Delhi High Court
Jagdish vs Panchdash Nam Juna Akhara on 11 November, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 772/2016 & CMs No.36310-13/2016
JAGDISH ..... Appellant
Through : Mr. Javed Ashraf Khan, Advocate with
appellant in person.
versus
PANCHDASH NAM JUNA AKHARA ..... Respondent
Through : None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 11.11.2016
1. The appellant (defendant) is aggrieved by the impugned judgment and
decree dated 23.4.2016 passed in a suit for possession, recovery of rent,
mesne profits, etc., instituted against him by the respondent (plaintiff) in
respect of a shop situated in Seelampur Market, Delhi.
2. Counsel for the appellant states that the respondent had filed an
execution petition for seeking execution of the impugned judgment and
decree and in the said proceedings, the appellant had handed over the vacant
peaceful possession of the subject shop to the respondent, through the
Bailiff, in the month of September, 2016.
3. The limited grievance raised in the present appeal is in respect of the
relief of arrears of rent, which have been assessed by the trial court at
Rs.12,000/- p.m., from 14.10.2013 onwards along with interest.
4. Counsel for the appellant contends that the trial court had failed to
consider the submission of the appellant that the rent that was being
tendered to the respondent/plaintiff was @ Rs.1500/- p.m. and not
Rs.12,000/- p.m. He concedes that though the appellant/defendant had not
specified the rate of rent in the written statement filed in the suit, but he had
taken a plea to this effect, that the rate of rent was Rs.1500/- p.m., in a
previous suit instituted by him against the respondent.
5. This Court has perused the impugned judgment and decree. Issue
No.2 and 3 were framed by the trial court on the aspect of entitlement of the
respondent/plaintiff to recover the rent and mesne profit along with interest,
if any. It has been observed by the learned ADJ that as per the Rent
Agreement (Ex.PW-1/1), the rent of the suit premises was fixed at
Rs.12,000/- p.m. Though the appellant/defendant denied the said rate of
rent, but he failed to disclose the actual rate of rent that was being tendered
by him to the respondent/plaintiff. It has also been observed in the
impugned judgment that PW-1 had admitted in his cross-examination that
no rent receipt was issued to the appellant/defendant, but he mentioned the
amount received as rent in the copy of the appellant/defendant. However,
the appellant/defendant did not make any suggestion to the contrary, to
counter PW-1 on this aspect during his cross-examination.
6. As for the plea taken by the appellant/defendant that in the previous
suit instituted by him against the respondent/plaintiff, the rent was specified
by him as Rs.1500/- p.m., the trial court had rightly declined to accept the
said plea in the light of the fact that the Rent Agreement (Ex.PW1/1) had
been duly proved and it contained a clause to the effect that the rent would
be @ Rs.12,000/- p.m. Observing that the appellant/defendant had not
succeeded in proving that he had paid the rent of four months for the period
from 14.10.2013 to 13.2.2014, the trial court was justified in holding that the
respondent/plaintiff is entitled to recover the arrears of rent of Rs.48,000/-,
@ Rs.12,000/- p.m. from the appellant/defendant.
7. As for the relief of mesne profits granted in favour of the
respondent/plaintiff under issue No.3, a perusal of the grounds taken in the
appeal reveals that no challenge has been laid to assail the findings returned
by the trial court on this aspect.
8. The appellant/ defendant cannot be permitted to argue against a
written contract between the parties (Ex.PW1/1) which mentions the rate of
rent as Rs.12,000/- p.m. Having perused the impugned judgment, this Court
is of the opinion that there is no error in the appreciation of the evidence, the
reasoning and the conclusion arrived at in respect of issue No.2, for this
court to interfere with the same. Accordingly, the present appeal is
dismissed in limine along with the pending applications, as being devoid of
merits.
HIMA KOHLI, J
NOVEMBER 11, 2016
sk/ap
