Delhi High Court
Sushil Kumar Gupta vs Jindal Charitable Trust on 17 April, 2018
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th April, 2018
+ RFA 83/2017 & CM Nos. 2688/2017 & 2690/2017
SUSHIL KUMAR GUPTA ..... Appellant
Through: Mr. Bhupendra Singh Chauhan,
Advocate. (M:9899368377)
versus
JINDAL CHARITABLE TRUST ..... Respondent
Through: Mr. R. K. Sharma and Ms. Dezy
Gaur, Advocates. (M:9313340162)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (ORAL)
1. The present appeal arises out of judgment dated 5th September, 2016
passed by the Trial Court, by which the suit for declaration and re-
possession filed in respect of the property bearing no.1/8B, First Floor,
Jindal Trust Building, Asaf Ali Road, New Delhi - 110002 (hereinafter,
„suit property‟) was dismissed. The Appellant/Plaintiff (hereinafter
„Plaintiff‟) filed the suit for declaration, re-possession and injunction against
Jindal Charitable Trust, Respondent/Defendant (hereinafter „Defendant‟).
2. It is the case of the Plaintiff that he entered into the suit property in
May, 1981. In paragraph 5 of the plaint, Plaintiff admits that one Mr. B. D.
Gopal Dass was the tenant who was running his business from the suit
property in the name and style of M/s Ajeet Sales Corporation. It is clear
from a reading of the plaint that the Plaintiff has been inducted in the suit
property by Mr. B. D. Gopal Dass. It is submitted by learned counsel for
Plaintiff that the Managing Trustee of the Defendant, at that time, had
agreed to the tenancy as is evident from the letter dated 16 th December,
1989, in which he acknowledged receipt of Rs.15,000/- from the Plaintiff for
use and occupation of the suit premises. It is the Plaintiff's case that by
virtue of this receipt, his tenancy in the suit property was confirmed and
agreed to by the Defendant. Thus, it is the Plaintiff's case that he could not
have been evicted without proceedings being taken against him, in
accordance with law.
3. On the other hand, the Defendant's submission is that the eviction
petition filed by it against Mr. B. D. Gopal Dass was decreed in its favour on
26th November, 2012. It is the Defendant's case that the Plaintiff has no
locus standi, inasmuch as the tenant was Mr. B. D. Gopal Dass, against
whom eviction proceedings were initiated under the Delhi Rent Control Act,
1958 and eviction orders were passed. The Defendant also stated that the
suit of the Plaintiff is barred by limitation.
4. The Plaintiff claims to have filed an application on 22nd August, 2014
under Order I Rule10 and Order IX Rule 13 CPC seeking impleadment and
setting aside of the decree in the said eviction petition. However, the same
was dismissed. Execution proceedings were initiated by the Defendant
against Mr. B. D. Gopal Dass subsequent to the eviction decree and the
bailiff, thereafter, took possession of the property.
5. It is the case of the Plaintiff that without initiating any eviction
proceedings against the Plaintiff, the Plaintiff could not have been evicted as
the Defendant had acquiesced and consented to the tenancy of the Plaintiff
after he was inducted in the tenancy by Mr. B. D. Gopal Dass vide letter
dated 16th December, 1989. It is the case of the Plaintiff that his induction in
the suit property was with the express agreement of the Defendant which is
evident from page 118 of the appeal paperbook.
6. The Trial Court framed the following issues in the suit:
"1) Whether the plaintiff is entitled to the relief of
possession as asked for in the plaint? (OPP)
2) Whether the plaintiff is entitled to the decree of
mandatory injunction as asked for in the plaint?
(OPP)
3) Whether the plaintiff is entitled to permanent
injunction as asked for in the plaint? (OPP)
4) Whether the decree passed under DRC Act in
Suit No. E-130/12 titled „Rajinder Charitable
Trust Vs. G.D. Gopal‟ would be binding upon the
plaintiff, if yes, its effects? (OPD)
5) Whether the plaintiff has never been the tenant
or in occupation of the suit property? (OPD)
6) Relief"
7. Evidence was led before the Trial Court and the summary of the
evidence has been captured in paragraph 6 of the impugned judgment. The
Plaintiff himself (PW-1) and Mr. Manish Jain, an employee of the Plaintiff
(PW-2), were examined on behalf of the Plaintiff and Mr. Suresh Jindal
(DW-1), attorney of the Defendant was examined.
