IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR RECOVERY OF POSSESSION

Date of reserve : 11.07.2007
Date of decision : 18.07.2007
RSA No.104/2007

Smt.Gayatri Devi ...... Appellant

Versus

1. Smt.Vimla Devi
2. Gujrati Store
3. Janta Jeweller ...... Respondents

Advocates who appeared in this case :

For the appellant : Mr.Ashutosh Bhattacharjee, Advocate

For the respondents : None

J.M. MALIK, J.

1. CM No.5012/2007 (condonation of delay)

Delay is condoned. Application stands disposed of.

2. CM No. 5013/2007 (for exemption)

Allowed subject to just exception. Application stands disposed of.

3. The facts of the appellant's case are as follows. The appellant filed a suit for
recovery of possession of tenanted premises and goods or in the alternative value of
the goods in the sum of Rs. 5,000/-. The appellant was inducted as a tenant by
Smt.Vimla Devi, respondent No.1, on 29th December, 1985, in respect of two rooms
in property bearing No. L-55, Gali No.3, Laxmi Nagar, Delhi-92 for commercial
purposes at a rental of Rs. 500/- per month. The appellant had to pay a security in
the sum of Rs.8000/- to Smt.Vimla Devi. Smt.Vimla Devi used to issue rent receipts
against the rent paid upto the month of January, 1986. She also executed a memo
dated 29th December, 1985, confirming the tenancy of appellant. Although, the
appellant paid the rent regularly after January, 1986, yet the respondent, Smt.Vimla
Devi stopped issuing rent receipts after January 1986. The appellant was running a
printing press machine in the said premises.

4. On 14th October, 1986, the respondent with a view to compel the appellant to
vacate the premises in question disconnected the electricity supply pertaining to the
tenanted premises. The appellant sent a notice dated 20th October, 1986, through her
counsel and accordingly, the electricity connection was restored with the condition
that the appellant would remove the printing press and would use the premises for
office purposes only. Accordingly, the appellant removed the printing press from the
tenanted premises and started using the said premises as an office and store.

5. In April, 1989, Smt.Vimla Devi, respondent No.1, broke open the lock of the
tenanted premises and took forcible possession of the said premises. She also
removed the goods of the appellant worth Rs. 5000/-. The appellant protested and
requested the respondent to put her back in the possession of premises in question but
the request made by her fell on the deaf ears. Thereafter, notices dated 5th April,
1991 and 20th July, 1991 were sent to respondent No.1 but it did not ring the bell.

6. In the meantime, the respondent put Gujrati Store and Janta Jewellers,
respondent Nos. 2 and 3 respectively, in possession of the suit premises in order to
deprive the appellant of the tenanted premises. Under these circumstances, the
present suit was filed.

7. The respondents were proceeded against ex parte vide order of the trial court.
In her ex parte evidence, the appellant produced her husband, her power of attorney,
Ram Chander Mishra, as PW-1. He stated that he is well conversant with the facts
of the case and fully competent to depose. Thereafter, the learned trial court
dismissed the suit vide its judgment dated 1st May, 2001, on the following grounds:-
(i)the entire case of the appellant hinges upon the testimony of her general power of
attorney;
(ii)site plan was not got proved by the draftsman;
(iii)the author of the alleged rent note and executant of rent receipt were not
produced in the witness box;
(iv)no witness to the said document was produced in the dock;
(v)the signatures of the executant of the rent note and receipts were not got compared
with the admitted signatures of their executant;
(vi)although PW-1 has produced notices dated 15.4.1991 and 10.10.1991 which were
served upon the defendant, the copy of which are Ex.PW-1/7 and 8, respectively, yet
the postal receipts or acknowledgment receipts of the said notices did not see the
light of the day.
(vii)In his cross-examination, Ram Chander Mishra, PW-1, has stated,
“in the first week of April, 1989, defendant No.1, broke open the lock of
premises under the plaintiff's tenancy, in our absence and took forcible possession of
the tenanted premises illegally and removed the goods lying in the said premises, the
list of said goods is at annexure 'A' and is correct the value of goods amounted to Rs.
5000/- detailed in the said annexure, the same is signed and verified by Gayatri Devi,
my wife, whose signatures I identify.”
This witness did not state that above said receipts of purchase documents were
executed in his presence. The trial court referred to authorities reported in Subhash
Chandra Meena Vs. Madan Mohan Sood and Others, AIR 1988 Rajasthan 186 and
Chhanga Prasad Sahu Vs. State of Uttar Pradesh and Others, AIR 1986 Allahabad
142, wherein it was held that when the plaintiff does not appear in the witness box
and her attorney is not competent to depose, no value is to be attached with the
testimony of his power of attorney.
(viii) The learned trial court also observed that mere marking of documents as
exhibits does not prove the documents themselves. In this regard, he placed reliance
on the following authorities:
1.AIR 1988 Allahabad 75
2.AIR 1978 NOC 112 (Gau)
3.1976 AIR CJ (Delhi) 94
4.ILR (1971) 1 Delhi 672.
(ix) The trial court also held that no notice under Order 12 Rule 8 CPC was
sent to the defendants.

8. Aggrieved by this order, the appellant/plaintiff filed the first appeal before the
First Appellate Court. The defendants/respondents appeared there. They filed cross-
objections to the appeal. The defence version set up by Smt.Vimla Devi, respondent
No.1, is this. She was never served in this case and prayed that the ex parte order
should be set aside and she should be given a chance to defend the instant case. No
evidence was produced that Jai Ram Tripathi, witness in respect of Ex.PW1/4 had
expired and no attempt was made to summon Kalu Ram, who is another witness to
Ex.PW1/4, which is alleged memo of acknowledgment of tenancy. Again the stamp
paper was purchased on 26th July, 1985, almost 5 months prior to its usage. The
appellant has failed to produce any evidence of possession of the premises in dispute
barring notices Ex.PW1/5, 7 and 8.

