RSA No.226/2007 Page 1 of 5 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 15.12.2010 + R.S.A. No.226/2007 M/s. EQUIPMENT CONDUCTORS & CABLES LTD. …..Appellant Through: Mr.Rajesh Banati, Advocate. Versus KIRAN SUNEJA ……….Respondent Through: Mr.Rajesh Yadav & Mr.Rajesh Bhardwaj, Advocates. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1. This appeal has impugned the judgment and decree dated 31.5.2007 which had reversed the finding of the trial judge dated 4.5.2005. Vide judgment and decree dated 4.5.2005, the suit of the plaintiff Kiran Suneja seeking possession and recovery of rent/mesne profits had been dismissed. 2. This is a second appeal. It is yet to be admitted. On behalf of the appellant it has been urged that substantial questions of law have arisen which are embodied on page 1 of the appeal. They have been termed as ‘question of law’. Nevertheless, in view of the oral submission made by learned counsel for the appellant they have been argued as substantial questions of law. It has been urged that the judgment reported in 2001 V AD (Delhi) 291 Suchitra Pradhan & Ors. vs. M/s U.P.Twiga Fibreglass Ltd. & Ors. RSA No.226/2007 Page 2 of 5 has illegally been ignored in the impugned judgment; it was a binding precedent and could not have been overlooked. Perusal of this judgment and the finding in the impugned judgment qua this proposition has been dealt with in paras 16, 17, 25 & 26 of the impugned judgment. The first appellate court had reappreciated the oral and documentary evidence led before the trial judge. It had recorded that prior to the present suit which had been filed by Kiran Suneja, she has also filed a suit for recovery of rent against the defendant which suit had been decreed; defendant had not taken any plea that Kiran Suneja is a joint owner with Santosh Suneja or that the suit filed by Kiran Suneja alone was not maintainable. In the course of trial before the trial judge Ex.PW1/DX1 had been proved. This was a letter dated 26.2.1986 written by Kiran Suneja and Santosh Suneja to the builder of S.K.Constructions Pvt.Ltd. stating that the suit flat will henceforth be exclusively in the name of Kiran Suneja and Santosh Suneja has no interest left in the said flat. Endorsement at the bottom of the said document was confirmed by the builder. PW-1 had not raised any query on this document. However, a court observation had been recorded. Observation was that whether this document creates or extinguishes any right in favour of any person would be considered at the time of final arguments and parties were permitted to argue this at the said time. Counsel for the appellant has vehemently urged that Ex.PW-1/DX1 which was an relinquishment deed by Santosh Suneja in favour of Kiran Suneja was necessarily required to be registered as it created a transfer of interest in immovable property. This document could not have been read in evidence. If this document is not read in evidence, RSA No.226/2007 Page 3 of 5 the judgment of Suchitra Pradhan (supra) would be directly applicable and a suit filed by one co-owner without joining the other would not be maintainable. 3. This argument of learned counsel for the appellant is without any merit. 4. Apart from the fact that Kiran Suneja had earlier filed a suit aforenoted for arrears of rent where the defendant had raised no such objection, even otherwise in view of the judgment of the Apex Court reported in AIR 2004 SC 1321 M/s India Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (dead) by L.Rs. & Ors. it has been held that one of the co-owners can file a suit for eviction of a tenant in the property owned by co-owners; this principle is based on the doctrine of agency; one co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and on behalf of the other co-owner. This judgment would be squarely applicable even presuming that the document Ex.PW1/DX1 is to be ignored. In view of the ratio of this judgment of M/s India Umbrella Manufacturing Co. (supra) the suit in the present form filed by Kiran Suneja alone would also be maintainable. 5. It is further argued that the plaintiff Kiran Suneja had not come into the witness box; her power of attorney holder i.e. her husband had come to depose in her place which evidence could not have been read. This contention of learned counsel for the appellant has been dealt with in paras 22 & 23 of the impugned judgment. The court has held that PW-1 had come into the witness box and deposed on personal knowledge; he was the person who RSA No.226/2007 Page 4 of 5 was in fact receiving the rent from the defendant and personally in know-how in the matter. This fact-finding answers this query. 6. It has lastly been argued that mesne profits had been granted to the plaintiff at the rate of `20,000/- when there was no evidence to this effect and the impugned judgment in relying upon the judgment of 2004 RLR 467 Phool Rani vs. Sh.Sheel Chandra has committed a grave error as facts of one case cannot be transposed into another. On this count, the impugned judgment had noted that apart from the plaintiff statement of PW-2 Surinder Singh, a property broker had been recorded. Court in the case of Phool Rani (supra) had taken judicial notice of the area, dimensions and location of the flat which was in a posh colony of South Delhi which was in occupation of the defendant/tenant and which he had not vacated even after the expiry of the lease deed by efflux of time. It was in these circumstances that mesne profit had been awarded at the aforenoted rate. The present is a suit property is in a commercial area situated in the posh area of Nehru Place, South Delhi. It is a 750 sq. yds. flat situated on the sixth floor in the building known as Eros Apartments. It is a commercial holding. The flat had initially been leased out in the year 1979 when the rate of rent was `3653.80. The impugned judgment has been delivered in the year 2007 i.e. after more than 28 years of the initial lease entered into between the parties. The court took judicial notice of these facts. This is implicit in the import of the order which had granted mesne profits at the rate of `20,000/- per month. There is no perversity in this finding. RSA No.226/2007 Page 5 of 5 7. No other argument has been urged. Questions of law albeit substantial questions of law as embodied on page 1 of the appeal are all factual; no question of law much less any substantial question of law has arisen. Appeal is dismissed in limine. INDERMEET KAUR, J. DECEMBER 15, 2010 rb