* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 255/2001
ASHOK KUMAR KARAN ..... Appellant
Through: Mr.Vijay Tandon, Adv.
versus
SATISH GUPTA ..... Respondent
Through: Mr.Madan Lal Sharma, Adv. and
Mr.Brijesh Saini, Adv.
DATE OF DECISION:
% 23.09.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J. (Oral)
CM No.6192/2008
1. This is an application under Order 41 Rule 27 read
with Section 151 CPC filed by the appellant praying that the
page 1 of 9
appellant be permitted to lead additional evidence.
2. Without arguing the application, learned counsel for
the appellant and the respondent state that the application
may be disposed of recording their consent, by allowing the
same to a limited extent, in that, reply to a legal notice sent by
the respondent as received to by the appellant on 10.9.2000,
copy whereof has been filed along with the application, may be
taken on record and treated as a proved document.
3. For facility of reference the said document has been
marked as Mark ‘X’.
4. The application stands disposed of.
RFA No.255/2001
1. Learned counsel for the parties state that the
appeal may be heard for final disposal.
2. Heard learned counsel for the parties.
3. Appellant has suffered a decree in a suit filed by
respondent-landlord who claimed that the appellant was in
arrears of rent, water and electricity charges in sum of
Rs.1,01,546/-. Case of the landlord was that the appellant was
inducted as a tenant in respect of 2 rooms, toilet, kitchen and
page 2 of 9
bathroom on the second floor of property No.693/1, Gali No.3,
Punjabi Basti, Anand Parbat at a monthly rent of Rs.2,300/-
and exercising right under the Delhi Rent Control Act, after 3
years of the tenancy a legal notice dated 2.9.2000 was served
calling upon the appellant to pay rent increased by 10% of the
agreed rent with effect from 15.10.2000. Thus, rent with
effect from 15.10.2000 was stated to have been increased to
Rs.2,530/-.
4. In the written statement, it was pleaded by the
appellant that he was inducted as a tenant at a rent of
Rs.500/- per month. The rent was stated to have been paid till
14.6.2000.
5. In respect of the charges payable for electricity and
water it was stated that the appellant was always willing to
pay the same but the landlord was intentionally not accepting
the same.
6. The notice referred to in the plaint towards increase
of rent was responded to by accepting receipt thereof but
justification for non-compliance thereof given was that the
notice was illegal as it sought enhancement of rent from
Rs.2,300/- to Rs.2,530/- but rent was Rs.500/- per month.
page 3 of 9
7. Needless to state, on the rival pleadings of the
parties, the only material issued which arose for determination
was whether the rent of the tenanted premises at the time of
inception of the tenancy was Rs.2,300/- per month or Rs.500/-
per month.
8. It be noted that there is no written lease executed
between the parties.
9. The landlord sought to prove his case with
reference to Ex.PW-1, a receipt stated to have been signed by
the appellant while tendering rent. The receipt is dated
20.4.1998. It records the rent at Rs.2,300/- per month. It
records tender of rent from 15.3.1998 to 14.4.1998.
10. The second evidence relied upon by the landlord
was Ex.PW-1/8 being a lease executed between the appellant
and one Hans Raj where-under appellant took on lease, for a
period of 11 months, 2 rooms on the first floor and 1 room on
the second floor of property bearing No.661/1B, Ghatni Ghati
Road, Anand Parbat, New Delhi.
11. With respect to PW-1/1, since appellant has denied
his signatures thereon, both parties i.e. the landlord and the
appellant led opinion of an expert witness. Needless to state
page 4 of 9
the expert witness of the appellant gave justification in
support of his report that the signatures of the appellant on
the receipt were forged. The expert examined by the
respondent gave evidence that the signatures of the appellant
on the receipt Ex.PW-1/1 are those of the appellant.
12. Learned Trial Judge has accepted the opinion of the
expert cited by the respondent. Thus, the first piece of
evidence held against the appellant is the receipt Ex.PW-1/1.
13. With respect to Ex.PW-1/8, learned Trial Judge has
noted that the rent disclosed therein is Rs.2,700/- per month.
