Kaur Vs. Kusam Anand  INSC 301 (8 May 2000)
& M. B. Shah. Shah, J.
In the High Court of Delhi, plaintiff filed Civil Suit No.28/78 for possession
of the ground floor of the property bearing no.1/5, West Patel Nagar, New Delhi
and mesne profits @ Rs.3000/- per month from 01.01.1978. The learned Single
Judge decreed the said suit by judgment and decree dated 22.8.1997. Defendant
preferred RFA (OS) No.45 of 1997 before the Division Bench. That appeal was
allowed by judgment and decree dated January 28, 1999 and the same is challenged by the
plaintiff by filing this appeal by special leave.
filed suit for recovery of possession and mesne profits inter alia alleging
that plaintiff purchased the suit property from M/s Jawahar Mal & Sons
sometime in the year 1961. M/s Jawahar Mal & Sons were the lessees of the
land underneath the suit property. After purchase of the said property, it was
let out by the plaintiff to National Cadet Corps. (NCC). As the property was
being used by NCC for the purposes other than residence, the DDA lodged a
complaint against the plaintiff under Section 29(2) read with Section 14 of the
DDA Act, 1957 sometime in 1974.
running of office by NCC in the building in question was proved beyond doubt
and, therefore, the Metropolitan Magistrate by order dated 21.4.1976 convicted
the plaintiff for the said offence by holding that the building in question can
be used only for residential purpose as it is in the residential zone of the
Master Plan of Delhi. In view of the aforesaid non-confirming user of the
property by NCC, the plaintiff filed an application for eviction under Section
14(1)(a), (c) & (k) of the Delhi Rent Control Act, 1958 against Union of India and
others. Realising that the property cannot be put to non- confirming use, the
NCC vacated the property on 31.8.1977. In those proceedings, one D.K. Chadha,
employee of plaintiffs firm was appointed as power of attorney to conduct the
eviction proceedings against NCC and others.
the case of the defendant that she got in touch with Mr. D.K. Chadha and asked
to let her out the ground floor of the property on a monthly rent of Rs.3000/-
for the purpose of residence and DK Chadha as power of attorney accepted the
defendant as a tenant by accepting rent of Rs.3000/- per month for which a
receipt dated 16.11.1977 was issued. It is the case of the defendant that since
the plaintiff resided and carried business in Calcutta, D.K.
before accepting the advance rent told her that the same was subject to
confirmation by the plaintiff or her son Sharanjeet Singh as he was not
competent to let out the property on his own and she will have to execute a
lease deed. As the defendant was to occupy the ground floor portion of the said
property w.e.f. 01.1.1978, she requested D.K. Chadha a week or so before that
date to allow her to have the furniture/fixture prepared in the verandah of the
property to which he agreed.
the plaintiffs case that on 29.12.1977 when Sharanjeet Singh (son of the
plaintiff) visited the property, he found that defendant had entered into the
ground floor portion by getting the keys of the outer door from the chowkidar. Sharanjeet
Singh closed the outer door and put a lock on it. In the absence of Shranjeet
Singh and D.K. Chadha, the defendant put her lock over the lock of the
plaintiff on the outer door. Thereafter, Sharanjeet Singh contacted the
defendant and asked her to remove her belongings from the property but she
declined to do so.
he issued notice by telegram on 31.12.1977 and lodged FIR for criminal
January, 1978, defendant filed a civil suit in the Court of Senior Sub Judge at
Delhi for injunction restraining the plaintiff from disturbing her possession
except in due process of law in respect of whole of the ground floor of the
suit premises by contending that the tenancy was created in her favour from
1.12.1977 at a monthly rent of Rs.3000/-. Interim injunction as prayed for was
granted in the said suit.
the contention of the appellant-plaintiff that on receipt of the summons of the
said suit, she filed the present suit for eviction of the defendant on the
ground that defendant was trespasser in the suit premises and for mesne profits
@ Rs.3000/- per month w.e.f. January 1, 1978 until possession of the premises
was restored back to the plaintiff and interest @ 12% per annum. The learned
Single Judge framed the issues and after recording evidence and considering the
contentions arrived at the conclusion that the plaintiff was landlord of the
suit premises and there was no written lease deed between the parties which
would govern the respective rights inter se. In her evidence defendant had
stated that she had not forcibly occupied the premises in dispute but was
inducted as tenant by D.K.
