Kedar Nath (Deceased) Through His ... vs Rajinder Tiwari
2016 Latest Caselaw 6764 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA Nos. 188/2010

%                                                   3rd November, 2016

KEDAR NATH (DECEASED) THROUGH HIS LEGAL HEIRS
                                            ..... Appellant
                 Through: Mr. Ajay Kumar, Advocate.
                          versus

RAJINDER TIWARI                                              ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) is filed by the appellant who was the defendant

in the suit filed by the respondent/plaintiff for permanent injunction

impugning the Judgment of the First Appellate Court dated 26.7.2010

affirming the Judgment of the Trial Court dated 1.2.2010 whereby the suit

for possession filed by the respondent/plaintiff was decreed against the

appellant/defendant who was pleaded to be a tenant of the

respondent/plaintiff. Respondent/plaintiff by the suit sought a decree of

permanent injunction against the appellant/defendant from selling etc the

suit property bearing no. 3888/2, Gali No.8, Shanti Mohalla, Gandhi Nagar,

New Delhi.

2. The facts of the case as per the plaint are that the

respondent/plaintiff stated that the appellant/defendant was owner of the suit

property but respondent/plaintiff purchased the property from the

appellant/defendant by means of usual documentation dated 19.8.1991

being an Agreement to Sell Ex.PW1/2, General Power of Attorney

Ex.PW1/1, Will Ex.PW1/3 and the Receipt Ex.PW1/4. Respondent/plaintiff

further pleaded that as per the request of the appellant/defendant he was

inducted by the respondent/plaintiff as a tenant in the suit property with

respect to one room on the ground floor and two rooms on the first floor

alongwith kitchen, latrine and bath at a monthly rent of Rs.1000/- in the year

1991 itself. Respondent/plaintiff pleaded that rent was regularly paid by the

appellant/defendant and which rent initially was Rs.1000/- per month which

then became Rs.1800/- and then it became Rs.2500/- per month from

August, 1998 and further increased to Rs.3000/- from February, 2005. It

was then pleaded that in January, 2007 the respondent/plaintiff came to

know that the appellant/defendant intended to transfer the suit property, and

therefore, the subject suit was filed seeking the relief of permanent

injunction against the appellant/defendant not to sell etc the suit property.

3. The defence of the appellant/defendant was struck off on

account of non-filing of the written statement. Accordingly, there is only

the evidence which is led on behalf of the respondent/plaintiff and the cross-

examination of the witnesses of the respondent/plaintiff by the

appellant/defendant.

4. On behalf of the respondent/plaintiff the evidence was led of

three witnesses. One was the respondent/plaintiff himself who deposed as

PW-1. Another witness was Sh. Mithlesh Kumar Gupta who deposed as

PW-2 and the third witness was Sh. Satish Chand Jain who deposed as PW-

3. These witnesses were cross-examined by the appellant/defendant by

putting up the case that never was any tenancy created and by the

documents dated 19.8.1991 executed by the appellant/defendant in favour of

the respondent/plaintiff were only for 25 sq. yds out of the total of 50 sq.

yds of the property and only 25 sq. yds. were transferred by the

appellant/defendant i.e appellant/defendant continued to remain the owner

of the balance 25 sq. yds out of the total 50 sq. yds of the property no.

3888/2, Gali No.8, Shanti Mohalla, Gandhi Nagar, New Delhi.

5. When this Regular Second Appeal was admitted for hearing

vide Order dated 15.2.2013 the following substantial question of law was

framed:-

"Whether the finding arrived at by the trial court and upheld by the appellate Court is perverse and not supported by the evidence adduced by the respondent?"

6. The issue before this Court is that whether in spite of the

appellant/defendant having failed to file written statement and lead

evidence, whether the respondent/plaintiff can be said to have proved his

case that the suit property of 50 sq. yds was sold or that only 25 sq. yds of

the suit property was sold as is the case of the appellant/defendant.

7. In my opinion, the substantial question of law needs to be

answered in favour of the appellant/defendant and against the

respondent/plaintiff. The reasons for the same are given hereinafter.

8. No doubt ordinarily the evidence which is led by the

respondent/plaintiff in a case where the appellant/defendant fails to lead

evidence must be accepted, however, in law it is necessary that the evidence

which is led on behalf of the respondent/plaintiff is such which will on

preponderance of probabilities prove the case of the respondent/plaintiff.

