Delhi High Court
Brij Mohan Rasiwasia vs Butna Devi on 31 October, 2022
Neutral Citation Number : 2022/DHC/004491
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on 11.10.2022
Pronounced on 31.10.2022
+ RFA 1072/2019 and CM APPL. 54341/2019 (Stay)
BRIJ MOHAN RASIWASIA ..... Appellant
Through: Mr. G.P. Thareja and Ms.
Gaganpreet Chawla, Advs.
Versus
BUTNA DEVI ..... Respondent
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
31.10.2022
Facts
1. This first appeal, under Section 96 of the Code of Civil
Procedure, 1908 (CPC), challenges the judgment dated 14th October
2019, passed by the learned Additional District Judge (―the learned
ADJ‖) in CS 15690/16 (Smt. Butna Devi v. Shri Brij Mohan). The
appellant was the defendant in the said suit and the respondent was the
plaintiff.
The Plaint
2. The respondent, vide CS 15690/16, sought recovery of
possession, from the appellant, of the first floor of Property No.
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XV/8929, Gali No. l, Multani Dhanda, Paharganj, Delhi (―the tenanted
premises‖, hereinafter), alongwith arrears of rent @ ₹ 20,000/- per
month and mesne profits.
3. The respondent claimed to be the owner of the first and second
floors of the afore-noted property No. XV/8929, Gali No. l, Multani
Dhanda, Paharganj, Delhi (―the suit property‖, hereinafter), having
purchased the property from Kuldeep Kaur and Sanjeev Kumar vide
Sale Deed dated 23rd March 2019. The plaint averred that the
appellant Brij Mohan Rasiwasia was the tenant of Kuldeep Kaur and
Sanjeev Kumar and that, after selling the suit property to the
respondent, Kuldeep Kaur and Sanjeev Kumar had informed the
appellant of the said sale and requested him to pay rent, thereafter, to
the respondent. The respondent also claimed to have requested the
appellant to pay rent to her, after April 2009.
4. The appellant was said to be a tenant in respect of the first floor
of the suit property, where he was engaged in the business of
manufacture and sale of plywood.
5. The plaint averred that the appellant was in default of rent on
and after April 2009. It was averred that the tenancy was on month-
to-month basis, @ ₹ 50,000/- per month. As such, the plaint averred
that the appellant was liable to pay rent, to the respondent, @ ₹
50,000/- per month for the period April 2009 till 31 st December 2012
which totaled to ₹ 22,50,000/-.
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6. The respondent claimed to have issued a legal notice to the
appellant on 10th December 2012, calling on the appellant to vacate
the suit property and disgorge the arrears of rent due to the respondent.
The appellant, vide reply dated 26th December 2012, denied any
liability in this regard.
7. It was in these circumstances that the respondent instituted the
afore-mentioned CS 15690/16, seeking recovery of possession, from
the appellant, of the suit property, along with arrears of rent and mesne
profits.
Written statement by the appellant
8. The appellant, in his written statement, by way of response to
the suit, denied the existence of any relationship of landlord and tenant
between the respondent and himself. The written statement alleged
that the tenanted premises were let out by Sneh Sharma to M/s
Rasiwasia Marble & Granite Industries Pvt Ltd (―RMGIPL‖,
hereinafter), which was the tenant in respect thereof, since 1984-1985.
Sneh Sharma, therefore, was the landlord, according to the written
statement, and RMGIPL was the tenant. The appellant was,
undisputedly, a Director in RMGIPL.
9. The appellant, in the written statement, also professed ignorance
of Kuldeep Kaur and Sanjeev Kumar whom he claimed never to have
met. The written statement also denied any knowledge of sale, by
Sneh Sharma, of the suit property to the respondent. It was
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specifically averred that no rent had been claimed, from the appellant,
in respect of the suit property, by Kuldeep Kaur or Sanjeev Kumar.
Insofar as the respondent was concerned, the written statement averred
that the respondent never informed the appellant that she was the
owner of the tenanted premises and that it was for the first time, vide
the eviction notice dated 10th December 2012, that the respondent
sought to contend that she had purchased the suit property. The
appellant disputed the factum of such purchase and asserted that,
insofar as he or RMGIPL were concerned, the landlord in respect of
the tenanted premises was Sneh Sharma and not the respondent.
10. The appellant claimed that, since 1984-1985, rent @ ₹ 1,400/-
per month had been regularly paid to Sneh Sharma and rent receipts,
in the name of RMGIPL, were issued, periodically by Sneh Sharma,
copies of which were filed with the written statement.
11. With effect from October 2008, however, alleged the written
statement, Sneh Sharma refused to accept rent from the appellant,
resulting in rent, for the period July 2008 to March 2009 and, later
again, July 2008 to August 2009 being sent by the appellant to Sneh
Sharma under separate cheques, on 20th March 2009 and 22nd July
2009, which were never encashed by Sneh Sharma.
