Kamini Lal vs Raman Lal Sethi
2018 Latest Caselaw 4450 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 1st August, 2018
+                         RFA 616/2017
        KAMINI LAL                          ..... Appellant
                  Through: Mr. Sanjiv Sindhwani, Sr. Adv.
                             with Mr. Janendra Lal, Mr.
                             Yasmin Tarapore & Mr. Sahil
                             Paul, Advs.
                       Versus
    RAMAN LAL SETHI                       ..... Respondent

Through: Mr. Robin P. David, Mr. Dhiraj Philip & Mr. Febin Mathew, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 11 th April, 2017 in CS No.56052/2017 of the Court of Additional District Judge (ADJ)-03, New Delhi] allowing the suit filed by the respondent / plaintiff against the appellant / defendant for "ejectment, recovery of possession and recovery of arrears of rent and mesne profits and permanent injunction".

2. The appeal came up first before this Court on 14 th July, 2017, when notice thereof was ordered to be issued and subject to the appellant / defendant depositing the entire decretal amount in this Court, execution was stayed. The decretal amount is reported to have been deposited and kept in FDR. Vide subsequent order dated 5 th September, 2017, the appellant / defendant was further directed to deposit future mesne profits also in this Court and the appeal was

admitted for hearing and ordered to be listed in the category of regulars and Trial Court record was requisitioned.

3. The respondent / plaintiff applied for early hearing and which was allowed and the appeal ordered to be listed in the category of 'After Notice Miscellaneous Matters'. Vide subsequent order dated 7th May, 2018, the decretal amount was ordered to be released to the respondent / plaintiff / decree-holder subject to furnishing security. The counsel for the respondent / plaintiff on enquiry states that the respondent / plaintiff / decree-holder till date has not received the decretal amount.

4. The senior counsel for the appellant / defendant and the counsel for the respondent / plaintiff have been heard and the Suit Court record requisitioned, perused.

5. The respondent / plaintiff instituted the suit, from which this appeal arises, as per the amended plaint dated 18th May, 2016, pleading that (i) the respondent / plaintiff is the absolute owner of front portion of the ground floor of property No.3/44, Shanti Niketan, New Delhi under the Will dated 12th December, 1984 of the father of the respondent / plaintiff; (ii) the appellant / defendant is the sister of the respondent / plaintiff and was in September, 1999, allowed to reside in a part of the front portion of the ground floor aforesaid as a tenant, by means of an oral Lease Deed, at a rental of Rs.15,000/- per month and the appellant / defendant is running office of her companies from the said front portion of the ground floor; (iii) as per the agreement between the parties, the rent was to be paid on first day of

every month and it was further agreed between the parties that the rent shall be increased by "Rs.1,000/- every year since 2005"; (iv) under the terms of the oral agreement, the appellant / defendant had paid a sum of Rs.20,000/- per month till December, 2010 as rent; (v) however, the appellant / defendant failed to discharge her obligations under the agreement and failed to pay rent with effect from "January, 2001", inspite of repeated requests of the respondent / plaintiff; (vi) the appellant / defendant had also not approached the respondent / plaintiff for renewal of the lease agreement; (vii) respondent / plaintiff sent a legal notice dated 13th July, 2013 terminating the "license" of the appellant / defendant and requesting the appellant / defendant to handover possession within 15 days of receipt of the notice; (viii) the appellant / defendant sent a false and mischievous reply dated 2nd August, 2013 to the notice; and, (ix) hence, the suit for ejectment and recovery of arrears of rent of Rs.6,46,000/- and mesne profits with effect from 13th July, 2013 with interest.

