w w w . L a w y e r S e r v i c e s . i n



Savitri Devi v/s Fashion Linkers

    Suit Appeal No. 1590 of 1988

    Decided On, 20 December 2001

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE V.S. AGGARWAL

    For the Appearing Parties: S.N. Gupta, S.P. Pandey, Advocates.



Judgment Text

V.S. AGGARWAL, J.


(1) PLAINTIFF, Mrs. Savitri Devi, has filed the present suit for recovery of Rs. 7,99,500. 00 besides possession of the premises No. A-51/1 Phase-I, Naraina Industrial Area (for short the premises in dispute) and for permanent and mandatory injunction.


(2). The relevant facts alleged are that Gian Chand was the husband of the plaintiff. He was carrying on business of printing press at Premises No. 5397, Arya samaj Road, Karol Bagh, New Delhi in the name and style of M/s. Kisoo Mal Gian chand. Gian Chand was also the owner in possession of the premises in dispute. He died on 13. 12. 1977 leaving behind his widow and an unmarried daughter Suman besides a son Girish. The entire property after the death of Gian Chand was mutated in the name of the plaintiff. He had left behind a Will dated 13. 12. 1977 in which he bequeathed his property in favour of the plaintiff as the absolute owner.


(3). It is further alleged that Gian Chand deceased was a friend of the husband of Mrs. Asha Makkar. He had approached Gian Chand in August, 1977 for allowing him the joint use of part of the premises in dispute as a licensee. The monthly licence fee was settled at Rs. 5,100. 00. He had given a cheque dated 10/08/1977 in favour of M/s. Kisoo Mal Gian Chand. The permission was granted and defendant no. 1 (Fashion Linkers) became a licensee in part of the premises. Gian Chand had kept the hall and two rooms with him. The machinery of Gian Chand had been installed in the premises and the first floor remained in exclusive possession of Gian chand. Mrs. Asha Makkar was a partner of defendant No. 1 and continued to use the premises after the death of her husband. The husband of Mrs. Asha Makkar died in September, 1981 and Mrs. Asha Makkar died in 1983.


(4). It is further alleged that after that the property had been vacated. Taking advantage of the death of Gian Chand, Mrs. Asha Makkar and her husband had tried to take possession of the remaining part of the premises and even misappropriated the machinery that was lying there. A complaint was lodged at police Station Naraina, New Delhi on 13. 2. 1980. Defendant No. 1 is also alleged to have filed a suit for injunction against the plaintiff and her daughter praying that defendant No. 1 was a tenant in the premises. The said suit was dismissed. Despite the fact that plaintiff's name was entered in the records of the Delhi Development authority and Gian Chand had left a Will, still another suit was filed which was a inter-pleader suit against the plaintiff raising certain disputes and alleging that defendant No. 1 was a tenant therein.


(5). It is alleged that the plaintiff is entitled to the possession of the property. In addition to that licence fee is being claimed at the rate of Rs. 5,1007- per month and in all Rs. 7,99,600. 00 are being alleged to be due to the plaintiff, besides interest. A decree for mandatory injunction is also claimed directing defendants 1 and 3 to vacate the premises and in the alternative a decree for possession of the suit properties is claimed. It is prayed that defendant Nos. 1 and 3 should be restrained from using the electricity of the existing light and domestic power connection. Presently defendant was stated to be in possession of the property.


(6). In the written statement filed, the defendants contested the suit. It was asserted that there is a relationship of landlord and tenant between the plaintiff and defendants 1 and 3 with respect to the property in dispute and therefore the civil suit is barred by the provisions of Section 50 of Delhi Rent Control Act, 1958. It was alleged that plaintiff has herself admitted in application IA 3678/88 that there is a relationship of landlord and tenant between the parties. The civil suit was also stated to be barred by time because claim was laid that the plaintiff has sought recovery of arrears from December, 1977. Yet another objection taken up was that sir Ganga Ram Trust Society, Rajinder Nagar, New Delhi is a necessary party. The said society has claimed that deceased Gian Chand had executed a Will dated 29/07/1975 bequeathing all his properties in favour of the trust. The said trust has already filed a Probate Case No. 104/78 and Suit No. 303/83 against the plaintiff which are pending in the Court of District Judge, Delhi.


(7). On merits of the matter it was alleged that Gian Chand had let out the suit property to defendant No. 1 on 10. 8. 1977 at a monthly rent of Rs. 2,000. 00- and since then defendant No. 1 through its partners, employees and servants has been in exclusive and peaceful possession and use of the suit property. So far as the Will dated 13/12/1977 set up by the plaintiff is concerned the defendants contended and pleaded that this question has to be finally determined by the Court of District Judge as to whether probate has to be granted to the plaintiff or to Sir ganga Ram Trust Society.


