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CASE NO.:

Special Leave Petition (civil) 3971 of 1999

PETITIONER:

MOHINDER KAUR

Vs.

RESPONDENT:

KUSAM ANAND

DATE OF JUDGMENT: 08/05/2000

BENCH:

A.P. Misra & M. B. Shah.

JUDGMENT:

Shah, J.

Leave granted.

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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.

Plaintiff 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.

The 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.

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It is 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.

Chadha 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.

It is 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.

Hence, he issued notice by telegram on 31.12.1977 and lodged

FIR for criminal trespass.

On 2nd 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.

It is 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.

Chadha, 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

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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.

Against 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.

Chadha 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.

As the 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.

The 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.

Hence, 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.

Shri 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.

As 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.

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Admittedly, 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.

Letter dated 28.10.1977 :

Dear Sir,

I have seen your premises 1/5, Ground Floor, West Patel

Nagar lying vacant for residential purpose through Mr.

Mahajan of M/s Mahajan & Co., property dealers.

I am 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 accommodation.

I would request you to kindly consider my offer and rent

out the said premises to me at your earliest convenience.

Please 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,

588057, 527193.

If any surety is required, the same can be provided.

Receipt dated 16.11.1977 :

RECEIPT 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) (K. Chadha).

Undisputedly, 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

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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.

May be 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.

Chadha accepted the said advance rent of Rs.3000/- effective

from 01.1.1978 that would not be binding on the plaintiff.

Undisputedly, 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.

However, relying heavily on the receipt issued by D.K.

Chadha, 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.

Chadha 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 the premises.

Without 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 counsel Mr.

Dave, 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

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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.

Dave, 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.

Chadha 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.

In the 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.