Metal Box India Limited vs T. K. Sehgal & Sons (Huf) & Ors.
2016 Latest Caselaw 5035 Del

$~A-28
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Date of decision: 02.08.2016
+      R.P. 327/2016 & CM Nos.26489-90/2016 in CM(M) 439/2013
       METAL BOX INDIA LIMITED                             ..... Petitioner
                              Through   Mr.Amit Sibal, Sr.Adv. with Mr.Jugal
                                        Wadhwa,     Ms,Malvika      Trivedi,
                                        Mr.Vidit Gupta, Mr.Ghanshyam Joshi
                                        and Mr.Namit Suri, Advs.

                              versus

       T. K. SEHGAL & SONS (HUF) & ORS.                    ..... Respondents

Through

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

1. The petitioner has filed the present Review Petition seeking review of judgment and order dated 26.5.2016 whereby the petition CM(M)439/2013 was dismissed.

2. The relevant facts for adjudication of the present petition are that the petitioners are the tenants of the northern portion of No.4, Sardar Patel Marg, New Delhi comprising of ground floor, first floor and Barsati alongwith four servant quarters and two garages. The petitioner company took this portion on lease on 11.8.1966. It is the contention of the petitioner that the monthly rent of the property was Rs.2,400/- per month which was subsequently enhanced to Rs.2,760/- per month. Sometimes in 1991, the respondents filed a suit for possession and damages for use and occupation

of the said property. The Additional District Judge vide his decision dated 21.1.1999 declined the relief of possession and passed a decree in favour of the respondents and against the petitioners for recovery of arrears of rent @ Rs.4,360/- per month w.e.f. 1.6.1991. The relief of possession was denied to the plaintiff/respondents in view of the fact that there was no valid termination of the tenancy under provisions of Section 106 of the Transfer of Property Act. The court noted the objection of the petitioner that the rent of the premises is Rs.2,760/- per month and hence the suit was barred under Section 50 of the Delhi Rent Control Act. Based on the evidence placed on record by the parties the court rejected the contention of the petitioner and recorded a finding that the rent was at the rate of Rs.4,360/- per month and Section 50 of the DRC Act is not attracted. The respondent filed an appeal RFA 253/1999 against the said order dated 21.1.1999. This appeal was dismissed as withdrawn on 4.2.2005. The decree attained finality in 2005.

3. The respondents filed a fresh suit for possession, damages and mesne profits thereafter contending that the agreed rent was Rs.4,360/- per month. The trial court by its judgment dated 4.2.2012 allowed the application of the respondent under order 12 Rule 6 CPC and directed delivery of possession. On the issue of mesne profits, the trial court held that this could be decided only after the evidence is led by the parties. Against the said judgment dated 4.2.2012 the petitioners preferred an appeal before this court being RFA 97/2012. When the matter/appeal was heard by this court on 7.3.2012 the court noted that the learned senior counsel appearing for the petitioners had agreed that the appeal can be disposed of by granting time of two years to the petitioner to vacate the suit premises and that the appeal is not being pressed on merits. The petitioners as per the

statement agreed to pay a sum of Rs.1,00,000/- per month as mesne profit from the date of the impugned judgment for a period of one year from that date and thereafter a sum of Rs.2 lacs per month for the second year. The appellants were also directed to file undertaking in the aforesaid terms in the court.

4. It turns out that an undertaking was filed by the representative of the petitioner but before it could be accepted it got entangled in a controversy based on certain objections raised by the respondent/landlord as regard to the form of undertaking. The petitioner thereafter took a stand that the appeal be not decided on merits as the order of this court dated 7.3.2012 is unenforceable.

5. This court in anguish in view of the conduct of the petitioner, while disposing of the appeal noted that "fools make houses and wise men live in them". It also noted that the petitioners have managed to hold on to a posh valuable property at Sardar Patel Marg for the last 50 years and want to perpetuate the possession by taking up all frivolous pleas and by taking advantage of the conduct of counsel for the respondent. The court in view of the order dated 7.3.2012 by virtue of which the appellant had sought that he would not press the appeal on merits disposed of the appeal giving the petitioner three months' time to vacate the premises vide order dated 26.5.2013. The same order also dismissed the present petition of the petitioner, namely, CM(M)439/2013.

6. The present review petition is confined to the dismissal of the said CM (M)No.439/2013 vide the said order of this court dated 26.5.2016.

7. As far as the present petition is concerned, it was filed seeking to impugn the order of the trial court dated 4.4.2013 by which the application

filed by the petitioner under Order 18 Rule 17 CPC for recalling of PW3 and PW4 for further cross-examination was dismissed. This application was filed in the suit which is now pending adjudication regarding mesne profits only as a decree of possession was already passed.