(8). It was denied that husband of Mrs. Asha Makkar had approached Gian chand for allowing him joint user of a part of the premises as a licensee on a monthly fees of Rs. 5,100. 00 or that defendant No. 1 through its partner had become a licensee thereon. The plea, already referred to above, has been reiterated that defendant No. 1 had taken the property on a monthly rent of Rs. 2,000. 00. So far as the machinery belonging to Gian Chand in the suit property is concerned the defendants pleaded that the same was lying in a part of the property. The plaintiff had promised to remove the same, it was a junk and therefore plaintiff had not removed it. They could remove it at any time.


(9). Rejoinder had been filed by the plaintiff. The assertions of the defendants in this regard were controverted and even it was alleged that the title of the plaintiff could not be challenged.


(10). From these pleadings of the parties on 28/05/1991 this Court had framed the following issues:


" (1) Whether the defendants Nos. 1 to 3 are tenant of the property in question. If so its effect? (2) Whether, inview of the judgment in Suit No. 304/78, can the defendants raise the plea of tenancy? If so its effect? (3) Whether the suit is barred by time as pleaded in para 6 of the preliminary objection in the written statement of defendants 1 to 3 ? (4) If issue Nos. 1 and 2 are proved, then has this Court no jurisdiction to try the suit? (5) Whether the suit is liable to be stayed pending the decision in Probate case No. 104 of 1978? (6) Whether the Will dated 13. 12. 1977 is the last Will and testimony of the deceased Gian Chand? and whether the regd. Will dated 29. 7. 1975 stood revoked consequently? (7) Whether defendant No. 5 has acquired any property right in the property in question after the death of Gian Chand, on the basis of the will dated 29. 7. 1975? (8) Whether defendant No. 5 is entitled to receive the rent/licence fee on the ground of Will dated 29. 7. 1975? (9) Whether defendant No. 5 is entitled to receive the mesne profits and damages from defendants 1 to 3 on the basis of the Will dated 13. 12. 1977? (10) Whether the plaintiff is entitled to recover the suit amount from defendants 1 to 3? If so from which date? (11) Whether the plaintiff is entitled to a decree for permanent injunction as claimed? (12) Whether the plaintiff is entitled to recover Rs. 1,500. 00 per month as pleaded against defendant No. 4? (13) To what rate of interest the plaintiff is entitled to? (14) Whether defendant Nos. 1 to 3 are estopped from denying the title of the plaintiff without first surrendering the possession of the suit premises. If so its effect? (15) Relief. "


(11). Issue Nos. 5, 6, 7, 8, 9 and 14: During the course of submissions it was conceded at the bar that during the pendency of the present suit the claim of Sir ganga Ram Trust Society has not found favour with the Court. The Will set up by the plaintiff has been so accepted. In light of the said decision the learned Counsel for the defendants admitted that the suit was not liable to be stayed. The Will set up by the plaintiff should be accepted and defendant No. 5 will have no right in the said property or to claim damages or mesne profits. The question thus of denying the title of the plaintiff did not arise. All these issues are decided against defendants 1 to 3.


(12). Issue No. 2: It was not disputed that defendant No. 1 had filed a Civil Suit no. 304/78 against the plaintiff seeking a permanent injunction. It is not in controversy that defendant No. 1 had claimed itself to be a tenant in the property. Amongst others the learned Civil Judge had framed an issue as to if defendant No. 1 was a registered partnership and could file the suit and if defendant No. 1 was a tenant therein. The certified copy of the judgment of the learned Civil Court dismissing the suit is Ex. PI.


(13). According to the learned Counsel the said decision operates as res judicata and defendants 1 to 3 cannot raise the plea that defendant No. 1 is a tenant in the property. This has not been accepted too by the defendants 1 to 3 because it has been urged that the same was not a decision deciding the rights of the parties because no evidence of defendant Nos. 11 to 3 had been recorded.


(14). Perusal of the judgment, copy of which is Ex. P1, reveals that the learned civil Judge had adjourned the matter for evidence of the plaintiff in that suit. Some witnesses had been examined who had not been cross-examined. Thereafter there was no appearance on behalf of the plaintiff. The learned Trial Court had adjourned the case. On the next date also when there was no evidence produced by the plaintiff the learned Civil Judge closed the evidence and thereupon recorded the finding that defendant No. 1 who was the plaintiff in the said civil suit was not a registered partnership firm and the civil suit was not maintainable. It was further held that there is no evidence to show that defendant No. 1 was a tenant in the property.


