In the Court of Sh. [ENTITY] : Rent Controller of New Delhi District at Patiala House Courts, New Delhi E. No. 37/08 Unique ID No. 02403C0953822008 In the matter of: [ENTITY]. Applicant VERSUS M/s. [ENTITY] A15, Connaught Place, New Delhi110001. Respondent Date of Institution : 11.04.2008 Date of Arguments: 28.01.2013 Date of Judgment : 31.01.2013 APPLICATION FOR EVICTION OF TENANT UNDER SECTION 14(1)(b) OF THE DELHI RENT CONTROL ACT, 1958. JUDGMENT
This is an application for recovery of possession of premises, namely, A15, Connaught Place, New Delhi (shop at ground floor) made by E. No. 37/08 Page no.1 of 19 applicant Wenger & Co. against respondent M/s. [ENTITY] under clause
(b) of proviso to subsection (1) of section 14 of the [ACT].
2. It is stated in the application that the premises have been let out to the respondent at monthly rent of Rs.374.75 ps. exclusive of water and electricity charges but including property and other statutory taxes / cess etc.; that the contractual tenancy of respondent is a long since over and it was got terminated in a life time of its erstwhile principal / proprietor late [ENTITY]; that after the demise of [ENTITY], person(s), withholding and laying siege of the tenanted premises, have falsely claimed the deceased [ENTITY] is replaced and substituted only by his spouse as the proprietor of his business in the premises; that in addition to spouse, deceased had a son as well as his immediate family; that deceased [ENTITY], however, never introduced or disclosed the name of the person, either his wife or son, to succeed him in business in the tenanted premises; that the son of Mr. [ENTITY] though opted out and claimed the business solely as his mother's; that son of deceased [ENTITY] even died sometime after and the applicant came to know about his death only lately; that the applicant has just lately learnt and discovered that the alleged claim of business of the respondent establishment resting with the spouse of deceased [ENTITY] is a false and fictitious claim only to foul and dupe the applicant from recovering back the premises; that it is a deliberate mischief and misrepresentation to usurp the E. No. 37/08 Page no.2 of 19 premises and to cheat the tenant; that the claim of the errant occupant(s) is only to protect and shield their fraudulent heist and siege of the premises; that to show, business of the respondent establishment, since the death of [ENTITY] is control and being run by people not his family; that the persons in the tenanted premises are wresting their occupation as the alleged workmen and staff and the persons in the heist of the premises are all in all in the shop and are solely and exclusively managing and administering all the functions and activities of the business in the shop by themselves; that the alleged claim that the respondent is a proprietorship of the spouse of deceased [ENTITY] is a misrepresentation to mislead the applicant and the alleged status is certainly not the truth; that the business being run and carried from the premises is not a proprietorship and it is altogether different and distinct; that apparently as it manifests, business name of the respondent is retained only to camouflage and as a cloak for the heist and seize of premises by its errant occupants; that the alleged claim to the business name of the respondent, in the tenanted premises, is sham and bogus and the applicant has protested it always; that the applicant has always believed and apprehended that there is a clandestine alienation or a sale of the premises for premium (pagri) or a subtenancy by the heirs of deceased [ENTITY]. It is further stated in the application that an eviction order be passed against the respondent in respect of the premises.
