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CASE NO.: Special Leave Petition (civil) 3971  of  1999

PETITIONER: MOHINDER KAUR

       Vs.

RESPONDENT: KUSAM ANAND

DATE OF JUDGMENT:       08/05/2000

BENCH: A.P. Misra & M. B. Shah.

JUDGMENT:

Shah, J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J     In  the High Court of Delhi, plaintiff filed Civil  Suit No.28/78  for possession of the ground floor of the property bearing  no.1/5,  West  Patel  Nagar, New  Delhi  and  mesne profits  @ Rs.3000/- per month from 01.01.1978.  The learned Single  Judge  decreed the said suit by judgment and  decree dated 22.8.1997.  Defendant preferred RFA (OS) No.45 of 1997 before  the  Division  Bench.  That appeal  was  allowed  by judgment  and decree dated January 28, 1999 and the same  is challenged by the plaintiff by filing this appeal by special leave.

   Plaintiff  filed  suit  for recovery of  possession  and mesne  profits inter alia alleging that plaintiff  purchased the  suit  property from M/s Jawahar Mal & Sons sometime  in the  year 1961.  M/s Jawahar Mal & Sons were the lessees  of the  land  underneath the suit property.  After purchase  of the  said  property,  it  was let out by  the  plaintiff  to National  Cadet  Corps.  (NCC).  As the property  was  being used  by NCC for the purposes other than residence, the  DDA lodged a complaint against the plaintiff under Section 29(2) read  with Section 14 of the DDA Act, 1957 sometime in 1974. The running of office by NCC in the building in question was proved  beyond  doubt  and,   therefore,  the   Metropolitan Magistrate  by order dated 21.4.1976 convicted the plaintiff for  the  said  offence  by holding  that  the  building  in question  can be used only for residential purpose as it  is in  the  residential zone of the Master Plan of  Delhi.   In view of the aforesaid non-confirming user of the property by NCC,  the plaintiff filed an application for eviction  under Section  14(1)(a), (c) & (k) of the Delhi Rent Control  Act, 1958  against Union of India and others.  Realising that the property  cannot  be  put to non- confirming  use,  the  NCC vacated  the  property on 31.8.1977.  In those  proceedings, one D.K.  Chadha, employee of plaintiffs firm was appointed as  power  of attorney to conduct the  eviction  proceedings against NCC and others.

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   It  is  the case of the defendant that she got in  touch with  Mr.  D.K.  Chadha and asked to let her out the  ground floor of the property on a monthly rent of Rs.3000/- for the purpose  of  residence  and DK Chadha as power  of  attorney accepted  the  defendant  as a tenant by accepting  rent  of Rs.3000/- per month for which a receipt dated 16.11.1977 was issued.   It  is  the case of the defendant that  since  the plaintiff  resided  and carried business in  Calcutta,  D.K. Chadha  before accepting the advance rent told her that  the same was subject to confirmation by the plaintiff or her son Sharanjeet  Singh  as  he was not competent to let  out  the property  on  his own and she will have to execute  a  lease deed.   As  the  defendant was to occupy  the  ground  floor portion   of  the  said   property  w.e.f.   01.1.1978,  she requested  D.K.   Chadha  a week or so before that  date  to allow  her  to  have the furniture/fixture prepared  in  the verandah of the property to which he agreed.

It is   the  plaintiffs  case   that  on  29.12.1977  when Sharanjeet   Singh  (son  of   the  plaintiff)  visited  the property,  he  found  that defendant had  entered  into  the ground  floor portion by getting the keys of the outer  door from  the chowkidar.  Sharanjeet Singh closed the outer door and put a lock on it.  In the absence of Shranjeet Singh and D.K.   Chadha,  the defendant put her lock over the lock  of the  plaintiff  on the outer door.   Thereafter,  Sharanjeet Singh  contacted  the defendant and asked her to remove  her belongings  from  the  property but she declined to  do  so. Hence, he issued notice by telegram on 31.12.1977 and lodged FIR for criminal trespass.

   On  2nd  January, 1978, defendant filed a civil suit  in the  Court  of  Senior  Sub Judge at  Delhi  for  injunction restraining  the  plaintiff from disturbing  her  possession except  in  due  process of law in respect of whole  of  the ground  floor  of the suit premises by contending  that  the tenancy  was  created  in  her favour from  1.12.1977  at  a monthly rent of Rs.3000/-.  Interim injunction as prayed for was granted in the said suit.