12. In these circumstances, the written statement averred that
RMGIPL was constrained to file DR 185/09 (Rasiwasia Marble &
Granite Industries (P) Ltd v. Sneh Sharma) under Section 27(1) of
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the Delhi Rent Control Act, 19581 (―the DRC Act‖) for permission to
deposit the rent, in respect of the tenanted premises, in Court. In the
said proceedings, a Counsel appeared on behalf of Sneh Sharma on
23rd October 2009, and submitted that Sneh Sharma had sold the suit
property. On his request, an adjournment was granted to the said
Counsel to provide details in respect of the said sale. However,
thereafter, there was no appearance on behalf of Sneh Sharma.
Resultantly, on 4th December 2009, DR 185/09 was allowed by the
learned Additional Rent Controller (―the learned ARC‖) as under:
―Present: Counsel for the petitioner.
None for the respondent.
The respondent has been served with the notice of the
DR application on 04.09.09 and the objections have not been
filed till date. Although, on 23.10.09, Sh. Rakesh Patiyal,
Counsel for the respondent had appeared and stated that the
respondent has sold the property and he sought a short date to
give complete particular of the subsequent purchaser. On the
next date i.e. 20.11.09, none appeared for the respondent. The
Counsel for the petitioner submits that he has not been
supplied with the complete particular as to whom the
respondent has allegedly sold the suit premises.
In view of above, as the respondent has not filed the
objections till date and 30 days time for filing the objections
have been expired hence, the present DR application is
allowed. Without prejudice to her rights and contentions, she
1
27. Payment of rent during eviction proceedings. -
(1) If, in any proceeding for the recovery of possession of any premises on any ground other
than that referred to in clause (a) of sub- section (2) of section 22, the tenant contests the claim for
eviction, the landlord may, at any stage of the proceeding, make an application to the Rent
Authority for an order on the tenant to pay to the landlord the amount of rent legally recoverable
from the tenant and the Rent Authority may, after giving the parties an opportunity of being heard,
make an order directing the tenant to pay to the landlord or deposit with the Rent Authority within
one month of the date of the order, an amount calculated at the rate of rent at which it was last paid
for the period for which the arrears of the rent were legally recoverable from the tenant including
the period subsequent thereto up to the end of the month previous to that in which payment or
deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each
succeeding month, a sum equivalent to the rent at that rate.
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may withdraw the rent as per law.
File be consigned to record room.‖
13. This order was never challenged, and attained finality.
14. The appellant claimed, in his written statement, to have, even
after passing of the aforesaid order, sent a notice to Sneh Sharma on
25th April 2011, requiring for information as to whether the suit
property had, in fact, been sold and, if so, the details of the purchaser
thereof. The said communication did not elicit any response.
15. On 10th May 2011, the appellant claimed, in his written
statement, to have disbursed the rent, in respect of the tenanted
premises, for the period September 2009 till April 2011, under six
Money Orders. The postal authorities confirmed, on 6th June 2011,
that Sneh Sharma had received the Money Orders on 12th May 2011.
16. Thereafter, on 10th December 2012, the appellant sent a cheque,
in respect of tenanted premises, to Sneh Sharma, covering the period
July 2011 till April 2012. Thus, averred the written statement, rent in
respect of the tenanted premises stood paid by RMGIPL till April
2012.
17. In these circumstances, the written statement averred that the
suit instituted by the respondent was completely bereft of merit. It
was averred that the respondent had no cause of action against the
appellant, as there was no relationship of landlord and the tenant
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between them. It was claimed that the respondent had never claimed
any rent from the appellant at any point of time till the issuance of the
eviction notice on 10th December 2012. RMGIPL, which was the
actual tenant, had paid rent in respect of the tenanted premises till
April 2012 and there was no default in that regard. Payment was
made in terms of the order dated 4th December 2009 of the learned
ARC in DR 185/09, which had attained finality.
18. The appellant also questioned the maintainability of the suit,
invoking, for the purposes, Section 502 read with Clause (c) of Section
33 of the DRC Act, as the rent in respect of the tenanted premises was
less than ₹ 3,500/- per month. It was submitted that the respondent
had artificially inflated the rent payable in respect of the tenanted
premises to ₹ 50,000/- per month, with no evidence, whatsoever, of
any lawful increase of the rent to the said figure, merely to escape the
2
50. Jurisdiction of civil courts barred in respect of certain matters. -
(1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or
proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which
this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is
empowered by or under this Act to decide, and no injunction in respect of any action taken or to be
taken by the Controller under this Act shall be granted by any civil court or other authority.
(2) If, immediately before the commencement of this Act, there is any suit or proceeding
pending in any civil court for the eviction of any tenant from any premises to which this Act applies
and the construction of which has been completed after the 1st day of June, 1951, but before the 9th
day of June, 1955, such suit or proceeding shall, on such commencement, abate.
(3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after
the 16th day of August, 1958, from any premises to which this Act applies and the construction of
which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955,
then, notwithstanding anything contained in any other law, the Controller may, on an application
made to him in this behalf by such evicted tenant within six months from the date of eviction, direct
the landlord to put the tenant in possession of the premises or to pay him such compensation as the
Controller thinks fit.