(15). The first and foremost question that comes up for consideration is as to if this was a decision on merits of the matter. This is necessary to be gone into because to invoke the rigors of Section 11 of the Code of Civil Procedure it is necessary that between the parties the earlier matter or suit should have been heard and finally decided. Order 17 Rules 2 and 3 hold the key to the said controversy. The relevant provisions of Order 17 Rule 2 and 3 are being reproduced below for the sake of facility:


"2. Procedure if parties fail to appear on day fixed where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. 3. Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, (the Court may, notwithstanding such default, (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under Rule 2). "


(16). These provisions had been suitably amended by the Parliament Act, 104 of the 1976 with effect from 1/02/1977. Order 17 Rule 3, Code of Civil procedure dearly reveals that when on the date when the matter is adjourned the parties 01 any one of them fail to appear the Court may proceed to dispose of the suit in terms of Order 9 of the Code of Civil Procedure but further permits the Court to make such other order as it thinks fit But explanation to Order 17 Rule 3 incorporated since 1/02/1977 is important. It provides that where evidence or substantial portion of the evidence has been recorded and such party fails to appear on the date when the matter is adjourned a legal fiction is created and the Court in its discretion can proceed as if the party were present. Order 17 Rule 3 is to be read with Order 17 Rule 2, Code of Civil Procedure. It clearly contemplates a situation that when time has been granted to a party and he fails to produce his evidence or to perform any act for progress of the suit, for which has been allowed. Court may if parties are present decide the suit forthwith or in case they are absent proceed under Order 17 rule 2, Code of Civil Procedure. These provisions had been discussed in the case of firm Sood Traders v. Paras Ram, AIR 1985 HP 93. It would not be necessary to go into the facts of the cited case which were different but the principle applicable to order 17 Rules 2 and 3 had been enunciated. It was held that a decree which was passed on merits after considering the evidence which was on the record must be taken to be a decision On merits. In paragraph 8 the Court held:


"the explanation which has been newly added to this rule dearly provides that where the evidence of a party has been wholly or partly let in and the party absents itself at the adjourned hearing, it will be deemed to be present at such hearing. A decision, therefore, given in the suit after consideration of the evidence already let in, though in the physical absence of the party will not be an ex parte decision in view of the legal fiction introduced by the explanation aforesaid that such party though actually and physically absent should be deemed to be present. The decree dated 24. 8. 1978 which had been passed on merits after considering the evidence adduced on either side must, therefore, be taken as the decree passed on merits in the presence of the parties and in view of the language of the explanation appended to Rule 2 of Order 17, Code of Civil Procedure. It is just not possible to call such a decree as an ex parte decree. It being so, the provisions of Order 9 Rule 13, Code of Civil Procedure could not be invoked to attach such a decree. The only course open to the respondent-defendant was to prefer an appeal against that decree. "


(17). The Calcutta High Court in the case of Braithwaite, Burn and Jessop construction Co. Ltd. v. Abdul Gafoor and Others, AIR 1986 Calcutta 128, also dealt with the same controversy. Therein a civil suit was instituted for recovery of a specific amount. On 28/03/1978 one of the plaintiff's witness was examined and the matter was adjourned. On the adjourned date the suit was again adjourned in the absence of the Presiding Officer. The hearing was resumed on 25/10/1979, when witness earlier examined in part was examined and cross-examined. It was again adjourned for the evidence of the defendant when the defendants' counsel on the date fixed for hearing informed that he has no instructions. The civil suit was disposed of. An application was filed under Order 9 Rule 13, Code of Civil procedure. The Calcutta High Court considered the scope of Order 17 Rule 2 and order 17 Rule 3 and held:


". . . . . . . . . . The object of the amendment of Rule 3 by incorporation of two clauses prescribing different modes to be adopted in the two different situations was to override the view taken by some of the High Courts that where evidence or a substantial portion thereof had been recorded at an earlier hearing at the instance of the plaintiff, the Court is required to dispose of the suit on merits notwithstanding the absence of either of the parties in a way resulting in total exclusion of all remedies under Order 9 of the Code. Rule 3 now makes it clear that in the absence of the parties or either of them the Court is required to proceed under Rule 2 and the amended scheme of Rule 2 is that the Court will proceed to dispose of the suit treating that party to be present who has earlier adduced his own evidence or substantial part thereof. The explanation does not authorise the Court to dispose of the suit on merits against both in the sense that both would forfeit their right to any possible remedy under Order 9. It would be only so in respect of a party who by the deeming clause shall be deemed to be present. It is significant to note that on the terms of the explanation the Court can treat only that party to be present who had already adduced his evidence or a substantial part thereof prior to his default but not the other party who may as well be absent. . . . "


(18). Similarly in the case of Rama Panicker Divakara Panicker of Pavana Veedu v. Bakari Hydrose, Chennampilly and Ors. , AIR 1990 Kerala 295, the said Court also considered the same controversy and held :


". . . . . . . . In any contingency, the discretion is always with the Court to resort to Rule 2 or 3 or to grant an adjournment for deciding the suit in a regular way in spite of default. Rules 2 and 3 are only enabling provisions. In order to decide the suit on the merits, the mere existence of the conditions enumerated in Rule 3 alone will not be sufficient. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases could be on the basis of pleadings, documents and burden of proof. Anyhow, it is appreciable for the Court to indicate by the judgment that the decision is for default or on the merits. The only alternative of the Court in cases covered by Rule 3 or the explanation to Rule 2 is not to decide on the merits alone. If such an interpretation is given, it will amount to an unjustified preference to one who purposely absents than to one who presents but unable to proceed with the case. "


(19). It is obvious from aforesaid that if an adjournment had been claimed and the same had been granted for progress of the case and on the dates so fixed when parties are present but evidence is not produced the Court can proceed and dedde the matter. This would be a decision under Order 17 Rule 3 and would be taken to be a decision on the merits.