8. In the application filed by the petitioner it is noted that the evidence of the respondent/plaintiff had been completed and evidence of the respondent was closed on 9.8.2010. It further states that in 1988 the petitioner company was declared a sick company under the Sick Industrial Companies (Special provisions) Act, 1985 and there was a change in the management of the respondent. For various reasons the petitioner had to vacate the registered office and the documents lying there were shifted and dumped without clear demarcation. It is only in 2010, after a series of events that the petitioner while trying to locate the papers regarding another unrelated litigation came across files, cartons, correspondence etc. pertaining to the present suit property which throw light on the fact that as per lease deed dated 11.8.1966 between the parties the rate of rent was fixed at Rs.2,400/- per month and was subsequently increased to Rs.2,760/- per month. It is also pointed out that the documents which were discovered by the petitioner were allowed to be placed on record by this Court in CM(M)530/2011 vide order dated 4.5.2011 subject to payment of costs of Rs.50,000/- which cost has been accepted by the respondent. The application also urged that the petitioner having come to know that the respondent/plaintiff is seeking to perpetuate fraud the petitioners were entitled to lead evidence on the aforesaid documents allowed to be filed and to show that the earlier judgment dated 21.1.1999 passed in the first suit filed by the respondent was obtained by fraud and that the agreed rent of the premises was Rs.2,760/- per month. On

the basis of these averments, petitioner sought recall of PW3 and PW4 to be cross-examined by the respondents on the said newly discovered documents.

9. The trial court vide impugned order dated 4.4.2013 dismissed the said application of the petitioner holding that the documents which are now sought to be put to cross-examination and are on record deal with creation of tenancy and the rate of rent that was agreed when the tenancy was created by the parties. The court further held that the issue of what is the rate of rent has already been decided by the trial court when the application under Order 12 Rule 6 CPC was allowed on 4.2.2012. Hence, the application was dismissed.

10. By the order dated 26.5.2016 this court while disposing off CM (M)No.439/2013 filed by the petitioner by which petition the said order dated 4.4.2013 of the trial court was challenged held that the additional documents which the petitioner is trying to place on record by way of evidence have no bearing on the facts of the present case. The issue is only with regard to quantum of damages and mesne profits. The court also held that the documents could not have been taken on record because the appellant is trying to place on record documents which he was aware of though he was claiming that they were not previously known to him.

11. The petitioners have now sought review of the said judgment dated 26.5.2016 passed in CM(M)439/2013. The learned senior counsel appearing for the petitioner has vehemently contended that firstly the order has been passed without adherence to the principles of natural justice. He relies on the opening part of the judgment of this court dated 26.5.2016 to contend that arguments on this CM(M) were never heard. What was heard was the arguments in RFA and the applications filed in RFA. Hence, he submits that

grave prejudice has been caused to the petitioner. He secondly submits that these were additional documents which came to the knowledge of the petitioner only at a later date and the impugned order erroneously holds that on account of deletion of order 18 rule 17 A CPC these documents cannot be allowed to be placed on record. He relies upon K.K.Velusamy vs. N.Palanisamy, (2011) 11 SCC 275 to contend that the Supreme Court in the said judgment held that the deletion of order 18 Rule 17 CPC does not mean that no evidence can be received at all after a party closes its evidence but only means that the amended structure of the CPC found no need for such a provision. This deletion order is also to prevent misuse by the parties to prolong the proceedings. It also relies on an order in RFA 97/2012 dated 7.3.2012 where the submissions of the learned senior counsel for the petitioner was noted that the payment of mesne profits by the petitioner to the respondent is without prejudice to their rights and contentions inasmuch as the issue is pending disposal before the trial court. He submits that in view of the fact that the order was passed without prejudice to the rights and contentions of the parties, the petitioner is free to take up all issues including the issue as to what is the agreed rent between the parties.

12. The learned senior counsel also submits that the petitioners have filed a suit being CS(OS)3213/2011 for declaration and perpetual injunction to declare the judgment and decree dated 21.1.1999 passed by the ADJ in the earlier suit filed by the respondent to the extent that it holds the rent of the premises to be Rs.4,360/- per month is a nullity and void having been obtained by fraud.

13. In my opinion, the contention of the petitioner that there is an error apparent on the face of the record in view of the incorrect interpretation of

Order 18 Rule 17 CPC is a misplaced contention. The said contention cannot lead to any inference that there is a mistake or error apparent on the face of the record or there exists any other sufficient reason to review the order of this court dated 26.5.2016.

14. Regarding the submissions of the petitioner that the present petition was not heard inasmuch as the petitioner was not given an opportunity to make his submissions, I have heard the submissions of learned senior counsel for the petitioner in some detail. I have reconsidered the matter on merits and do not find any infirmity in the order dated 26.5.2016 which would persuade me to recall the said order.

15. I will now deal with the said submissions of learned senior counsel for the petitioner.

16. A perusal of the order passed by the trial court while allowing the application under Order 12 Rule 6 CPC dated 4.2.2012 shows that the trial court has noted the submissions of the petitioner that the agreed rent for the premises is @ Rs.2,760/- per month is in contrast to the contention of the respondent that the rent was Rs.4,360/- per month. The trial court referred to the earlier order passed by the court of ADJ, Delhi dated 21.1.1999 in the earlier suit for possession and mesne profits filed by the respondent where a conclusive finding was recorded based on the evidence of the parties that the agreed rent for the premises was Rs.4,360/- per month. It also noted that the petitioner did not file any appeal against the said order and hence the said order operates as res judicata between the parties. Accordingly, the trial court came to the conclusion that the petitioner cannot now claim that the monthly rent is @ Rs.2,760/- per month. The trial court also concluded that the relationship of landlord and tenant between the parties exists and that the

tenancy has come to an end by serving of notice dated 10.2.2005. The trial court allowed the application of the respondent and passed a decree of possession. Only the issue of adjudication of mense profits was left open to be decided after evidence was complete.