9. The first appellate court confirmed the lower court's judgment. It, however,
observed that the trial court was wrong in rejecting the testimony of PW-1 on the
ground of non-examination of plaintiff. The first appellate court has placed reliance
on authorities reported in Gangavva Vs. Arjunsa, AIR 2001 Karnataka 231; Kailash
Devi Vs. Mata Deen, AIR 2001 Rajasthan 306 and Vashdeo Bhojwani Vs. Indusind
Bank Ltd., AIR 2005 SC 439. The first appellate court held that GPA in favour of
PW-1 was proper. It, however, confirmed the other findings of the trial court vide
judgment dated 05.10.2006.

10. Aggrieved by these orders, the appellant has filed the present appeal. It was
submitted that following substantial questions of law arise for consideration of this
court:
(a) Whether the plaintiff is required in law to prove a document filed by him which
has been exhibited since the defendant was being proceeded ex parte and as such the
said documents had not been admitted?
(b) Whether the documents exhibited before trial court by the plaintiff and not
corroborated by producing witnesses in ex parte proceedings rendered the documents
not proved in the absence of defendant and become say nullity?
(c) Whether service of summons to occupants of suit property owned by landlord can
be deemed to be proper service to the landlord under the provisions of CPC?
The learned counsel for the appellant laid emphasis on these points only.

11. To my mind, all these arguments are devoid of force. First of all, there is no
evidence on record which may go to show that the appellant was in possession of the
suit property, after she had removed the printing press from the tenanted premises,
Although, the notice Ex.PW1/5 does not stand proved on record because there is no
proof that its service was effected upon the respondent, yet, it goes to show that the
electricity of the appellant was disconnected prior to 20th October, 1986. The case
of the appellant here is that she had removed her printing press as required by the
respondent. It appears that the tenancy, if any, had come to an end in the year 1986
itself. This fact is apparent from the complaint addressed to the police dated 30th
December, 1986, produced by the appellant, which is wrongly described by the First
Appellate Court as a letter dated 30th December, 1989. The said complaint
addressed to the police reads that on 13th October, 1986, the electricity connection
of the shop had been disconnected due to which the appellant had to close her
business activities, despite the fact that was the peak period of their business. It was
further reported that they were being threatened that they would be forcibly evicted,
their money would not be returned, they would be involved in a false case and they
would be done to death.

12. It is surprising to note that no report was lodged when the appellant was
actually dispossessed from the premises in dispute on 1st April, 1989. No
explanation for the same is forthcoming. Notice was issued by the appellant to the
respondent after the expiry of two years. The said notices were also not proved on
record as per requirement of law. Succinctly stated all the notices allegedly proved
by the appellant are waste papers having no value in the eyes of law and no reliance
can be placed on these notices.

13. Although, the appellant has proved the list of articles which were alleged to have
been stolen by respondent No.1, yet, no receipt for the purchase of the same saw the
light of the day. No report in this regard was lodged with the police for the reasons
best known to the appellant. It is well-settled that the plaintiff has to prove his
documents whether the defendant is proceeded ex parte or otherwise. The law does
not make any distinction between the two situations. The onus to prove these
documents was heavier because in ex parte proceedings there was no chance of
admission and denial of the documents. This is the duty of the plaintiff to prove the
documents as per law. The documents Ex.PW1/3 and Ex.PW1/4 are crucial
documents. It is apparent that the husband of the appellant was not present at the
time of execution of these documents. However, these documents must be executed
in the presence of the appellant. Under these circumstances, her evidence to prove
these documents was necessary. Consequently, the evidence given by the power of
attorney pales into insignificance. He cannot be said to have personal knowledge of
these documents. Again, this was not the end of road. There were two independent
witnesses. It was stated that Jai Ram Tripathi had died but no evidence was adduced
in this respect. No effort was ever made to summon him in the witness box. There
was another witness, Kalu Ram, resident of 135, Shakarpur Khas. No attempt was
made to produce him in the dock. His evidence would have gone a long way to
throw light on these knotty issues. In view of the law laid down in the celebrated
authority reported in Gopal Krishnaji Ketkar Vs. Mohammed Haji Latif and Others,
AIR 1968 SC 1413, I draw an adverse inference against the appellant for withholding
the above-said most important witness/witnesses.

14. There is not even an iota of evidence which may go to show that respondent
No.1 had actually taken the forcible possession of the premises in dispute or she had
broken the lock of the premises in dispute. Nobody is a witness to that event. In his
statement, PW-1 has stated that the forcible possession was taken in his absence.
Moreover, if it was a true version, a report with the police would have gone a long
way to support it. The delay on the part of the appellant is pernicious. It is
noteworthy that no agreement, no document, no memo in this regard is shown to
have been executed. Dallops of mystery surround the appellant's version.
14. It must be borne in mind that the mode of payment of rent was against the rent
receipt. The version put forward by the appellant that she went on paying the rent till
April, 1989 without getting the rent receipts does not inspire any confidence.

15. Again, there is no evidence at all that after the removal of the printing press
she was in possession of the premises in dispute till April, 1989. The appellant has
pursued this case in a lackadaisical manner. Such a long delay does not go to scoth
the doubts which have cropped up in the plea set up by the respondent before the
First Appellate Court that the purpose of the appellant is to blackmail the respondent
assumes importance.

15. As the appellant has failed to prove his case on merits, the question whether
the respondent was properly served or not has become irrelevant. Consequently, no
substantial questions of law arises. Appeal has no merit and is dismissed in limini.

Sd/-
J.M. MALIK, J.