6. The appellant / defendant contested the suit, pleading that (i) the appellant / defendant is a co-owner of the property No.3/44, Shanti Niketan, New Delhi in which the respondent / plaintiff was residing in one room with attached bathroom; (ii) the appellant / defendant "was and is not a tenant in the premises as alleged or at all"; (iii) the respondent / plaintiff is not the owner of the front portion of the ground floor of the property and not entitled to maintain the suit; (iv) the father of the parties only granted a right of residence to the respondent / plaintiff in one room and attached bathroom in which the respondent / plaintiff had been and was residing; (v) the appellant /

defendant was not a Director or office bearer in either of the two companies which were claimed to be running in the front portion of the ground floor, with respect to which this suit was filed and the said two companies were functioning from the rear area of the premises; and, (vi) the appellant / defendant was not a monthly tenant and had not made any payment by way of rent to the respondent / plaintiff and the respondent / plaintiff was put to strict proof thereof.

7. In the aforesaid state of pleadings, the following issues were framed in the suit on 29th February, 2016:

"1. Whether plaintiff is entitled to decree of ejection of defendant front portion of the property shown in red in site plan H.No.3/44, Shanti Niketan, New Delhi? OPP.

2. Whether plaintiff is entitled to recovery of Rs.6.48 lacs with arrears of rent? OPP

3. Relief."

and the following additional issue was framed thereafter:

"Whether plaintiff is entitled to mesne profit w.e.f. 13.07.2013 till actual handling of possession along with 18% interest? OPP."

8. Though the senior counsel for the appellant/defendant commenced the hearing by handing over a pedigree table of the family to which the parties belong, but on enquiry whether not the suit was by a landlord against a tenant, for ejectment, and in which suit title as owner is irrelevant, the senior counsel for the appellant / defendant agrees.

9. Having gone through the impugned judgment and having not found the learned ADJ to have referred to any admission or evidence of existence of relationship of landlord and tenant, it has straightaway been enquired from the counsel for the respondent / plaintiff as to what was the evidence led of existence of relationship of landlord and tenant between the parties or was there any admission of the appellant / defendant of existence of such relationship.

10. The counsel for the respondent / plaintiff first took me through the notice under Section 106 of the Transfer of Property Act, 1882 given by the respondent / plaintiff to the appellant / defendant prior to the institution of the suit and the reply of the appellant / defendant thereto.

11. However, from the said notice and reply, no admission of the appellant / defendant therein of existence of relationship could be deciphered. On the contrary, the appellant / defendant in the reply also, at the outset only denied the existence of relationship of landlord and tenant.

12. However, since the counsel for the respondent / plaintiff is pegging his case thereon and on the paragraphs of the impugned judgment referred to herein below, for better appreciation, it is deemed appropriate to reproduce the relevant paragraphs of the notice and to which attention is drawn, are as under:

"1. That my client is the absolute owner of the front portion of the ground floor of the property bearing No.3/44, Shanti Niketan, New Delhi. That you being the sister of my client

were inducted in the part of the said front portion as a tenant by means of an Oral Lease Deed at the rental of Rs.15,000/- in September, 1999. That in the said premises you are running your office of your companies such as M/s Turcon India (P) Ltd. and Eries India (P) Ltd.

2. That under the terms of the agreement you were liable to pay the said monthly rental by the 1st day of every month of the English calendar. That you as per the mutual understanding between you and my client the rent was revised from time to time. That finally it was mutually decided that the monthly rental shall be increased by Rs.1000/- after every year in 2009 when you were paying a rent of Rs.19,000/-. That under the terms of the agreement you paid a sum of Rs.20,000/- till December 2010 as the last rent. However, you failed to discharge your obligations under agreement and failed to make any rental for the period January 2011 and thereafter. That my client has made various requests and demands to you to pay the user charges which is due and recoverable to my client but you refused to accede to the legitimate requests of my client."

and the relevant paragraphs of the reply of the counsel for the appellant / defendant thereto, are as under:

1. That your client has not placed correct facts before you and this has led you to send the notice dated 13.07.2013. In this regard it is submitted that your client and my client are real brother and sister. Their late father Mr. Ram Lal Sethi had executed a Will dated 12.12.1984 by virtue of which the house property was bequeathed in favour of my client Ms. Kamini Lal, her sister Ms. Geeta Madhok, two sons of Shri Inder Lal Sethi i.e. Ashish Lal Sethi and Anuj Lal Sethi and your client, Sh. Raman Lal Sethi as per the portions of the property as indicated in the Will. In the said Will late Sh. Ram Lal Sethi had given only living rights of

the front occupied room with attached bathroom in favour of your client in the eventuality of your client's not marrying legally. Sh. Ashish Lal Sethi and Sh. Anuj Lal Sethi had executed a registered relinquishment deed dated 23.12.1999 whereby they had relinquished their share in the property in favour of my client Mrs. Kamini Lal. The said relinquishment deed was acted upon and your client Mr. Raman Lal Sethi had executed a 'No Objection Certificate' stating that he had no objection to the shares of Sh. Ashish Lal Sethi and Sh. Anuj Lal Sethi being mutated in the name of Mrs. Kamini Lal in pursuance of the said relinquishment deed. The contention of your client that he is the absolute owner of the front portion of the ground floor of the property bearing No.3/44, Shanti Niketan, New Delhi is wrong and is denied.

2. The contents of para 2 of your notice are incorrect and are denied."

13. The counsel for the respondent / plaintiff argues, that though in para no.2 of the notice, detailed averments were made with respect to the oral agreement between the parties and with respect to payment of rent till December, 2010, but corresponding para no.2 of the reply is a bare denial and cryptic and the appellant / defendant is bound to have admitted the contents of para no.2 of the notice.

14. I am unable to agree. The Court, for applying the rules of admission and deemed admission, cannot read portions of a document selectively and the document has to be read as a whole. If the draftsman of the document, in his / her own style, chooses to say everything in one of the paragraphs and thereafter does not deem it appropriate to reproduce the same thing in each and every paragraph,

no cannon of interpretation of document provides for deemed admission to be drawn therefrom. The legal process has to avoid verbosity and waste of time and once a stand has been pleaded at one place, there is no need to reiterate the same in response to each and every paragraph wheresoever the claim has been repeatedly made.

15. The Division Bench of this Court in Charanjit Singh Vs. Kehar Singh 2006 SCC OnLine Del 578 has held that the essential feature of admission is that it should be concise and deliberate; it must not be something that was not intended and was not the intention of the party; where the defendant has raised objection which will go to the very root of the case, it will not be appropriate to exercise discretion, implicit in judgment on admissions, in favour of plaintiff. Another Division Bench of this Court in Raj Kumar Chawla Vs. Lucas Indian Services AIR 2006 Delhi 266 finding, in the facts of that case, that the admission in a letter of the defendant of receipt of goods of the value claimed by the plaintiff to be coupled with a plea of a meeting with the plaintiff in which it was agreed that the plaintiff will take back some other goods and release payment thereof, it was held that no decree on admission could have been passed. Relying on the abovementioned judgments, the Division Bench of this Court in Vijay Gupta Vs. Ashok Kumar Gupta 2007 (95) DRJ 167 [and SLP(C) No.7627/2007 preferred whereagainst was dismissed on 4th May, 2007] has also held that a pleading or a document has to be construed or read as a whole to see its effect and one or two lines cannot be permitted to be taken out of context and used as an admission of a party, entitling the other for passing of a judgment upon admissions. It was held to be an accepted

norm of reading and interpretation of reading, that they must be read in entirety or at least in a manner that would not frustrate the very claim of party raised in the pleadings. Another Division Bench of this Court in Puran Chand Packaging Industrial Pvt. Ltd. Vs. Sona Devi ILR (2008) II Del 200 held that while passing judgment on basis of admission, the document has to be read as a whole and the Court is not to take out one or two sentences so as to treat it as an admission. I also, in Kishan Lal Chhabra Vs. Anil Arora ILR (2009) V Del 92 held that a line or paragraph here or there and without reference to the context cannot be picked up for the purpose of a decree under Order XII Rule 6 of the CPC.

