Tilak Raj Narula v. Om Parkash

judgment and decree.

18.

It is settled law that where there is no material infirmity in the appreciation of evidence by the learned Trial Judge, the Appellate Court would not re-appreciate the evidence. It has to be shown in appeal that the Trial Judge has ignored relevant evidence or circumstance or has considered an irrelevant evidence or irrelevant circumstance while

appreciating evidence or that the finding returned is perverse.

19.

At a civil trial the evidence has to be evaluated on the test of preponderance of probability.

20.

Indeed, if there was a settlement between the parties as alleged by Tilak Raj Narula we see no reason why the same was not brought to the notice of either Court which was seized of the four proceedings noted above. Further, the fact that counsel for Om Prakash continued to appear in the four proceedings much after 1.8.1998 shows that there was no settlement between the parties for had there been one, Om Prakash would have told his counsel not to appear before any court.

21.

We are also in agreement with the appreciation of the testimony of PW-1 and PW-2 by the learned Trial Judge. Indeed, PW-1 appears to be a tutored witness for the reason recorded by the learned Trial judge and briefly noted hereinabove by us. Indeed, the presence of PW-2 at the shop of Om Prakash on 1.8.1998 is highly doubtful.

22.

There is one more facet which needs to be highlighted. The notice dated 19.5.1999 determining the tenancy referred to by Tilak Raj Narula in his plaint has been proved as Ex.PW-1/9. The same nowhere alleges to any written agreement dated 1.8.1998. While determining the tenancy it simply states that Om Prakash was a tenant at a monthly rent of Rs.4,150/- as mutually agreed between the

parties on 1.8.1998.

23.

Even in the notice determining the tenancy Tilak Raj Narula nowhere referred to a written agreement between the parties.

24.

Om Prakash replied to the notice Ex.PW-1/9 vide his reply Ex.PW-1/15. He reiterated that he was a tenant at a monthly rent of Rs.162.50 per month. He denied any mutual agreement on 1.8.1998 to enhance the rent to Rs.4,150/- per month. Tilak Raj Narula responded to the reply on 26.7.1999 vide Ex.PW-1/16. In the reply he never referred to any written agreement entered into on 1.8.1998.

25.

We find it extremely strange that having received a response vide Ex.PW-1/15 in which Om Prakash refuted any mutual agreement entered into on 1.8.1998 to increase the rent to Rs.4,150/- per month, Tilak Raj Narula while responding vide Ex. PW-1/16, did not refer to any written agreement between the parties.

26.

We find no merit in the appeal. The appeal is dismissed with costs.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J. October 20, 2008 rk

* IN THE HIGH COURT OF DELHI Judgment reserved on : October 15, 2008 % Judgment delivered on : October 20, 2008 + RFA 83/2008 TILAK RAJ NARULA ..... Appellant Through: Mr.D.S. Chauhan, Advocate VERSUS OM PRAKASH ..... Respondent Through: Mr.Satish Sahai with Mr.Madhur Sapra, Advocates 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. 1. Tilak Raj Narula has lost at the trial. Suit for possession and damages filed by him against Om Prakash has been dismissed. 2. Case of Tilak Raj Narula was that Om Prakash was a tenant under him in respect of the suit property of which he was the owner and that on 1.8.1998 the parties had agreed that the rent of the premises would be raised from Rs.162.50 per month to Rs.4,150/- per month. He claimed that pursuant to the agreement Om Prakash paid him rent for the month of August 1998 on 1.8.1998 for which a receipt was issued. He claimed that on 19.5.1999 he terminated the tenancy and required possession to be delivered to him. 3. In the written statement Om Prakash pleaded that he was inducted as a tenant about 39 years back and the agreed monthly rent was Rs.162.50 per month. Om Prakash denied having entered into any agreement on 1.8.1998 or having paid rent in sum of Rs.4,150/- per month. He denied having obtained any receipt in said sum. 4. Tilak Raj Narula sought to prove the agreement in question as Ex.PW-1/3. The receipt dated 1.8.1998 was sought to be proved as Ex.PW-1/4. 5. Besides examining himself, Tilak Raj Narula produced two alleged witnesses to the agreement Ex.PW-1/3. The same are PW-1 Som Nath Malhotra and PW-2 Joginder Nath Uppal. Tilak Raj Narula also examined one V.C.Mishra as PW-4 who claimed to be a handwriting expert and proved his report to the effect that the disputed signatures of Om Prakash on Ex.PW-1/3 and Ex.PW-1/4 were those of Om Prakash. 6. It surfaced at the trial that the parties were embroiled in a series of litigation and as of 1.8.1998 an appeal filed by Tilak Raj Narula, registered as No.250/1993, was pending before the learned Rent Control Tribunal. A suit registered as Suit No.923/1995 was pending before the Court of Shri L.K.Gaur, Sub-Judge, Delhi. An Eviction Petition filed by Tilak Raj Narula registered as No.42/1996 was pending before a learned Additional Rent Controller. An application filed by Om Prakash under Section 27 of the Delhi Rent Control Act registered as No.DR-40/1996 was pending. In none of the aforenoted four proceedings was an application filed drawing attention of any Court to the settlement alleged by Tilak Raj Narula. 7. In respect of the suit, it transpired that Rajesh Narula, Advocate, son of Tilak Raj Narula made a statement on 24.8.1998 simply withdrawing the suit without recording that on 1.8.1998 a settlement was arrived at between the parties. Eviction Petition No.42/1996 was listed on 29.7.1998 and was adjourned thereafter to 20.10.1998 and thereafter to 8.12.1998. On neither date none appeared for Tilak Raj Narula. Counsel appeared for Om Prakash. The petition was dismissed in default on 8.12.1998. 8. Petition filed by Om Prakash under Section 27 of the Delhi Rent Control Act registered as DR No.40/1996 was listed on 29.7.1998. On said date it was adjourned for 8.12.1998 and thereafter to 26.2.1999. None appeared for Tilak Raj Narula on 8.12.1998 or 26.2.1999. Counsel had appeared on both dates for Om Prakash. The learned Additional Rent Controller disposed of the proceedings permitting Tilak Raj Narula to withdraw the rent deposited by Om Prakash without prejudice to the rights of Tilak Raj Narula. 9. The appeal pending before the Rent Control Tribunal was listed on 8.9.1998, 12.1.1999, 26.2.1999 and 13.5.1999. On neither date Tilak Raj Narula entered appearance and on all dates Om Prakash or his counsel appeared.