V.K. Shali, J.
1. This is a regular second appeal filed by the appellant against the judgment dated 31st March, 2010, passed by Sh.Rakesh Kumar, learned ADJ in RCA No.24/2008 titled M/s.National Manufacturing Corporation, through, Sh.Vijay Kumar (since deceased) now represented by Sh.Nitin Mehra versus Sh.K.K.Aggarwal and Ors.
2. The only substantial question of law, which arises for consideration by this Court is:
'As to whether the judgment dated 31st March, 2010 passed by the learned ADJ suffers from any perversity, in the light of the evidence produced by the parties and, if so, its effect?.'
3. Briefly, stated the facts of the case, are that the present appellant-herein referred to as 'Sh. K.K.Aggarwal' filed a suit for possession and recovery of mesne profits against one Sh. K.B. Mehrotra (since deceased), respondent No.2-herein and referred to as 'Sh.K.B.Mehrotra' alleging that he had let out first floor of property bearing No.M-26, Greater Kailash-I, New Delhi to him at a monthly rent of Rs.5,000/- per month with effect from 1st October, 1984. The tenanted premises comprised of drawing room, four bedrooms with attached bathroom, kitchen, verandah and balcony and stairs from ground to the upper floor for common use; servant quarter, comprising of a room and verandah converted into kitchen on second floor over garage block. In addition to this, there was common independent staircase for servant quarters over the garage and WC for the servant on the ground floor. Both these portions are shown in red and green respectively in the site plan Ex.PW-1/4.
4. It may also pertinent here to mention that Sh. K.B.Mehrotra had died in 1997 and his four legal heirs; Smt.Saroj Mehrotra (2a), Sh.Sachin Mehra (2b), Mrs.Monica Sharma w/o Sh.Trilochan Sharma (2c) and Mrs.Sonica Rana, w/o Sh.Sanjay Rana (2d) were substituted as legal representatives as 2(a) to 2(d). The premises were alleged to have been let out for residential purpose commencing from the first day of English Calendar month, which ended on the last day of the same month. Sh.K.K.Aggarwal terminated the tenancy of Sh. K.B.Mehrotra by a legal notice dated 11th July, 1992, which was duly served on him on 14th July, 1992, terminating his tenancy with effect from 31st July, 1992. Since he did not vacate the suit premises his possession with effect from 1st August, 1992 became illegal and, accordingly, the suit for possession was filed against him in 1992, claiming not only his ejectment but also recovery of mesne profits at the rate of Rs.30,000/- per month with effect from 1st August, 1992 on account of unauthorized user of the premises by him till the time the possession was handed over.
5. Sh.K.B.Mehrotra (since deceased), the defendant in the suit filed his written statement and admitted the plaintiff Sh. K.K.Aggarwal to be the owner of the premises but denying that he is the tenant. It was stated by him that M/s.National Manufacturing Corporation, a partnership firm in which there were two partners, viz., he himself (K.B.Mehrotra) and one Sh.Vijay Kumar. It was also stated that Sh.K.K.Aggarwal was receiving the rent from the partnership firm for the tenanted premises, which apart from the premises detailed by the appellant, also consisted of barsati and kitchen on the second floor. It was stated that no notice of termination of tenancy was ever served on M/s.National Manufacturing Corporation, respondent No.1, the tenant and, therefore, the tenancy could have never been terminated.
6. On the basis of the averments made by Sh. K.B. Mehrotra, the sole defendant in the suit an application under Order 1 Rule 10 came to be filed on behalf of the M/s.National Manufacturing Corporation, through its, second partner, Sh. Vijay Kumar for being impleaded as a defendant No.1 to the suit. It was stated in the application that as the firm was paying the rent to Sh.K.K.Aggarwal, through cheque from the inception of tenancy and this fact was not denied by Sh.K.K.Aggarwal, therefore, they are necessary party to the suit for ejectment. The partnership firm was impleaded as defendant No.1. On the pleadings of the parties, the following issued were framed:
'(i) Whether the relationship of landlord and tenant exists between the parties in the present suit? OPD
(ii) Whether the suit is bad for mis-joinder and non-joinder of the parties? OPD
(iii) Whether any legal and valid notice was ever served upon the defendant? OPP
(iv) Whether the suit is for the recovery of part of the tenanted premises? OPD
(v) Whether the plaintiff is entitled or the recovery of possession and mesne profits/damages? OPP.