3. The application is contested by the respondent by way of a E. No. 37/08 Page no.3 of 19 written statement wherein preliminary objections are taken to the effect that the applicant has not come to the court with clean hands and concealed material facts from the court; that the applicant has deliberately concealed its composition and its legal identity; that Wenger & Co. is not a legal identity and cannot sue in its own name and the application is liable to be dismissed on this ground alone; that the applicant has deliberately and mala fidely concealed the details of the time when the premises were let out to the respondent; that the applicant has only vaguely stated that the tenancy originated during the tenure of predecessor in interest of the applicant; that the applicant has further stated no details as to how it succeeded to the interest in the premises as has been alleged in the application for eviction; that in the present case Mr. [ENTITY] and/or his proprietorship concern M/s. [ENTITY] had a single identity and their rights in the premises are one and the same; that after the demise of Mr. [ENTITY] his tenancy rights devolved upon all his legal heirs; that the application is bad for nonjoinder of necessary parties as Mrs. [ENTITY], daughter of late [ENTITY], is a proper and necessary party for the eventual determination of the dispute being the legal heir of the original tenant; that no alleged termination notice was received by any of the tenant at any point of time and therefore, the averments made in the application that the tenancy was terminated is wrong; that Mr. [ENTITY] is neither authorized or competent to make the present application and the same is E. No. 37/08 Page no.4 of 19 liable to be dismissed; that M/s. [ENTITY] was a proprietorship concern of late [ENTITY] who had taken the premises on rent in the year 1946 in the name of his proprietorship concern; that the premises were let out and are being used for commercial purposes; that Mr. [ENTITY] expired on 18.02.1907 and he was survived by his legal heirs namely, Mrs. [ENTITY], Mr. [ENTITY] and Ms. [ENTITY], his wife, son and daughter respectively; that upon the death of Mr. [ENTITY], the tenancy of the premises had vested in his three legal heirs and no partition of any nature whatsoever, till date, has taken place amongst the legal heirs of late [ENTITY] and all the legal heirs of late [ENTITY] continue to jointly own all the movable and immovable assets left behind by late [ENTITY] including the tenancy rights in respect of the premises; that Mr. [ENTITY], the son of late [ENTITY], died intestate on 29.04.1991 leaving behind his legal heirs namely, Mrs. [ENTITY], Mrs. [ENTITY], Mr. [ENTITY] and Ms. [ENTITY], his mother, wife, son and daughter respectively; that as such after the death of Mr. [ENTITY] Smt. [ENTITY], Ms. [ENTITY] and the remaining LRs of late [ENTITY] inherited the tenancy rights in respect of the share of Mr. [ENTITY] in the tenanted premises; that Ms. [ENTITY] and Mr. [ENTITY] unfortunately died unmarried on 25.06.1991 and 01.03.1998 respectively; that Mrs. [ENTITY] also died on 10.02.2003 and thus, Smt. [ENTITY] and Mrs. [ENTITY] became the joint tenants in respect of the premises in question E. No. 37/08 Page no.5 of 19 and both the ladies are enjoying possession of the tenanted premises. In the reply on merits the relationship of landlord and tenant between the parties is not disputed and the defence taken by way of preliminary objections and preliminary submissions are reiterated. It is also stated in the written statement that Smt. [ENTITY] and Smt. [ENTITY] are the joint tenants in respect of the premises and it is denied that the premises have been sublet to any person and their possession has been parted with. It is further stated in the written statement of the respondent that the application for eviction be dismissed.
4. To the written statement of the respondent a rejoinder has been filed wherein the averments made in the application for eviction are reiterated and the defence taken by the respondent are traversed.
5. In support of its case the applicant got examined PW1 Mr. [ENTITY], PW2 Mr. [ENTITY], Statistical Assistant in the office of Trade and Taxes Department, NCT of Delhi, PW3 Mr. [ENTITY], Inspector in the office of Commissioner of Income Tax, New Delhi, PW4 Mr. [ENTITY], Officer GradeI, Oriental Bank of Commerce, New Delhi, PW5 Ms. [ENTITY], Inspector, Commissioner of Income Tax Office, New Delhi, PW6 Mr. [ENTITY] from the office of NDTA, Mr. [ENTITY], Senior Officer, ICICI Bank, Connaught Place, New Delhi and Mr. [ENTITY], Assistant Manager. During the examination of the witnesses produced on behalf of the applicant documents Ex. PW1/1 to Ex. PW1/25, Ex. PW2/1 E. No. 37/08 Page no.6 of 19 to Ex. PW2/4, Ex. PW3/1 to Ex. PW3/5, Ex. PW4/1, Ex. PW5/1, Ex. PW5/2, Ex. PW6/1 to Ex. PW6/4, Ex. PW7/1, Ex. PW8/1 to Ex. PW8/4 were also tendered in evidence. The witnesses were cross examined on behalf of the respondent and during their cross examination documents Ex. PW2/R1 and Ex. PW6/D1 were also brought on the record.
6. In its defence the respondent got examined RW1 Smt. [ENTITY] who during her examination in chief tendered her affidavit Ex. R1 alongwith documents Ex. RW1/1 to Ex. RW1/7. The witness was cross examined by counsel for the applicant and during her cross examination documents Ex. RW1/PX1 was brought on the record.