(20). Reverting back to the facts of the present case it is obvious that the defendant No. 1 who was a plaintiff therein had taken an adjournment for the evidence. Examination-in-chief of the witnesses had been recorded. The plaintiffs counsel was present, adjournment had been refused and the Court decided the matter. It must therefore be taken that it was a decision on merits of the matter and the contention of the learned Counsel for defendants 1 to 3 to the contrary must fail.


(21). However, yet another fact which is co-related with this controversy is as to whether the cited case would operate as res judicata or not. This controversy arises keeping in view the fact that in the civil suit it was held that civil suit was not maintainable because defendant No. 1 was not held to be a registered partnership and that the suit was barred obviously under Section 69 of the Partnership Act. In such an eventuality if a decision has been pronounced and rendered on the other issues which was unnecessary. The question for controversy would be as to if it would operate as res judicata or not pertaining to the fact if defendant No. 1 was a tenant in the property or not.


(22). A Division Bench of the Madras High Court almost eight decades ago in the case of Sinnaswami Chettiar v. Aligi Goundan and Ors; 1924 Madras 893, concluded that when a finding is recorded only to avoid a possible remand and it is not the basis of the judgment the point is not finally determined and will not operate as res judicata. More dose to the facts of the present case would be the decision from the Calcutta High Court in the case of Sri Sri Gopoal Jew Thakur v. Radha Binodemondal and Ors. , AIR 1925 Calcutta 996. The Calcutta High Court held that where the Court has concluded that the suit is not maintainable then he could not try the other issues and those decisions will not operate as res judicata. Those decisions would be incidental questions. The Calcutta High Court held:


". . . . . . . It may be conceded that where a suit is properly framed, and the Court dedded several issues the decision on each issue is binding upon the parties. But where, as here, the Court held that the suit as framed was not maintainable, the suit should have been dismissed on that ground alone, and the Court could not try the other issues so long as the suit was not properly framed. And lastly, we think that the question of res judicata must be decided in favour of the appellant from the fifth ground raised by him, viz. , that the question of debuttar was incidentally decided in the previous suit. In the first place, the decision of the question of debuttar was only incidental after the decision of the third issue. In the next place, the plaint in that suit proceeded upon the assumption that the properties were debuttar. . . . . "


(23). The Allahabad High Court in the case of Mt. Daroupadi Debi and Am. v. S. K. Dutt and Anr. , AIR 1957 Allahabad 48, went into the same controversy and held:


"it was held in the previous case of 1935 that the apartments whose privacy was said to have been infringed did not enjoy that privacy from other buildings and therefore the plaintiff of that suit could not object to the infringement of that privacy by the defendant of that suit. In view of this finding this suit must have failed. It was not necessary in that suit to decide further whether this right of privacy ceased to exist on account of Section 16, land Acquisition Act and any finding on such a question in those circumstances cannot operate as res judicata. "


(24). Same view was again expressed by the said Court in the subsequent decision in the case of Jhamman Lal and Ors. v. Deputy Custodian General and Ors. , air1965 Allahabad 253, holding that when previous application is dismissed as not maintainable observation made on merits of the controversy will not operate as res judicata.


(25). Identical is the view point of Andhra Pradesh High Court in the case of sampalli Hanumant Rao v. Sampalli Amrutamma, AIR 1966 AP 221. The Andhra pradesh High Court concluded that one issue is not necessary for the decision of the suit. The finding therein will not operate as res judicata. A Division Bench of the Punjab and Haryana High Court in the case of Amar Nath v. The Financial commissioner, Taxation Punjab, 1979 Volume 81 Punjab Law Reporter 47, was dealing with a question where before the Court the main question was regarding lack of jurisdiction. It was held that when such was the question, finding on another issue shall not operate as resjudicata because once the Court had no jurisdiction the other findings or reasons become not relevant. Lastly, the decision of the Supreme court in the case of Thiruvalanchull Vaithilingam Pillai Charities v. Vijayavalli Achi and Ors; 1966 SC Journal (Vol 2) 259, can be taken note of. It was held that a decision which was not necessary for purposes of the case if rendered will not operate as res judicata.