16. The counsel for the respondent / plaintiff has then drawn attention to para no.1 of the preliminary objections of the written statement of the appellant defendant as under:

"1. That the suit as framed is not maintainable. The Defendant is a co owner of the property bearing No.3/44, Shanti Niketan, New Delhi, (referred to as the "Suit Property") in which the plaintiff is residing in one room and attached bathroom. The Defendant was and is not a tenant in the premises as alleged or at all."

17. I am unable to see as to how an admission of relationship of landlord-tenant is sought to be drawn therefrom. The appellant / defendant therein is rather found to have categorically pleaded that she was not a tenant in the premises as alleged or at all.

18. The only other argument of the counsel for the respondent / plaintiff is, that the learned ADJ, in the impugned judgment, has held as under:

"15. As far as this issue is concerned, it is specific case of the plaintiff that he allowed his defendant sister to occupy the front portion shown in red in site plan Ex.PW1/1 and that he inducted her as a tenant over a lease at a monthly rent of Rs.15,000/- in September, 1999 and that she had been running two companies there from. It would be handy to reproduce the relevant paras of the pleadings.

Para 4 and 5 of the plaint-

4. That the defendant is sister of plaintiff was allowed to in the part of the said portion as a tenant by means of an Oral Lease Deed at the rental of Rs.15,000/- in September 1999. That in the said premises you are running office of your companies such as M/s Turcon India (P) Ltd. and Eries India (P) Ltd.

5. That as per the agreement between both the parties the monthly rent of the rented premises was Rs.15,000/- in September, 1999 and the defendant will be liable to pay on every 1st day of every month of the English calendar. That it was also mutually agreed between the parties that the rent shall be increased by Rs.1,000/- every year since 2005.

16. Even though specific allegations were levelled against defendant, in the reply all that the defendant has stated in her written statement as under-

Paras 4 and 5 -

4. With reference to Para 4 of the plaint, the same is wrong and denied. The defendant is not a Director, or office bearer in either of the two companies, nor has been running offices in the front portion of the premises as falsely alleged or at all. It is submitted that the said two independent companies have and / or had been functioning from the rear area of the premises.

5. With reference to Para 5 of the Written Statement, the same is wrong and denied. It is denied that the defendant was a monthly tenant as alleged."

and has thereafter, reproducing the provisions of Rules 3 to 5 of Order VIII of the CPC, held as under:

"Accordingly it is found that all the demands are evasive and hence deserves to be taken as admitted.

17. Other than the above it is argued by ld. counsel for defendant that in preliminary objection no.1 defendant has specifically denied that she was a tenant to the plaintiff in following words "the defendant was and is not a tenant in the premises as alleged or at all." Plain reading of this sentence, in the manner it is worded, gives an impression that defendant Kamini Lal was plaintiff's tenant but is not a tenant any more. Ld. counsel for defendant submits that the sentence should have been worded in a better way that so as to convey that defendant was never was and is still not a tenant to the plaintiff.

19. It is admitted case of both the sides that defendant got portion of mezzanine floor and that their father Shri Ram Lal Sethi specifically averred that she should not get any right in the ground floor of the property. Conjoint reading of paras 7 and 9 shows that the entire back portion was bequeathed to grandsons Ashish and Anuj while qua the front portion, as on the date of execution of the Will, one room with bathroom was exclusive occupation with the plaintiff while one room with bathroom adjoining the plaintiff's room was with the testator Shri Roshan Lal Sethi. The common areas i.e. drawing cum dinning, store with bathroom, varandha and lawn were to remain under common use by plaintiff, testator's brother Shri Roshan Lal Sethi as well as testator's grandson Aashish and Anuj.

20. It was so provided by the testator that in case plaintiff marries, he will inherit the entire front portion including three rooms, dining, drawing apart from varandha and lawn but in case he do not marry, he will

continue to occupy his room apart from attached bathroom alongwith from common usage of remaining front portion. In case of his demise, the entire front portion would be inherited by grandsons Aashish and Anuj.

