RFA 72/2005 Page No. 1 of 53 REPORTED *IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 72/2005 CAPT. PRAVEEN DAVAR (RETD.) & ANR. ..... Appellants Through: Mr. A.K. Singla, Sr. Advocate with Mr. Pankaj Gupta and Mr. J.K. Sharma, Advocates. versus HARVANSH KUMARI AND ORS. ..... Respondents Through: Mr. Ravinder Nath, Mr. P.K. Jain, Mr. Rajesh Roshan, and Mr.D.N. Jha, Advocates. % DATE OF DECISION: August 27, 2010 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? YES 3. Whether judgment should be reported in Digest? YES J U D G M E N T 27.08.2010 : REVA KHETRAPAL, J. 1. This appeal seeks to assail the decree for possession dated 11th January, 2005 in respect of premises bearing No.B-32, Connaught Place, New Delhi-110 001 in favour of the respondents and against the appellants. 2. The case of the respondents, who were the plaintiffs in the suit filed by them in the trial court being Suit No.217/1995, was RFA 72/2005 Page No. 2 of 53 that they were the owners/landlords of the aforesaid residential premises, where Dr.M.C.Dawar was a tenant at a monthly rent of `58.63 exclusive of other charges. The tenancy of Dr.M.C.Dawar was duly terminated by a legal notice dated 07.06.1974, to which a reply dated 12.07.1974 was sent by Dr. M.C.Dawar. Dr. M.C.Dawar died on or about 08.11.1977 as a statutory tenant in view of the fact that his tenancy had already been terminated during his lifetime. 3. After his demise, his widow Smt. Leelawati Dawar became the statutory tenant to the exclusion of all other legal heirs of late Dr. M.C.Dawar in accordance with Section 2 (1) (iii) of the Delhi Rent Control Act, 1958 (as amended by Act 18 of 1976 w.e.f. 01.12.1975). Smt. Leelawati Dawar allegedly did not pay the rent and damaged the tenanted premises which resulted in service of legal notice dated 12.02.1990 to her by the respondents herein. The notice, though was addressed only to Smt. Leelawati Dawar, was replied to by all the legal heirs of late Dr. M.C.Dawar (the defendants 1 to 5 in the suit) by letter dated 29.03.1990. Significantly, in the said reply, it was denied by all the legal heirs of late Dr.M.C.Dawar that the respondents were the owners of the suit premises. In view of the said denial of title, the respondents filed a suit for possession and damages against Smt. Leelawati Dawar and the other legal heirs of late Dr. M.C.Dawar under Section 114 of the Transfer of Property Act on the ground of RFA 72/2005 Page No. 3 of 53 forfeiture of tenancy. Smt Leelawati Dawar died during the pendency of the suit in November, 1993. After her death, the suit was dismissed by the learned trial court on 01.10.1994 holding that as Smt.Leelawati Dawar had inherited the tenancy rights of late Dr. M.C. Dawar, consequent to her death only the Civil Court had jurisdiction to entertain and try the suit. 4. The instant suit was instituted on 30.03.1994 on the ground that since Smt.Leelawati Dawar had died and all the rights of late M.C.Dawar had come to an end in respect of the suit premises as per the Delhi Rent Control Act, the appellants were not legally entitled to retain the possession of the premises. It was alleged that since the appellants were illegally occupying the premises, they were liable to pay damages @ ` 4,000/- per day, but only a sum of ` 4,99,296/- in all was being claimed in order to bring the suit within the pecuniary jurisdiction of the Court. It was prayed that a decree for possession with regard to the suit premises be passed, and an enquiry under Order 20 Rule 12 CPC be held for determining the actual damages and compensation payable by the appellants to the respondents. 5. A joint written statement was filed by the defendants 1 to 4 (the appellants herein), while the defendant No.5 filed a separate written statement, more or less adopting the same pleas as those taken by the defendants 1 to 4 in their written statement. In a nutshell, the defence raised by the appellants/defendants was that:- RFA 72/2005 Page No. 4 of 53 I. The present suit is barred by res judicata, as a similar suit filed by the respondents against the appellants had been dismissed by the Court of Shri N.K.Kaushik, the then Civil Judge, Delhi by his judgment and decree dated 01.10.1994. II. The suit is barred under Section 50 of the Delhi Rent Control Act, as the appellants are the tenants-in- common in the suit premises, and hence the suit is liable to be dismissed. III. The alleged previous notice terminating the tenancy of Dr.M.C.Dawar dated 07.06.1974 was not valid, and even assuming the same to be valid, would be deemed to be waived by issuance of a fresh notice dated 12.02.1990. 