(4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining
any suit or proceeding for the decision of any question of title to any premises to which this Act
applies or any question as to the person or persons who are entitled to receive the rent of such
premises.
3
3. Act not to apply to certain premises. - Nothing in this Act shall apply:--
*****
(c) to any premises, whether residential or not, whose monthly rent exceeds three thousand
and five hundred rupees;
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rigour of the DRC Act.
19. In these circumstances, the appellant prayed, vide the written
statement, that the suit be dismissed.
Issues
20. Consequent to completion of pleadings, the following issues
were framed by the learned ADJ on 9th April 2014:
―1. Whether the plaintiff is entitled to the possession of
suit property/tenanted premises, as per prayer (a)? OPP
2. Whether the plaintiff is entitled to decree of arrears of
rent, along with interest, of the tenanted premises, as per
prayer (b) & (d), if so, at what rate for what period? OPP
3. Whether the plaintiff is entitled to decree of future
rent/damages/mesne profits along with interest, in respect of
the suit premises, as per prayer (c) & (d), if so, at what rate
for what period? OPP
4. Whether the defendant is not the tenant of the
plaintiff? OPD
5. Whether the suit is bad for non-joinder and mis-joinder
of necessary parties? OPD
6. Whether the suit is barred u/s 50 of DRC Act? OPD
7. Relief.‖
Evidence
21. One witness, each, was led by the parties. The respondent led
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the evidence only of her son Laxman Singh as PW-1 and exhibited
five documents Ex. PW-1/1 to Ex. PW-1/5. The appellant, too, led his
own evidence as DW-1 and relied upon documents Ex. DW-1/1 to Ex.
DW-1/53.
PW-1 Laxman Singh
22. PW-1 Laxman Singh tendered his evidence by way of affidavit
dated 4th July 2014, which was, more or less, a verbatim reproduction
of the plaint. He exhibited, during the recording of his examination-
in-chief, (i) the original Special Power of Attorney dated 21st February
2014, original registered Sale Deed dated 18th July 2008 and original
registered Sale Deed along with site plan dated 23rd March 2009, as
Ex. PW-1/1 to Ex. PW-1/3, to illustrate how the respondent came into
ownership of the suit property and the tenanted premises, (ii) the legal
notice dated 10th December 2012 along with proof of receipt thereof as
Ex. PW-1/4 and (iii) the reply, dated 26th December 2012, of the
appellant to the said legal notice as Ex. PW-1/5.
23. PW-1 was cross-examined on 5th April 2017. He denied the
suggestion that the appellant was not the tenant of Kuldeep Kaur and
Sanjeev Kumar or that RMGIPL was the tenant of Sneh Sharma. He
further asserted that Kuldeep Kaur and Sanjeev Kumar had orally
intimated the appellant that the suit property had been sold to the
respondent, though he acknowledged that he was not in a position to
inform the specific date of such intimation. He further asserted that
the respondent had sent a letter of attornment to the appellant, prior to
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the legal notice dated 10th December 2012, and undertook to produce
the said letter, if so required. The suggestion, by the appellant, to the
effect that no such letter of attornment had been issued by the
respondent to the appellant was denied. He admitted that he had no
knowledge of the existence of any document reflecting the rate of rent,
payable in respect of the tenanted premises, as ₹ 50,000/- per month.
He also disclaimed any knowledge of issuance of any letter of
attornment or demand of rent by Kuldeep Kaur and Sanjeev Kumar to
the appellant. He denied the suggestion that the rent, payable in
respect of tenanted premises, was ₹ 1,400/- per month or that Sneh
Sharma had paid rent at that rate.
DW-1 - the appellant Brij Mohan Rasiwasia
24. The appellant, as DW-1, also tendered his evidence by way of
affidavit dated 26th October 2018 (Ex. DW-1/A). As in the case of
PW-1, the affidavit of evidence of the appellant, as DW-1, broadly
reiterated the written statement tendered by him by way of response to
the suit. However, the affidavit in evidence enclosed (i) periodical
rent receipts issued by Sneh Sharma as Ex. DW-1/1 to Ex. DW-1/10,
(ii) notice dated 20th March 2009, whereunder a cheque for the period
July 2008 to May 2009 were sent by the appellant to Sneh Sharma,
along with postal receipt and AD card thereof as Ex. DW-1/11 to Ex.
DW-1/13, (iii) certified copies of DR 185/09 and the order dated 4th
December 2009 passed by the learned ARC thereon as Ex. DW-1/14
and Ex. DW-1/15, along with rent deposit receipts filed with the
permission of the Court as Ex. DW-1/16, (iv) notices dated 8th March
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2010 and 25th April 2011, along with their postal receipts and AD
card, as Ex. DW-1/17 to Ex. DW-1/23, and (v) two money orders
dated 1st April 2010 and six further money orders dated 10th May
2011, alongwith confirmation by the postal orders and delivery thereof
as Ex. DW-1/24 to Ex. DW-1/37, apart from various other
communications addressed to Sneh Sharma along with their postal
receipts and their AD cards.
