SUSHIL GARG Vs. KAUSAR PROPERTIES PVT LTD

JUDGEMENT

(1.) BY way of the present Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the impugned judgment/order and decree dated 11th October, 2007 passed by the learned additional District Judge, Delhi in RCA No. 4/2006 whereby the learned additional District Judge has upheld the judgment and decree of possession and recovery of money passed by the Trial Court and has dismissed the first appeal filed by the appellant.

(2.) MR. Sudhir Nandrajog counsel appearing for the appellant made his submissions on various issues raised in sub paras (A) to (Q) of para 2 of the present appeal. The entire controversy raised in the present appeal revolves around three main questions, firstly whether the rent of the property in question was Rs. 400/- per month and not Rs. 4,000/- per month as claimed by the respondents and consequently the tenancy of the appellant is duly protected under Section 50 of the Delhi Rent Control Act. Connected with the same, the other issue taken up by the appellant is that no terms of the Lease Deed insufficiently stamped and unregistered could have been relied upon even for collateral purposes as such a lease deed is inadmissible in evidence and no term of same could be looked into for any purpose whatsoever. The other issue raised by the counsel for the appellant relate to the question as to whether the suit got abated on the death of the original plaintiff on account of the failure of legal heirs of the deceased plaintiff to apply for their substitution within the period of limitation and similarly non-impleadment of the legal heirs of the deceased defendant No. 1 by the plaintiff.

(3.) DELVING his arguments on the aforesaid issues Mr. Sudhir Nandrajog, counsel appearing for the appellant vehemently contends that the respondents had failed to prove the rent of the property in question at Rs. 4,000/- per month ignoring the fact that the rent of the property in the lease deed was mentioned as Rs. 400/ -. Expanding his arguments further, the counsel contends that Rs. 400/- was mentioned in the said unregistered lease deed in words while Rs. 4,000/- was typed in numerical. The contention raised by the counsel is that in the case of discrepancy between the words and figures the amount mentioned in the words should prevail over the figures. The counsel thus contends that the tenancy of the appellant could not have been terminated and the termination notice sent by the original landlord was without any authority and inconsequential. Alternative plea of the appellant is that even if the figure of rs. 4,000/- as alleged by the respondent is accepted as correct then covenant relating to fixation of rent in the lease deed being one of the essential and basic term of the contract could not have been read into the evidence on the premise of the same being a collateral term due to the admitted fact of the lease deed being insufficiently stamped and unregistered. Counsel thus contends that the decree passed by both the Courts below based on such an inadmissible evidence is unsustainable in the eyes of law. Counsel for the appellant further contends that the suit filed by the respondents had abated when no steps were taken to bring on record the legal heirs, after the death of the original plaintiff within the prescribed period of limitation and later on when no legal heirs of the deceased defendant No. 1 in the main suit were brought on record and therefore, due to the non-impleadment of the legal heirs of defendant No. 1 also the suit got abated against all the defendants against whom common relief was being sought.