6. On merits, it was not admitted that the respondents were the owners of the suit premises. It was averred that late Dr.M.C.Dawar had taken the premises on rent from the previous owner/landlord of the property, namely, Khan Bahadur Raza Akbar Ali, Contractor, Bara Khamba Road, New Delhi in the year 1940-41 for the dual purpose of residential-cum-commercial, and also for running his medical clinic as well as for editing and publishing of his renowned monthly journal 'The Supreme Saviour' from the suit premises and, till date, the suit premises were being continuously and uninterruptedly used as such. In the alternative, it RFA 72/2005 Page No. 5 of 53 was submitted that even if it is held that the premises were let out for residential purposes, then also, the premises had been used for residential plus commercial purposes with the knowledge, tacit consent and acquiescence of the landlord Khan Bahadur Raza Akbar Ali and later on, his successor-in-interest, Shri Bishan Lal Kuthiala. After the demise of Dr.M.C.Dawar, it was asserted that all the appellants, being his legal heirs, have inherited the tenancy rights in the suit premises as tenants-in-common. It was consequently denied that late Dr.M.C.Dawar had died as a statutory tenant and that his widow alone had inherited his tenancy rights or that after the death of Smt. Leelawati Dawar the other legal heirs did not inherit the tenancy rights, and were liable to hand over the possession of the suit premises. 7. On the pleadings of the parties, the following issues were framed by the learned trial court for consideration and adjudication of the suit on 22.05.1997:- “(i) Whether the plaintiffs are owners and landlords? OPP. (ii) Whether the suit is barred by Section 50 of the DRC Act? OPD. (iii) Whether the plaintiff is estopped from bringing the present suit in view of the averments in para no.3 of the Written Statement of defendant no.1 to 4? OPD. (iv) Whether the tenancy of the defendant is terminated by a valid and legal notice? If not, its effect. OPP. (v) Whether the defendants are still continuing as tenants? OPD. (vi) Whether the premises were taken for residential-cum-commercial purpose? OPD. RFA 72/2005 Page No. 6 of 53 (vii) Whether the plaintiff is entitled for the possession of the premises as claimed? OPP. (viii) Whether suit is barred by res judicata? OPD. (ix) Whether the plaintiff is entitled for the damages as claimed? If so, at what rate? OPP. (x) Relief.” 8. On the aforesaid issues, the parties went to trial resulting in the passing of the impugned judgment and decree for possession in favour of the respondents and against the appellants. 9. Arguments in the appeal were addressed by Mr.A.K.Singla, the learned senior counsel for the appellants and Mr.Ravinder Nath, the learned counsel for the respondents. 10. Since the appellants have assailed the findings of the learned Addl. District Judge on each and every issue, it is proposed to deal with the matter issue-wise, in the same order as dealt with by the trial court. Issue No.1: Whether the plaintiffs are owners and landlords? OPP. 11. At the outset, it may be noted that in para 1 of the joint written statement filed by the appellants 1 to 4, it is stated that the ownership of the respondents is “not admitted”. It is submitted in para 2 thereof that the premises in question were taken on rent by late Dr.M.C.Dawar from the previous owners/landlords, namely, Khan Bahadur Raza Akbar Ali in the year 1940-41. In para-9 of the written statement, however, there is a categorical admission as follows:- RFA 72/2005 Page No. 7 of 53 “The property in suit still stands in the name of Bishan Lal Kuthiala, who was the owner and landlord of the same.” In the separate written statement filed by the appellant No.5, in answer to the assertion made in the plaint that the plaintiffs are the owners/landlords of the premises, it is stated that these are matters of record. 