   It  is the contention of the appellant-plaintiff that on receipt  of  the  summons of the said suit,  she  filed  the present  suit  for eviction of the defendant on  the  ground that  defendant was trespasser in the suit premises and  for mesne  profits @ Rs.3000/- per month w.e.f.  January 1, 1978 until  possession  of the premises was restored back to  the plaintiff  and interest @ 12% per annum.  The learned Single Judge  framed  the issues and after recording  evidence  and considering  the contentions arrived at the conclusion  that the  plaintiff  was landlord of the suit premises and  there was  no  written lease deed between the parties which  would govern  the  respective  rights inter se.  In  her  evidence defendant  had stated that she had not forcibly occupied the premises  in  dispute  but was inducted as  tenant  by  D.K. Chadha,  Power of Attorney of plaintiff.  After  considering the  evidence  on record, the Court held that defendant  had trespassed   in  the  premises   without  entering  into  an appropriate  agreement  for rental of the same.   She  could have  waited  for  the plaintiff to come  forward  for  that purpose,  but on the contrary she hurriedly entered into the premises  and  started running a school without any  written consent of the plaintiff in this regard.  The receipt issued in  her favour merely states the payment of Rs.3000/- as  an advance  against  rent of the suit premises  effective  from January  1,  1978.   The defendant in order to  perfect  her

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legal  entry  into the premises instead of negotiating  with the  plaintiff  chose to file a suit for injunction  in  the court  of Senior Sub Judge, Delhi on January 2, 1978 for not disturbing  her  possession.  The Court held that  from  the facts  and  evidence  on  record  it  was  established  that defendant  trespassed  into  the premises in dispute  on  or about  December  29, 1977.  The Court further held that  the property  in dispute was, admittedly, in residential zone as on  an earlier occasion the plaintiff had to file a suit for eviction   of   N.C.C.   for  use   of  the   premises   for non-residential  purpose.   In her letter dated October  28, 1977 defendant had stated that she required the premises for residential purposes.  The Court further held that plaintiff was  entitled to the amount of Rs.3000/- per month as  mesne profits from January 1, 1978 till the date the possession is handed  over to her.  It is to be stated that the court took virtually  20  years for passing the aforesaid judgment  and decree dated 22.8.1997.

   Against   that  judgment  and   decree,  the   defendant preferred  RFA  (OS)  No.45/97  which  was  allowed  by  the Division  Bench on the ground that it was admitted that D.K. Chadha  was given Power of Attorney to conduct the  eviction case  filed against the National Cadet Corps and it was  for the  plaintiff  to show that the said power did not  include the  authority to let out the suit property by D.K.  Chadha. As  the  said  Power  of Attorney or its  photocopy  is  not produced  on  record by the plaintiff, it must  follow  that D.K.   Chadha  under  the  power of attorney  had  also  the authority  to  let  out the suit property on behalf  of  the plaintiff.   The  Court held that receipt Ex.P3  dated  16th November,  1977  executed  by D.K.  Chadha  as  attorney  of plaintiff  for having received Rs.3000/- from the  defendant towards  one months advance rent also negates the plea that the  defendant  occupied the suit property as a  trespasser. The  Court  further  held  that it is not the  case  of  the plaintiff  that  the possession of the property  was  handed over  in  collusion  with  D.K.  Chadha  to  the  defendant. Hence, the Court set aside the judgment and decree passed by the  learned  Single  Judge and allowed  the  appeal.   That judgment  and decree is challenged by filing this appeal  by special leave.

   Shri  R.F.   Nariman,  learned Senior  Counsel  for  the appellant  submitted that the judgment and decree passed  by the  Division  Bench is, on the face of it, erroneous as  it has  ignored  the  vital document  from  its  consideration, namely,  the letter dated 28.10.1977.  He further  submitted that  plaintiff  has specifically denied that  she  executed power of attorney in favour of D.K.  Chadha for managing the suit  property  and  that she did not have the copy  of  the power  of  attorney executed in favour of D.K.   Chadha  for prosecuting  the  suit  filed by her for  evicting  National Cadet  Corps.   That power of attorney was not  produced  on record  and D.K.  Chadha had left the plaintiff since  years and that she did not know the whereabouts of D.K.  Chadha.

   As  against  this, Shri DA Dave, learned Senior  Counsel for the respondent submitted that considering the receipt of advance  rent  executed by D.K.  Chadha on 16.11.1977 it  is apparent  that defendant had entered into the premises as  a tenant.   He submitted that plaintiff has intentionally  not produced  on  record  the  copy of  the  power  of  attorney executed  in favour of D.K.  Chadha and, therefore,  adverse inference should be drawn against her.