(vi) Whether the plaintiff is the sole owner of the premises? OPP
7. Sh.K.B.Mehrotra died during the pendency of the suit, of course, after the filing of the written statement and his four legal heirs, viz., Smt.Saroj Mehrotra (2a), Sh.Sachin Mehra (2b), Mrs.Monica Sharma w/o Sh.Trilochan Sharma (2c) and Mrs.Sonica Rana, w/o Sh. Sanjay Rana (2d). Out of these, legal heirs, three were proceeded ex-parte on 11.04.2001. So far as the fourth is concerned her defence was struck off on 15.07.2003. These LR’s 2(a) to 2 (d) except 2(b), who had migrated to USA had also chosen to file the written statement stating that M/s.National Manufacturing Corporation is the tenant in the suit premises.
8. Later on, on 20th January, 2003, the trial court deleted the issue No.(i) and (vi) from the issues. Smt.Monica Sharma, defendant No.2(c), the only legal heir of Sh.K.B.Mehrotra preferred a revision against the said deletion bearing CRP No.460/2003. The High Court vide its order dated 21st April, 2004 had observed that in view of the fact that the defence of the revisionist, i.e., Smt.Monica Sharma, has been struck off on 15th April, 2003 on account of tenants recalcitrant attitude in not depositing the rent/damages in consonance and compliance with the directions passed by the Court despite the fact that the said order was not challenged.
9. The plaintiff, in order to prove his case, filed his own detailed affidavit and appeared in the witness box as PW-1 and supported the contents of the plaint. The evidence of the defendant No.2 was not led in rebuttal to the statement of the plaintiff. So far as defendant No.1, viz., the partnership firm, is concerned its other partner Sh.Vijay Kumar had also expired and in his place, his son Sh.Nitin Mehra was brought on record to pursue the matter. He appeared in the witness box and supported the claim of the firm that it was the firm which was the tenant in respect of the suit premises. The learned trial Court after discussing the entire evidence adduced by the parties decided all the issues, except the ones deleted, in favour of the present appellant Sh. K.K. Aggarwal and held that the defendant No.1, viz., Sh. K.B.Mehrotra was the tenant in respect of the suit premises and, accordingly, passed a decree of possession in respect of the suit premises in favour of Sh. K.K. Aggarwal not only against the defendant No.2 but the other defendant No.1.
10. So far as payment of mesne profits/damages, on account of the unauthorized user is concerned, the trial Court directed the payment of the use and occupation charges @ Rs.10,000/- per month with effect from 1st August, 1992, which was the prevalent market rate till the time the premises were vacated and increased the same by 10% every year, till the time the decree was passed.
11. The firm M/s.National Manufacturing Corporation, through Sh. Nitin Mehra, son of Sh. Vijay Kumar, the deceased partner, filed an appeal against the judgment dated 14.08.2007 of the trial Court bearing No.RCA No.24/2008, against Sh.K.K.Aggarwal. The learned ADJ vide the impugned judgment dated 31.03.2010 set aside the judgments and the decree of the learned Civil Judge holding that the defendant No.2, viz., M/s.National Manufacturing Corporation was prejudiced by the deletion of the two issues as it could not produce evidence to prove that it was the tenant nor has the court decided as to who is the tenant in respect of the suit premises. It has been observed by learned ADJ that not only by deletion of the aforesaid issue a serious prejudice has been caused to the defence of the appellant, viz., M/s.National Manufacturing Corporation by not getting an opportunity to adduce evidence that it is a tenant in respect of the suit premises but the trial Court has also erroneously placed reliance on receipts Ex.PW-1/5, produced by the appellant, Sh.K.K.Aggarwal himself to indicate that Sh. K.B. Mehrotra, the respondent No.1 and the defendant No.1 in the suit was the tenant. It was also observed by the learned ADJ that the receipts Ex.PW-1/5, which is purported to have been issued by Sh.K.B.Mehrotra, respondent No.1, since deceased, ought to have been with the tenant and not with the present appellant as what was expected to be with him was only a counter foil receipt purported to have been issued by him in favour of Sh. K.B.Mehrotra. Therefore, this was unbelievable and not worth credence.