Power of Attorney of plaintiff. After considering the evidence on record, the
Court held that defendant had trespassed in the premises without entering into
an appropriate agreement for rental of the same. She could have waited for the
plaintiff to come forward for that purpose, but on the contrary she hurriedly
entered into the premises and started running a school without any written
consent of the plaintiff in this regard. The receipt issued in her favour
merely states the payment of Rs.3000/- as an advance against rent of the suit
premises effective from January
1, 1978. The defendant
in order to perfect her legal entry into the premises instead of negotiating
with the plaintiff chose to file a suit for injunction in the court of Senior
Sub Judge, Delhi on January 2, 1978 for not disturbing her possession. The Court held that from
the facts and evidence on record it was established that defendant trespassed
into the premises in dispute on or about December 29, 1977. The Court further held that the
property in dispute was, admittedly, in residential zone as on an earlier
occasion the plaintiff had to file a suit for eviction of N.C.C. for use of the
premises for non-residential purpose. In her letter dated October 28, 1977 defendant had stated that she
required the premises for residential purposes. The Court further held that
plaintiff was entitled to the amount of Rs.3000/- per month as mesne profits
from January 1, 1978 till the date the possession is
handed over to her. It is to be stated that the court took virtually 20 years
for passing the aforesaid judgment and decree dated 22.8.1997.
that judgment and decree, the defendant preferred RFA (OS) No.45/97 which was
allowed by the Division Bench on the ground that it was admitted that D.K.
was given Power of Attorney to conduct the eviction case filed against the
National Cadet Corps and it was for the plaintiff to show that the said power
did not include the authority to let out the suit property by D.K. Chadha.
said Power of Attorney or its photocopy is not produced on record by the
plaintiff, it must follow that D.K. Chadha under the power of attorney had also
the authority to let out the suit property on behalf of the plaintiff. The
Court held that receipt Ex.P3 dated 16th November, 1977 executed by D.K. Chadha as attorney
of plaintiff for having received Rs.3000/- from the defendant towards one
months advance rent also negates the plea that the defendant occupied the suit
property as a trespasser.
Court further held that it is not the case of the plaintiff that the possession
of the property was handed over in collusion with D.K. Chadha to the defendant.
the Court set aside the judgment and decree passed by the learned Single Judge
and allowed the appeal. That judgment and decree is challenged by filing this
appeal by special leave.
R.F. Nariman, learned Senior Counsel for the appellant submitted that the
judgment and decree passed by the Division Bench is, on the face of it,
erroneous as it has ignored the vital document from its consideration, namely,
the letter dated 28.10.1977. He further submitted that plaintiff has
specifically denied that she executed power of attorney in favour of D.K. Chadha
for managing the suit property and that she did not have the copy of the power
of attorney executed in favour of D.K. Chadha for prosecuting the suit filed by
her for evicting National Cadet Corps. That power of attorney was not produced
on record and D.K. Chadha had left the plaintiff since years and that she did
not know the whereabouts of D.K. Chadha.
against this, Shri DA Dave, learned Senior Counsel for the respondent submitted
that considering the receipt of advance rent executed by D.K. Chadha on
16.11.1977 it is apparent that defendant had entered into the premises as a
tenant. He submitted that plaintiff has intentionally not produced on record
the copy of the power of attorney executed in favour of D.K. Chadha and,
therefore, adverse inference should be drawn against her.
in 1977 plaintiff was residing at Calcutta and there was no direct talk between the plaintiff and the defendant
for letting out the premises. In this view of the matter, for appreciating the
contentions raised by the learned counsel for the parties, we would reproduce
the letter dated 28.10.1977 written by the defendant to plaintiff and the
receipt dated 16.11.1977, on which heavy reliance is placed for proving tenancy
rights, for proper consideration.
dated 28.10.1977 :
Sir, I have seen your premises 1/5, Ground Floor, West Patel Nagar lying vacant
for residential purpose through Mr.
of M/s Mahajan & Co., property dealers.
interested to take the said premises on rental basis for residential purpose.