12. The learned counsel for the respondents contended that in view of the categorical admission made in para-9 of the written statement by the defendants (the appellants herein), issue No.1 has been rightly decided in favour of the respondents and against the appellants. Strong reliance was placed by the learned counsel for the respondents on the provisions of Order 8 Rules 3,4 and 5 of the Code of Civil Procedure to contend that where specific averments are made in the plaint, vague denial of the same tantamounts to admission of the said averments. Reliance was placed by him in this regard on the judgment of the Hon'ble Supreme Court in Badat & Co. v. East India Trading Co. AIR 1964 SC 538, wherein His Lordship Subha Rao, J speaking for the majority, held as under:- “Rules 3,4 and 5 of Order 8 of C.P.C form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non- compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof RFA 72/2005 Page No. 8 of 53 is necessary. .................................” [See also : Ramchandra Jamnadas Katariya v. Nuruddinbhai and others AIR 2005 Bombay 107 where the Bombay High Court has relied upon the observations quoted above]. 13. The aforesaid proposition of law was not disputed by the learned senior counsel for the appellants. Furthermore, it has come on record that in the year 1940-41, Dr.M.C.Dawar had taken the premises on rent from Khan Bahadur Raza Akbar Ali, who, on partition, migrated to Pakistan, whereafter the property was declared as evacuee property, and was subsequently purchased by Bishan Lal Kuthiala in a public auction from the Custodian of Evacuee Property vide Perpetual Lease Deed and Certificate of Sale (Ex.PW-1/D-7). To be noted that by a letter dated 08.11.1960 (Ex.PW-1/9), Dr.M.C.Dawar congratulated Shri Bishan Lal Kuthiala on the aforesaid acquisition of property by the latter; and tendered rent to him by cheque for the period intervening 28.08.1960 to 31.10.1960. Thus, Shri Bishan Lal Kuthiala had attorned to Dr. M.C. Dawar as his landlord and owner by the aforesaid letter of attornment. Subsequently, Dr. M.C. Dawar again sent the rent to Shri Bishan Lal Kuthiala by a cheque with a covering letter (Ex.PW-1/8), and thereafter he continued paying the rent till he (Bishan Lal Kuthiala) died in or about the year 1964. After his death, Dr. M.C. Dawar continued paying rent to the respondents/plaintiffs, being the widow and sons of late Bishan RFA 72/2005 Page No. 9 of 53 Lal Kuthiala. On 07.06.1974, the respondents, as stated above, served a legal notice on Dr.Dawar (Ex.PW-1/3), which legal notice was acknowledged by Dr.Dawar by his reply dated 12.07.1974 (Ex.DW-2/P1). In his reply notice, Dr.M.C.Dawar did not deny the relationship of landlord and tenant between the parties and, as a matter of fact, specifically accepted the respondents as his landlords. After his death, his widow Smt.Leelawati Dawar paid rent to the respondents vide rent receipts Ex.DW-2/12 to DW-2/16. Admittedly also, the premises in question are assessed to house tax and the respondents are paying the house tax, receipts whereof are Ex.PW-1/D1 to PW-1/D5. 14. Apart from the aforesaid, DW-2, Shri Praveen Dawar and DW-4, Shri Kamlesh Dawar in the course of their cross- examination could not deny that the respondents were the owners and landlords of the suit property. Thus, not only did Dr.Dawar by letter Ex.PW-1/9 attorn in favour of Late Shri Bishan Lal Kuthiala, (who was the successor-in-interest of Khan Bahadur Raza Akbar Ali) and continue to pay rent to Shri Bishan Lal Kuthiala, but later on he continued to pay rent to the legal representatives of Late Shri Bishan Lal Kuthiala and, after Dr.Dawar‟s death his widow Smt.Leelawati Dawar continued to pay rent to the legal heirs of Shri Bishan Lal Kuthiala – the respondents herein. 15. From the aforesaid, in my opinion, there is no manner of doubt that the learned trial court rightly decided issue No.1 in RFA 72/2005 Page No. 10 of 53 favour of the respondents and against the appellants. Reliance placed in this regard by the learned trial court on the provisions of Section 116 of the Evidence Act and the following observations of the Supreme Court in Anar Devi v. Nathu Ram, reported in 1994 (2) RCJ 103, conclusively clinches the issue: “Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under the landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment of conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground.” 