Even if a defendant is ex parte, a plaintiff has to lead such evidence which

the Court will believe and which will establish the case of the plaintiff as set

up in the plaint. That a plaintiff has to establish his case even if the defence

of the defendant is struck off is clear from the ratio of the Judgment of the

Supreme Court in the case of Balraj Taneja & Another Vs. Sunil Madan &

Another (1999) 8 SCC 396. The relevant paragraphs of this judgment are

paras 14, 15, 27 and 30 and which read as under:-

"14. This Rule, namely Rule 10, was also amended by the CPC (Amendment) Act 1976 (Act No. 104 of 1976). Prior to its amendment, it was held in a number of decisions that the rule can be invoked only in those situations where the Court has required the defendant to file the Written Statement in terms of Rule 9 of Order 8. A few other High Courts had taken the view that this Rule would be applicable even to those cases where a Written Statement was required to be filed under Order 8 Rule 1 Civil Procedure Code. The conflict of decisions has been set at rest by providing specifically under this rule that where a party from whom a Written Statement is required either under Rule 1 or Rule 9 of Order 8 fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. Rule 10 thus governs both the situations where a Written Statement is required under Rule 1 of Order 8 as also where it has been demanded under Rule 9. In both the situations, if the Written Statement has not been filed by the defendant, it will be open to the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. It is to be noticed that if the Written Statement is not filed, the Court is required to pronounce judgment against the defendant. The words "against him" are to be found in Rule 10 of Order 8 which obviously means that the judgment will be pronounced against the defendant. This rule also gives a discretion either to pronounce judgment against the defendant or "make such order in relation to the suit as it thinks fit." These words are of immense significance, inasmuch as they give a discretion to the Court not to pronounce judgment against the defendant and instead pass such order as it may think fit in relation to the suit.

15. There are thus two separate and distinct provisions under which the court can pronounce judgment in the failure of the defendant to file written statement. The failure may be either under Order 8 Rule 5(2) under which the court may either pronounce judgment on the basis of the facts set out in the plaint or require the plaintiff to prove any such fact; or the failure may be under Order 8 Rule 10 CPC under which the court is required to pronounce judgment against the defendant or to pass such order in relation to the suit as it thinks fit.

xxxxx

xxxxx

27. In view of the above, it is clear that the court, at no stage, can act blindly or mechanically. While enabling the court to pronounce judgment in a situation where no written statement is filed by the defendant, the court has also been given the discretion to pass such order as it may think fit as an alternative. This is also the position under Order 8 Rule 10 CPC where the court can either pronounce judgment against the defendant or pass such order as it may think fit.

xxxxx

xxxxx

30. Applying these tests to the instant case, it will be noticed that in a suit for specific performance it is mandatorily required by Section 16 of the Specific Relief Act to plead readiness and willingness of the plaintiff to perform his part of the contract. The Court, before acting under Order 8 Rule 10 has to scrutinise the facts set out in the plaint to find out whether all the requirements, specially those indicated in Section 16 of the Specific Relief Act, have been complied with or not. Readiness and willingness of the plaintiff to perform his part of the contract is a condition precedent to the passing of a decree for specific performance in favour of the plaintiff." (emphasis is mine)

9. A reading of the aforesaid paragraphs of the judgment in Balraj

Taneja's case (supra) shows that a suit is not decreed as a matter of course

once the defence of the defendant is struck off and a court has to decide

what are the issues at hand and pronounce a judgment and which judgment

means a reasoned judgment showing as to how a court is convinced that the

case set up by the plaintiff is proved.

10. In the present case, it has to be seen as to whether the

documents dated 19.8.1991 Ex.PW1/1 to Ex.PW1/4 should be accepted by

the Court as they are or whether the said documents should be held to

convey only 25 sq. yds of the suit property and not 50 sq. yds of the suit

property. This Court will also have to keep in mind the provision of Section

92 of the Indian Evidence Act, 1872 which prevents a person from

contradicting the terms of the written document by oral evidence, but the

Provisos 1 and 6 entitle a Court to see whether there is a mistake in fact or if

the facts stated in the documents are co-relatable to existing facts.