12. The learned ADJ has also observed that by deleting the issue regarding relationship of landlord and tenant between the parties, M/s.National Manufacturing Corporation was deprived of the chance to prove its stand that their existed a relationship of landlord and tenant between the plaintiff and M/s.National Manufacturing Corporation so far as the suit premises is concerned. As regards the service of legal notice on M/s.National Manufacturing Corporation, no notice of termination was ever alleged to have been sent much less having been served on the M/s.National Manufacturing Corporation and consequently no petition for eviction could have been filed against it. It was also observed that the learned trial Court has also wrongly relied upon the testimony of PW-1 to conclude that barsati and kitchen on the second floor of the terrace was not a part of tenanted premises.
13. As regards, the quantum of damages/mesne profits, it was observed that the learned trial Court, without there being any evidence, had directed partnership firm and the defendants to pay damages/mesne profits at the rate of Rs.10,000/- per month with effect from 1st August, 1992 and further passed the order increasing the rent/damages @ Rs.1,000/-per month without any basis and such an order could not be held to be sustainable in the eyes of law.
14. Feeling aggrieved by the judgment of the learned first appellate Court, the appellant-landlord, Sh.K.K.Aggarwal has preferred the present second appeal.
15. I have heard the learned counsel for the appellant as well as the respondent. I have also gone through the record.
16. The learned counsel for the appellant has contended that the learned first appellate court has fallen into the grave error by observing that by deletion of the issue with regard to the relationship of the landlord and tenant between the parties a serious prejudice has been caused to M/s. National Manufacturing Corporation is without any merit. It has been contended that the plaintiff’s case was definite that the premises were let out by him @ Rs.5,000/- per month to M/s.K.B.Mehrotra vide an oral agreement and Sh.K.B.Mehrotra has denied that he was inducted as a tenant. Sh.K.B.Mehrotra took the plea that it was M/s.National Manufacturing Corporation, in which he was a partner, apart from another partner by the name of Sh.Vijay Kumar which was the tenant. Merely because the tenant Sh.K.B.Mehrotra had taken a plea that partnership firm was a tenant. It was not necessary for them to implead the firm as a party to the suit. The plaintiff is the dominius litus. It is for him to decide whom he wants to sue. The only question involved was that he was to follow the dictum that ‘one who asserts must prove’. So, he had to prove that Sh.K.B.Mehrotra was his tenant which in my opinion he has sufficiently proved from his testimony. It is because of this stand having been taken by the defendant-Sh.K.B.Mehrotra that M/s.National Manufacturing Corporation filed an application for being impleaded as party to the suit, which was allowed. In my opinion, it ought to have not been allowed by the Court, since the partnership firm consisting of two partners only, viz., Sh.K.B.Mehrotra and one Sh.Vijay Kumar. This plea was obviously taken by Sh.K.B.Mehrotra to put a spoke in the effort of the plaintiff to get back the possession. Not only this, an application of impleadment was got allowed, which was filed through another partner. Both the partners are now dead. The partnership firm could have easily led evidence from record in order to show that it was a tenant in the suit premises. The case of the partnership firm was that it was paying rent by way of cheques to the plaintiff and, therefore, the firm was a tenant. Nothing prevented the firm to adduce such evidence notwithstanding the fact that an issue with regard to the existence of the relationship between the parties was deleted.
17. This plea was contested by the learned counsel for the respondent- M/s.National Manufacturing Corporation, who tried to vehemently support the judgment passed by the learned single Judge.
18. I have carefully considered these submissions made by the learned counsel for the parties and gone through the record.