7. I have heard counsel for the parties and have gone through the material on record carefully.
8. Having drawn my attention on the testimonies of RW1 Smt. [ENTITY], PW1 Mr. [ENTITY], documents Ex. PW1/1 to Ex. PW1/25, Ex. PW2/1 to Ex. PW2/4, Ex. PW3/1 to Ex. PW3/5, Ex. PW4/1, Ex. PW5/1, Ex. PW5/2, Ex. PW6/1 to Ex. PW6/4, Ex. PW7/1, Ex. PW8/1 to Ex. PW8/4 and Ex. RW1/PX1 and the law laid down in [PRECEDENT] and [PRECEDENT] it is submitted by counsel for the applicant that the premises were let out to the respondent under the proprietorship of Mr. [ENTITY] by the predecessor in interest of the applicant and after the death of Mr. [ENTITY] the proprietorship concern E. No. 37/08 Page no.7 of 19 has seized to exist and one Mr. [ENTITY] has been doing his business from the premises. It is further submitted by counsel for the applicant that Mrs. [ENTITY] has no control over the premises and has nothing to do with the affairs of the respondent and all the affairs are being run by Mr. [ENTITY] in whose favour the premises have been sublet or their possession has been parted with. It is further submitted by counsel for the applicant that Mrs. [ENTITY] has no concern with the premises and she is not a cotenant in the premises. It is further submitted by counsel for the applicant that since the tenant has sublet the premises in favour of Mr. [ENTITY], therefore, an eviction order be passed against the respondent in view of the provisions of [SECTION] of Act 59 of 1958.
9. [ENTITY], having drawn my attention on the testimonies of PW1 Mr. [ENTITY], PW2 Mr. [ENTITY], PW3 Mr. [ENTITY], PW4 Mr. [ENTITY], PW5 Ms. [ENTITY], PW6 Mr. [ENTITY], PW7 Mr. [ENTITY], PW8 Mr. [ENTITY] and RW1 Smt. [ENTITY], documents Ex. PW1/1 to Ex. PW1/25, Ex. PW2/1 to Ex. PW2/4, Ex. PW3/1 to Ex. PW3/5, Ex. PW4/1, Ex. PW5/1, Ex. PW5/2, Ex. PW6/1 to Ex. PW6/4, Ex. PW7/1, Ex. PW8/1 to Ex. PW8/4, Ex. RW1/1 to Ex. RW1/7 and the law laid down in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] v.
E. No. 37/08 Page no.8 of 19 Nur Mohammad, AIR 1976 Delhi 328, [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] it is submitted by counsel for the respondent that the premises were let out to M/s. [ENTITY] in the year 1946 and Mr. [ENTITY] was its proprietor. It is further submitted by counsel for the respondent that after the death of Mr. [ENTITY] the tenancy rights, by virtue of law, had devolved upon Mrs. [ENTITY], Mr. [ENTITY] and Ms. [ENTITY], wife, son and daughter respectively of late [ENTITY]. It is further submitted by counsel for the respondent that besides Smt. [ENTITY], Mrs. [ENTITY] has tenancy rights in the premises and in the absence of Mrs. [ENTITY] as a party in the present case the application is liable to be dismissed. It is further submitted by counsel for the respondent that the affairs of the respondent are being looked after by Mrs. [ENTITY] and Mrs. [ENTITY] and since they both are women, they occasionally take assistance of Mr. [ENTITY] in running the affairs of the respondent. It is further submitted by counsel for the respondent that the premises are in the control and possession of Mrs. [ENTITY] and Mrs. [ENTITY] and the same have not been sublet to any person nor their possession has been parted with. It is also submitted by counsel for the respondent that the present application is frivolous and the same be dismissed.
E. No. 37/08 Page no.9 of 19
10. I have given my thoughtful consideration to the submissions made on behalf of the parties.
11. [SECTION] of Act 59 of 1958, which pertains to eviction of tenant on the ground of subletting etc., reads as follows, namely:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(b) that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;
* * *
12. In [PRECEDENT]'s case (supra) having interpreted the provisions of [SECTION] of Act 59 of 1958 it has been held by the Hon'ble Supreme Court as follows:
The parting with possession must be by the tenant. Parting with possession means giving possession to persons other than those to whom possession had been given by the lease. User by other person is not parting with possession so long as the tenant retains the legal possession himself. There must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession.
