Delhi High Court
Hardeep Kapoor vs Rajesh Verma on 1 August, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 01.08.2022
+ RFA 33/2020 & CM APPL. 1898/2020 -Stay., CM APPL.
17227/2020 -E-hearing/Vac. of Stay/Stay by Res., CM APPL.
10080/2022 -E-hearing/Dir. by Res.
HARDEEP KAPOOR ..... Appellant
Through: Mr.Amar Nath Saini, Adv.
versus
RAJESH VERMA ..... Respondent
Through: Mr.Rohit K Modi, Adv.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The regular first appeal under Section 96, Code of Civil Procedure
seeks to assail the judgment and decree dated 30.11.2019 passed by the
learned Additional District Judge, Rohini Courts, New Delhi in
C.S.No.420/2017. Vide the impugned judgment, the respondent/plaintiff's
suit for possession of the property being, LIG Flat No.QU-4B, First Floor,
Pitampura Delhi-110034, arrears of rent w.e.f., 01.01.2016 along with
interest @7%, has been decreed by the Ld. Trial Court.
2. The common case of the parties is that the suit property was let out by
the respondent in favour of the appellant. While it is the respondent's case
that the appellant was inducted as a tenant pursuant to a rent agreement
dated 08.01.2010 on a monthly rent of Rs. 8,000/-, which rent was
subsequently increased to Rs. 13,000/- per month, exclusive of water and
electricity charges, it is the appellant's case that the rent agreement was an
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
oral agreement with a monthly rent of Rs. 2,000/-. It is the respondent's case
that since the appellant started defaulting in the payment of rent and water
charges w.e.f., 01.01.2016, his tenancy was terminated vide a legal notice
dated 29.11.2016. The respondent, while calling upon the appellant to vacate
the suit property, also demanded a sum of Rs. 1,43,000/- from the appellant
towards arrears of rent for the period between 01.01.2016 to 30.11.2016.
However, since, despite service of the legal notice, the appellant failed to
vacate the suit property, the respondent preferred a suit seeking suit for
possession and permanent injunction along with arrears of rent of Rs.
1,43,000/- and mesne profits @ 15,000/- per month.
3. The appellant defended the suit by filing a written statement, wherein
besides urging that he had regularly paid the monthly rent for the period
between December, 2016 to July, 2017 by depositing the same before the
Ld. Rent Controller, Rohini Courts, New Delhi, it was averred that since the
appellant had paid a sum of Rs. 5,00,000/- as interest free security to the
respondent, the monthly rent between the parties was fixed at Rs. 2,000/-
with a further condition that the tenancy would continue for an indefinite
period and the rate of rent would not be increased in the future. It was the
appellant's further plea that the rent agreement between the parties was oral
and the agreement dated 08.01.2010 was a forged and a fabricated
document.
4. After completion of pleadings, the Ld. Trial Court framed the
following issues-
(i) Whether the suit is without cause of action?OPD
(ii) Whether the suit is barred by Section 50 of the Delhi Rent
Control Act?OPD
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
(iii) Whether the plaintiff is entitled to a decree for possession
asprayed for?OPP
(iv) Whether the plaintiff is entitled to a decree for recovery of
amount on account of rent/ damages/ mesne profits as prayed
for?OPP
(v) Relief.
5. In support of their pleadings, both sides filed their evidence by way
of affidavit. The respondent/plaintiff only examined himself as PW-1 and
similarly, the appellant only examined himself as DW-1.
6. After considering the evidence on record, the Ld. Trial Court decreed
the suit for possession and arrears of rent w.e.f 01.01.2016 along with
interest @7% after holding that the appellant/defendant had neither
specifically denied the rent agreement dated 08.01.2010 nor had produced
any rent receipt in support of his plea that the monthly rent of the suit
property was only Rs. 2,000/-.
7. Being aggrieved, the appellant has preferred the present appeal.
Learned counsel for the appellant submits that the impugned judgment is
wholly perverse and is liable to be set aside as the execution of the rent
agreement dated 08.01.2010, was itself, in the first place, never admitted by
the appellant/tenant as presumed by the Ld. Trial Court and the same was
specifically denied by the appellant. He submits that this erroneous
presumption by the Ld. Trial Court, is in itself, sufficient to set aside the
impugned judgment, which is based on a misappreciation of facts. He
further submits that the appellant's plea throughout was that he was a tenant
in the suit property on the basis of an oral tenancy @ Rs.2,000/- per month,
which he claims was fixed, taking into account the fact that the appellant
was required to spend a huge sum of Rs.8 lakhs towards renovation of the
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
tenanted premises, which was in a dilapidated stage, when the appellant
entered into possession thereof in January, 2010.