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   Admittedly,  in 1977 plaintiff was residing at  Calcutta and  there was no direct talk between the plaintiff and  the defendant for letting out the premises.  In this view of the matter,  for  appreciating  the contentions  raised  by  the learned  counsel  for  the parties, we would  reproduce  the letter   dated  28.10.1977  written  by  the  defendant   to plaintiff  and the receipt dated 16.11.1977, on which  heavy reliance  is  placed for proving tenancy rights, for  proper consideration.

   Letter dated 28.10.1977 :

   Dear Sir,

   I  have seen your premises 1/5, Ground Floor, West Patel Nagar  lying  vacant  for residential  purpose  through  Mr. Mahajan of M/s Mahajan & Co., property dealers.

   I  am  interested  to take the said premises  on  rental basis   for  residential  purpose.    The  monthly  rent  as indicated  by Mr.  Mahajan is Rs.3500/- per month, while  we are  interested at Rs.3000/- per month which according to us is  very reasonable, looking to the rents prevailing in  the same locality for the same like accommodation.

   I would request you to kindly consider my offer and rent out the said premises to me at your earliest convenience.

   Please let me have your confirmation immediately through your  representative Mr.  D.K.  Chadha or Mr.  Mahajan.  You may  even convey your decision on the telephone  nos.584618, 588057, 527193.

   If any surety is required, the same can be provided.

   Receipt dated 16.11.1977 :

   RECEIPT    Received a sum of Rs.3000/-  (Rupees  three thousand  only)  from Mrs.  K.  Anand r/o 13/20, East  Patel Nagar,  New  Delhi-8.  This is advance against rent  of  1/5 West  Patel Nagar (Entire Ground Floor premises).  The  rent is effective from Ist of Jan., 1978.  In case the possession is  given  earlier  the  difference will  be  chargeable  or adjustable  from  the  date possession is given.   ---  Sd/- (Attorney) (K.  Chadha).

Undisputedly,   aforequoted  letter  is   written  by   the defendant to the plaintiff.  The letter specifically negates the  contention  of the defendant that D.K.  Chadha was  the power  of attorney holder of plaintiff.  Firstly, because if D.K.   Chadha  was  power  of attorney to  manage  the  suit premises  and for letting it out then there was no necessity of  writing  letter to the plaintiff  secondly, the  letter specifically  mentions  that  D.K.  Chadha or  Mr.   Mahajan (property  dealer) were plaintiffs representatives.  Letter also  specifically mentions that defendant was interested in taking  the premises on rental basis for residential purpose and  not  for  running  school.  This  also  indicates  that defendant  was  knowing  the  fact  that  premises  were  in residential  zone and plaintiff would not let it out to  the defendant  for  non-residential  purpose.   This  is  to  be appreciated  in  the  light of the fact that  plaintiff  was convicted  by  order  dated 21.4.1976  by  the  Metropolitan Magistrate  for the offence punishable under Section 29 read

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with  Section  14 of the DDA Act, 1957 for letting  out  the premises  for  office purpose to NCC.  After receipt of  the said  letter dated 28.10.1977 plaintiff has not conveyed its confirmation that she was willing to let out the premises to the  defendant at a rent of Rs.3000/- per month as  offered. May  be  that  plaintiff was interested in fixing  the  rent which  may  exceed  Rs.3500/- so that  provisions  of  Delhi Rental  Control  Act, 1958 may not be  applicable.   Without waiting  for  any  confirmation from the plaintiff  if  D.K. Chadha accepted the said advance rent of Rs.3000/- effective from  01.1.1978 that would not be binding on the  plaintiff. Undisputedly,  the  plaintiffs son when came to  Delhi  and found  that  defendant  had entered into  the  premises,  he immediately  locked the premises and took away the keys.  He contacted  the  defendant  and requested her to  remove  her belongings  from the premises but she declined to do so.  He sent telegram on 31.12.1977 that defendant has trespassed on the  premises  and that she should vacate  immediately.   He also  lodged  FIR  on the same date.  If the  premises  were really  let  out to the defendant in November/December  then the  plaintiff  would  not have lodged FIR in the  month  of December itself.