21. It is in this backdrop the defendant had tried to make up a case by claiming that she has got executed a relinquishment deed from Aashish and Anuj qua the entire ground floor including the complete back portion and the front portion. Even though a plea was raised in the written statement but no such document was filed or proved by the defendant on record. This bald plea is of no avail to the defendant. In case according to defendant she had document whereby she has acquired all the rights and interest of Aashish and Anuj, it was imperative that she should have filed the document on record so as to prove her plea and also prove the legitimacy of her possession which according to her she got other than the oral tenancy from the plaintiff."

and thereafter, reproducing Section 114(g) of the Evidence Act, 1872, has held as under:

22. This failure on the part of defendant calls for adverse inference against her.

23. At this juncture it would be necessary to test the plea of defendant as to what rights Aashish and Anuj had with them, which they allegedly transferred to the defendant. Para 9 of the Will clearly shows that no right whatsoever in the entire front portion shows in red in the site plan was inherited by Aashish and Anuj by virtue of this Will. They cannot transfer this right during the lifetime of plaintiff. Their right to inheritance can be permanently taken away of the act of the plaintiff of contacting a legal marriage even as on date today. In this backdrop the plea of the defendant that she has taken all the rights of the grand children Aashish and Anuj is untenable as no such right existed as on date when the claimed document was executed. As far as reference to para 15 of the Will is concerned, the only right which was granted by the testator to the

grand children was joint usage of common area i.e. kitchen, dining place, front veranda and lawn. This joint usage was common to the plaintiff, late Shri Roshan Lal Sethi who died in 1992 and the two grand children. The rights in usage could not have been transferred by the grand children to the defendant during the lifetime of plaintiff Shri Raman Lal Sethi.

25. A lot of stress is laid down by the ld. counsel for the plaintiff specifically that plaintiff is owner of the front portion but perusal of Will nowhere shows that he will become the owner until he gets married. Defendant say that he has an exclusive possession of only one room and bathroom which he continued till date and as such there is no occasion for him to induct defendant Smt. Kamini Lal as a tenant. In a limited sense this submission of Ld. Counsel for defendant is correct when he controvert the plaintiff's front portion of the suit property simply because the Will in its own wisdom does not confer this right as on date as he is still a bachelor. Having said this, I see no reason as to why plaintiff is required in law to first establish ownership as a landlord.

27. The combined reading of the same shows that the suit property is assessed in the name of plaintiff. Even though defendant claims that she is in occupation of the entire front portion of the ground floor except the plaintiff's room and the bathroom, she has not filed anything on record to show that the portion has been assessed in her name for the House Tax Records.

28. In view of the above discussion, once it is found that there is a clear admission on the part of the defendant and coupled with the facts that plaintiff has shown that he was in exclusive possession of portion shown in green by virtue of pre-ponderance of probably that this Court has no hesitation that they are exist a landlord tenant relationship. The conclusion is further fortified by the fact that defendant has failed to establish on record as to how she came into possession of the front portion shows in red.

29. This issue is accordingly answered in favour of the plaintiff and against the defendant."

19. The counsel for the respondent / plaintiff has emphasised that as held in the impugned order, while the respondent / plaintiff in para 4 has pleaded induction of the appellant / defendant as a tenant, the appellant / defendant in response thereto has not expressly denied the oral Lease Deed at the rental of Rs.15,000/- per month in September, 1999 and has only denied being a Director in the companies which were pleaded by the respondent / plaintiff and has thereby admitted the plea in the plaint of oral tenancy.

20. The provisions of Rules 3 to 5 of Order VIII of the CPC, relying whereon the learned ADJ has held the pleadings aforesaid to be a case of non-specific denial and thus admission, are not intended to allow a litigant to spring a surprise or steal a march on the opponent and have to be read in a reasonable and intelligent manner. As aforesaid, no provision of law requires the pleadings to be repetitive. Once a denial has been made in pleadings and / or a claim has been made which is inconsistent with the claim made by the opponent amounting to denial or non-acceptance of the claim made by the opponent, the provisions of Rules 3 to 5 of Order VIII cannot be invoked by referring to the paragraph in which the stand taken at another place is not repeated.