13. In [PRECEDENT]'s case (supra) it has been held by the Hon'ble Supreme Court that the onus to prove subletting is on the landlord and if he establishes parting of with the possession in favour of a third party, the onus E. No. 37/08 Page no.10 of 19 would shift to the tenant to explain.
14. In [PRECEDENT]'s case (supra) it has been held by the Hon'ble Delhi High Court that the use of premises by another is not sufficient to attract the provisions of [SECTION] of Act 59 of 1958 so long the legal possession is retained by the tenant.
In [PRECEDENT]'s case (supra) it has also been held by the Hon'ble Delhi High Court that no evidence can be let in on a matter not pleaded but is required to be pleaded and that no amount of evidence even if let in, without such a pleading can be looked into.
15. In [PRECEDENT]'s case (supra) it has been held by the Hon'ble Delhi High Court that subletting or parting with possession means giving of possession to persons other than to whom the possession had been given by the original lessor and that parted with possession must have been made by the tenant; as long as the tenant retains the legal possession himself there is no parting with possession in terms of [SECTION] of the Act.
16. In the present case the applicant has not impleaded a natural person as the respondent and instead an entity namely, M/s. [ENTITY] has been impleaded as the respondent who is stated to be the tenant. As per the version of the applicant the premises were let out to M/s. [ENTITY] who was under the proprietorship of Mr. [ENTITY]. According to the applicant after the death of Mr. [ENTITY] the proprietorship concern has ceased to E. No. 37/08 Page no.11 of 19 exist. On the other hand the contention raised on behalf of the respondent by Ms. [ENTITY] is that the tenancy was created in favour of M/s. [ENTITY] whose proprietor was one Mr. [ENTITY] and after his death the tenancy rights were succeeded by his wife, son and daughter. It is also the contention of the respondent that after the death of the son and wife of Mr. [ENTITY] besides Ms. [ENTITY] Ms. [ENTITY], who is daughter of late [ENTITY], is also a tenant.
17. PW1 Mr. [ENTITY] during his cross examination extensively questioned about the tenancy in favour of Mr. [ENTITY] and after his death devolution of rights of tenancy in favour of the legal heirs of late [ENTITY]. During his cross examination PW1 Mr. [ENTITY] betrayed his ignorance about creation of tenancy in favour of Mr. [ENTITY] and devolution of his rights in favour of his legal heirs including Ms. [ENTITY].
18. During her examination in chief RW1 Ms. [ENTITY] has deposed that Mr. [ENTITY], who was the proprietor of M/s. [ENTITY], had taken the premises on rent in the year 1946 and after his death his legal heirs succeeded the tenancy rights and at present she and Mrs. [ENTITY] are cotenants in the premises. The testimony of RW1 Ms. [ENTITY] on this aspect of the case has been vehemently challenged by the learned counsel for the applicant on the ground that since the witness has no knowledge about the events which occurred prior to her marriage with Mr. E. No. 37/08 Page no.12 of 19 [ENTITY], therefore, no reliance can be placed on her testimony.
19. PW2 Mr. [ENTITY], Statistical Assistant from the office of Trade and Taxes Department, NCT of Delhi appeared in this case at the instance of the applicant and during his examination documents Ex. PW2/1, Ex. PW2/2, Ex. PW2/3 and Ex. PW2/4 were brought on the record by the applicant itself. A perusal of documents Ex. PW2/1 to Ex. PW2/4 reveals that the proprietorship concern M/s. [ENTITY] at A15, Connaught Place, New Delhi was registered with the Sales Tax Department way back in the year 1951 and at that time it was under the proprietorship of Mr. [ENTITY]. The contents of documents Ex. PW2/1 to Ex. PW2/4 give weight to the testimony of RW1 Ms. [ENTITY] that the tenancy of the premises was not created in favour of Mr. [ENTITY] and instead the same was created in favour of the respondent while Mr. [ENTITY] was its proprietor. The law is settled that in the eyes of law the proprietorship concern and proprietor are not two separate persons. Since the tenancy was created in favour of M/s. [ENTITY] while Mr. [ENTITY] was its proprietor, the natural corollary is that the tenancy was created actually in favour of Mr. [ENTITY].
