Reemal Dass Dudeja vs Santosh Mehlawat
2014 Latest Caselaw 4473 Del

1*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                      Reserved on: 04.03.2014
                                                    Pronounced on:16.09.2014
+      CM(M) 1094/2012
       REEMAL DASS DUDEJA                                         ..... Petitioner
                    Through:             Mr. Akash Tyagi, Adv.

                           Versus

       SANTOSH MEHLAWAT                           ..... Respondent

Through: Mr. B.S. Saini, Adv.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI

1. This petition under Article 227 of the Constitution of India seeks setting aside of an order dated 17.8.2012 passed by the learned Additional District Judge (04), Central Delhi in MCA No.01/12 and for a direction that the respondent pay Rs.4,500/- per month with effect from 1st September, 2003 along with the interest at the rate of 18% per annum upon the arrears till date. The petitioner had filed a suit for possession of the suit property. It was claimed to have been leased out as per the rent agreement dated 1st August, 2000 at the rate of Rs.4,500/- per month. The tenure of the lease was till 31st July, 2001 and was to remain in force until revocation. In the Written Statement, in reply to para 1 of the plaint which had averred that the rate of rent was Rs.4,500/- per month, the defendant merely stated that "contents of para no.1 of plaint are wrong and denied specifically being false and frivolous. The rent is including agreement and the renewal averments are denied specifically denied being false and frivolous". The Trial Court noted that the defendant/tenant did not

disclose as to what was the exact rate of rent or that it was Rs.1500/- per month. It was subsequently submitted that the said amount was claimed to be the monthly rent and lapse was attributed to the bonafide mistake of the previous counsel. The Trial Court was of the view that the rent agreement had specified the rental at Rs.4,500/- per month. There was no clear denial of the same nor was the exact amount specified. Therefore, the amount of Rs.4,500/- per month was deemed payable as arrears from 1st September, 2003 and further payment of the same on the 15th of each successive month. The learned Trial Court vide order dated 11.12.2009 had fixed the amount as Rs.4,500/- per month on the basis of these grounds. While doing so, the Trial Court had taken into consideration that the defendant/tenant had moved an application for amendment of her Written Statement to incorporate the rate of rent as being Rs.1500/- per month. The Trial Court noted that the rent receipt of Rs.1500/- dated 13.12.2001 was placed on record after the said amount had been paid. In the review application, the tenant sought reduction of the rate of rent from Rs.4,500/- to Rs.1,500/- on the basis of a rent receipt dated 13.12.2001 which showed the last rent paid at Rs.1,500/- per month. The Trial Court noted that the said documents were filed after the tenant had filed a review application which sought the revision of the rent from Rs.4,500/- per month to Rs.1,500/- per month on the basis of a rent receipt dated 13.12.2001.

2. While disposing off the review petition, the learned Trial Court noted that the said receipt was filed after the tenant had sought an amendment of her Written Statement. Furthermore, the tenant had not raised any objection under the Delhi Rent Control Act, 1958 as to the jurisdiction of the Court to entertain the suit if the rent was below

Rs.3,500/- nor was such defence taken by her in another suit for recovery of arrears of rent. The Trial Court felt that the defendant/tenant clearly wanted to introduce this fact after filing of the application under Order 39 Rule 10 CPC by the plaintiff in which he was claiming Rs.4,500/- as arrears of rent and not on the ground of her application under Order 6 Rule 17 CPC since the defendant had contended that she had cleared all rental payment till August, 2008 hence arrears were directed to be paid with effect from 1.9.2008 at the rate of Rs.4,500/- per month. In appeal, the learned ADJ set aside the direction of the Trial Court on the ground that the receipt of Rs.4,500/- relied upon by the plaintiff was only a photocopy and not an original receipt of Rs.1,500/- as filed by the defendant. Furthermore, according to learned ACJ since landlord had admitted his signature on the rent receipt of Rs.1,500/- it was more reliable than the photocopy adduced by him. Additionally, the learned Appellate Court was persuaded by a document exhibited in another suit between the same parties in which the same document was relied upon to the extent of the signature of the petitioner. The learned Appellate Court reasoned that to the extent the signature on the rent receipt of Rs.1,500/- per month was admitted, therefore it would be more reliable document in juxtaposition to the photocopy which was disputed. Hence, the admitted document ought to prevail at least for the purpose of order for admitted rent under Order 39 Rule 10 CPC. The Court was of the view that the plaintiff's application for leading secondary evidence to prove the rent was withdrawn and furthermore there was no original of the lease agreement nor was it admitted by the defendant. Hence for admissibility covered under Order 39 Rule 10 of the CPC it ought to be an admission under Order 12 Rule 6