8. In support of his plea, he draws my attention to the stand taken by the
appellant in para 2 of its written statement wherein it has been averred that
the appellant had been duly paying the monthly rent of Rs. 2,000/- as
agreed between the parties. He submits that once the appellant had denied
the execution of the rent agreement, the onus to prove the same was always
on the respondent, which he failed to discharge as is evident from the
evidence lead by the respondents. In support of his plea, he seeks to place
reliance on a decision of the Apex Court in A. Subramanian and Anr. Vs.
R. Pannerselvam (2021) 3 SCC 675.
9. Mr. Saini, learned counsel for the appellant finally submits that the
Ld. Trial Court has also failed to appreciate that in the present case, there
was no clear unequivocal admission by the appellant regarding the rent
agreement which was a pre-requisite for allowing the respondent's claim
regarding the tenancy being governed by the agreement dated 08.01.2010.
He submits that once the appellant had not admitted the rent agreement or
the factum of the monthly rent being Rs. 13,000/- per month, the Ld. Trial
Court failed to appreciate that a decree of possession could not have been
passed till the respondent/landlord was able to prove the said agreement. In
support of his plea, he seeks to place reliance on the decision of a Co-
ordinate Bench of this Court in Ashok Kumar Bagga vs. Rajvinder Kaur
(2021) SCC OnLine Del 2785. He, therefore, prays that the appeal be
allowed.
10. On the other hand, learned counsel for the respondent, while
supporting the impugned judgment submits that the appellant has not only
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
tried to raise a bogus plea of an oral tenancy with a monthly rent of Rs.
2,000/-, but is also, unauthorizedly, occupying the premises owned by the
respondent, who is a medical professional, and that too without paying any
rent whatsoever for the last almost 7 years. He submits that once it became
evident from the cross-examination of appellant that his denial of the rent
agreement was vague and on the other hand, his plea of an oral agreement
with a monthly rent of Rs. 2,000/- was on the face of it, false during his
cross-examination, the Ld. Trial Court was justified in passing the impugned
judgment.
11. He submits that the falsity of the appellant's stand is also evident from
the contradictory stands being taken by him before this Court vis-a-vis the
stand taken by him before the Ld. Trial Court. While before this Court, the
appellant has sought to claim that the rent was fixed at a meagre amount of
Rs. 2,000/- per month as he had spent Rs.8 lakhs on the renovation of the
suit property, no such plea was, however taken before the Ld. Trial Court,
where he had instead stated that he had paid a sum of Rs.5 lakhs as interest
free security to the respondent, which plea he was not able to prove. He,
therefore, prays that the appeals be dismissed with costs.
12. Before dealing with the rival submissions of the parties, it would be
apposite to refer to the findings of the Ld. Trial Court. The relevant extracts
of the impugned judgment read as under-
8. Plaintiff has examined himself as PW 1 in order to prove his
case and tendered his affidavit, of evidence as Ex.PW 1/A and
relied upon:
Ex. PW 1/1 : Site plan
Ex.PW 1/ 2 (OSR): Rent Agreement dt.08.01.2010.
Ex.PW 1/ 3 : Water bill receipt dt. 16.07.2010.
Ex. PW 1/ 4 : Water bill receipt dt. 05.07.2016.
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
Ex.PW 1/5 : Legal notice dt. 29.11.2016
Ex.PW 1/ 6 : Reply dt. 07.12.2016
9. Defendants have also examined himself as DW 1 and tendered
his affidavit of evidence as Ex. DW 1/ A and replied upon :
Ex. DW 1/1: Not part of record
Ex. DW 1/2: Delhi Jal Board Receipt dt. 26.05.2017
Ex. DW 1/ 3: Original electricity bill dt. 26.05.2017
Ex. DW 1/ 4A to Ex. DW 1/4H : copies of bills/ invoice of
material.
10. I have heard Ld. Counsel for plaintiff and defendant and
carefully perused the record in light of submissions made before
me.
