REEMAL DASS DUDEJA Vs. SANTOSH MEHLAWAT

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India seeks setting aside of an order dated 17.8.2012 passed by the learned Additional District Judge (04), Central Delhi in MCA No. 01/12 and for a direction that the respondent pay Rs.4,500/ - per month with effect from 1st September, 2003 along with the interest at the rate of 18% per annum upon the arrears till date. The petitioner had filed a suit for possession of the suit property. It was claimed to have been leased out as per the rent agreement dated 1st August, 2000 at the rate of Rs.4,500/ - per month. The tenure of the lease was till 31st July, 2001 and was to remain in force until revocation. In the Written Statement, in reply to para 1 of the plaint which had averred that the rate of rent was Rs.4,500/ - per month, the defendant merely stated that "contents of para no.1 of plaint are wrong and denied specifically being false and frivolous. The rent is including agreement and the renewal averments are denied specifically denied being false and frivolous". The Trial Court noted that the defendant/tenant did not disclose as to what was the exact rate of rent or that it was Rs.1500/ - per month. It was subsequently submitted that the said amount was claimed to be the monthly rent and lapse was attributed to the bonafide mistake of the previous counsel. The Trial Court was of the view that the rent agreement had specified the rental at Rs.4,500/ - per month. There was no clear denial of the same nor was the exact amount specified. Therefore, the amount of Rs.4,500/ - per month was deemed payable as arrears from 1st September, 2003 and further payment of the same on the 15th of each successive month. The learned Trial Court vide order dated 11.12.2009 had fixed the amount as Rs.4,500/ - per month on the basis of these grounds. While doing so, the Trial Court had taken into consideration that the defendant/tenant had moved an application for amendment of her Written Statement to incorporate the rate of rent as being Rs.1500/ - per month. The Trial Court noted that the rent receipt of Rs.1500/ - dated 13.12.2001 was placed on record after the said amount had been paid. In the review application, the tenant sought reduction of the rate of rent from Rs.4,500/ - to Rs.1,500/ - on the basis of a rent receipt dated 13.12.2001 which showed the last rent paid at Rs.1,500/ - per month. The Trial Court noted that the said documents were filed after the tenant had filed a review application which sought the revision of the rent from Rs.4,500/ - per month to Rs.1,500/ - per month on the basis of a rent receipt dated 13.12.2001.

(2.) WHILE disposing off the review petition, the learned Trial Court noted that the said receipt was filed after the tenant had sought an amendment of her Written Statement. Furthermore, the tenant had not raised any objection under the Delhi Rent Control Act, 1958 as to the jurisdiction of the Court to entertain the suit if the rent was below Rs.3,500/ - nor was such defence taken by her in another suit for recovery of arrears of rent. The Trial Court felt that the defendant/tenant clearly wanted to introduce this fact after filing of the application under Order 39 Rule 10 CPC by the plaintiff in which he was claiming Rs.4,500/ - as arrears of rent and not on the ground of her application under Order 6 Rule 17 CPC since the defendant had contended that she had cleared all rental payment till August, 2008 hence arrears were directed to be paid with effect from 1.9.2008 at the rate of Rs.4,500/ - per month. In appeal, the learned ADJ set aside the direction of the Trial Court on the ground that the receipt of Rs.4,500/ - relied upon by the plaintiff was only a photocopy and not an original receipt of Rs.1,500/ - as filed by the defendant. Furthermore, according to learned ACJ since landlord had admitted his signature on the rent receipt of Rs.1,500/ - it was more reliable than the photocopy adduced by him. Additionally, the learned Appellate Court was persuaded by a document exhibited in another suit between the same parties in which the same document was relied upon to the extent of the signature of the petitioner. The learned Appellate Court reasoned that to the extent the signature on the rent receipt of Rs.1,500/ - per month was admitted, therefore it would be more reliable document in juxtaposition to the photocopy which was disputed. Hence, the admitted document ought to prevail at least for the purpose of order for admitted rent under Order 39 Rule 10 CPC. The Court was of the view that the plaintiff's application for leading secondary evidence to prove the rent was withdrawn and furthermore there was no original of the lease agreement nor was it admitted by the defendant. Hence for admissibility covered under Order 39 Rule 10 of the CPC it ought to be an admission under Order 12 Rule 6 CPC. The standard of admission is that it should be an unambiguous and unequivocal. Therefore, insofar as there was no unequivocal admission of the rent being Rs.4,500/ - per month, it would not be covered as an admission under Order 39 Rule 10 of the CPC. Accordingly, the Appellate Court set aside the order of the Trial Court holding the rent of Rs.4,500/ - per month and instead directed that the rate of rent payable by the tenant would be Rs.1,500/ - per month with effect from 1.9.2003 and future rent would be paid at the rate of Rs.1,500/ - on or before 15th of every month.

(3.) HE therefore submits that the learned Appellate Court had erred in relying upon a document which was not yet admissible in evidence. Furthermore, this Court had already rejected the reliance upon such document.