20. It is not disputed by the applicant that Mr. [ENTITY] expired before termination of tenancy rights. It is also not disputed by the applicant that Mr. [ENTITY] was survived by his wife Ms. [ENTITY], son [ENTITY] and daughter Ms. [ENTITY], at present known by the E. No. 37/08 Page no.13 of 19 name Ms. [ENTITY]. Thus, after death of Mr. [ENTITY], by virtue of law, Ms. [ENTITY] had also become a joint tenant in the premises.
21. It is argued by the learned counsel for the applicant that since Ms. [ENTITY] never paid rent to the applicant and never obtained rent receipt, therefore, it should be presumed that she had surrendered her tenancy rights in favour of other tenant. In the considered opinion of the court this argument is without merit. In the present case it has not been proved by the applicant that the rent receipts qua the premises were being issued in the name of any person other than M/s [ENTITY], which is a proprietorship concern. In the application for eviction also the applicant does not admit, specifically, Ms. [ENTITY] as a tenant. If the rent receipt were being issued in the name of the respondent, where was the question of issuing receipt in the name of Ms. [ENTITY] or any other natural person. On behalf of one tenant the rent can be paid by other tenant and the law does not preclude such agency. Even otherwise as per the testimony of RW1 Ms. [ENTITY] Ms. [ENTITY] was residing in Singapore, who was called from there when she faced difficulty in running the affairs of the respondent after the death of Mr. [ENTITY]. If Ms. [ENTITY] was not available in India how could she tender rent or obtain a receipt. In the absence of any concrete evidence it cannot be held that Ms. [ENTITY] surrendered her tenancy rights in the premises.
E. No. 37/08 Page no.14 of 19
22. It is not disputed by the applicant that Mr. [ENTITY] has also expired. Ms. [ENTITY] is wife of Mr. [ENTITY]. And as per the version of the applicant itself before his death Mr. [ENTITY] was tenant at the premises. In these circumstances it has been proved that the relationship of landlord and tenant exists between the applicant and Mrs. [ENTITY] and Mrs. [ENTITY].
23. The next question which falls for the determination is whether the premises have been sublet or its possession has been parted with in favour of Mr. [ENTITY].
24. In the application for eviction the applicant has not taken any clear stand as to in whose favour the premises have been sublet or parted with possession by the respondent. In fact in the application for eviction the applicant has merely expressed its apprehension about change in hand of the premises and it has not taken any clear stand that the premises have in fact been sublet or their possession has been transferred.
25. In the affidavits of PW1 Mr. [ENTITY] also no name has been mentioned of the person to whom the premises have been sublet or their possession have been parted with. First time during his cross examination on 23.08.2011 PW1 Mr. [ENTITY] named Mr. [ENTITY] as the person in whose favour the premises have been sublet although such deposition of the witness is based on the documents filed by the applicant which were already available with it. No other person has been produced as E. No. 37/08 Page no.15 of 19 a witness to corroborate the version of Mr. [ENTITY] that the respondent has parted with possession of the premises in favour of Mr. [ENTITY].
26. From the testimony of PW3 Mr. [ENTITY] and the documents Ex. PW3/1 to Ex. PW3/5 it has been established that the income tax returns uptodate in respect of the respondent are being filed by Ms. [ENTITY].
27. From the testimony of PW4 Mr. [ENTITY] it has been established that the bank account of the respondent firm at the Oriental Bank of Commerce, Connaught Place, New Delhi is being operated by Ms. [ENTITY].
28. It has been established from the testimony of PW6 Mr. [ENTITY], and nothing has come to the contrary during his reexamination by the applicant, that the Membership Fee of M/s [ENTITY] with the New Delhi Traders Association is being deposited by Ms. [ENTITY] and no other person.
29. It has been established from the testimony of PW7 Mr. [ENTITY] that the bank account of the respondent at the ICICI Bank Limited, Connaught Place is being run by Ms. [ENTITY].