19. No doubt, the learned trial Court had framed an issue as the existence of relationship of landlord and tenant between the parties as well as ownership of the property that ought not to have been deleted but even if it is deleted the said issue could have been re-framed by the first appellate court and the matter remanded back. The issue could have been framed or the existing evidence, which was produced by the party, analyzed and the first appellate court could have come to an independent conclusion as to who was the tenant. It was not open to the learned first appellate court to contend that because of the deletion of this issue with regard to the relationship of landlord and tenant between the parties, any serious prejudice has been caused to M/s.National Manufacturing Corporation because it was admitting that it was the tenant. As a matter of fact, the plaintiff-Sh.K.K.Aggarwal had set up a case that Sh.K.B.Mehrotra was a tenant in respect of the suit premises and he had filed his affidavit supporting the same stand in his examination-in-chief and he was subjected to cross-examination also in which his testimony was unscathed. In addition to this, he had also produced a receipt Ex.PW1/15, which showed that Sh.K.B.Mehrotra was the tenant in respect of the suit premises and the said receipt could not have been disbelieved by the learned first appellate Court on the spacious ground since that was a receipt, which was in original, it ought to have been with the tenant rather than with the landlord, viz., Sh.K.K.Aggarwal and if, at all, it had to be with the landlord-Sh.K.K.Aggarwal, it ought to have been only the counter foil. Mr.Aggarwal has given an explanation in his statement the receipt Ex.PW1/5 was drawn in duplicate one of which was taken by the respondent and the other was with the plaintiff. It is admittedly not the case of either Sh.K.B.Mehrotra, through his legal heirs in the cross-examination or even of the defendant No.1, M/s.National Manufacturing Corporation that the receipt Ex.PW1/15 is a forged receipt or is not a genuine receipt issued by Sh.K.K.Aggarwal in favour of Sh.K.B. Mehrotra. Therefore, this receipt cannot be brushed aside in the light of the testimony of the PW1-Sh.K.K.Aggarwal.
20. The defendant No.1, viz., M/s.National Manufacturing Corporation admittedly consisted of two partners, viz., Sh.K.B.Mehrotra and Sh.Vijay Kumar both of whom are now dead. Once both the partners have died, the partnership by operation of law is deemed to have been dissolved although no partnership deed has been placed on record yet the son of Sh.Vijay Kumar, viz., namely, Sh.Nitin Mehra has entered into the witness box and stated that M/s.National Manufacturing Corporation was a tenant in respect of the suit premises, however, he has not produced even a single piece of evidence to support his contention that it was M/s.National Manufacturing Corporation, which was the tenant in respect of the suit premises. He has stated in his statement that the rent was being paid, through cheque but no entry from the records of the bank of the firm or any other document has been produced. Tenancy was created admittedly in 1984 while as he was born in 1979. Therefore, in 1984 he was just five years old. How did he know that the premises was let out to the firm. He does not seem to have ever lived in the premises, which was let out for residential purposes. This is evident from his admission in cross-examination, where he is not able to describe the property and after the death of his father he is living in Faridabad. He cannot tell the period, when he lived in the suit premises or give the dimensions, which clearly shows that he is put up witness to defeat the case of the appellant.
21. Therefore, I feel that this was only a ploy, which was set up by the partnership firm M/s.National Manufacturing Corporation to deprive the appellant-herein of his allegedly retrieval of possession.
22. So far as the framing of issue is concerned this second appellate court, where the substantial question of law is involved also has not only the power but also a duty to see through the game of the defendants, viz., Sh.K.B.Mehrotra and M/s.National Manufacturing Corporation that by hook or crook they wanted to deprive the appellant of all the benefit of retrieving the possession by taking all these frivolous pleas when admittedly he has been able to prove on record that it was Sh.K.B. Mehrotra, who was the tenant.
23. It may be pertinent here to refer to Section 103 of the Civil Procedure Code, which reads as under:
'103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100.'