8. After examining the pleadings and evidence, the Trial Court held that
insofar as the issue Nos. 4 & 5 were concerned, it could not give any
observation in respect of the order dated 26th November, 2011 passed by the
Ld. ARC in the eviction petition filed against Mr. B. D. Gopal Dass. The
relevant portion of the impugned judgment reads:
"(8) Issue no. 4 and 5 are clubbed together
for the sake of convenience involving common
discussion being interlinked. Onus of proving
these issues was upon the defendant who have
examined Sh. Sushil Jindal, Attorney Holder of
the defendant Trust as their sole witness as DWl"
who has placed reliance upon the certified copy of
the order dated 26.11.2012 and certified copy site
plan which are Ex.DWl/1 and Ex.DWl/2. It is
evident from the aforesaid that the competent
court of Ld. Additional Rent Controller (Central)
has passed the eviction order on 26.11.2012 and
pursuant to the same the defendant had taken
possession from its tenants Sh. B. D. Gopal Das
by due process of law, which possession was
taken in the execution petition filed in the said
case. The order of the competent court of Ld. ARC
which is Ex.DWl/1 is not under challenge before
this court. Therefore, under the given
circumstances, giving any observations and
findings on the said aspect / issue as to whether
the decree in the Eviction Petition E-130/12
would be binding upon the plaintiff or not and or
whether the plaintiff Mr. Sushil Kumar Gupta was
never tenant in occupation of the said property
would be prejudicial to the' parties in the
eventuality of challenge of the said order before
the court of competent jurisdiction. I, therefore,
refrain from deciding these two issues (i.e. issue
no. 4 and 5) which are hereby left open and even
otherwise are irrelevant for the purpose of
deciding the issues in dispute in the suit before
this court."
9. Insofar as issue Nos. 1 to 3 were concerned, the Trial Court has relied
upon the cross examination of PW-1 Shri Sushil Kumar Gupta. The Trial
court observes that PW-1 admitted in his cross examination that he is not in
possession of any lease or agreement recognizing his tenancy. PW-1, in
fact, admits that there was an oral agreement of tenancy. PW-1 claimed that
a consolidated payment of rent of around Rs.1500/- was made. He admits
that two rent receipts, Ex.PW-1/2 & Ex.PW-1/3 are not in his name.
10. On the basis of the evidence, the Trial Court held that the Plaintiff had
failed to place on record any document showing that the relationship of
landlord and tenant had been created. Relevant portion of the impugned
judgment reads:
"........
(10). It is evident from the aforesaid that
admittedly, the plaintiff has not challenged the
eviction order passed by Ld. ARC and the findings
thereof in the present suit for setting aside the
same and declaring the decree dated 26.11.2012
(Ex.DW1/1) as nullity. It is also borne out from
the record that possession of the suit premises had
been taken by the plaintiff pursuant to the said
order of the competent court in the eviction
proceedings. The plaintiff prima facie has failed
to place on record any document showing that the
relationship of landlord tenant had been created
by a contract between them or that he was legally
put into premises by the defendant, rather in his
cross examination, he admits that it was Sh. B. D.
Gopal Das who was the tenant of the plaintiff in
the premises under the landlord-ship of the
defendant. Though, the plaintiff claims that he
was not aware of the eviction petition till date the
present suit was filed, which is unbelievable since
the record confirms that the possession was taken
after eviction order through the Court Bailiff and
there is no challenge of the eviction order.
Though, the plaintiff claims that he has
challenged the said eviction order in the present
suit but the perusal of the pleadings shows that
there is no such challenge to the said eviction
order, in accordance with law, nor he has been
able to place on record any document to show
that he was inducted as tenant in the suit premises
by Sh. Amrit Lal Jindal. Merely because the
electricity connection has been issued in his
name, will not create any right in his favour and
that too when the plaintiff has failed to show that
the said connection was taken after obtaining the
Non Objection from the defendant-trust.