21. Today, the legal system of the country is faced with paucity of time. It is a well-known fact that as the volume of the case file increases, so does the length of time for which it remains pending. I am thus unable to subscribe to the view taken by the learned ADJ, on a selective reading of the documents and the pleadings. Suffice it is to state that in the preliminary objections in the written statement, the

appellant / defendant had taken a stand of being in occupation of the portion in her own right, as owner, and not as tenant of the respondent / plaintiff.

22. The learned ADJ, in my opinion, has also misconstrued the words, "the defendant was and is not tenant in the premises as alleged or at all". The said words cannot be construed as an admission of being a tenant in the past and the tenancy having come to an end. Attention is not drawn to any part of the cross examination of the appellant / defendant by the respondent / plaintiff wherein the counsel for the respondent / plaintiff may have put the said interpretation of the written statement to the appellant / defendant or given the appellant / defendant an opportunity to explain the same.

23. Similarly, Section 114(g) of the Evidence Act only allows the Court to presume the existence of any fact which it thinks likely to have happened in the normal course of natural events and human conduct. The learned ADJ, merely by referring thereto, has proceeded on the presumption that occupation of a premises raised a presumption of occupation as a tenant. There is no such presumption in law, specially when the parties are brother and sister and the house with respect to which the suit is filed was of the father of the parties. Neither has the learned ADJ cited any dicta wherein it may have been held that occupation of the premises is to be presumed as occupation as a tenant, nor has the counsel for the respondent / plaintiff today also cited any. On the contrary, Division Bench of this Court in Prem Pal Singh Vs. Jugal Kishore Gupta (1993) 50 DLT 49 held that tenancy

rights are created by contract under the statute i.e. the Transfer of Property Act and Court has to be satisfied that in fact tenancy existed and mere statement is not enough. In Vikas Jain Vs. Naresh Kumar 2012 SCC OnLine Del 778 it was held that in law, a person cannot be called upon to prove a negative i.e. that the opponent, claiming to be tenant, was not a tenant and the owner would be entitled to possession unless the occupant proved tenancy claimed.

24. I am also reminded of what the Division Bench has observed in Teva Pharmaceutical Industries Ltd. Vs. Natco Pharma Ltd. 210 (2014) DLT 591 regarding the state of pleadings and the litigation in this country. It has been held that though the British Courts treated the Indian litigants and Indian advocates to be not deft at drafting but unfortunately the same position continues till date. The lacuna, even if any in the pleadings or in the reply, on the part of the appellant / defendant, as has been read by the learned ADJ, can at best be blamed on a case of poor drafting and by no stretch of imagination can any deemed admission be drawn therefrom.

25. The learned ADJ, in the impugned judgment, also appears to have been unduly swayed by the appellant / defendant having failed to substantiate and prove her claim of ownership of the property, forgetting that the suit which was for adjudication was not a title suit but a suit between a landlord and tenant, paying court fees on annual rent, as in a suit between landlord and tenant and not court fees on market value of the property, as payable on a suit for recovery of possession or on a title suit.

26. Thus, once the respondent / plaintiff had failed to prove relationship of landlord and tenant, which was in issue, irrespective of whether the appellant / defendant had substantiated and proved her title, a decree for ejectment, recovery of arrears of rent and mesne profits could not have followed.

27. The appeal thus succeeds and is allowed.

28. The impugned judgment and decree are set aside.

29. The suit filed by the respondent / plaintiff, from which this appeal arises, is dismissed. However, owing to the relationship between the parties, I refrain from imposing costs on the respondent / plaintiff.

30. The amounts deposited by the appellant / defendant in this Court together with interest accrued thereon be refunded to the appellant / defendant.

31. The date of 13th August, 2018 before the Registrar General is cancelled.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

AUGUST 01, 2018 'gsr'..