24. Therefore, in the light of the Section 103 CPC, I feel the first appellate Court has committed an illegality by not determining the issue as to who is the tenant in respect of the suit premises and wrongly observing that the defendant No.2 M/s.National Manufacturing Corporation has been prejudiced. As a matter of fact, the case of the plaintiff was that Sh.K.B.Mehrotra was the tenant which he has been able to prove by preponderance of probabilities. Even if it is assumed that the rent was paid from the firm’s account, even then the rent was paid for and on behalf of Sh.K.B.Mehrotra being the partner in the firm although this was not pleaded. It is once again reiterated that the case of the plaintiff is established by all preponderance of probabilities that Sh.K.B.Mehrotra was the tenant inducted on monthly rent of Rs.5000/- in respect of the suit premises other than the barsati and kitchen on the Second floor as claimed by him and his tenancy having been terminated vide a notice dated 11th July, 1992, which is Ex.PW1/6, postal receipt is Ex.PW1/7, AD Card Ex.PW1/8 and UPC is Ex.PW1/9 which are not in dispute and he was under an obligation to have vacated the premises with effect from 1st August, 1992 as his possession became unauthorized. This is on account of the fact that PW1-Sh.K.K.Aggarwal has filed his affidavit. He has been subjected to cross-examination and in his testimony, in my considered opinion, has remained shaken on all these counts. So far as Sh.K.B.Mehrotra’s legal representatives are concerned, who are four in number; three have been proceeded ex-parte, who have not chosen to adduce any evidence or cross-examine the witness and the fourth, Mrs.Monica Sharma’s, defence was struck off because even during the pendency of the suit before the learned trial court, his defence was struck on account of the fact that she did not challenge the order passed by the trial court with regard to the payment of rent and thus the testimony of Ms.K.K.Aggarwal remains un-rebutted and the evidence of Mr.Nitin Mehra, who appeared for his father in the capacity of a partner in M/s.National Manufacturing Corporation cannot be given any credence because his testimony is totally lacking any corroborative support by way of any document to show that M/s.National Manufacturing Corporation was the tenant. No rent receipt has been produced. There is no bank statement that the rent was flowing from the account of M/s.National Manufacturing Corporation. No water bill, electricity bill or any documentary evidence has been produced that the firm was a tenant in respect of the suit premises and when admittedly the firm was consisting of two partners, the intention of Sh.K.B.Mehrotra was to harass the appellant and deprive him of not only the possession of the suit premises but also of his legitimate dues of rent or the damages, which were ordered to be paid by the Court, therefore, on the face of it the defence of the defendants are totally false. So far as payment of damages is concerned, the learned trial court has directed the damages to be paid @ Rs.10,000/- per month with effect from 1st August, 1992 and further directed an increase of rent by Rs.1,000/- per month despite the fact that he has claimed damages/mesne profits @ Rs.30,000/-. The learned first appellate Court has observed that there is no evidence, in this regard, before the learned Civil Judge in as much as no rent agreement has been proved. The plainti
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ff has appeared in the witness box and stated that as to what will be the prevalent market rate with regard to the corresponding premises in the locality. This evidence, prima facie, was sufficient for the Court to form an opinion that, at least, the damages/mesne profits in respect of the suit premises would have been at least the total of the amount, when the defendant No.1, viz., Sh.K.B.Mehrotra, who himself was inducted as tenant almost eight years earlier almost half of the age of the his son. I feel the plaintiff had discharged his onus and the Court rightly has taken judicial note and prevalent market rates and arrived at a modest figure of damages, which have been awarded to the appellant at the rate of Rs.10,000/- w.e.f. the date of termination of tenancy with an incremental increase of 10% per annum thereafter every year till the time decree is passed. 25. The net result of this litigation has been that despite the fact that more than 22 years have elapsed, the landlord, viz., the appellant, poor fellow has not only been able to get the possession of the suit premises back from these unscrupulous persons, who are unfortunately no more but even from the successors and legal heirs of these two unscrupulous person on the basis of false defence in Court but have only prolonged the agony of the appellant, who is, in the evening of his life. I feel that the judgment passed by the learned first appellate Court is suffering from perversity as is not in consonance with the evidence produced by the appellant before the Court and the testimony of Defendant No.1 before the trial Court. I, accordingly, set aside the judgment and the decree passed by the first appellate Court on 31st March, 2010, and restore the judgment and the decree passed by the learned Civil Judge on 14th July, 2007 on all counts holding that there existed a relationship of landlord and tenant between the appellant and Sh.K.B.Mehrotra in respect of the first floor and the garage portion, servant quarter with common access to these through stairs as more particularly shown in red and green in the plant Ex. PW-1/4. Further, the barasati room or the kitchen never formed a part of tenancy. Since both the defendant No.1 & 2 through their unauthorized occupation are using the premises they are liable to pay damages, user charges or mesne profits as determined by the trial Court. Ordered accordingly. Let a decree be drawn in favour of the appellant.