CPC. The standard of admission is that it should be an unambiguous and unequivocal. Therefore, insofar as there was no unequivocal admission of the rent being Rs.4,500/- per month, it would not be covered as an admission under Order 39 Rule 10 of the CPC. Accordingly, the Appellate Court set aside the order of the Trial Court holding the rent of Rs.4,500/- per month and instead directed that the rate of rent payable by the tenant would be Rs.1,500/- per month with effect from 1.9.2003 and future rent would be paid at the rate of Rs.1,500/- on or before 15th of every month.

3. The learned counsel for the petitioner submits that the Appellate Court erred in reversing the impugned judgment by not appreciating the rent receipt dated 13.12.2001 purporting to be rent of Rs.1,500/- was still disputed and indeed the plaintiff had filed a petition under Section 340 Cr.P.C. which was pending before the learned Civil Judge. Therefore, the said document is still alleged to be fake and fabricated; that till the authenticity of the rent receipt was decided or till such time its admissibility was questioned the Appellate Court could not rely upon it. He relied upon the dicta of the Supreme Court in H. Siddiqui (dead) by LRs vs. A. Ramalingam, (2011) 5 SCR 587 which set out guidelines as to how a Court should proceed to decide a matter where the power of attorney had been questioned. He further submits that the conduct of the tenant would show that the plaintiff's witness had not been cross-examined. Furthermore, the tenant had been imposed costs for delay in cross- examination on various occasions and that in another suit bearing No.866/2011 for recovery of arrears of rent between the same parties and an affidavit was filed on 19.8.2004 and cross-examination was completed on 16.4.2010 i.e. six years later. The Court imposed costs upon the

respondent of Rs.8,300/- for delaying the process. Learned counsel submitted that what was admitted by the plaintiff was only his signature on the document and not the document itself. Therefore, he questioned the evidentiary value of the rent receipt of Rs.1,500/-. He reasoned that insofar as the rent receipt itself was questionable, therefore the reliance by the Appellate Court on the said document was improper. He relied upon the dicta of the Supreme Court in Madan Mohan Singh & Ors. vs. Rajni Kant & Anr., AIR 2010 SC 2933 and upon H. Sidique (supra). The learned counsel further argued that if the rent receipt was indeed of 13.12.2001 it ought to have been brought on record on the very first instance when the tenant got an occasion to reply to the plaint but it was placed on record only on 30th March, 2011 after the Trial Court had ordered on 11.12.2009 for it to be placed on record. Learned counsel questioned the reliability of the said document and eluded the admissibility under Rule 1 & 2 of Order 39 of the CPC. He relied upon Bhekdhari Singh vs. Sh. Ramchanderji, AIR 1931 Patna 275 to contend that the said Rules were framed to prevent abuse of process of the Court by giving an opportunity to the litigants to fabricate documents to file the same at a belated stage. The tenant's application under Order 6 Rule 17 CPC challenging the order dated 11.12.2009 had been dismissed vide order dated 9.1.2012. The Court noted that the Written Statement was filed by the tenant on 29th January, 2007. The order reads as under:

"Order impugned before this Court is the order dated 11.12.2009 vide which the application filed by the defendant seeking a review of the order dated 03.09.2011 vide which his application under Order VI Rule 17 of the Code of Civil

Procedure (hereinafter referred to as the Code) had been dismissed.