The monthly rent as indicated by Mr. Mahajan is Rs.3500/- per month, while we
are interested at Rs.3000/- per month which according to us is very reasonable,
looking to the rents prevailing in the same locality for the same like
would request you to kindly consider my offer and rent out the said premises to
me at your earliest convenience.
let me have your confirmation immediately through your representative Mr. D.K. Chadha
or Mr. Mahajan. You may even convey your decision on the telephone nos.584618,
surety is required, the same can be provided.
dated 16.11.1977 :
Received a sum of Rs.3000/- (Rupees three thousand only) from Mrs. K. Anand r/o
13/20, East Patel Nagar, New Delhi-8. This is advance against rent of 1/5 West
Patel Nagar (Entire Ground Floor premises). The rent is effective from Ist of
Jan., 1978. In case the possession is given earlier the difference will be
chargeable or adjustable from the date possession is given. --- Sd/- (Attorney)
aforequoted letter is written by the defendant to the plaintiff. The letter
specifically negates the contention of the defendant that D.K. Chadha was the
power of attorney holder of plaintiff. Firstly, because if D.K. Chadha was
power of attorney to manage the suit premises and for letting it out then there
was no necessity of writing letter to the plaintiff secondly, the letter
specifically mentions that D.K. Chadha or Mr. Mahajan (property dealer) were
plaintiffs representatives. Letter also specifically mentions that defendant
was interested in taking the premises on rental basis for residential purpose
and not for running school. This also indicates that defendant was knowing the
fact that premises were in residential zone and plaintiff would not let it out
to the defendant for non-residential purpose. This is to be appreciated in the
light of the fact that plaintiff was convicted by order dated 21.4.1976 by the
Metropolitan Magistrate for the offence punishable under Section 29 read with
Section 14 of the DDA Act, 1957 for letting out the premises for office purpose
to NCC. After receipt of the said letter dated 28.10.1977 plaintiff has not
conveyed its confirmation that she was willing to let out the premises to the
defendant at a rent of Rs.3000/- per month as offered.
that plaintiff was interested in fixing the rent which may exceed Rs.3500/- so
that provisions of Delhi Rental Control Act, 1958 may not be applicable.
Without waiting for any confirmation from the plaintiff if D.K.
accepted the said advance rent of Rs.3000/- effective from 01.1.1978 that would
not be binding on the plaintiff.
the plaintiffs son when came to Delhi and found that defendant had entered into the premises, he immediately
locked the premises and took away the keys. He contacted the defendant and
requested her to remove her belongings from the premises but she declined to do
so. He sent telegram on 31.12.1977 that defendant has trespassed on the
premises and that she should vacate immediately. He also lodged FIR on the same
date. If the premises were really let out to the defendant in November/December
then the plaintiff would not have lodged FIR in the month of December itself.
relying heavily on the receipt issued by D.K.
learned counsel Mr. Dave submitted that receipt would clearly establish the
case of the defendant that the premises were let out to her by accepting an
advance rent of Rs.3000/-. He further submitted that as per the receipt, rent
was to be effective from 01.1.1978 and in case the possession was given earlier
difference of rent was to be charged from the date of possession. As stated
earlier, if D.K. Chadha was having power of attorney then there was no
necessity of writing letter to the plaintiff who was residing at Calcutta. There was no necessity of having
confirmation from her that the premises be let out to the defendant and in the
letter itself it is mentioned that D.K.
was only representative along with Mr. Mahajan (property dealer). In the
cross-examination, defendant has admitted that she wanted confirmation from the
owners through Mr. Chadha and she received only one word confirmation from Mr. Chadha.