11. My issue wise findings are as under;
ISSUE NO. 3 and 4 :
(3) Whether the plaintiff is entitled to a decree for possession as
prayed for?OPP
(4) Whether the plaintiff is entitled to a decree for recovery of
amount on account of rent/ damages/ mesne profits as prayed
for? OPP
The onus of aforesaid two issues is upon the plaintiff. Since both
these issues are inter-related, these are taken together.
12. The plaintiff has placed on record rent agreement Ex. PW1/2
executed between the parties. Plaintiff has placed on record site
plan Ex.PW 1/1 to show the portion of suit property let out to the
defendant. Further, defendant has no where denied Ex.PW / 2 as
well as his tenancy under the landlordship of plaintiff. It is
contended by the plaintiff that defendant is not paying rent since
01.01.2016 and there is also a dispute with regard to the amount
of rent. He had issued legal notice in order to call off tenant and
landlord relationship and to pay the arrears of rent. It is also
admitted by the defendant (DW 1) in his cross examination that he
is residing in the suit premises since 14.01.2010.
13. As per the provisions of law, in a suit for possession filed by
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
the land lord against the tenant what is to be required by the
plaintiff is that:-
1)There is relationship of landlord and tenant between the parties.
2)Rate of rent should be more then Rs.3500/- per month.
3)And the termination of the tenancy either by efflux of time or by
notice served by the landlord under Section 106 of the Transfer of
Property Act.
14. In view of above discussion, all the aforesaid three conditions
are satisfied. Hence, both the aforesaid issues are decided in
favour of plaintiff and against the defendant.
Whether the suit Is barred by Section 50 of the Delhi Rent
Control Act?OPD
The onus of this issue is upon the defendant.
15 The defendant could not produce the rent receipts on record.
Though the defendant has averred in his written statement that he
has paid the rent w.e.f. December 2016 to July 2017 but he has
also not placed on record any receipt or Demand Draft with
respect to payment of rent to the plaintiff or before Rent
Controller Rohini Courts.
16 Plaintiff has placed on record rent agreement Ex. PW 1/ 2 to
show that agreed rent between the plaintiff and the defendant was
Rs.8,000/- and the same has not been rebutted by the defendant
through any cogent evidence. Defendant has also failed to produce
the rent receipts issued by the plaintiff in order to prove his
version of payment of rent which reflects that defendant
has taken a false plea. Hence, plaintiff is able to establish that rate
of rent was more than Rs.3500/-. So, this issue is also decided in
favour of plaintiff and against the defendant.
Whether the suit is without cause of action?OPD
The onus of this issue was also upon the defendant.
17. Detailed discussion of aforesaid issues established that cause
of action had been arisen and the Issues No. 2, 3 and 4 are
decided in favour of plaintiff, hence, this issue is also decided in
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
favour of plaintiff.
13. Having noted the relevant extracts of the impugned judgment, I may
now deal with the rival submissions of the parties.
14. Learned counsel for the appellant has vehemently urged that once the
respondent/landlord was not able to prove the rent agreement by producing
any other witness except himself, the Ld. Trial Court could not have
accepted the rent agreement. He has further contended that while holding
that the rent agreement was not disputed by the appellant, the Ld. Trial
Court has committed a grave error and has failed to take into account the
specific averments made by the appellant in its written statement as also in
its evidence.
15. In order to appreciate this plea, it is required to be noted that while the
respondent had produced the rent agreement dated 08.01.2010 in support of
its claim regarding the tenancy and the monthly rate of rent, the appellant
had taken a bald plea of there being an oral tenancy for a monthly rent of Rs.
2,000/- as also a similarly bald plea of having paid Rs. 5,00,000/- as interest
free security to the respondent. Once such bald plea regarding oral tenancy
is taken, it would be necessary to refer to the cross examination of the
appellant, who was the sole witness examined by the appellant/defendant.
The relevant extracts of the said cross-examination read as under:-
"DW-1
Statement of Sh. Hardeep Kapoor ( Recalled for further
crossexamination in continuation to his statement recorded on
25.05.2018)
ON S.A. :
XXXX by Shri R.K, Modi, Ld, counsel for the plaintiff
Today, I have brought ITRs for the financial year 2016-17 and 2017-
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
2018 only. I could not trace the other ITRs for the FY 2008-09 and
2009- 2010, It is wrong to suggest that I have not brought the ITRs
for the FY 2008-09 and 2009-2010 deliberately. I had not taken any
permission/NOC from the plaintiff while applying for the Aadhaar
card and Election card. The plaintiff is a doctor. I did not know the
plaintiff prior to taking premises on rent from him. I was introduced
to the plaintiff through one dealer whose name I do not remember,
but he used to have his office in Pitampura, near CU or PL) Block. I
do not remember that the name of the dealer was Ramesh Kumar
Mitra or he used to have his office at PU -39, Pitam Pura, Delhi;
M/s Guruteg Handloom does not belong to me. (Vol. It belongs to my
brother in law(saadu) I am having one counter in M/s Guruteg
Handloom.