Record shows that the present suit has been filed by the plaintiff seeking possession of the suit premises from the defendant; the written statement was filed by the defendant on 29.01.2007. In the intervening period an application under Order XXXIX Rule 10 of the Code had been filed by the plaintiff seeking certain directions; thereafter the present application under Order VI Rule 17 of the Code had been filed which was on 15.4.2009 seeking amendment of his written statement. The averments made in the application have been perused. It is stated that the electricity dues of the plaintiff had been paid by the defendant and this had been informed by the defendant to his counsel to be incorporated in the written statement as also the fact that the rate of rent of the property was Rs.1500/- and not Rs.4500/-; this fact had also been informed to the counsel to be incorporated in the written statement but due to inadvertence earlier counsel had not incorporated the aforestated facts. The amendments had accordingly been prayed for. The order dated 11.12.2009 had declined this prayer. The record which included the electricity bills filed by the defendant along with his written statement showed that it was a bill dated 07.5.2004; his other bills showing that he had carried out certain renovation in the property were dated 14.5.2003 and 23.06.2003; written statement had been filed on 29.01.2007 which was much later in time; there was no plausible explanation why these facts were not incorporated in the written statement when the written statement was admittedly signed by the defendant who being an educated man had presumably read the contents of the written statement before signing it. Same is the position with regard to his plea that he could not incorporate the fact in his written statement that the rate of rent was Rs.1500/-. These pleas have rightly been rejected as the amendment application has been filed much later i.e. after a delay of two years before the filing of the initial written statement. Thereafter, a review petition

had been filed seeking a review of the order dated 11.12.2009; this was dismissed on 03.9.2011; court had noted that there was o error which is apparent on the face of the record. The arguments urged in the review petition had also been decided in the earlier application which had been dismissed on 11.12.2009. This present petition is clearly an abuse of the process of the court. The same arguments again been urged which had been dealt with way back on 11.12.2009 and thereafter in the review petition dismissed on 03.9.2011. The parameters of review are limited. In its discretion the trial court had passed the impugned order dated 03.9.2011. This petition being an abuse of the process of the court is dismissed with cost of Rs.5000/- to be deposited with the Delhi High Court Legal Services Committee."

4. He therefore submits that the learned Appellate Court had erred in relying upon a document which was not yet admissible in evidence. Furthermore, this Court had already rejected the reliance upon such document.

5. The learned counsel for the respondent/tenant argued that the genuineness of the rent receipt was not in question and since the plaintiff had not filed the complete evidence, the suit was malafide in nature and the petition ought to be dismissed. He submitted that the petitioner had filed a forged and fabricated rent receipt dated 1.5.1999. Furthermore he had failed to prove the alleged rent agreement of 1.8.2000 and indeed had withdrawn his application for leading secondary evidence. Therefore, there was no basis for the suit or his claim for payment of Rs.4,500/- per month as rental. He submits that there is no illegality in the face of the impugned order of the Appellate Court; that the pendency of the petitioner's application under Section 340 Cr.P.C. does not prove that the

said document was forged or fabricated. This Court is of the view that insofar as the learned Appellate Court had relied upon the rent receipt for Rs.1,500/-, it fell into error because it is only the signature which was indeed admitted by the landlord and not contents thereof. Therefore, to that extent the evidentiary value of the said document was yet to be established. Furthermore, if the rental was only Rs.1,500/-, then the tenant could have well raised the issue of maintainability of the suit under Section 50 of the Delhi Rent Control Act, 1958. There is no whisper of the rent having been Rs.1,500/- per month nor of the maintainability of the suit. Evidently both would be an afterthought as regards the plaintiff's claim that the rental was Rs.4,500/- per month although the tenant has denied the same as she has not specified in the written statement as to what the rent was. The alleged rent receipt of Rs.1,500/- was filed only after the application for amendment of the WS was filed. Reliability on the said document would be questionable. In the circumstances, this Court is of the view that an application under Order 39 Rule 10 CPC which seeks deposit of money in Court in order to secure the interest of the plaintiff, the amount claimed in the plaint on the basis of the lease agreement at Rs.4,500/- per month, ought to be secured. This petition is accordingly allowed. The impugned order dated 17.8.2012 is set aside. No orders as to costs.

NAJMI WAZIRI (JUDGE)

SEPTEMBER 16, 2014/ak