(11). Under these circumstances, he hereby hold
that the plaintiff has not been able to prove his
case. Firstly that there was a contract between
him and the defendant or any relationship of
landlord tenant. Secondly that by application of
law the plaintiff became a tenant. Merely because
the plaintiff deposits the arrear of rent of the
original tenant Sh. B. D. Gopal Das, he does not
become the tenant thereof because there is no
concept of transfer of tenancy in the manner in
which the plaintiff has asserted; Thirdly that the
plaintiff has failed to place on record any
document even in the form of rent deed, the rent
receipt, etc., to prove his tenancy in the suit
premises and Lastly that the plaintiff was forcibly
dispossessed from the suit property without due
process of law. In fact the possession of the suit
property has pursuant to a court order through a
Bailiff in execution proceedings by adopting due
process of law."
Under these circumstances, the suit of the Plaintiff was dismissed.
11. Before this Court, learned counsel for Plaintiff placed heavy reliance
on the letter dated 16th December, 1989. He submits that this document
shows that he was inducted as tenant with the consent of the Defendant. The
text of the said letter is set out below:
"I acknowledge with thanks a sum of Rs.15,000/-
(Rupees Fifteen Thousand Only) on behalf of Mr. B. D.
Gopal Dass who has handed over possession of
tenanted premises to you.
As you have now cleared arrears of rent till 31.03.1990
w.e.f. 01.04.1990 we shall be issuing rent receipts in
your name for tenanted premises at First Floor, 1/8B,
Jindal Trust Building, Asaf Ali Road, New Delhi-
110002."
12. On a specific query put to the Plaintiff as to whether any rent receipt
subsequent to this letter was issued in favour of the Plaintiff, learned counsel
for Plaintiff submits that there are no records available with him at this
point.
13. A perusal of the letter clearly reveals that the acknowledgment of the
sum of Rs.15,000/- made by the Defendant was `on behalf of Mr. B. D.
Gopal Dass'. This clearly shows that the Defendant never acquiesced to the
Plaintiff's position as tenant in the suit property. No other ground is urged or
pressed.
14. The Court has perused the pleadings and evidence. Cross examination
of PW-1 is quite relevant. There is a candid admission of PW-1, that he
does not have any document in his possession to show that he was a tenant
in the suit property. The relevant part of the cross examination of PW-1 is
extracted below:
under:
" ......It is correct that the defendant is the owner of the
suit property. It is correct that M/s B. D. Gopal Dass
was a tenant in suit property under the landlordship of
defendant. Vol. They were tenant upto a particular
period. It is wrong to suggest that M/s B. D. Gopal
Dass was tenant for a particular period. I was not
aware whether defendant had filed eviction petition
against M/s. B. D. Gopal Dass for evicting him from
the suit property. Vol. I came to know of this case only
after I filed the present suit surprisingly when the
defendant filed reply in this case. It is wrong to suggest
that I did not come to know about the eviction petition
after I filed the present suit. I was not aware whether
the defendant had taken the possession the suit
property after eviction order dated 26.11.2012 in
execution proceedings from B.D. Gopal Dass through
Bailiff. Vol. Now I am aware of the same after the
filing of suit. We did not challenge the eviction order
after coming to know of the same Vol. We filed the
police complaint. Again said we challenged the same
by filing the present suit.
I cannot say whether the eviction order has not
been challenged in the present suit. It is wrong to
suggest that the plaintiff was never a tenant in the suit
property under the landlordship of the defendant. I am
not in possession of lease or agreement. Vol. It was
only an oral agreement and receipts were being issued
thereafter which I have placed on record. It is wrong to
suggest that there was no oral agreement or that no
receipts were executed by the defendant including the
receipts Ex.PWl/2 and Ex.PWl/3. I was inducted as a
tenant in suit property by Sh. Amrit Lal Jindal, the
previous trustee. It is wrong to suggest that there was
no oral agreement with me and Sh. Amrit Lal Jindal
with regard to the tenancy. The rate of rent as agreed
was the same as was the previous tenant i.e. Rs.100/-
Rs.150/-, but I am not sure. Vol. Consolidated payment
of rent used to be made i.e. approximately around
Rs.1,500/-. It is wrong to suggest that I have never paid
a consolidated rent of Rs.1,500/- or any other amount.
