Kishan Dubey v. Mukesh Gupta

RAJIV SAHAI ENDLAW, J

AUGUST 07, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th August, 2018 + RSA 67/2018, 16792/2018 (for stay) and CM No.16794/2018 (for condonation of 46 days delay in refiling the appeal). KISHAN DUBEY ..... Appellant Through: Mr. R.K. Sharma, Adv. versus MUKESH GUPTA ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.16793/2019 (for exemption). 1. Allowed, subject to just exceptions. 2. The application stands disposed of. RSA 67/2018, 16792/2018 (for stay) and CM No.16794/2018 (for condonation of 46 days delay in refiling the appeal). 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 5th January, 2018 in RCA No.98/2016 of the Court of Additional District Judge-I (North- East)] allowing the First Appeal under Section 96 of the CPC filed by the respondent/plaintiff against the judgment and decree [dated 24th October, 2016 in CS No.5338/15 of the Court of Administrative Civil Judge (North- East)] of dismissal of suit filed by the respondent/plaintiff for ejectment of the appellant/defendant from immovable property after determination of tenancy at a rent of Rs.3,600/- per month and for recovery of mesne profits. Axiomatically, the First Appellate Court has passed a decree in favour of the respondent/plaintiff and against the appellant/defendant of ejectment of the appellant/defendant from ground floor of property no.D-416 (Old), new no.D-1051, Bhajanpura, Main Gamri Road, Shahdara, Delhi and for recovery of arrears of rent and for recovery of damages @ Rs.12,000/- per month. 4. The counsel for the appellant/defendant has been heard. 5. The respondent/plaintiff instituted the suit, from which this appeal arises, pleading, (i) that the appellant/defendant was inducted as a tenant in the property in the year 2004, by the mother of the respondent/plaintiff, at a rent of Rs.2,500/- per month which was increased from time to time and the last rent w.e.f. January, 2011 was Rs.3,600/- per month; (ii) that the appellant/defendant had paid rent till May, 2011 and had thereafter locked the shop and stopped paying the rent and opened a shop in property no.43, Gali Paranthe Wali, Chandni Chowk, Delhi; (iii) that the respondent/plaintiff had terminated the tenancy of the appellant/defendant vide notice dated 18th December, 2012 and to which a false reply was given by the counsel for the appellant/defendant; (iv) that the prevalent letting value of the premises was Rs.12,000/- per month; and, (v) that after the demise of the mother of the respondent/plaintiff the respondent/plaintiff was the landlord. 6. The appellant/defendant contested the suit by filing a written statement pleading, (i) that the suit was beyond the pecuniary jurisdiction of the Court of the Civil Judge as the market value of the property was Rs.40,00,000/-; (ii) that the appellant/defendant was never a tenant and had never paid rent of the premises; (iii) that the appellant/defendant was in exclusive possession of the premises since 2004; (iv) that the appellant/defendant had come into possession of the property under an Agreement by the respondent/plaintiff to sell the same to the appellant/defendant for a consideration of Rs.2,00,000/- and out of which Rs.1,00,000/- was paid by the appellant/defendant to the respondent/plaintiff and the remaining Rs.1,00,000/- was to be paid at the time of registered Sale Deed; (v) that though the appellant/defendant requested the respondent/plaintiff and his mother to execute the sale documents but they avoided the same on the pretext of a family dispute; (vi) that in the year 2009, the premises were going to be sealed and the respondent/plaintiff got signatures of the appellant/defendant on some documents in English language and which the appellant/defendant was unable to read; and, (vii) that though the mother of the respondent/plaintiff had executed a receipt of Rs.2,00,000/- in favour of the appellant/defendant but