It is wrong to suggest that the contents of para 5 to 8 and 11 to 14 of
my evidence Ex. DW1/A are incorrect.
I have not shown the rent in respect of the suit premises in my ITRs.
It is correct that 1 have no rent agreement of Rs.2,000/- per month in
respect of the suit premises.
It is correct that I have not placed on record any receipt of Rs.5 lacs
in the present case or any other case. It is wrong to suggest that I
have not filed any receipt of Rs.5 lacs as I have not paid the said
amount to the plaintiff. It is wrong to suggest that I have not paid
Rs.5 lacs as security to the plaintiff.
It is correct that the name of Sanjeev Mittal is not referred anywhere
in the present case or in the other cases between me and the plaintiff,
It is wrong to suggest that I have not mentioned the name of Sh.
Sanjeev Mittal anywhere as nothing had happened in his presence.
Sh. Sanjeev Mittal is my former landlord of the property in Budh
Vihar.
I vacated my previous tenanted flat (WP-218, Pitampura ) as I
resided there for three consecutive years.. It is wrong to suggest that
the tenancy of the suit premises was not for indefinite period. It is
correct ' that I had not sent the rent @ Rs.13,000/- per month to the
plaintiff since 01.11.2016.
It is correct that I have not filed any reply to the objections filed-by
the plaintiff in my DR petitions. It is correct that I have not filed any
document to prove that the rent of the suit premises was Rs.2,000/-
per month. It is wrong to suggest that document Ex. PW1/2 bears my
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
signatures at point A, B, C and D.
I had not sought any written permission from the plaintiff for
carrying out renovation work at suit premises, I have not placed on
record any document to show that the suit premises was in bad
condition and needed renovation. It is wrong to suggest that the
bills/invoices EX.DW-1/4A to H are forged and fabricated one. It is
wrong to suggest that I have not carried out any renovation in the
suit premises. It is correct that prior to 29.11.2016 I had not
demanded in writing any expenses on account of alleged renovation
in the suit premises.
I do not have any rent receipt for a sum of Rs. 2,000/-. It is correct
that i have not paid rent @ Rs.13,000/- per month since 1.1.2016 in
respect of the suit premises. It is wrong to suggest that contents of
reply dated 7.12.2016 are false.
It is wrong to suggest that the suit mentioned in para 8 of my
affidavit was filed on incorrect facts.
It is wrong to suggest that I am deposing falsely.
RO&AC"
16. A bare perusal of the aforesaid cross-examination of the appellant
shows that the appellant, while trying to deny the existence of the rent
agreement, had categorically admitted that no such entry regarding the
monthly rent of Rs. 2,000/- or of the purported payment of Rs. 5,00,000/-
was shown in his income tax returns, which were being regularly filed.
Even today, the appellant has no justification as to why these amounts, if
correct, were not reflected in his income tax return. The appellant also could
not produce any receipt regarding the so called renovation carried out by
him. On the other hand, the admission by the appellant that he had no prior
existing relationship with the respondent/landlord coupled with his
admission that he was earlier staying in a similar premises as the suit
property where he was paying much higher rent, in itself, shows that the
appellant was just taking a bald plea of the rent being Rs. 2,000/- in order to
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
somehow continue to stay in the suit property and that too without paying
any rent to the respondent. In my considered opinion, the learned Trial Court
has, therefore, rightly appreciated the true effect of the appellant's cross-
examination and has rightly held that the rent agreement was admitted by
the appellant. The Ld. Trial Court was justified in rejecting the appellant's
evasive denial regarding the rent agreement as also his bogus plea of the rent
of the suit property being Rs.2,000/- per month and of the tenancy being for
an indefinite period.
