CM(M)--1455/2017. Case: SURINDER KUMAR Vs. ARVIND NATH PATHAK & ORS.. High Court of Delhi (India)
| Case Number | CM(M)--1455/2017 |
| Citation | NA |
| Judgement Date | December 12, 2018 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 12.10.2018
Date of Judgment: 12.12.2018
+ CM (M) 1455/2017 & CM Nos.46698/2017, 37791/2018
SURINDER KUMAR ..... Petitioner
Through: Mr.Rakesh Tiku, Sr. Advocate with Mr.Gaurav Kohli and Mr.Sanjeev, Advocates.
versus
ARVIND NATH PATHAK & ORS. ..... Respondents
Through: Mr. S.N.Choudhri, Advocate with Ms.Shruti Choudhri, Ms.Sukanya Choudhri and Ms.Sukreet Khandelwal, Advocates for R-1 & 2.
Mr. Atul T.N. and Mr. Nitin Kumar, Advocates for R3.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J.
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The petitioner, a sub-tenant, having unsuccessfully pursued his appeal bearing No.RCT-1126/2016 before the Learned Rent Control Tribunal, South-East District, Saket Courts, New Delhi („Tribunal‟) by judgment dated 21.09.2017 against order of eviction dated 02.06.2008 passed by the court of learned Additional Rent Controller, Tis Hazari Courts, Delhi („ARC‟),
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has moved this Court under Article 227 of the Constitution of India for quashing of both the orders.
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Bereft of unnecessary details, the facts giving rise to this petition are that the respondent No.1 and 2 have filed two eviction petitions in respect of Shop No.M-64, Kalkaji, New Delhi-110019 (demised shop) before the learned ARC under Section 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act, 1958 („DRC Act‟) against the respondent No.3 and the petitioner.
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The parties being the same, both these eviction petitions were consolidated by the learned ARC for the purpose of trial.
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The respondents No.1 and 2 had let out the demised shop to the respondent No.3 w.e.f. 01st September, 1992 at a monthly rent of Rs.2,000/-. The respondent No.3 has failed to make the payment of rent from 01.01.1993 to 31.05.1996. A legal demand notice dated 14.05.1993 was served upon respondent No.3. It is claimed that the respondent No.3 had sub-let or otherwise parted with the possession of the demised shop in favour of his brother/petitioner, who is in unlawful possession thereof.
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In his written statement, the petitioner pleaded that the respondent No.3 was never a tenant in the demised shop which in fact was let out to him at a monthly rent of Rs.500/- in the year 1986 and since then he has been in possession thereof. It is pleaded by him that he dissolved the partnership firm, i.e., M/s.
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Kalka Steel Centre, M-64, Kalkaji, by Dissolution Deed dated
20.02.1993, with respondent No.3 who gave him the goodwill and the demised shop was never a partnership property. He denied that the demised shop was rented out by the respondents No.1 & 2 to respondent No.3 w.e.f. 01.09.1992. He denied that the respondent No.3 sublet the demised shop to him and pleaded that the respondents No.1 and 2 have colluded with respondent No.3 and forged the rent receipts. He pleaded to be the tenant of the demised shop since 1986. He denied that he ever surrendered the tenancy. He claimed that he has never been in arrears of rent, which were paid by him from 1986. He is in possession of rent receipts since 1986 till July 1992. He offered rent to respondents No.1 and 2 but they refused to accept whereafter he has deposited the rent @ Rs.500/- per month in the Court of ARC upto December 1993.
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The respondent No.3 adopted the written statement filed by the petitioner in verbatim.
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The respondents No.1 and 2 filed replication in which they did not dispute that till 31.08.1992, the petitioner was their tenant @ Rs.500/- per month in the demised shop. However, they pleaded that the tenancy was surrendered by the petitioner on
31.08.1992. They asserted that the said shop was rented out by them to the respondent No.3 w.e.f. 01.09.1992 on rent @ Rs.2,000/- per month.
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In support of their case, the respondent Nos.1 and 2 examined their father Sh. K.N. Pathak as AW-1 and the respondent No.1 has stepped into the witness box as AW-2. On the other hand, the petitioner had examined Sh. Jawala Prasad as RW1 and one Sh. Parmanand Raheja as RW3. Additionally, the petitioner himself stepped into the witness box as RW2.