16. An attempt was made by Mr.Singla, the learned senior counsel for the appellants to contend that none of the plaintiffs having entered into the witness box to assert their title, the evidence of PW-1 Shri Bihari Lal Walia, the Attorney of the respondents, could be of no assistance to the respondents. Relying upon the judgment of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others reported in AIR 2005 Supreme Court 439, the learned senior counsel for the appellants contended that the word “acts”, employed in Order 3 Rules 1 & 2 CPC, was confined to acts done by the power of attorney holder in exercise of powers granted by the instrument and was not inclusive of deposing in place and instead of the principal in respect of the matters in which the acts RFA 72/2005 Page No. 11 of 53 were done by the principal and not by him, and in which only the principal could have a personal knowledge. Apart from the fact that this point was not urged before the learned trial court and has been taken up for the first time in this appeal, there is, even otherwise, in my view, no merit in the same. The provisions of Order 3 Rules 1 and 2 CPC, as is clear from a reading thereof, contain no impediment to the Attorney deposing in place of and instead of the landlord. In Smt.Ramkubai (since deceased) by L.Rs and others v. Hajarimal Dhokalchand Chandak and others, AIR 1999 Supreme Court 3089, the Supreme Court while dealing with a case where the landlady did not appear in the witness box herself, but instead produced her son, who was also her G.P.A. holder, held that it was not important or essential for the landlord/landlady to enter the witness box to support the case. [See also: Om Prakash Vs. Inder Kaur 2009 (107) DRJ 263 and Satnam Channan v. Darshan Singh 2006(2) RCR (Civil) 615 Punjab and Haryana]. 17. The judgment in Janki Vashdeo Bhojwani's case (supra) relied upon by the learned senior counsel for the appellants also does not come to the aid of the appellants and is clearly distinguishable. It has been held in the said case that if the power of attorney renders some acts in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the RFA 72/2005 Page No. 12 of 53 principal and not by him. Further, it has been held that he cannot depose for the principal in respect of the matters, in which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. It nowhere states that even though the facts deposed are not facts within the personal knowledge of the principal alone, the power of attorney holder cannot depose on behalf of the principal. 18. Keeping in view the aforesaid, I am of the opinion that it can safely be concluded that the non-appearance of the respondents in the witness box was not fatal to their case. Further, on this aspect it cannot be lost sight of that the attorney PW-1 Shri Bihari Lal Walia, when he appeared in the witness box and proclaimed Smt.Harbans Kaur to be the owner, was not cross-examined by the learned counsel for the appellants. It is settled law that when a witness is not cross-examined, his evidence on the aspect on which he has deposed must be accepted by the Court in [See Ramchandra Jamnadas Katariya (supra)]. Further, no question was put to PW-1 to challenge his competence to depose. Accordingly, the findings of the learned trial court on this issue cannot be faulted. Issue No.6: Whether the premises were taken for residential- cum-commercial purpose? OPD. 19. This issue was taken up by the learned trial court and dealt with before dealing with issue Nos.2 to 5, as the decision of issues RFA 72/2005 Page No. 13 of 53 Nos.2 to 5 rested on the decision of this issue. Accordingly, this Court is also dealing with issue No.6 prior to dealing with the remaining issues. 20. Indubitably, the tenancy of Dr.M.C.Dawar was an oral tenancy and there was no written agreement by virtue of which the premises were let out to Dr.Dawar. PW-1 Shri B.L.Walia proved on record the site plan (Ex.PW-1/7) of the demised premises, consisting of three bedrooms, kitchen, bathroom, toilet and verandah. The correctness of the site plan was not challenged before the learned trial court, nor any site plan to the contrary was filed by the appellants herein. Thus, the premises let out to Dr.M.C.Dawar (apart from the kitchen, bathroom, toilet and verandah) comprised of three bedrooms, and from the site plan alone it stands proved that the premises were residential in nature. Further, as noted by the learned trial Judge, PW-1 Shri B.L.Walia, the attorney of the respondents categorically deposed that the premises were being used for residential purposes, and that even the water and electricity charges were being raised on residential basis. 