(26). From perusal of the aforesaid it is clear that a decision which is unnecessary would not operate as resjudicata particularly if the Court comes to the conclusion that the suit was not maintainable. Once the suit is not maintainable or the Court has no jurisdiction to entertain the suit, the other issues become irrelevant for decision. Then decisions on other issues do not constitute a decision therefore to operate a bar for filing of a subsequent suit or for raising the same controversy.


(27). In the present case in hand as already pointed the learned Trial Court held that because of the bar of Section 69 of the Partnership Act the defendant No. 1, who was a plaintiff, was not a registered firm and therefore the civil suit was not maintainable. Once, the civil suit was not maintainable the other finding about relationship of the landlord and tenant became unnecessary and it will not operate as res judicaia. Accordingly issue No. 2 is decided in favour of defendants 1 to 3.


(28). Issue Nos. 1, 4 and 11: All these issues are interconnected. This is for the reason that the main controversy between the parties is as to if the defendants are the tenants in the properties or licensees. If the defendants are tenants at monthly rent of Rs. 2,000. 00 necessarily the Civil Courts will have no jurisdiction to entertain the suit otherwise in case they are licensees the civil suit for possession would be maintainable beside in the alternative mandatory injunction can also be issued when the licence as such is terminated.


(29). Regarding the said controversy mainly the evidence produced is oral but for receipt DW 1/1 relied upon by the defendants. The plaintiff had examined herself as PW 1 besides her daughter Suman Arora as PW 2. In addition to that their evidence has to be discussed hereinafter. In addition to that the plaintiffs examined rakesh Vaid, PW 3. He had testified that he knew Gian Chand deceased and is basically a witness to the Will purported to have been executed by the deceased. As held already above, the said controversy does not survive any more for consideration and therefore the statement of the witness is not relevant. N. S. Deswal was examined as PW 4. He has deposed that he knew deceased Gian Chand who was doing the business of napkins at Arya Samaj Road, Karol Bagh. He stated that he knew Mahinder Pratap Makkar and met him at premises 451/1, Naraina Industrial area Phase I, New Delhi in the last week of July, 1977. Shri Makkar had come to the premises to start some new business. On that day it was decided that Mahinder pratap Makkar would use part of the premises and would pay licence fee of Rs. 5,100. 00 per month. At that time whole of the construction was not complete. He further stated that deceased Gian Chand shifted his business to the premises in dispute, 'havan' was performed before Gian Chand shifted the said business. The witness went on to make a statement that after the death of Gian Chand his daughter suman Arora continued the business at the premises in dispute. Some dispute took place between Mahinder Pratap Makkar and Suman Arora. The matter was reported to the police. One Ranjit Singh was called and it was decided through the intervention of police that Mahinder Pratap would make full payment to the plaintiff. In addition he would pay Rs. 1,500. 00 per month for the occupation he had occupied afterwards. He had been subjected to cross-examination and stated that he retired as Vice Principal of the Government Senior Secondary School. He had no knowledge about if Ranjit Singh knew how to write English. The house of Ranjit singh was stated to be situated at Rajouri Garden. At the time of the writing of the document Ex. PW4/1 whatever was spoken by Ranjit Singh had been written. He had accompanied the plaintiff and her daughter to the house of Ranjit Singh. He denied that the said document does not bear the signatures of Ranjit Singh.


(30). As against this evidence the defendants examined one Rajiv Makkar as DW 1. He is the son of Mahindra Makkar. He reiterated that late Gian Chand had created a tenancy in the suit premises in favour of Mahindra Makkar and the document Ex. DW 1/1 was executed. According to this witness, cheque of Rs. 5,100. 00 was handed over to Gian Chand because it is an auspicious amount. The rent in fact was settled at Rs. 2,000. 00per month. According to this witness twoold and discarded machines were left which are still lying in the premises. The plaintiff had tried to take forcible possession of the premises and thereupon the suit for injunction was filed which was dismissed. This witness added that they have been paying all the electric bills to Delhi Electric Supply Undertaking and in this process supported the version of the defendants and the statement can be considered henceforth.


(31). In addition to that Shri S. C. Chopra, DW 2 was examined along with DW 3 Arvind Mehta. They both deposed about the execution of the document DW 1 / 1. Lastly Mrs. R. K. Vij, DW 4, a Hand Writing Expert was examined who deposed that in her opinion the document DW 4/1 bears the signatures of deceased Gian chand. The document was also sent to the CFSL and the opinion received was to the contrary.


(32). Since the parties had come to the Court with specific pleas, namely that according to the plaintiff, Mahinder Pratap Makkar was a licensee while defendants asserted that he was a tenant, therefore, when parties knew the controversy and have led their evidence with respect to their pleas onus of proof keeping in view the aforesaid does not assume much importance.


