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2016 Supreme(Del) 3996
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
KEDAR NATH (DECEASED) THROUGH HIS LEGAL HEIRS - Appellant
Versus
RAJINDER TIWARI - Respondent
RSA Nos. 188 of 2010
Decided on : 03-11-2016
Advocate Appeared:
For the Appellant :Mr. Ajay Kumar, Advocate.
The plaintiff must establish their case even if the defendant's defense is struck off, and the court has the discretion to pass further orders under Order VIII Rule 10 CPC.
Headnote:
tenant - property dispute - Code of Civil Procedure, 1908 (CPC) - Section 100
Fact of the Case:
The respondent/plaintiff filed a suit for permanent injunction against the appellant/defendant, claiming ownership of a property. The appellant/defendant, who was pleaded to be a tenant, failed to file a written statement, and the suit was decreed in favor of the respondent/plaintiff. The appellant/defendant appealed the decision.
Finding of the Court:
The court found that the respondent/plaintiff failed to prove the creation of tenancy or ownership of the entire property. The court held that the lower courts committed perversity and illegality in holding the appellant/defendant as a tenant, and dismissed the suit.
Issues: The main issue was whether the respondent/plaintiff proved ownership of the entire property and the creation of tenancy, despite the appellant/defendant's failure to file a written statement and lead evidence.
Ratio Decidendi: The court emphasized that a plaintiff must establish their case even if the defendant's defense is struck off. It highlighted the importance of leading evidence that proves the case on preponderance of probabilities. The court also referred to the provisions of the Indian Evidence Act, 1872, and the discretion of the court to pass further orders under Order VIII Rule 10 CPC.
Final Decision: The court held in favor of the appellant/defendant, dismissing the suit filed by the respondent/plaintiff and setting aside the judgments of the lower courts.
VALMIKI J. MEHTA, J
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant who was the defendant in the suit filed by the respondent/plaintiff for permanent injunction impugning the Judgment of the First Appellate Court dated 26.7.2010 affirming the Judgment of the Trial Court dated 1.2.2010 whereby the suit for possession filed by the respondent/plaintiff was decreed against the appellant/defendant who was pleaded to be a tenant of the respondent/plaintiff. Respondent/plaintiff by the suit sought a decree of permanent injunction against the appellant/defendant from selling etc the suit property bearing no. 3888/2, Gali No.8, Shanti Mohalla, Gandhi Nagar, New Delhi.
2. The facts of the case as per the plaint are that the respondent/plaintiff stated that the appellant/defendant was owner of the suit property but respondent/plaintiff purchased the property from the appellant/defendant by means of usual documentation dated 19.8.1991 being an Agreement to Sell Ex.PW1/2, General Power of Attorney Ex.PW1/1, Will Ex.PW1/3 and the Receipt Ex.PW1/4. Respondent/plaintiff further pleaded that as per the request of the appellant/defendant he was inducted by the respondent/plaintiff as a tenant in the suit property with respect to one room on the ground floor and two rooms on the first floor alongwith kitchen, latrine and bath at a monthly rent of Rs.1000/- in the year 1991 itself. Respondent/plaintiff pleaded that rent was regularly paid by the appellant/defendant and which rent initially was Rs.1000/- per month which then became Rs.1800/- and then it became Rs.2500/- per month from August, 1998 and further increased to Rs.3000/- from February, 2005. It was then pleaded that in January, 2007 the respondent/plaintiff came to know that the appellant/defendant intended to transfer the suit property, and therefore, the subject suit was filed seeking the relief of permanent injunction against the appellant/defendant not to sell etc the suit property.
3. The defence of the appellant/defendant was struck off on account of non-filing of the written statement. Accordingly, there is only the evidence which is led on behalf of the respondent/plaintiff and the cross-examination of the witnesses of the respondent/plaintiff by the appellant/defendant.
4. On behalf of the respondent/plaintiff the evidence was led of three witnesses. One was the respondent/plaintiff himself who deposed as PW-1. Another witness was Sh. Mithlesh Kumar Gupta who deposed as PW-2 and the third witness was Sh. Satish Chand Jain who deposed as PW-3. These witnesses were cross-examined by the appellant/defendant by putting up the case that never was any tenancy created and by the documents dated 19.8.1991 executed by the appellant/defendant in favour of the respondent/plaintiff were only for 25 sq. yds out of the total of 50 sq. yds of the property and only 25 sq. yds. were transferred by the appellant/defendant i.e appellant/defendant continued to remain the owner of the balance 25 sq. yds out of the total 50 sq. yds of the property no. 3888/2, Gali No.8, Shanti Mohalla, Gandhi Nagar, New Delhi.
5. When this Regular Second Appeal was admitted for hearing vide Order dated 15.2.2013 the following substantial question of law was framed:-
“Whether the finding arrived at by the trial court and upheld by the appellate Court is perverse and not supported by the evidence adduced by the respondent?”
6. The issue before this Court is that whether in spite of the appellant/defendant having failed to file written statement and lead evidence, whether the respondent/plaintiff can be said to have proved his case that the suit property of 50 sq. yds was sold or that only 25 sq. yds of the suit property was sold as is the case of the appellant/defendant.
7. In my opinion, the substantial question of law needs to be answered in favour of the appellant/defendant and against the respondent/plaintiff. The reasons for the same are given
