.

MAY 27, 2014 'ss'