(33). As referred to above, the defendant contends that Ex. DW 1/1 was executed when property was let and that on the strength of the said document it has been contended that this created a tenancy in favour of Mahinder Pratap Makkar (since deceased). To establish that, the said document had been executed by the deceased Gian Chand. Shri S. C. Chopra, as mentioned, had been examined. He deposed that he knew the parties. A letter was signed by Gian Chand which is Ex. DW 1/1. The possession of the entire factory in dispute was handed over to mahinder Pratap Makkar and he added that so far as he knows Rajiv Makkar is in exclusive possession of the factory in dispute. During cross-examination the witness added that he had only once met Gian Chand prior to the execution of the document Ex. DW 1 /1 in his office. He did not know as to where Gian Chand was residing. He had no idea if Gian Chand deceased was a left hander or right hander. He denied that he is a close friend of Shri Makkar and that he had no family friendship with him. He admitted that Ex. DW 1/1 does not bear his signatures. During further probing the witness admitted that he knows Shri Makkar as past neighbours and Shri Rajiv Makkar is having his residential as well as official telephone numbers. During further cross-examination he admitted that whenever he visited premises in dispute he never found the plaintiff or her daughter doing any business therein but admitted that some junk machinery was lying therein. He admitted that there was a joint 'mahurat' in the suit premises.


(34). While analysing the statement of this witness it is clear that much reliance cannot be placed upon his testimony. He has no special friendship as per his own testimony with either party that he should have been present at the time document ex. DW 1/1 was executed. It appears, as is apparent from the later part of the cross-examination, that he is friendly to the defendants and that is the reason why he is deposing in their favour. They were neighbours and when they are keeping their residential and official telephone numbers, obviously they have special connections with each other. In fact he further admits that the machinery of the plaintiff was lying in the suit premises though he describes it is a junk machine but still while the very fact that machines as such were lying indicates that what the witness wanted the court to believe is not correct. The testimony of this witness keeping in view the above said facts necessarily deserves to be rejected.


(35). Arvind Mehta, DW 3 is the other witness produced by the defendants. He too in a like manner stated that DW 1/1 was signed in his premises which was brought by Gian Chand deceased and handed over to Mahinder Pratap Makkar. During cross-examination even he admitted that he knew Rajiv Makkar since the year 1977. They had shifted their business from Naraina in 1979 and that he had met gian Chand deceased only on that date. He explained that the document was executed in his premises because it was a rainy day. and there was water in the basement of the premises A-85. The explanation given by the witness is not satisfactory at all. There was no reason as to why the document was signed at the premises of this witness. He obviously has special connections with the defendants and that prompts him to appear as a witness. The totality of the statement does not inspire confidence and therefore must be rejected.


(36). At this stage, one can conveniently note that tenancy is a bilateral contract. It can be created by a written document or even by an oral agreement. But there has to be intention to create the demise of the property. Exclusive possession was normally taken to be one of the test to determine if tenancy has been created or not. But licence even can be created in this regard. With this backdrop the other evidence with the record can further be scrutinised.


(37). The defendants examined Mrs. R. K. Vij, a Handwriting and Finger Print expert. She had examined the disputed signatures of Gian Chand appearing on the disputed document Ex. DW 1/1 with the admitted signatures of Gian Chand and opined that they are of the same person. As referred to above the said document was also sent to the CFSL and the opinion of the laboratory was to me contrary.


(38). It is well known that science of comparing the handwriting is not a perfect science. Invariably two experts differ from each other. The experts generally make their report available to the parties in advance. They are only examined if they make a favourable report. After making the favourable report a party examines them and in that view the witness necessarily has to support his report. Keeping in view these important facts the opinion of the Hand Writing Expert in this regard are not worth it and necessarily should be rejected.


(39). The plaintiff Mrs. Savitri Devi appeared as PW 1. As per her testimony me property that is half of the premises had been given on licence. Mr. Makkar had given a cheque of Rs. 5,100. 00 at the spot. It had been agreed as per this witness that in the hall there would be a partition wall. The machinery of the plaintiff was also installed therein. Thereupon the witness fumbled and faltered and added that she does not remember whether defendant filed a suit in the Trial Court and her daughter may be aware of those facts. She stated that thereafter the defendants did not allow them to enter the premises. During cross-examination she further stated mat she does not know as to how much time was taken in completing the construction. She had no idea if her husband had executed the receipt mark "a" (now Ex. DW 1/1). On further probing she stated that defendant has never paid any money by way of rent or licence fees. She did not know if she has a Bank account and added that this must be known to her daughter.


(40). Reading of the statement of the plaintiff also reveals that at the time when she appeared as a witness in Court she was 70 years of age. To most of the questions she added the factmustbe known to her daughter and therefore the statement of this witness can hardly be taken to be a person who was in a position to depose coherently and make a dear and unambiguous statement.