25. DW-1 was cross-examined on 5th February 2019. He asserted
that Sneh Sharma was the landlady of the tenanted premises, but also
stated that he was the tenant in respect thereof since 1984. He asserted
that the rate of rent payable in respect of the tenanted premises was ₹
1,400/- per month as per Rent Agreement executed between RMGIPL
and Sneh Sharma. He denied the suggestion that Sneh Sharma had
ever informed that she had sold the tenanted premises to Kuldeep
Kaur and Sanjeev Kumar. He reiterated that, till 2010, he had paid
rent to Sneh Sharma by post as well as by way of deposit in the Court.
He went on to clarify, voluntarily, that the tenant, in respect of the suit
property, was RMGIPL. He denied the allegation that the rent receipts
Ex. DW-1/1 to Ex. DW-1/10 were forged or fabricated.
The Impugned judgment
26. Consequent to closure of evidence and hearing of arguments,
the learned ADJ proceeded, vide the impugned judgment dated 14th
October 2019, to decree the suit in favour of the respondent and
against the appellant.
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By:SUNIL SINGH NEGI
Signing Date:31.10.2022
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27. Addressing, first, Issues (i), (iv) and (vi), the learned ADJ
commences his findings, in para 17 of the impugned judgment, by
stating that the appellant was ―admittedly a tenant, occupying the suit
property since 1984-1985‖, and that the tenancy of the appellant
commenced under the land-lordship of Sneh Sharma.
28. The impugned judgment goes on to acknowledge, in paras 18
and 19, that the respondent did not adduce any evidence to the effect
that, by 11th August 2009, when DR 185/09 was filed by the appellant
before the learned ARC, the appellant had been notified either by the
respondent or by Kuldeep Kaur, Sanjeev Kumar or Sneh Sharma that
the suit property had changed hands, or that the appellant was required
to pay rent to a new owner/landlord. As such, the impugned
judgment, in para 18, holds that the appellant was justified in
instituting DR 185/09 under Section 27 of the DRC Act against Sneh
Sharma. The impugned judgment goes on to note that, pursuant to
failure, on the part of the Sneh Sharma, to defend the said application,
the learned ARC, vide order dated 4th December 2009 (Ex. DW-1/15),
permitted the appellant to deposit rent @ ₹1,400/- per month with the
Court.
29. Inasmuch as there was no material to indicate that, prior to the
eviction notice dated 10th December 2012, the respondent had ever
intimated the appellant of the fact that she was the owner of the
tenanted premises, the impugned judgment reckons the date of
intimation by the respondent to the appellant of the said fact as 10 th
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December 2012.
30. Having so noted, the learned ADJ proceeds to hold thus, in
paras 21 to 27 of the impugned judgment:
―21. Defendant replied to the notice dated 10/12/2012
through his reply notice dated 26/12/2012, Ex. PW1/5, vide
which he refused to acknowledge the plaintiff as his landlord
and owner of the suit premises. At this very stage, the
intention of the defendant can be concluded to have become
dishonest. Defendant could have contested the rate of rent
claimed by the plaintiff through notice Ex. PWl/4 but he had
no occasion to deny the land-lordship of the plaintiff.
Defendant wrongly kept harping upon the order dated
04/12/2009, Ex. DWl/15, passed by Ld. ARC, Delhi, that
permitted him to deposit rent / arrears of rent @ Rs. 1,400/-
p.m.; the said order was passed in proceedings of summary
nature, not on merits. It had limited scope of permitting the
applicant (defendant herein) to deposit rent in the court, that
could be withdrawn by the landlord without prejudice to his
claim in respect of tenanted premises. Order dated
04/12/2009, Ex. DWl/15, clarified that it was passed against
Mrs. Sneh Sharma without prejudice to her rights and
contentions.
22. Upon receipt of notice dated 10/12/2012, Ex. PWl/4,
the defendant neither offered to pay rent to the plaintiff nor
enjoined her to disclose the title documents in respect of suit
premises. It reflected that intention of the defendant was only
to take dishonest advantage of the order dated 04/12/2009 of
Ld. ARC (Central), Delhi. Since order dated 04/12/2009 of
Ld. ARC was not passed on merits, and was without prejudice
to the rights and contentions of the purported landlady Mrs.
Sneh Sharma, it is not in itself a proof that rate of rent of the
suit premises was Rs. 1,400/- p.m.
23. There is no evidence that Mrs. Sneh Sharma withdrew
the rent deposited by defendant in the court in pursuance of
order dated 04/12/2009, Ex. DWl/15. In order to prove the
rate of rent, the defendant relied upon rent receipts Ex. DWl/1
to Ex. DW1/10. Plaintiff cross examined DWl in reference to
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the rent receipts Ex. DWl/1 to Ex. DWl/10. Plaintiff disputed
the genuineness of the rent receipts on several grounds. The
first ground was that defendant did not cross examine PW1
Laxman Singh in reference to the rent receipts Ex. DWl/1 to
Ex. DWl/10 and deprived him of the opportunity to explain.