17. Reference may also be had to the earlier decree dated 21.1.1992 passed in favour of the respondents in the earlier suit. The trial court had in the said judgment concluded as follows:-

"17 (ii)... Since there is an admission on the part of the defendant that payment was always towards rent and hire charges, therefore, the total payment of Rs.4360/- was only on account of rent and hire charges. In other words, the same is on account of rent of the premises in question per month. Thus, in the light of the above discussion and legal position settled by the Hon'ble Supreme Court and Hon'ble High Court, I am of the considered opinion that the last rent before the termination of the tenancy of the premises in question, was at the rate of Rs.4360/- per month, hence Section 50 of the DRC Act is not attracted and this Court has the jurisdiction to try and decide this suit."

18. Based on this finding, the trial court had partly decreed the suit in favour of the respondent for recovery of arrears of rent at the rate of Rs.4,360/- w.e.f.1.6.1991 till date i.e. 21.1.1999. The respondent had filed an appeal against the said order of the trial court dated 21.1.1999 but withdrew the appeal on 4.2.2005 with liberty to take appropriate proceedings in accordance with law. The petitioner at no stage challenged the said findings recorded by the trial court in the judgment dated 21.1.1999.

19. In my opinion, there is no merit in the contention of the learned senior counsel for the petitioner that the issue of determination of rent for the premises is still open for adjudication before the trial court. Merely because

the petitioners have again filed a suit being CS(OS) No.3213/2011 for declaration and perpetual injunction to declare the judgment/order and decree dated 21.1.1999 passed by the ADJ in the earlier suit filed by the respondent to the extent that it held the rent of the premises to be Rs.4,360/- per month is a nullity and void does not change the nature of the present suit pending before the trial court. Though I do not wish to comment on the merits of the said suit as the same is not before me, the filing of the suit does not in any manner change the present legal and factual position.

20. In my opinion, the issue of rent of the premises has been concluded by the judgment of the trial court when allowing the application under Order 12 Rule 6 by its judgment dated 4.2.2012. This issue does not survive before the trial court anymore. The only issue that survives before the trial court is quantification of mesne profits/damages. The argument of the petitioner of rent being Rs.2,760/- per month has been turned down at every stage and the petitioner cannot be permitted to repeatedly raise the same issue again and again.

21. In fact a question was posed to the learned senior counsel for the petitioner as to on what issue the petitioner seeks to cross-examine PW-3 and PW-4 and as to whether an issue in this regard survives before the trial court. The petitioners were unable to give any answer to the same. It is manifest that they only seek to rake up the old issue of the rent being Rs.2,760/- per month which cannot be permitted. The petitioner cannot be permitted to re-open issues which stand concluded.

22. I also cannot help but noticing the manner in which the petitioners have made the application in issue before the trial court. The evidence of the plaintiff/respondent was closed on 9.8.2010. The petitioners have chosen to

move the present application for filing additional documents which was dismissed on 4.3.2011 by the trial court. In a petition before this court this court on 4.5.2011 had permitted the petitioner to place the documents on record subject to payment of Rs.50,000/-. That was in May, 2011. After a lapse of almost two years in March 2013 the petitioners have chosen to move the present application under Order 18 Rule 17 CPC for permission to recall PW3 and PW4 to be cross-examined. The dilatory tactics are manifest on the face of the conduct of the petitioner.

23. The provision regarding recall of a witness are stated in Order 18 Rule 17 CPC which reads as follows:-

"17. Court may recall and examine witness.- The court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit."

The Supreme Court in the case of K.K.Velusamy vs. N.Palanisamy (supra) while interpreting the said order under Rule 18 CPC held as under:-

"9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already

been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate)

10. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

11. There is no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications."

24. Hence, the power to recall witnesses for cross-examination is to be used sparingly in appropriate cases to enable the court to clarify any doubts

it may have in regard to the evidence led by the parties. The court may also for purposes other than for securing the clarification under inherent power in appropriate cases reopen the evidence and/recall witnesses for further examination. In my opinion on the facts and submissions made by the petitioner no such case is made out for this court to exercise its power under Order 18 Rule 17 CPC or under section 151 CPC to recall the two witnesses as sought by the petitioner. There was clearly no merit in the application moved by the petitioner before the trial court. There are no reasons to differ with the views of the trial court in the impugned order dated 4.4.2013.

25. In my opinion, there is no mistake or error apparent on the face of the record or any other sufficient reason for this court to review the judgment dated 26th May, 2016.

26. Present petition is dismissed with costs.

JAYANT NATH, J.

AUGUST 02, 2016 n