11. In the facts of this case, it is seen that the respondent/plaintiff

as per the depositions of any of his witnesses has failed to prove that any

tenancy was created with respect to the portions in occupation of the

appellant/defendant being one room on the ground floor and two rooms on

the first floor along with the kitchen, latrine and bath. A tenancy is proved

either by a rent agreement or by a rent receipt or at least by showing the

payment of amounts by a tenant to a landlord. It is conceded in the cross-

examination by the respondent/plaintiff who appeared as PW-1 that no rent

agreement was executed, not even a single rent receipt exists, and that there

is no proof of any payment of rent by the appellant/defendant to the

respondent/plaintiff from the year 1991 for as many as 16 years when the

suit was filed in March 2007. A period of 16 years is a long period of time

for showing the existence of tenancy by payment of rent including execution

of a rent receipt, and in this regard, the respondent/plaintiff has miserably

failed. Oral self serving statements cannot necessarily be in all cases a

discharge of onus of proof and considering the long period of 16 years and

there not existing a rent agreement or even a rent receipt or any other

documentary proof whatsoever of payment of rent by the

appellant/defendant to the respondent/plaintiff, it cannot be held that the

appellant/defendant was a tenant of the respondent/plaintiff.

12. Once it is held that the appellant/defendant is not the tenant of

the suit property under the respondent/plaintiff then it naturally follows that

the portions in occupation of the appellant/defendant would be in his own

right as an owner of the property because only 25 sq. yds would have been

sold by the appellant/defendant to the respondent/plaintiff under the

documentation dated 19.8.1991 with the fact that tenancy is said to be

allegedly created in 1991 itself. This fact is further corroborated in favour

of the appellant/defendant and against the respondent/plaintiff by the fact

that it is conceded by the respondent/plaintiff in his cross-examination

conducted on 26.9.2008 that he has never applied for mutation of entire 50

sq. yds of the property in the house tax records/municipal records in his own

name and that he has not filed any bill showing the payment of property tax

of the entire property of 50 sq. yds by him, and which acts would have been

done by the respondent/plaintiff if he had purchased the entire property of

50 sq. yds Thus respondent/plaintiff has failed to prove that he has acted as

an owner of 50 sq. yds of the property and not 25 sq. yds, and thus which 25

sq. yds was only transferred to him under the documentation dated

19.8.1991. The factum of mentioning of 50 sq. yds in the documentation

dated 19.8.1991 therefore is clearly a mistake of fact and the Provisos 1 to

Section 92 read with the Proviso 6 to Section 92 of the Indian Evidence Act

allows evidence to be considered that there is a mistake of fact in the written

document. Therefore, when seen in totality of circumstances with respect to

no proof at all being filed by the respondent/plaintiff of the

appellant/defendant being a tenant of the disputed portion for as long as 16

years, the respondent/plaintiff failing to get the property mutated in his

name in the municipal records, the respondent/plaintiff failing to show

payment of property tax of the property in his name and the fact that the

appellant/defendant because of unfortunate circumstances had his defence

struck off, the facts of this case clearly calls for applying the ratio of the

Judgment in the case of Balraj Taneja (supra) that merely because a

defence is struck off does not mean that a court has to necessarily decree the

suit inasmuch as Order VIII Rule 10 CPC allows a Court to pass such

further orders and the law with respect to disposal of a civil case is that

merely because a defendant is ex parte does not mean that the evidence led

on behalf of the plaintiff must automatically be accepted.

13. Therefore, I hold that the substantial question of law is

answered in favour of the appellant/defendant and against the

respondent/plaintiff and it is held that the courts below have committed a

complete perversity and illegality in holding that the appellant/defendant is

a tenant of the disputed portion which is the subject matter of the suit plaint.

It is held that the suit filed by the respondent/plaintiff seeking ownership of

the entire suit property of 50 sq. yds is thus liable to be dismissed and is

accordingly dismissed by accepting this Regular Second Appeal and setting

aside the concurrent Judgments of the courts below; of the Trial Court dated

1.2.2010 and the First Appellate Court dated 26.7.2010. Parties are left to

bear their own costs.

NOVEMBER 03 , 2016                                  VALMIKI J. MEHTA, J
ib