21. As against the above, DW-2 Capt. Praveen Dawar (the appellant No.1 herein) deposed that the suit premises were taken from Khan Bahadur Raza Akbar Ali by his father in the year 1939 for residential-cum-commercial purposes, that his father set up a homeopathic dispensary in the said premises, and that he thereafter RFA 72/2005 Page No. 14 of 53 used the premises for the publication of his fortnightly journal called 'Supreme Saviour' of which he was the editor and which is still continuing. Copies of the said journal were proved on record by him as Ex.DW-2/1 to DW-2/11. Another witness, DW-3 Shri Vinay Bhargav, claiming himself to be a friend of DW-1 Praveen Dawar, deposed that he used to get medicines from Dr.M.C.Dawar whenever he fell ill and Dr.Dawar had also treated his father. Apart from this, he stated that Dr.Dawar used to practice and also used to reside in the suit premises. DW-4 Kamlesh Dawar deposed on the same lines as DW-2, apart from producing three letters (Ex.DW- 4/1 to DW-4/3). In his cross-examination, however, it was admitted by DW-4 Kamlesh Dawar that two out of the aforesaid three letters (Ex.DW-4/1 and Ex.DW-4/3) did not bear even the Municipal Number and that the address mentioned was only B- Block, Connaught Place, Delhi, while in the third letter, Ex.DW- 4/2, the address of Dr.M.C.Dawar was merely given as “General Secretary, Indian Homeopathic Mission, Connaught Place, New Delhi”. As such, it is clear that none of these letters prove that Dr.Dawar was running his clinic from the suit premises. 22. A close perusal of the testimonies of the aforesaid witnesses also shows that there are glaring inconsistencies and contradictions in the testimonies of these witnesses, inasmuch as DW-4 Kamlesh Dawar, while admitting that there were three bedrooms in the demised premises which were let out to his father stated that apart RFA 72/2005 Page No. 15 of 53 from these three bedrooms, there was a wooden cabin constructed by his father, in the 'verandah', where he used to run his clinic. According to DW-4, this cabin was 'very old' and was constructed “in the 1940s”. In direct contradiction, DW-3 Shri Vinay Bhargav deposed that Dr.M.C.Dawar had constructed a wooden cabin inside the 'hall', which was a 'new one', where he used to carry on his medical profession. Thus, it is not known as to whether the wooden cabin was constructed in the verandah or the hall. However, even assuming that such a wooden cabin was constructed by Dr.Dawar from where he used to carry on his homeopathic practice that, in my view, would not alter the nature of the premises and convert the same from residential to residential-cum-commercial. There is no dearth of legal precedent in this regard and the law is well settled that the letting purpose can be inferred from the nature of the premises, its design, its location and its dominant use [See Trilochan Singh vs. Mrs.Usha Dhir 1993 RCJ (2) 149 (DB)]. Where the dominant use has been established to be the residence of the tenant and his family, the nature of the premises must be taken to be residential. Mere fact that a lawyer sees his client in his house and transacts some legal business, or a doctor examines his patient in his house or any other professional incidentally carries on some work from a portion of his residence, does not amount to conversion of a residential premises into non-residential one. [See: Kidar Nath Sodhi versus RFA 72/2005 Page No. 16 of 53 T.R.Kapoor 1989(1) RCJ 112 and Mrs.C.Colaco v. Urban D' Silva 1970 RCJ 883]. 23. Then again, it deserves to be noted that it is the undisputed case of the parties that on 07.06.1974 the respondents had served on Dr.M.C.Dawar a legal notice (Ex.PW-1/3), alleging that the property was let out for the residential use of Dr.M.C.Dawar and that Dr.M.C.Dawar had acquired “another suitable house” and as such the tenancy was being terminated w.e.f. 31.07.1974 or on such date when the tenancy ends. The aforesaid legal notice was duly acknowledged by Dr.M.C.Dawar vide his reply (Ex.DW- 1/P1). In his said reply, significantly, it was nowhere stated that the purpose of letting was non-residential. In other words, there was no denial to the fact that the purpose of letting was residential. In the circumstances, the plea taken by the appellants herein that the premises were let out to them for dual purpose clearly appears to be an after-thought. Not only this, as already stated, the said plea is belied by the following facts and circumstances:- (i) No document has been placed on record to show that Dr.M.C.Dawar