Mrs. Uma Swamy vs Shri Jaspal Singh

Valmiki J Mehta, J.—This case is on the "Regular Board" of this Court since 17.1.2011. Today, it is effective item No. 7 and though it is 12.40 P.M. nobody has chosen to appear for the parties. I have, therefore, perused the record and am proceeding to dispose of the appeal.

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 7.7.2001 whereby the suit of the Appellant/Plaintiff for recovery of arrears of rent amounting to Rs. 1,06,695.04 against the Respondent/Defendant was dismissed although the Respondent/Defendant was proceeded exporter and the Appellant/Plaintiff duly proved her case.

The Respondent/Defendant was inducted as a tenant by the Appellant/Plaintiff/landlady in flat No. B-2(basement), plot No. A-40-41 measuring 555 sq. ft. at Nasal''s Commercial Complex, Dr. Mukherjee Nagar, Delhi as per lease deed dated 1.3.1987. The lease was for commercial purposes and was initially for a period of five years. The tenancy thereafter continued month to month after expiration of the fixed period of tenancy under the lease deed. The Appellant/Plaintiff claimed that the Defendant/Respondent became a defaulter in payment of rent and a sum of Rs. 47,008.38/- became due and payable till 31.8.1994 and a further sum of Rs. 34,219.56/- became due and payable till 31.1.1996. A total amount of Rs. 81,227.94/- became due against the Respondent/Defendant/tenant up to 31.1.1996. The Appellant also claimed that the Respondent was liable to pay and failed to pay the maintenance charges of Rs. 25,467.10/- up to 31.1.1996. The suit was therefore filed after serving the legal notice dated 20.9.1994 upon the Respondent/Defendant which failed to yield any result. As already stated above, though the Respondent appeared at one stage but subsequently failed to appear and was, therefore, proceeded exporter on 1.7.1999.

The trial Court has referred to the testimony of PW-1 who has proved the case with respect to the recovery of rent in para 7 of the impugned judgment and which reads as under:

I have heard the ld. counsel and have gone through the records of the case. On perusing the evidence of PW-1, he is the power of attorney of the Plaintiff and he has proved the power of attorney as Ex.PW-1/1. According to this witness, Plaintiff let out the suit premises to Shri Jaspal Singh, proprietor of M/s Fashion Finish Apparel a in March, 1987. The rent was agreed at Rs. 1387.50 w.e.f. 1.3.87 to 1.3.90 and thereafter @ Rs. 1595/- w.e.f. 1.3.90 to 1.3.92. The rent was further increased to Rs. 1835/- w.e.f. 1.3.92 to 1.3.95 and thereafter it was agreed to be increased to 2110 w.e.f. 1.3.95. The premises was let out for storage of garments. In addition to the rent, it was agreed that the water and electricity charges would be paid directly to the authorities concerned and maintenance charges were to be paid to the maintenance agency known as SEM Pvt. Ltd. The Defendant has been in continuous use and occupation of the suit premises since the time of letting out. He has been a defaulter in payment of rent. The Defendant has been paying rent in cash as well as by cheques. He used to make off and on payment of rent as and when it was convenient to him. He was making on account payments. The Defendant was in arrears of rent amounting to Rs. 47008/- up to August, 1994. From January, 1993 to August 1994 he was liable to pay Rs. 36699/- as arrears of rent and prior to that it was Rs. 10008/- up to January, 1993. After the Plaintiff got a legal notice issued to the Defendant demanding the arrears of rent up to 31.8.1994. The office copy of the said notice was exhibited as Ex.PW-1/2 which was objected to by the ld. counsel for the Defendant. In cross examination, he deposed that power of attorney was executed in his presence and he was witness to the same and regarding the ownership of the premises in question, he stated that the same is owned by his wife. He denied that the premises were lying vacant since July 1993 for 18 months.

Very surprisingly, the trial Court has in spite of the above findings dismissed the suit on some very strange reasoning that the Appellant/Plaintiff failed to prove the terms and conditions of the tenancy. The trial Court has further observed that the statement of the witness of the Plaintiff was not corroborated. The trial Court has referred to some alleged discrepancies in the witness depositions and held that Plaintiff failed to prove his case as no statement of account of Defendant has been filed by the Plaintiff.

I totally fail to understand the reasoning of the trial Court because the Appellant/Plaintiff duly proved the arrears due on account of rent and which issue was discussed by the trial Court in para 7 of the impugned judgment. There was no rebuttal evidence led on behalf of the Respondent/Defendant who remained exporter. There was, therefore, no reason for the trial Court to disbelieve the stand of the Appellant/Plaintiff.

In view of the above, the impugned judgment and decree is set aside. Suit of the Plaintiff is decreed for recovery of Rs. 1,06,695.04/- with pendent lite and future interest till realization of the decretal amount @ 6% per annum with costs of the present appeal. Decree sheet be prepared. Trial Court record be sent back.