30. It has also been proved from the testimony of Mr. [ENTITY] and documents Ex. PW8/1 to Ex. PW8/4 that another bank account of the respondent at Standard Chartered Bank is being run under the signature of Ms. [ENTITY].
E. No. 37/08 Page no.16 of 19
31. From the testimony of RW1 Ms. [ENTITY] also it has been revealed that the money is being deposited in her bank accounts under her control. During her crossexamination it was put by counsel for the applicant to RW1 RW1 Ms. [ENTITY] as to how much money was deposited by her in the bank accounts of the respondent in last fifteen days. The witness could not tell the exact amount and replied that Mrs. [ENTITY], who appears to be a servant of the respondent, may be able to tell about the same.
32. At the strength of the testimony of RW1 Ms. [ENTITY] it has been contended on behalf of the applicant that the premises have been sublet. The argument of the learned counsel for the respondent is resting on the premise that Ms. [ENTITY] although claims to be the proprietor of the respondent, but during her cross examination even could not tell as to how much money was deposited in its bank accounts in fifteen days preceding her testimony before the court; that she has no knowledge that bank account at HDFC Bank and Standard Chartered Bank were also being operated by the respondent; and that she could not explain about the telephone connection and mobile connection at the premises.
33. Before appreciating the arguments of the learned counsel for the respondent and analyzing the testimony of RW1 Ms. [ENTITY] it is necessary to take into consideration few proved facts, namely, RW1 Ms. [ENTITY] is a lady of age more than eighty years; she is a widow whose E. No. 37/08 Page no.17 of 19 husband expired in the year 1990; her two children, namely, [ENTITY], son and [ENTITY], daughter also expired; She has no other children to look after her or assist her in her business. It is also deposed by RW1 Ms. [ENTITY], and has not be traversed, after death of her son she was facing difficulty in running business and therefore, she called her sister in law Ms. [ENTITY], who is also a joint tenant in the premises, to assist her to run the business. Mr. [ENTITY] is the husband of Ms. [ENTITY], who is a joint tenant and as per the version of RW1 Ms. [ENTITY] the said [ENTITY] occasionally help her and her sister in law Mrs. [ENTITY] in running the affairs of respondent.
34. In the light of the condition of RW1 Ms. [ENTITY] in life this court is of the considered opinion that the contention of the learned counsel for the applicant is without merit. Mere nonmentioning of the amount deposited by the witness in her bank accounts is not conclusive, in itself or in conjunction with other evidence, in holding that the premises have been parted with possession.
35. It is contended on behalf of the applicant that since on bill Ex. RW1/PX1 mobile number of Mr. [ENTITY] has been mentioned and signatures of Mr. [ENTITY] are appearing on other documents therefore it should be concluded that he is occupying the premises and running the business. In the considered opinion of the court this argument is also without merit for the reason that it has not been proved that mobile number E. No. 37/08 Page no.18 of 19 mentioned on Ex. RW1/PX1 belongs to Mr. [ENTITY]. In the face of the condition in life and testimony of RW1 Ms. [ENTITY] that occasionally she was taking help from Mr. [ENTITY] in running the affairs of the respondent, signing of documents do not prove that the premises have been parted with possession or sublet.
36. From the testimonies of PW2 Mr. [ENTITY], PW3 Mr. [ENTITY], PW4 Mr. [ENTITY], PW5 Ms. [ENTITY], PW6 Mr. [ENTITY], PW7 Mr. [ENTITY], PW8 Mr. [ENTITY] and RW1 Smt. [ENTITY] and the documents proved by them it has been proved that Ms. [ENTITY] is in control of the affairs of the respondent and in possession of the premises. Occasional help by Mr. [ENTITY] or any other person to Ms. [ENTITY] to run the affairs of the respondent do not prove that the premises have been sublet or their possession has been parted with by the respondent. The applicant has failed to prove the ground of eviction under [SECTION] of Act 59 of 1958 against the respondent. In these circumstances the application for eviction is dismissed with costs. File be sent to records.
Announced in the open court ([ENTITY]) on this 31 day of January, 2013 [PRECEDENT] st 31.01.2013 E. No. 37/08 Page no.19 of 19 E. No. 37/08 Page no.20 of 19