(41). Rajiv Makkar appeared as DW1 as referred to above, his statement is in terms that Rs. 2,000. 00 per month had been settled as rent. A cheque of Rs. 5,100. 00 was handed over to deceased Gian Chand as an auspicious amount. The said amount was to be adjusted in future rentafter possession of the premises was given. The witness stated that rs. 2,000/- was to be paid as rent for the entire premises. He went on to state that Rs. 2,000. 00 was paid by cheque as rent to the plaintiff in the month of February, 1978, it was drawn on Punjab National Bank, Jhandewalan and that the plaintiff had encashed the same. When cross-examined further he had stated that the amount of Rs. 5,100. 00as such had been adjusted towards rent. The adjustment was stated to be by getting the window 'jaali' fixed and making certain payments to Delhi Electric Supply Undertaking and that he had spent Rs. 5,991. 80 despite that he paid a cheque of Rs. 2,000. 00 towards rent.


(42). So far as the payment of Rs. 2,000. 00 by cheque alleged by the witness is concerned there is no evidence that has been produced on the record. That would have been the best evidence under the circumstances so as to indicate that rent was Rs. 2,000. 00- and that cheque for the said amount had been paid. In the absence of any such evicence necessarily adverse inferences have to be drawn against the defendants that there is no such payment of Rs. 2,000. 00 per month purported to have been made with respect to the rent.


(43). What is more important is that if the amount of Rs. 5,100. 00 had been paid to be adjusted for future rent, there was no occasion to make the payment of Rs. 2,000. 00, the witness added that the same had been spent for repairs of window 'jaali', other minor repairs, security for electricity connection. In that event once the amount had been adjusted, again mere was no occasion for making the payment of Rs. 2. 000. 00. This is for the reason that Rs. 5,991. 80 is stated to have been spent for repairs. Having spent that much amount there was little occasion to pay the rent at Rs. 2,000. 00 per month, as stated, by the witness. This bangs the bottom of the assertions made that rent settled was Rs. 2,000. 00 per month or that Rs. 5,100. 00 had simply been made since it was an auspicious amount.


(44). On behalf of the defendant it was very eloquently pointed that the defendant had been making the payment of the house tax and had depositing the rent of Rs. 2,000. 00 per month. On the strength of this fact it was urged that even when the defendant paid the house tax of Rs. 2,000. 00 it must be taken that defendant was a tenant. Ms. Suman arora, PW 2, daughter of the plaintiff in this regard during cross-examination stated that she does not know as to how much was the house tax when her father died. She did not know RS to from which date this property was assessed to house tax. She admitted that since she had no funds therefore I did not take any steps for payment of house tax with regard to the property in dispute. She parried question as to whether she had filed any objections on the notice of the Municipal Corporation.


(45). Can on basis of this statement it be taken that rent was agreed to be Rs. 2,000. 00- per month? The answer appears to be in negative. Receipts DW 1/2 and Ex. DW 1/3 only reveal that rent had been paid at Rs. 6,000. 00 and Rs. 4,000. 00. They are multiplier of rs. 2,000/ -. The receipts are forthcoming from the possession of the defendant and it can well be taken that they had paid the house tax. But if the daughter of the plaintiff admits that she had no fund and defendants had made the payment that by no stretch of imagination can be taken to be a payment of as rent. It can be taken to be a payment made only for which adjustment couldbe claimed for the relevant period. As referred to above, the tenancy is a bilateral contract. Unless the defendant shows that there was such an intention to create the demise mere payment of house tax for and on behalf of the owner will not tantamount to a presumption that tenancy had been created. This argument therefore so much thought of by the learned Counsel necessarily must fail.


(46). As has been noted above it was admitted that machines of the plaintiff were lying in the suit premises. Defendants contend that they were junks and not in a running condition. Suman Arora, daughter of the plaintiff who appeared as PW 2 on the contrary insisted that the business had been shifted arid they had been carrying on the business from the property. After the death of her father even she carried on this business. She had denied the suggestion by the defendants that there was only one printing and cutting machine that were in the suit premises. She was subjected to further cross-examination in this regard. In her own words the statement in this regard reads:


". . . . . . . I do not know whether any day book, ledger or account books were maintained or not. I do not know the procedure of maintaining the accounts, therefore, i do not know whether any entries were made in the ledger or in the cashbook. The goods used to be supplied on credit. I must be maintaining accounts at that time. It is correct that the goods supplied to the parties were against the bills and their accounts were maintained. Some of the payments were received. Some payments were received by cheque other by cash. I used to record the amount received in cash against the party to whom the goods were supplied. Similarly, the amount received by cheque was put in the bank. The bank account was under the name of the firm. The account of the firm was in the State Bank of India, Karol Bagh Branch, New Delhi. The firm had a current account in the said bank. Same account continued which was opened by my father under the name of the firm. . . . . . "


(47). Thereafter it further reads:


"i filed the sales tax return or the transaction carried out by me. Now I do not remember whether the sales tax return were filed quarterly or not. Mr. Vinod bhushan Srivatava was our Senior Adviser. He is an Advocate. I give the instructions for filing the sales tax return to Mr. Srivatava. I do not remember even approximately how many returns were filed by me. We got a letter from the sales tax department thatno sales tax is leviable on these transactions. I have got the said letter from the sales tax department. I will try to trace out the same and if available produce the same. I do not remember having kept the sales tax registration number of certificate. I did not see even my father's time the sales tax registration certificate. "

I do not remember whether I told this fact of non availability of the sales tax certificate to my lawyer Srivatava. I do not know whether the sales tax certificate was of the factory premises at Karol Bagh or not. My father might have given the intimation to the sales tax department that we have started running the business at Naraina but after his death I never gave such intimation. (Vol Since my father shifted before his death so he might have given this information not me).


(48). On 7/04/1992 the witness again appeared for further cross-ex

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amination. She stated that she had received the telegrams of the defendants learned Counsel and produced the statement of account of the bank, namely Punjab and Sindh Bank Ex. PW 2/d5 and the licence in the name of the firm Ex. PW 2/d4. Ex. PW 2d/5 is a statement of M/s. Kisoo Mal Gian Chand with the address of 7a/6, WEA, Karol Bagh, New Delhi. This shows that the business was carried on even in the year 1978. Ex. PW 2/d4 is the licence of Kisoo Mal Gian Chand of the address of Naraina Industrial Area of 51/1, Block a, Delhi. These documents clearly show that even after the death of husband of the plaintiff late Gian Chand the business was being carried on. When read with the fact that the machines of the plaintiff were admittedly lying in the property it clearly leads to the inference that exclusive possession had not been handed over to the defendants. When there was no exclusive possession with the predecessor-in-interest of the defendants, it must be taken that he was not a tenant therein. (49). But great stress was laid during the course of arguments that no business is shown to have been carried after the year 1978. But so far as this particular argument is concerned it must be taken to be without merit. Reason being that disputes had arisen between the parties and there was some complaints also filed. The predecessor-in-interest of the defendants even filed a suit for permanent injunction. It is alleged that possession of the defendant was not being admitted. In that view of the matter when such was the position the business could not be carried in the suit premises. (50). In that event it was further contended on behalf of the plaintiff that joint 'mahurat' had been held when the property was given on licence. The statement of PW 2 Suman Arora in this regard does not make a very clear statement. The admission that there was a joint 'mahurat' is forthcoming only in the statement of DW 2 S. C. Chopra that a joint 'mahurat' had taken place. But this fact by itself if of little consequence keeping in view that defendant have failed to prove that they were the tenants in the premises. It is in evidence that Rs. 5,100. 00 were given by cheque by the predecessor-in-interest of defendants to Gian Chand. It is clear cut payment that must be taken to have paid as a licence fees. The adjustment of the same as already pointed out has not been explained. Therefore, it must be held that defendants are not tenants in the property in dispute. Once they are not tenants this Court has jurisdiction to entertain the suit. Once the suit is being decreed as such for possession it becomes unnecessary to consider whether injunction in this regard should be granted or not. Issues are decided accordingly. 50. Issue No. 3 : Objection taken up by the defendants is that arrears are being claimed from December, 1977 and the claim is barred by time. It is not in dispute that period of limitation would be three years before filing of the present suit. The civil suit as such had been filed on 11/07/1988. The amount therefore would only be due from july, 1985 as legally recoverable as licence fee at the rate of Rs. 5,100. 00 per month. The claim for the earlier period must be taken to be barred by time and consequently the issue is decided accordingly in favour of the defendants. (51). Issue Nos. 10 and 12: It has already been held above that defendants are not tenants in the property and that Rs. 5,100. 00 per month was the licence fee agreed. It has already been recorded also that the plaintiff is only entitled to recover the licence fee at the above said rate for the period three years before filing the suit. Therefore, the plaintiff would be entitled to recover only Rs. 5100 x 12 x 36 = Rs. 1,83,600. 00. The issue is decided accordingly. (52). Issue No. 13: As regards the payment of interest keeping in view the nature of disputes raised when payment has not been made, the plaintiff must be held entitled to interest at the rate of 12% p. a. from the date of the filing on the principal amount held above. For this period if any amount has already been deposited by the defendants he will take adjustment and interest would be payable only on the balance amount. (53). For these reasons given above the suit of the plaintiff is decreed for possession of the property in question. It is also decreed for a sum of Rs. 1,83,600. 00with costs. The interest would be payable at the rate of 12% p. a. on the principal amount till final payment is made, from the filing of the suit. The defendant can take adjustment of any amount, if any, deposited for this period. The defendants are given three months' time to vacate the premises.
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