Delhi High Court
Pawan Gupta vs Bhupinder Gupta on 27 February, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.89/2015 & C.M. No.3611/2015
Decided on : 27th February, 2015
PAWAN GUPTA ...... Appellant
Through: Mr. Varun Kumar & Mr. Pankaj Jain,
Advocates.
Versus
BHUPINDER GUPTA ...... Respondent
Through: Mr. Arvind Kumar Gupta, Mr. Rahul
Mangla & Mr. Abhishek Goyal, Advs.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against the
judgment dated 30.1.2015 passed by the learned Additional District Judge
(North) in R.C.A. No.80/2014 titled Pawan Gupta vs. Bhupinder Gupta
by virtue of which the judgment and decree passed by the learned Senior
Civil Judge on 22.11.2014 has been upheld against the present appellant.
2. The contention of the learned counsel for the appellant is that the
judgment which has been passed by the trial court is erroneous and has
not taken into consideration the fact that there were two tenancies in
respect of two shops on a monthly rent of Rs.2,500/-. The appellant
during the course of his written statement had stated that the monthly rent
is Rs.5,000/-, on the basis of an earlier suit filed by him which was by a
consent order.
3. The learned counsel has sought to place reliance on case titled S.S.
Rikhy vs. Hermes Travels & Cargo Pvt. Ltd.; 2001 (91) DLT 659 to
contend that as the rent of each of the tenanted premises was Rs.2,500/-
per month, therefore, he enjoyed the protection of the Rent Act by virtue
of Section 50 and consequently, the judgment and the decree passed
against the appellant is unsustainable in the eyes of law.
4. The second contention which has been raised by the learned
counsel for the appellant which, in his view, is raising a substantial
question of law is with regard to the portion of the tenanted premises. It
has been contended by the learned counsel that the case of the
respondent/plaintiff was that the appellant was the tenant in respect of the
two shops and he had trespassed into the third shop, while as during the
course of examination of the evidence, he has given up the site plan
which was not in conformity with the site plan of the appellant. It has
been stated that the respondent had given up his own site plan which was
annexed with the suit and he has stated that the said plan which has been
filed by the defendant/appellant was correct and therefore, he has
admitted that the site plan filed by him is not correct and accordingly,
decree for possession could not have been passed.
5. I have considered the submissions. I am of the considered opinion
that neither the judgment of S.S. Rikhy (supra) is applicable to the facts of
the case nor does any of the two submissions which have been urged by
the learned counsel for the appellant raise any substantial question of law
which would warrant issuance of notice to the respondent. However,
before parting with the case it may be pertinent here to mention that the
respondent had filed a suit for possession against the present appellant.
The case which was setup by the respondent/plaintiff in the plaint was
that the appellant/defendant was the tenant in respect of the two shops in
the suit property on a monthly rent of Rs.5,000/- and in addition to this,
he had also trespassed into the third shop. It was also stated by him that
at the time when trespass was committed by the appellant, a report with
the police had been lodged as a consequence of which a settlement was
arrived at the police station whereby the appellant/defendant had agreed
to pay rent of Rs.15,000/- per month instead of Rs.5,000/- per month and
he had also agreed to vacate by 18.8.2012. The defendant/appellant filed
his written statement and contested the suit.
6. On the pleadings of the parties, issues were framed and one of the
issue was with regard to maintainability of the suit and the applicability
of the Rent Act. Both the courts below have ruled in favour of the
respondent/plaintiff holding that the tenanted premises are not covered by
the Rent Act. The reason for this finding is that the case of the
appellant/defendant in the written statement has been that he had taken
two shops on a monthly rent of Rs.5,000/-. Once this averment was made
in the written statement, it was not open to the appellant/defendant to
contend that the rent for each of the shop was Rs.2,500/- per month.
There was absolutely no evidence adduced by the appellant/defendant to
say or show to the court that there were two separate tenancies in respect
of the two shops with different rentals and, therefore, in my considered
opinion, it was not open to the appellant/defendant to apportion the rent
of Rs.5,000/- per month at his whims and fancies in respect of the two
shops.
7. On the contrary, there is a concurrent finding returned by the court
below that although two shops were taken on rent but it was one
composite tenancy in respect of the two shops and the rent was Rs.5,000/-
and thereby having observed so, the protection of the Rent Act under
Section 50 of the Rent Act was not applicable or available to the
appellant/defendant.
8. The case of S.S. Rikhy's case (supra), which has been relied upon
by the appellant, is not applicable to the facts of the present case because
in that case this has been established that there were two separate
tenancies in respect of two portions where rent admittedly less than
Rs.3,500/-. That being so, the facts of the two cases are totally
distinguishable and the appellant/defendant cannot take the advantage of
observations of the High Court made in the said case so as to advance his
own case.
9. As regards the tenanted premises, no doubt the respondent/plaintiff
in his plaint had alleged that there were two shops under the tenancy of
the appellant/defendant and that he had trespassed into the third shop and
further he had chosen to file a site plan of his own along with the plaint
yet during the course of examination of evidence, the respondent/plaintiff
had given up his own site plan and rightly so and accepted the plan
purported to have been filed by the appellant to be a correct plan. Having
done so, the area which constitutes the tenanted premises was also not in
dispute. This has been ruled both by the two courts concurrently against
the appellant and thus, there is no scope of entertaining any doubt about
the tenanted premises. That being the position, these are at best questions
of fact which have been ruled against the appellant/defendant. It is not
the case of the appellant/defendant that there is any perversity with regard
to the finding of fact arrived at by the two courts below.
10. In my considered opinion, none of the submissions which have
been urged before this court raise any question of law much less a
substantial question of law. Accordingly, the present appeal is without
any merit and the same is dismissed.
V.K. SHALI, J.
FEBRUARY 27, 2015
'AA'