17. Since learned counsel for the appellant has heavily relied on the cross-
examination of the respondent/PW-1, it would be apposite to refer to the
same, which cross-examination, in my view, further supports the claim
preferred by the respondent/plaintiff. The relevant extracts thereof, read as
under:-
PW 1 : Statement of Sh. Rajesh Verma ( recalled for cross
examination in continuation of dated 12.03.2018 )
On S.A.
XXXXX By Sh. Manish Sharma, Ld. Counsel for defendant.
I had purchased the suit property in the year 2003-04. I had let out the
property to the defendant in the year 2010. Prior to the defendant, my
sister was residing in the suit property. The rent agreement Ex.PW 1/2
which is placed on record was executed in Pitampura. At the time of
execution of the rent agreement, I and the defendant and Mr. Ramesh
Chander were present. I do not remember whether defendant had
signed in any register of Notary or
not. It is wrong to suggest that the defendant was not present at the
time of execution of the said rent agreement. Initially, the rate of I rent
was Rs.8000/- per month with increased gradually and lastly the
defendant paid the rent at the rate of Rs.13000/- per month. The
defendant used to bring printed paper and I got it signed after
receiving the rent from the defendant. On the said printed paper, it
was written as rent received for this month and amount. I have no
record which prove that the rate of rent was Rs.13000/-. It is wrong to
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
suggest that I am deposing falsely in this regard.
I have not shown the rental income of the suit property in my ITRs.
Earlier rent was increased @ of 10 % every year and lastly the rent
was fixed in lumpsum at Rs.13000/- per month. I had requested
defendant to pay the rent through cheque but the defendant replied
that he cannot give the rent through cheque as he is not having any
bank account. Defendant has paid rent upto 31.12.2015. I had lastly
visited the suit property in the month of September, 2016.
It is wrong to suggest that the defendant used to maintain the suit
property of his own. No fresh rent agreement was executed after the
expiry of the first rent agreement as everything was going on well and
the defendant was paying the rent regularly. It is wrong to suggest
that no rent agreement was ever executed between me and the
defendant. It is wrong to suggest that the defendant deposited Rs.5
Lakh as security with me. It is wrong to suggest that rate of rent was
Rs.2000/- per month and the tenancy was for indefinite period.
I do not know whether the defendant renovated the suit property or
not. Voltd. For renovation, no permission was taken by the defendant
from me. It is wrong to suggest that defendant took the permission
from me and then renovated the suit property. It is also wrong to
suggest that I promised to the defendant that I will reimburse the
amount spent on renovation. Earlier, I did not issue the legal notice to
the defendant for paying the rent. Voltd. As the defendant made
excuses to vacate the property in one or two months and settle the
dues. It is wrong to suggest that the defendant completed renovation
of the suit property in October 2016. It is wrong to suggest that I
issued a legal notice to the defendant only after October 2016 for
grabbing the amount spent by the defendant on renovation.
I received summons of injunction suit which was filed by defendant. It
is wrong to suggest that I filed the present suit to grab the alleged
security of Rs.5 lakh and the alleged amount spent on renovation. It is
wrong to suggest that I am deposing falsely.
18. This cross examination of the respondent, in fact clearly shows that
the respondent had not only duly proved the rent agreement but also proved
that despite the tenancy being terminated, the appellant had failed to hand
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
over possession of the suit property. I have also considered the decision in
A. Subramanian (supra) and Ashok Kumar Bagga (supra), relied upon by
the appellant and find that the same, do not forward the case of the appellant
in any manner. Once the learned Trial Court, after considering the cross-
examination of the appellant, came to a conclusion that the rent agreement
stood admitted by the appellant, it was justified in relying on the said
agreement. It is a settled legal position that a vague and evasive denial is no
denial and therefore, I have no hesitation in concurring with the finding of
the Ld. Trial Court that the rent agreement was admitted by the appellant. In
the present case, not only was the relationship between landlord-tenant and
the execution of the agreement dated 08.01.2010 duly proved but the
appellant has himself admitted that he had not been paying the monthly rent
of Rs. 13,000/- w.e.f. 01.11.2016.
19. For the aforesaid reasons, I find no infirmity with the impugned
judgment. The appeal, being meritless, along with pending applications is
dismissed with costs of Rs.50,000/- payable to the respondent.
(REKHA PALLI)
JUDGE
AUGUST 1, 2022
sr
Signature Not Verified
By:GARIMA MADAN
Signing Date:02.08.2022
16:58:33