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The learned ARC found that:-
(i) it was not suggested in cross-examination of AW-1 and AW-2 that the signatures of the petitioner on counterfoil of rent receipt Ex.AW-1/17 or that of respondent No.3 on receipts Ex.AW-1/3 to AW-1/16 were forged or fabricated or obtained on blank receipts;
(ii) the petitioner in his cross-examination has admitted the signatures of his brother/respondent No.3 on the rent receipt Ex.AW-1/3 and AW-1/6;
(iii) in the previous civil litigation at the instance of the petitioner, his brother/respondent No.3 filed his written statement Ex.AW-1/18 wherein he admitted his signatures on the counterfoil of the rent receipts (Ex.AW-1/3 to AW-1/6);
(iv) in his affidavit tendered in evidence the petitioner did not testify that the rent receipt Ex.AW-1/17 dated 31.08.1992 does not bear his signature
(v) the petitioner has not specifically denied the execution of counterfoil of the rent receipt Ex.PW1/17;
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(vi) admittedly, the rent was payable in advance by the 7th day
of each month; the petitioner claimed that the rent from August, 1992 to December, 1992 was adjusted against the bills of the utensils purchased by the respondent No.1 and 2; the photocopies of the bills placed on record reflect the alleged purchases made in the month of November and December, 1992 whereas the bills were prepared only on
04.04.1993; the bills demolish petitioner and respondent No.3‟s fabricated story, and
(vii) there is no explanation for non-payment of rent by the petitioner w.e.f. August, 1992. Consequently, the Rent Controller found that the respondent No.3 was a tenant w.e.f. 01.09.1992 in the demised shop and the petitioner has been admittedly, in possession thereof and passed the eviction order.
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Separate appeals being RCT No.1126/2016 filed by the petitioner and RCT No.1127/2016 filed by respondent No.3 were disposed of by the Tribunal vide the common judgment dated 21.09.2017. The Tribunal on re-appreciation of evidence found that :-
(i) there was not even a whisper in the pleadings or in the affidavit of the petitioner that the counterfoil of the rent receipt Ex.AW1/17 is a forged document;
(ii) Ex.AW1/17 is a counterfoil of the rent receipt dated
31.08.1992 issued by the respondents No.1 and 2 to the
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petitioner and it specifically bears the name of the petitioner as lessee;
(iii) the receipt specifically mentions “Final Receipt” in English as well as in Hindi and it bears a handwritten endorsement in Hindi which reads as follows:-
“main Surrender Kumar ne M-64, Kalkaji, New Delhi sthith dukaan (30‟ x 13‟) khaali kar di hai aur kabzaa maliko ko 31.08.92 ko de diya. Tathaa
31.08.92 tak ka kirayaa aur sabhi bakaayaa de diya Kuchh bhi lena dena nahi hai”;
(iv) AW1 was cross-examined extensively but genuineness of Ex.AW1/17 was not seriously challenged except by extending a suggestion that the endorsement on Ex.AW1/17 as referred above is only about rent and not about surrender of tenancy and this endorsement was added in the counterfoil later on;
(v) These suggestions were denied by AW1 who added that identical endorsement was made on the corresponding rent receipt dated 31.08.1992;
(vi) the petitioner did not produce the corresponding rent receipt dated 31.08.1992 on the record;
(vii) the rent receipt Ex.AW1/3 dated 01.09.1992 which bears the admitted signatures of respondent No.3 and it bears an endorsement in Hindi which reads as under:-
“main eek sitamber 1992 ko M-64 kalkaji, new delhi sthit dukkan (30‟ x 13‟) ka kabzaa liya. Kiraayaa do hazar rupya prati maah tatha bijli
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atirikt tatha sitamber maas ka peshagi kiraayaa diya” ;
(viii) in his cross-examination, the petitioner has admitted that the rent receipt Ex.AW1/3 and Ex.AW1/6 bear the signatures of respondent No.3 and there is no reason to suspect the genuineness of the rent receipts Ex.AW1/3-6 issued to the respondent No.3 by the respondents No.1 and 2.
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Additionally, the Tribunal has also ventured to compare the signature of the petitioner on the counterfoil of the rent receipt Ex.AW1/17 with his admitted signature on the other counterfoil of the rent receipts Ex.AW1/11-13 and found that the signatures of the petitioner on Ex.AW1/17 were his genuine signatures.
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It was argued before the Tribunal that a Deed of Dissolution of Partnership Ex.RW2/3 between the petitioner and respondent No.3 was executed on 20.02.1993 and as per this document the partnership firm came into existence on 01.08.1986. The Tribunal found that the petitioner as RW-2 testified in para No.18 of his affidavit tendered in evidence that on 02.09.1992 he opened the said shop being the “Proprietor” and it remained unexplained as to how the petitioner became the “Proprietor” of the firm M/s Kalka Steel Centre on 02.09.1992 if the Firm was dissolved much later on 20.02.1993. The Tribunal also observed that one of the recitals of the Deed of...
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