Secondly, only one rent receipt - Ex. DWl/1, bears the date of
issue, whereas, all other receipts are undated. Moreover, none
of the receipts bear serial number, reflecting that they are not
part of a bounded receipt book. The receipts bear purported
signature of issuer Mrs. Sneh Sharma but she was not
summoned as a witness by the defendant to prove the receipts.
The receipts refer to periodical payment of rent made by
cheques to Mrs. Sneh Sharma for the period January, 2004 to
June, 2008, but bank statement was not furnished to prove
that Mrs. Sneh Sharma actually got the cheques encashed. The
receipts Ex. DWl/1 to Ex. DWl/10 remained suspicious and
unproved.
24. Plaintiff proved that Mrs. Sneh Sharma sold the suit
property vide Sale Deed dated 18/07/2008, Ex. PWl/2 to Smt.
Kuldeep Kaur and Sh. Sanjeev Kumar, who, in turn, sold it to
the plaintiff vide Sale Deed dated 23/03/2009, Ex. PWl/3. The
defendant cannot use the notices and money orders sent to
Mrs. Sneh Sharma after 18/07/2008 (Ex. DWl/17 to Ex.
DWl/52) to any advantage against the plaintiff, simply
because Mrs. Sneh Sharma lost all right, title and interest in
the suit property upon executing the Sale Deed dated
18/07/2008, Ex. PWl/2; she had no right to accept rent from
the defendant after 18/07/2008. In essence, the defendant
failed to prove that the rate of rent of suit promises was Rs.
1,400/- per month.
25. The defendant is in occupation of first floor of the suit
property, measuring 75 sqr. yards, that he uses for commercial
purpose. The suit property is situated in Central Delhi area of
Multani Dhanda, Pahar Ganj, Delhi. Although, plaintiff led no
evidence of rent fetched by neighboring properties of similar
dimension, it is not hard to reach the estimation that in the
year 2012, the suit premises, being used for commercial
purposes, could easily fetch rent of Rs.20,000 - 30,000/- per
month. Using the estimate from the lower side, rather than the
higher side, the rate of rent is reckoned as Rs.20,000/- per
month as on 10/12/2012, which was the date on which
plaintiff issued notice Ex. PWl/4 for termination of tenancy of
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defendant and arrears of rent.
26. Since the plaintiff informed defendant of her
ownership over the suit property vide notice dated 10/12/2012
for the first time, she shall not be entitled to arrears of rent
accrued before 10/12/2012.
27. In view of foregoing observation and analysis, the suit
is not tenant of the plaintiff. The plaintiff is entitled to
possession of the suit premises. Issues No. (i), (iv) and (vi) are
decided in favour of plaintiff and against the defendant.‖
31. Having thus held with respect to Issues (i), (iv) and (vi), the
learned ADJ proceeds to decide issue (v) against the appellant on the
ground that the objection of non-joinder of necessary parties, as raised,
was perfunctory and was not elaborated by any effective data, and
holds, with respect to Issues (ii) and (iii), that the respondent was
entitled to arrears of rent, in respect of the tenanted premises @ ₹
20,000/- per month, w.e.f. 10th December 2012 along with interest @
9% per annum.
32. Aggrieved by the aforesaid judgment, the appellant has
approached this Court under Section 96 of the CPC by way of present
first appeal.
33. Mr G.P. Thareja, appearing for the appellant, addressed
arguments on 10th October 2022 and 11th October 2022. There was no
appearance for the respondent on either occasion. Mr. Thareja has
also submitted written notes of the arguments, which have been
perused.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:31.10.2022
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Neutral Citation Number : 2022/DHC/004491
Analysis
Points for determination:
34. The points that arise for determination in the present appeal
may be enumerated thus:
(i) Whether CS 15690/16 was maintainable?
(ii) Whether there existed any relationship of landlord and
tenanted between the respondent and the appellant?
(iii) Whether the respondent was entitled to the relief granted
by the learned ADJ?
35. Needless to say, these issues would have to be examined in the
backdrop of the impugned judgment of the learned ADJ and the
findings returned therein.
Decision on the points for determination and reasons therefor:
36. The impugned judgment dated 14th October 2019, on a plain
reading, reveals itself to be a textbook case of assumption,
presumption and conjecture. Before addressing the points for
determination noted hereinabove, seriatim, certain apparent errors in
the impugned judgment deserve to be highlighted thus:
36.1 Para 17 of the impugned judgment, with which the discussion
by the learned ADJ commences, starts by noting that the appellant was
―admittedly a tenant‖ in respect of the tenanted premises. A holistic
reading of the written statement filed by the appellant along with his
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affidavit in evidence and record of cross-examination indicate that
there was no such admission of tenancy. Though, at points in the
written statement, the appellant does refer to himself as tenant, the
appellant has clearly adopted the stand that the tenant, in respect of the
tenanted premises, was not the appellant, but was RMGIPL. The
documentary evidence filed by the appellant, including the record of
DR 185/09, the rent receipts issued by the Sneh Sharma, as well as all
communications to Sneh Sharma were by RMGIPL and not by the
appellant. The initial presumption, by the learned ADJ, that the
appellant was ―admittedly a tenant‖ in respect of the suit property is,
therefore, itself fundamentally misconceived.