It has been noted that it relates to a tenancy in Anand Parbat
and with respect to the tenancy between the respondent and
the appellant it has been noted that the same consists of 2
rooms, a toilet, a bath-room and a kitchen. Inference drawn is
that Ex.PW-1/8 is good evidence to show the rentals in the
area.
14. Since rental shown in Ex.PW-1/8 is Rs.2,700/- per
month, the learned Trial Court has held that the version of the
landlord appears to be correct that the agreed rent was
Rs.2,300/- per month.
page 5 of 9
15. The notice dated 2.9.2000 enhancing the rent
proved by the landlord as Ex.PW-1/4 has also been brought
into aid inasmuch as the same records the monthly rent to be
Rs.2,300/-.
16. We note that the appellant did not prove the reply
sent by the appellant to the notice Ex.PW-1.4.
17. We note that we have today taken on record the
said reply as a proved document and for identity have
assigned to it Mark ‘A’.
18. In the document Mark ‘A’ we find that the appellant
has disputed that the agreed rent was Rs.2,300/- per month.
19. Thus, the third reasoning of the learned Trial Judge
would not be available to sustain the finding returned by the
learned Trial Judge.
20. Learned counsel for the appellant has made 3
submissions.
21. The first submission made is that the entire receipt
book of the landlord was available and it was the duty of the
Court to have got expert opinion pertaining to the signatures
of the appellant on the counter-foils available in the entire rent
receipt book.
page 6 of 9
22. Second contention urged is that the learned Trial
Judge ought to have referred the disputed signatures for
opinion of a neutral expert.
23. The third contention urged is that it was incumbent
upon the learned Trial Judge to ensure that all relevant
evidence was brought on record.
24. In an adversarial litigating adjudicatory process, as
followed in India, it is the duty of the respective parties to
bring on record their evidence and it is not the duty of a Court
at a civil trial to direct evidence to be led in one form or the
other.
25. No doubt, in the interest of justice Courts have
been vested with powers to summon evidence which is not
being produced by the parties but that does not mean that in
every case it is the duty of a Court to summon all and sundry
evidences.
26. Evidence of expert is nothing more than an opinion
under Section 45 of the Evidence Act. It guides the Court in
forming an opinion. But, the primary duty is still of the Court
to see with its own eyes the disputed signatures and the
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admitted signatures. In the instant case, parties had cited
their expert witnesses to support the opinion given by the
expert. We see no reason why the learned Trial Court should
have referred the dispute to a neutral expert.
27. We have ourselves seen Ex.PW-1/1 and Ex.PW-1/8.
28. The signatures of the appellant on Ex.PW-1/1 are
similar to the signatures of the appellant which stand
appended on Ex.PW-1/8.
29. We are satisfied that the person who has signed as
Ashok on PW-1/1 is the same person who has signed as Ashok
on Ex.PW-1/8.
30. Ex.PW-1/1 thus concludes the issue between the
parties, namely that the agreed rent was Rs.2,300/- per
month.
31. No corroborative evidence thus needs to be looked
into.
32. However, to satisfy the judicial conscience we may
record that for 2 rooms on the first floor admeasuring 12′ x 12′
and 6½’ x 8′ and a room on second floor admeasuring 9′ x 9′,
the appellant was paying a rent of Rs.2,700/- per month
pertaining to a property in Anand Parbat. (Ex.PW-1/8).
page 8 of 9
33. 2 years later the appellant took on rent the second
floor of property bearing Municipal No.693/1, Gali No.3, Punjabi
Basti, Anand Parbat.
34. The rental thereof as claimed by the landlord is
Rs.2,300/- per month.
35. The rental of the tenanted premises in comparison
with the rental as disclosed in Ex.PW-1/8 shows the
comparative rent, justifying the same to be Rs.2,300/- per
month and not Rs.500/- per month.
36. It is settled law that at a civil trial the evaluation of
evidence has to be on pre-ponderance of probabilities and not
proof beyond reasonable doubt.
37. No other contention has been urged.
38. We find no merits in the appeal.
39. The appeal is dismissed.
40. Costs shall follow in favour of the respondent and
against the appellant.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
SEPTEMBER 23, 2008
dk