   However,  relying heavily on the receipt issued by  D.K. Chadha,  learned  counsel Mr.  Dave submitted  that  receipt would  clearly establish the case of the defendant that  the premises were let out to her by accepting an advance rent of Rs.3000/-.   He  further submitted that as per the  receipt, rent  was  to  be effective from 01.1.1978 and in  case  the possession  was  given earlier difference of rent was to  be charged  from the date of possession.  As stated earlier, if D.K.   Chadha was having power of attorney then there was no necessity  of  writing  letter  to  the  plaintiff  who  was residing  at  Calcutta.   There was no necessity  of  having confirmation  from  her that the premises be let out to  the defendant and in the letter itself it is mentioned that D.K. Chadha  was  only  representative along  with  Mr.   Mahajan (property  dealer).  In the cross-examination, defendant has admitted  that  she  wanted  confirmation  from  the  owners through  Mr.   Chadha  and  she   received  only  one   word confirmation  from  Mr.   Chadha.   It   is  true  that  the plaintiff  has  admitted that D.K.  Chadha had the power  of attorney  for  conducting a suit filed against the  NCC  for eviction  from the suit premises.  This would not mean  that D.K.   Chadha was having any power to let out the  premises. Without  verifying any power of attorney from D.K.   Chadha, if  the defendant had given any advance rent to Mr.  Chadha, it  would  not  bind the plaintiffs.   Learned  counsel  Mr. Dave,  however,  submitted  that as the  plaintiff  has  not produced  the copy of the power of attorney executed by them in  favour  of  D.K.  Chadha for conducting the  suit  filed against  NCC, adverse inference should be drawn against  the plaintiff  and  it should be held that D.K.  Chadha had  the power  to  let  out  the premises.   For  this  purpose,  he submitted  that  Division  Bench of the High  Court  rightly arrived  at the conclusion that since the execution of power of  attorney concerning the property in dispute in favour of D.K.  Chadha is admitted by PW1, it was for the plaintiff to show  that it did not include the power to let out the  suit premises.  In our view, the aforesaid inference drawn by the Division  Bench  is illegal and erroneous  firstly  on  the ground  that plaintiffs PW1 and PW3 have specifically stated D.K.   Chadha  was employed by them and was not  having  any power  of attorney to let out the premises.  At the risk  of repetition,  we would state that if D.K.  Chadha was  having

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any  power  of attorney for letting out the premises,  there was  no necessity of writing letter dated 28.10.1977 to  the plaintiff  for  having  confirmation  of  letting  out   the premises  at the monthly rent of Rs.3000/-.  Further, it was open  to the defendant to get certified copy of the power of attorney,  which was executed by the plaintiff in favour  of D.K.   Chadha for conducting the suit filed against the NCC, from  that  suit  proceedings.   If  really  such  power  of attorney  was there with the plaintiff, defendant could have followed  the  procedure prescribed under Order 11  Rule  12 C.P.C.    by  filing  an   application  for  discovery   and inspection  of document and its production, which admittedly is  not  followed in the present case.  Learned counsel  Mr. Dave,  however, referred to the provisions of Section 114 of the  Evidence  Act and illustration (g) which provides  that court  may  presume that evidence which could be and is  not produced  would, if produced, be unfavourable to the  person who  withholds it.  In our view, in the present case,  there is  no  question  of presuming that the plaintiffs  were  in possession  of  the power of attorney executed in favour  of D.K.   Chadha.   From the facts of the present case,  it  is difficult  to  draw  an  adverse   inference  that  she  was withholding  the  power  of  attorney   which  was  in   her possession.   In evidence, plaintiff has specifically denied that  she has executed any such power of attorney in  favour of Mr.  Chadha.  Further, plaintiff was not asked to produce the copy of the power of attorney executed in favour of D.K. Chadha  for conducting the eviction proceedings against  NCC and  plaintiff  has  produced on record the other  power  of attorney  executed in favour of D.K.  Chadha for  conducting the  business of the partnership firm.  Not only this, other vital  aspect  which  was not considered in appeal  is  that defendant had nowhere stated that before paying Rs.3000/- to Mr.   Chadha  she  had seen or verified  power  of  attorney executed  in his favour by the plaintiff.  Not only this, in the  cross-examination, defendant had admitted that she  had presumed  that  D.K.  Chadha was attorney of the  plaintiffs because  the  receipt Ex.P3 contained hand-written names  of Darshan   Singh  and  Mohinder  Kaur  on  the  top  of   the letter-head.  From this type of evidence neither presumption nor  any  inference  can  be drawn in  favour  of  so-called tenant.   If  such presumption is drawn, result would  be immovable property of number of persons would be unsafe.

   In  the result, considering the evidence on record it is difficult to arrive at the conclusion that plaintiff had let out  the suit premises to the defendant in December 1977 for running the school or that D.K.  Chadha was having any power of  attorney to let out the said premises.  In this view  of the matter, the appeal is allowed, the impugned judgment and decree  passed in RFA (OS) No.45 of 1997 is quashed and  set aside.  The judgment and decree passed by the learned Single Judge  is  restored  with costs.  Defendant-  respondent  is directed  to  hand  over  physical possession  of  the  suit premises  to  the  plaintiff-appellant on or before  May  1, 2000.