36.2 The learned ADJ goes on, in para 21 of the impugned judgment,
to castigate the intention of the appellant as having become dishonest
from the point where the appellant replied, on 26th December 2012
(Ex. PW-1/5) to the legal notice dated 10th December 2012 issued by
the respondent. The learned ADJ goes on to hold that, though the
appellant could have contested the rate of rent claimed by the
respondent, ―he had no occasion to deny the landlord-ship‖ of the
respondent.
36.2.1 It is difficult to understand the basis of this finding. It is
admitted, in paras 18 and 19 of the impugned judgment, which
precede para 21, that, till 10th December 2012, the respondent never
intimated the appellant that ownership of the tenanted premises stood
transferred to her. The first such communication being the legal
notice dated 10th December 2012, the appellant was well within his
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right in disputing the ownership of the respondent over the suit
property, especially in view of the order dated 4 th December 2009
passed by the ARC in DR 185/09, instituted by the appellant under
Section 27 of the DRC Act. The adverse observations, returned by the
impugned judgment in para 21, against the appellant, castigating him
as dishonest are, therefore, completely unjustified.
36.3 Para 21 of the impugned judgment further criticizes the
appellant for ―wrongly ....harping upon the order dated 04/12/2009,
Ex. DW1/15, passed by Ld. ARC, Delhi‖, on the ground that the order
was summary in nature and not on merits. Para 22 of the impugned
judgment further observes, in this context, that, as the order dated 4th
December 2009, of the learned ARC in DR 185/09 was not passed on
merits, it was not, in itself, proof that the rate of rent in respect of the
tenanted premises was ₹ 1,400/- per month.
36.3.1 These observations, too, in my considered opinion, are perverse.
The learned ADJ has completely overlooked the fact that the order
dated 4th December 2009 was never challenged and had attained
finality. Irrespective of whether the order was passed on merits or not,
at the very least, the order resulted in discharge, by the appellant, of
the initial onus, placed by the learned ADJ on him, to prove that the
rate of rent in respect of the tenanted premises was ₹ 1,400/- per
month - assuming the fixing of the initial onus regarding the rate of
rent in respect of the tenanted premises on the appellant was at all
justified. The onus, at least thereafter, shifted to the respondent to
establish that the rent in respect of the tenanted premises was ₹
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50,000/- per month. Not a scrap of paper was placed on record, by the
respondent, to this effect. The manner in which the learned ADJ has
brushed aside the order dated 4th December 2009, of the learned ARC
in DR 185/09 is also, therefore, completely misguided in law.
36.4 Proceeding further, the learned ADJ has again, in a manner
unknown to law, rejected the rent receipts placed on record by the
appellant and exhibited as Ex. DW-1/1 to Ex. DW-1/10 as worthy of
no credence. In doing so, the learned ADJ has, rather strangely, failed
to notice the fact that, while the appellant had placed the said rent
receipts on record, the respondent produced no documentary or other
material to indicate that the rent payable in respect of the tenanted
premises was ₹ 50,000/- per month, as averred in the plaint. It is, to
say the least, astonishing that the learned ARC has, on the one hand,
found no fault with the respondent in failing to adduce any material to
substantiate the rate of rent pleaded in the plaint and has, on the other,
rejected the rent receipts filed by the appellant as manifesting the rate
of rent, in respect of the tenanted premises, as ₹ 1,400/- per month.
This, in my opinion, is a completely perverse manner of appreciation
of evidence, within the meaning of the concept of ―perversity‖ has
enunciated by the Supreme Court in Shiv Kumar Sharma v. State of
Rajasthan4, State Bank of India v. K. S. Vishwanath5, Sunil Kumar
Sambhudayal Gupta v. State of Maharashta6, Damodar Lal v. Sohan
Devi7and S. R. Tewari v. U.O.I.8.
2022 SCC OnLine SC 997
2022 SCC OnLine SC 667
(2010) 13 SCC 657
(2016) 3 SCC 78
(2013) 6 SCC 602
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36.4.1 The learned ADJ, in rejecting the credibility of the rent receipts
(Ex. DW-1/1 to Ex. DW-1/10), exhibited by the appellant as DW-1,
proceeds on five premises, none of which, in my opinion, can sustain
legal scrutiny.
36.4.2 The learned ADJ first observes, adversely to the appellant, that
the appellant did not cross-examine PW-1 Laxman Singh in reference
to the rent receipts, thereby depriving him of an opportunity to explain
them. It is difficult to understand this finding, as the rent receipts have
been placed on record to evince payment of rent by RMGIPL to Sneh
Sharma.
36.4.3 The second observation by the learned ADJ, to reject the rent
receipts, is that the date of issue was to be found only in one rent
receipt (Ex. DW-1/1), whereas the other rent receipts were undated.
The learned ADJ also notes that the rent receipts did not bear any
serial number, indicating that they were not part of any bound receipt
book. These findings, too, cannot sustain judicial scrutiny. The rent
receipts clearly indicated the individual periods for which they were
issued. There is no requirement, in law, for rent receipts to be issued
from a bound rent receipt book. As such, these grounds, as cited in
the impugned judgment for rejecting the rent receipts, are manifestly
tenuous.
