Rajesh Kumar v. Bhagwanti & Ors.

1. This regular second appeal has been filed against the concurrent judgments of the courts below; of the trial court dated 18.3.2011 and the first appellate court dated 16.1.2013; by which the counter-claim of respondentsdefendants has been decreed by directing the appellant-plaintiff to handover peaceful vacant possession of the suit premises being one shop admeasuring 10’x6’ with front side court-yard with common staircase at first floor of premises no. 862, Nai Sarak, Delhi. 2014:DHC:1090

2. Before adverting to the facts in detail, it requires to be noted that the suit of the appellant-plaintiff for injunction by which it was claimed that defendant no.1(now represented by her legal heirs/respondents) should not disturb the peaceful possession, was dismissed in default, and which order became final. Even in the counter-claim the defence of the appellant was struck off and which order again became final.

3. Appellant claimed that he was inducted as a tenant in the suit property by the defendant no.4 Sh. Yashpal Mehta. The counter-claimant/defendant no.1 however pleaded that defendant no.4 was only defendant no.1’s relative and had no right in the suit property, inasmuch as not only the suit property but the entire first floor, second floor and third floor were in the tenancy of the defendant no.1 from the landlord which is a trust namely Rai Saheb Laxmi Narain Charitable Trust. It was pleaded by defendant no.1/counterclaimant that being in relation of defendant no.4 he was allowed to stay in one room of the property, and he had no right to create any tenancy rights in favour of the appellant herein, defendant in the counter-claim.

4. Before the court below, the defendant no.1 led evidence and proved on record the rent receipts and which were exhibited as Ex.DW1/3 to Ex.DW1/6. Trial court wrongly observed that rent receipts were photocopies and the first appellate court noted that in fact original of the rent receipts were on record and therefore exhibit numbers thus referred to the original rent receipts. In any case, no objection having been raised at the time of exhibition of the rent receipts, any challenge to exhibition would become barred by virtue of the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple and Anr. AIR 2003 SC 4548. Appellant had led no evidence because admittedly the defence of the appellant was struck off and therefore, there is no evidence that the defendant no.4 had a right to create tenancy in favour of the appellant or that the appellant was a tenant under the landlordtrust.

5. A second appeal is entertained only if there arises a substantial question of law. In the facts of the present case where the suit for injunction of the plaintiff was dismissed in default and which order achieved finality, and the defence of the appellant in the counter-claim was struck off, and the defendant no.1 led evidence to prove the tenancy from the landlord/trust by means of rent receipts in her favour Ex.DW1/3 to Ex.DW1/6, and finally the fact that there is nothing on record of the trial court that defendant no.4 was entitled to induct appellant as a tenant, no substantial question of law under Section 100 CPC arises in this appeal.

6. Counsel for the appellant sought to contend that an application was filed before the appellate court to show that defendant no.1 actually a cotenant with the defendant no.4, however in my opinion such an application would not be maintainable inasmuch as the appellant had no right to lead evidence once his defence was struck off.

7. In view of the above, the appeal being meritless, and being an abuse of the process of law, the same is therefore dismissed with costs of Rs. 15,000/- which shall be deposited in Delhi High Court Legal Aid Service Committee within a period of six weeks from today.

8. List before the Registrar on 1st May, 2014 for ensuring compliance of the order of deposit of costs and in case costs are not deposited, the Registrar General will be entitled to recover the same as arrears of land revenue for being deposited with the Delhi High Court Legal Aid Services Committee.

FEBRUARY 26, 2014 VALMIKI J. MEHTA, J. ib