I am a businessman. Vol. I am doing the business of
chemical manufacturing and plastic distribution. I do
not have any statement of account relating to my
business. Vol. V/e maintain regular balance sheets. I
am an income tax assessee. I am not aware if the rent
which I was giving to the defendant is reflected in my
income tax returns. It is correct that the receipt
Ex.PWl/2 and Ex.PWl/3 are not in my name. It is
wrong to suggest that I have no right, title or interest
in the suit property. It is wrong to suggest that there is
no electricity connection in my name in the suit
property. I cannot tell when the electricity connection
was sanctioned in my name and installed in the suit
property. Vol. It was many years ago. I am not aware if
any form was filled up or no objection had been
obtained from the landlord prior to installation of
electricity connection. Vol. It was done by my office. It
is wrong to suggest that, no electricity bills were
coming in my name. Vol. The bills were regularly
being received in my name. I cannot tell the period for
which I am enjoying the electricity connection in the
suit premises. It is wrong to suggest that I was never
receiving the electricity bills in my name in the suit
premises. It is wrong to suggest that I was never in
possession in the suit premises. It is wrong to suggest
that B. D. Gopal Dass was the only tenant in the suit
premises and all the receipt were being issued in his
name. It is wrong to suggest that the tenancy of the suit
premises was never transferred in my name by the
defendant. It is wrong to suggest that I have never
tendered any rent to the defendants or any amount for
purposes of user of the suit premises. It is wrong to
suggest that neither me nor my employee, associate or
authorized representative way in possession of the suit
property. It is wrong to suggest that the forcible
possession of the suit premises was never taken from
me or from my employees, associates or authorized
representative. Vol. I was in possession and it was
taken forcibly form me. It is wrong to suggest that the
possession was taken from me by adopting due process
of law. It is wrong to suggest that the police complaints
have been made by me on false and frivolous grounds.
I do not remember if Jindal Charitable Trust or the
defendants had also made a police complaints against
me. It is correct that in my affidavit of evidence
Ex.PWl/A, para 11, I have mentioned about the police
complaint and amicable settlement between me and the
defendants but it is wrong to suggest that these are
false grounds or that there was no such settlement. It is
wrong to suggest that I have deposed falsely to the
extent that I used to keep goods/ files, records in the
suit premises. It is wrong to suggest that none of my
employees used to sleep in the suit premises. Vol. One
Raju used to sleep in the suit premises. It is correct that
I have not mentioned the name of Raju either in my
plaint or in my affidavit.
It is wrong to suggest that I have not been
dispossessed from the suit property wrongfully. It is
wrong to suggest that my lock put over the suit
property has not been removed. It is correct that except
the record, nothing was placed in the suit property.
Vol. May be other things also which I do not
remember. It is wrong to suggest that legal notice Ex.
PWl/12 is based upon false and frivolous allegations.
It is wrong to suggest that the defendant is not liable to
restore the possession of the suit property to me. It is
wrong to suggest that I have not suffered with an
irreparable loss, reputation, image or loss of business.
It is wrong to suggest that defendant did not take any
material record or documents belonging to me. I am
aware that "Our-India" was having their office on the
top floor above the suit property. Sh. Uttam, Arora was
the Managing Editor of "Our India". It is wrong to
suggest that Sh. Uttam Arora was not the Managing
Editor of "Our India" or that "Our India" did not have
an office on the floor above the suit property. It is
correct that I have not mentioned this fact about "Our
India" having its office on the floor above the suit
property or Sh. Uttam Arora being the Managing
Editor. Vol. It was not required as I have already filed
the complaint made by 'Our India' making a complaint
to the local police confirming this aspect. It is wrong to
suggest that the complaint Ex.PWl/8 is a fabricated
document. It is wrong to suggest that eviction order
dated 26.11.2012 is binding upon me. It is wrong to
suggest that defendant never recognized me as tenant
in the suit property. It is wrong to suggest that
defendant has taken the possession of suit property
from the right person with due process of law......... "
In view of the clear testimony of PW-1, it is clear that, apart from the
electricity connection, there was no other document or evidence to establish
the Plaintiff's case. The Trial Court's finding that the case of the Plaintiff that
he was not aware of the eviction proceedings is unbelievable, is found to be
correct. The Plaintiff being an occupant of the suit premises, only on behalf
of Mr. B.D. Gopal Dass cannot claim any independent right or identity on
the basis of the letter dated 16th December 1989. The Plaintiff does not
press or urge any other ground. Under these circumstances, the trial court
judgment cannot be faulted with and does not warrant interference.
15. The appeal is accordingly dismissed with no order as to costs.
Miscellaneous applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
APRIL 17, 2018/dk