36.4.4 The third ground on which the learned ADJ has rejected the rent
receipts produced by the appellant as evidence of periodical payment
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of rent by RMGIPL to Sneh Sharma @ ₹ 1,400/- per month is that
Sneh Sharma was not summoned as a witness by the appellant to
prove the receipts. Once the appellant had, as DW-1, proved the
issuance of the rent receipts, there was no requirement, in law, for the
appellant to produce Sneh Sharma as a witness for the said purpose.
Significantly, the respondent was unable, during cross-examination of
the appellant, as DW-1, to discredit the issuance of the aforesaid rent
receipts, which stood re-asserted by the appellant as DW-1 in cross-
examination.
36.4.5 The fourth, and last ground on which the learned ADJ has
rejected the rent receipts is that the appellant did not produce the bank
statement to prove that Sneh Sharma actually encashed the cheques
tendered to her. There is no requirement, in law, for the bank
statement to be produced. Equally, non-production of the bank
statement cannot be treated as fatal to the case of the appellant. Once
rent receipts had been issued by Sneh Sharma, evincing receipt of rent,
with the period and amount reflected in such rent receipts, there was
no necessity, whatsoever, for the appellant to produce his bank
statement as evidence of payment of rent.
36.4.6 Even otherwise, the evidence which a litigant chooses to cite in
his support is entirely his prerogative. It is only where best evidence
is kept out of the proceedings, and secondary or supplementary
evidence is sought to be led without any reasonable basis for exclusion
of best evidence within the meaning of Sections 91 to 100 of the
Evidence Act may result in drawing of an adverse inference. Else, a
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Court cannot hold against a party on the ground that the party did not
lead any other evidence, which could have been led by her or by him.
The omission, if at all, on the part of the appellant, to place his bank
statement on record cannot, therefore, constitute a basis to disregard
the rent receipts furnished by the appellant and exhibited as Ex. DW-
1/1 to Ex. DW-1/10.
36.4.7 There is, therefore, no substance, whatsoever, in any of the
grounds on which the learned ADJ has chosen to disregard the rent
receipts (Ex. DW-1/1 to Ex. DW-1/10) tendered by the appellant in
evidence.
36.5 Para 24 of the impugned judgment goes on to observe that the
appellant could not seek to place reliance on the notices or money
orders issued to Sneh Sharma to his advantage; as consequent to sale
of the suit property on 18th July 2008, Sneh Sharma lost all right, title
and interest therein. This finding, again, is perverse. The learned ADJ
fails to notice that the notices and money orders issued by the
appellant to Sneh Sharma constituted credible material evincing
payment of rent by RMGIPL to Sneh Sharma till April 2012, the
appellant having never been informed by anyone, prior thereto, that
the suit property had been sold by Sneh Sharma to any other person or
requested, either by Sneh Sharma or by any other person, to pay rent
to someone other than Sneh Sharma. In that view of the matter, the
reliance, by the appellant, on the legal notices, cheques and pay
orders, sent by RMGIPL to Sneh Sharma, as proof of payment of rent
in respect of the tenanted premises, as also as proof of the quantum of
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rent payable in respect thereof, cannot be undermined.
36.6 Perhaps, the most glaring example of perversity, in the
impugned judgment, is to be found in para 25 thereof, in which, with
no prelude, preface or supportive documentary material whatsoever,
the learned ADJ has presumed the rent that tenanted premises would
fetch to be ₹ 20,000/- to ₹ 30,000/- per month. This is pure conjecture
and nothing else. Interestingly, in so holding, the learned ADJ would
effectively be rejecting the case, set up by the respondent in her plaint,
that the rent payable in respect of the tenanted premises was ₹
50,000/- per month. This would cast a cloud on the entire credibility
of the suit instituted by the respondent. Once the rate of rent cited by
the respondent in the plaint was not accepted by the learned ADJ, the
very maintainability of the suit would become questionable, in view of
Section 502 of the DRC Act. There is no basis, whatsoever, to support
the finding, in para 25 of the impugned judgment that the rate of rent
payable in respect of the tenanted premises was ₹ 20,000/- per month.
36.7 The impugned judgment, therefore, being founded entirely on
assumption, presumption and conjecture, unsupported by any cogent
material, is liable to be set aside even on that score.
37. The discussion hereinbefore substantially answers the questions
that have been noted as arising for consideration in the present case.
A brief allusion may, however, be made thereto.
Re. Question (i)
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38. Insofar as the maintainability of the suit is concerned, the case
of the appellant was that, as the rent in respect of the tenanted
premises was only ₹ 1,400/- per month, the suit was not maintainable
in view of Section 502 read with Clause (c) of Section 33 of the DRC
Act. The respondent had placed no material on record to support the
contention that the rent in respect of the tenanted premises was ₹
50,000/- per month. Rather, PW-1 Laxman Singh, in cross-
examination, admitted that he was unaware of any rent agreement or
other document which could indicate ₹ 50,000/- per month as being
the rent payable in respected of the tenanted premises.