It is true that the plaintiff has admitted that D.K. Chadha had the power of
attorney for conducting a suit filed against the NCC for eviction from the suit
premises. This would not mean that D.K. Chadha was having any power to let out
verifying any power of attorney from D.K. Chadha, if the defendant had given
any advance rent to Mr. Chadha, it would not bind the plaintiffs. Learned
however, submitted that as the plaintiff has not produced the copy of the power
of attorney executed by them in favour of D.K. Chadha for conducting the suit
filed against NCC, adverse inference should be drawn against the plaintiff and
it should be held that D.K. Chadha had the power to let out the premises. For
this purpose, he submitted that Division Bench of the High Court rightly
arrived at the conclusion that since the execution of power of attorney
concerning the property in dispute in favour of D.K. Chadha is admitted by PW1,
it was for the plaintiff to show that it did not include the power to let out
the suit premises. In our view, the aforesaid inference drawn by the Division
Bench is illegal and erroneous firstly on the ground that plaintiffs PW1 and
PW3 have specifically stated D.K. Chadha was employed by them and was not
having any power of attorney to let out the premises. At the risk of repetition,
we would state that if D.K. Chadha was having any power of attorney for letting
out the premises, there was no necessity of writing letter dated 28.10.1977 to
the plaintiff for having confirmation of letting out the premises at the
monthly rent of Rs.3000/-. Further, it was open to the defendant to get
certified copy of the power of attorney, which was executed by the plaintiff in
favour of D.K. Chadha for conducting the suit filed against the NCC, from that
suit proceedings. If really such power of attorney was there with the
plaintiff, defendant could have followed the procedure prescribed under Order
11 Rule 12 C.P.C. by filing an application for discovery and inspection of
document and its production, which admittedly is not followed in the present
case. Learned counsel Mr.
however, referred to the provisions of Section 114 of the Evidence Act and
illustration (g) which provides that court may presume that evidence which
could be and is not produced would, if produced, be unfavourable to the person
who withholds it. In our view, in the present case, there is no question of
presuming that the plaintiffs were in possession of the power of attorney
executed in favour of D.K. Chadha. From the facts of the present case, it is
difficult to draw an adverse inference that she was withholding the power of
attorney which was in her possession. In evidence, plaintiff has specifically
denied that she has executed any such power of attorney in favour of Mr. Chadha.
Further, plaintiff was not asked to produce the copy of the power of attorney
executed in favour of D.K.
for conducting the eviction proceedings against NCC and plaintiff has produced
on record the other power of attorney executed in favour of D.K. Chadha for
conducting the business of the partnership firm. Not only this, other vital
aspect which was not considered in appeal is that defendant had nowhere stated
that before paying Rs.3000/- to Mr. Chadha she had seen or verified power of
attorney executed in his favour by the plaintiff. Not only this, in the
cross-examination, defendant had admitted that she had presumed that D.K. Chadha
was attorney of the plaintiffs because the receipt Ex.P3 contained hand-written
names of Darshan Singh and Mohinder Kaur on the top of the letter-head. From
this type of evidence neither presumption nor any inference can be drawn in favour
of so-called tenant. If such presumption is drawn, result would be immovable
property of number of persons would be unsafe.
result, considering the evidence on record it is difficult to arrive at the
conclusion that plaintiff had let out the suit premises to the defendant in
December 1977 for running the school or that D.K. Chadha was having any power
of attorney to let out the said premises. In this view of the matter, the
appeal is allowed, the impugned judgment and decree passed in RFA (OS) No.45 of
1997 is quashed and set aside. The judgment and decree passed by the learned
Single Judge is restored with costs. Defendant- respondent is directed to hand
over physical possession of the suit premises to the plaintiff-appellant on or
before May 1, 2000.