Delhi High Court
M/S. P. G. Sons Huf vs Lalit M. Sharma on 31 January, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st January, 2018
+ CM(M) 65/2016 and CM APPL.2304/2016 (stay)
M/S. P. G. SONS HUF ..... Petitioner
Through: Mr. M.L. Mahajan, Advocate with
Mr. Gaurav Mahajan, Advocate
versus
LALIT M. SHARMA ..... Respondent
Through: Mr. Ajit Nair, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner is the plaintiff of suit (Suit No.45/15) wherein the
respondent is the defendant, the prayer made being for the reliefs in
the nature of decree of possession and mesne profits in respect of
premises in which the defendant admittedly is a tenant. It appears
while resisting the suit, the defendant (the respondent herein) has
taken the position that tenancy was created, not orally but by a lease
agreement dated 10.08.1996 and further that at the time of creation of
the tenancy, security amount of Rs.11,00,000/- had been paid which
needs to be accounted for.
2. The plaintiff had moved an application under Order XII Rule 6
of the Code of Civil Procedure, 1908 (CPC) on 01.08.2015 seeking a
decree on admissions in the pleadings. The said application was
dismissed by the impugned order dated 16.12.2015, the Civil Judge
framing issues by a corresponding short order of the same date, as
under:-
"1.Whether plaintiff is entitled to the decree of
possession and mesne profits, as prayed for? OPP.
2. Whether the lease agreement dated 10.08.19939 (sic)
was executed between the plaintiff and the defendant, if
so, its effect? OPP.
3. Whether the defendant has paid the rent up to date?
OPD?
4. Relief."
3. There is clearly typographical error in the date mentioned in
second issue quoted above.
4. The ground primarily on which the application for judgment on
admissions was declined is that triable issues arise in the suit on which
the defendant would be entitled to demolish the case of the plaintiff
and prove his contentions in accordance with law.
5. The grievance of the petitioner (the plaintiff) is essentially that
the lease agreement to which the defendant refers was neither stamped
nor registered and, therefore, it could not be allowed to be proved in
evidence. Reliance is placed on Deluxe Dentelles Pvt. Ltd. & Anr. vs.
Ishpinder Kochhar, 218 (2015) DLT 645 (DB), and Modern Food
Industries (India) Limited vs. I.K. Malik & Ors., 98 (2002) DLT 593
(DB).
6. The contention on the other side is that the tenancy reflected in
the document in question was for a period of eleven months and,
therefore, there was no need for registration. The defendant asserts the
right to prove that security amount in the sum of Rs.11,00,000/- had
been paid for which he claims opportunity to lead evidence.
7. In the facts and circumstances, this court finds no error in the
view taken by the Civil Judge in so far as declining the application for
judgment on admissions is concerned. But, it is noted that the issues
framed on 16.12.2015 do not properly capture the area of dispute nor
do they appropriately place the burden of proof. The first issue
framed is actually unnecessary since it was inherent in the fourth issue
(relief). The date of the lease agreement referred to in issue No.2 is
apparently erroneous in that it should read "10.08.1996", which is said
to be the date of the document, copy of which has been submitted by
the defendant. Moreover, such issue cannot be a matter of burden of
proof of the plaintiff. It is the defendant who relies on the said
document and, therefore, the onus should have been placed on him.
An additional issue also arises in the context of the claim of the
defendant of having paid the security amount as aforesaid, which must
also be added.
8. In the above facts and circumstances, the petition at hand is
disposed of with directions that the learned Civil Judge shall re-
frame/re-cast the issues, appropriately placing the burden of proof of
all the three crucial issues on the defendant. In the given scenario, it is
the defendant who must begin first by leading evidence to discharge
his onus. The turn of the plaintiff would follow.
9. The learned Civil Judge will take the proceedings further in
light of the above directions. It is hoped and trusted that the trial Judge
will be able to expedite the proceedings.
10. The petition and the applications filed therewith stand disposed
of in above terms.
R.K.GAUBA, J.
JANUARY 31, 2018
vk