39. As against this, the appellant had filed rent receipts (Ex. DW-
1/1 to Ex. DW-1/10), which reflected the rent payable as ₹ 1,400/- per
month. These rent receipts were all duly signed by Sneh Sharma and
also reflected the periods for which the rent had been paid. No
legitimate basis is forthcoming, in the impugned judgment, for
rejecting the said rent receipts. The said rent receipts are also
reasserted by the appellant, as DW-1, both in his affidavit by way of
his examination-in-chief as well as in his cross-examination.
40. A holistic appreciation of the evidence, therefore, would require
acceptance of the appellant's contention that the rent payable in
respect of the tenanted premises was ₹ 1,400/- per month, and
rejection of the respondent's contention, per contra, that the rent
payable was ₹ 50,000/- per month.
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41. Section 50(1)2 clearly bars institution of civil suits for eviction
of tenants from premises to which the DRC Act operates. Tenanted
premises, fetching rent below ₹ 3,500/- per month were, by virtue of
clause (c) of Section 33, covered by the DRC Act. No civil suit would,
therefore, lie for eviction of a tenant therefrom.
42. Section 50(4)2 excepts the applicability of Section 50(1)2 to
cases in which the suit was ―for the decision of any question of title to
any premises to which this Act applies or any question as to the person
or persons who are entitled to receive the rent of such premises‖ . CS
15690/16, as instituted by the respondent, was not a suit for a decision
on the question of title to the premises, or for a decision on the
question as to the person or persons entitled to receive the rent in
respect of the premises. The respondent, clearly and unequivocally,
asserted both title to the tenanted premises as well as the right to
recover rent in respect thereof, from the appellant. The mere fact that
these assertions were disputed by the appellant in his written statement
would not suffice to attract Section 50(4)2, or except the applicability
of Section 50(1)2 to the case.
43. That being so, CS 15690/16, as instituted by the respondent,
was not maintainable.
Re. Question (ii)
44. There is, unfortunately, no application of mind, whatsoever, by
the learned ADJ, to this aspect of the matter, i.e. whether there existed
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any relationship of landlord and tenant between the respondent and the
appellant. Proceeding from this submission, the appellant had sought
to contend, in his written statement, that the suit was bad for non-
joinder of necessary parties. Having framed, as Issue (ii), a specific
issue on the point, the learned ADJ holds against the appellant on the
issue, observing that the objection had been ―perfunctorily raised‖ and
had not been ―elaborated and proved‖. The finding is clearly perverse.
The appellant had clearly stated that the tenant, in respect of the
tenanted premises, was not the appellant but was RMGIPL. The rent
receipts Ex. DW-1/1 to Ex. DW-1/10 were also issued to RMGIPL.
All notices issued to the respondent were by RMGIPL. DR 185/09
under Section 27 of the DRC Act was also instituted by RMGIPL.
The appellant, as DW-1, also confirmed, in cross-examination, that
RMGIPL was actually the tenant in respect of the tenanted premises.
No material, to the contrary, was placed on record by the respondent.
In that view of the matter , the aspect of existence of relationship of
landlord and tenant between the respondent and the appellant would
have to be decided in favour of the appellant, by holding that tenant in
respect of the tenanted premises was RMGIPL, not the appellant, and
the landlord was Sneh Sharma, and not the respondent.
45. In this context, it is significant to note that PW-1, in cross-
examination, sought to submit that the respondent had sent a letter of
attornment to the appellant prior to sending the legal notice dated 10th
December 2012. He also undertook to produce the said letter. No
such letter of attornment was ever placed on record by the respondent.
Nor is there any reference, either in the plaint or in the affidavit in
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evidence filed by PW-1, of any such letter of attornment having been
issued by the respondent to the appellant. This, even by itself, casts
serious doubt on the credibility of PW-1 as the sole witness deposing
in favour of the respondent.
46. It is clear, therefore, that there was no relationship of landlord
and tenant between the respondent and the appellant and that,
therefore, the respondent could have no cause of action against the
appellant.
Re. Question (iii)
47. In view of the aforesaid observations and findings, it is clear
that the learned ADJ substantially erred, both on facts as well as in
law, in decreeing the suit in favour of the respondent and against the
appellant. The impugned judgment suffers from manifestly perverse
appreciation of evidence and is also, on its face, fatally beset by
assumption, presumption and conjecture.
48. Based on the material on record and the evidence that was
tendered before the learned ADJ, no case can be said to exist for grant,
to the respondent, of the reliefs claimed in the suit. The suit is liable
to be dismissed both on maintainability as well as on merits.
Relief
49. In view of the aforesaid, CS 15690/16 (Smt. Butna Devi v. Shri
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Brij Mohan), instituted by the respondent against the appellant, is
dismissed. The appeal stands allowed accordingly, without costs.
50. Miscellaneous applications, if any, stand disposed of.
C.HARI SHANKAR, J
OCTOBER 31, 2022
rb
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