Neelam Malhotra v. Vidya Nath Seth

Judgment reserved on: July. 2010 Judgmentdeliveredon; 9^*" July.2010 Mrs. Neelam Malhotra, D/o. Sh. K.C. Malhotra, R/o. Flat No.2 (Back Portion) Ground Floor, 12, West Patel Nagar, New Delhi-no Through: ....Petitioner. Mr. O.P. Khadaria and Mr. Deepak Khadaria, Advs. Versus VidyaNath Seth, S/o. Sh. Radha Kishan Seth, R/o. A-108, Defence Colony, New Delhi 110 024 ....Respondent. Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? CM (M) No.855/2010 V. Page 1 of7 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. V.B.Gupta. J. Presentpetition under Article 227 of the Constitutionof India, has been filed by the petitionerfor setting aside order dated 20^' May, 2010 passed by Additional District Judge, Delhi.

¶2Brief facts of this case are that respondent herein, filed a suit for possessionas well as for recoveryof rent and damages againstpetitioneron the ground that he is the owner of propertyin question. The petitionerwas inducted as tenanton the portionof secondfloor on 1'' March, 2006 @ 9,000/-p.m. The lease deed was executedbetweenthe parties in this regard. Petitioner,thereafter without taking the permission of the respondent, shifted on the ground floor portion. In order to avoid litigation,respondentacceptedthe petitioneras tenant ongroundfloor and anotherleasedeed for 11 monthswas executed@Rs. 9,000/- p.m. The petitionerisinarrearof rent amountingRs.l3,500/rupto 28^'^ February, 2007 and from 1^' March, 2007, the possession of petitioner has become unauthorisedand is liableto pay damages@ Rs.25,000/-per month.

3., The defence taken up by the present petitioner is that, premises were rented @ Rs.2500/-per month. The lease deed dated P' March, 2006 is forged and fabricated document. Petitioner never agreed to pay rent @ Rs.9,000/- per month. The petitioner spent a sum of Rs.4,10,000/- in renovation and thereafter, rent of Rs.3,500/-was reduced to Rs.2,500/-per month. '

¶4Respondentfiled an applicationunder Order 39 Rule 10 Code of Civil Procedure(for shortas 'Code')in the trial court. That applicationwas dismissed. Thereafter,respondentfiled an appealagainstthatorderand vide impugnedorder, AdditionalDistrictJudgeacceptedthe appealofthe respondent. Against order of AdditionalDistrictJudge,petitionerhasfiledthispetition.

¶5It is contendedby learnedcounselfor petitionerthat the lease deed dated 1®' March,2006 has been forgedby the respondent/landlord.

¶6Other contention is that, order 39 Rule 10 of the Code, would be applicableonly whenthereis admissionon the part ofthe petitioner. Petitioneris disputingthe executionof lease deed dated 1^' March, 2006 @Rs.9,000/-per month. Thus, directionofAdditionalDistrictJudge,to pay rent@Rs.9,000/-per month is liable to be set aside.

¶7In supportof its contention,learnedcounselfor petitionercited following judgments;

(i) Sneh Vaish&Ors. v. Mod Travels&Tours(P) Ltd.,2002IVAD (Delhi) 722;

(ii) HarishRamchandaniv. Manu Ramchandani&Ors., 91 (2001) DLT480. ^

¶8Execution of lease deed dated 1^' March, 2006, has been admitted by petitionerherself, as in the written statementfiled by the petitioner,in the trial court she took the plea that; "The plaintiff got the signaturesof the defendanton one standardized lease term on l" March, 2006 without specifyingany amount of the rent or the period with a malafide to create a false evidence."

¶9- Anotherinterestingfact to be noticed in this case is that, petitionerherself is not sure as to what is the rate ofrent ofthe premisesin question. In leasedeed dated 1^' March, 2006 (on page 51 of the paper book), monthly rent of the premises has been mentioned as Rs. 9,000/- in figures, as well as in words. Tenancy period has been mentioned for 11 months.

¶10However,inthe writtenstatementpetitionerstatesthat; "the rent of Rs.3,500/- p.m. was reduced to Rs.2,500/- p.m. by the plaintiff which was so entered in the said Rent Agreement and the same has been changed to Rs.9,000/- p.m. by the plaintiff by putting fluid on the said amount of Rs.2,500/-."

¶11In view of the contradictorystand taken up by the present petitioner, relevant portions of her written statement filed before the trial court are reproduced as under; "PRELIMINARY OBJECTIONS:

¶1That the present suit is barred u/s 50 of the DRC Act since the rent of the premises is only Rs.2,500/- p.m. and the said rent has been tendered by the defendant to the plaintiff through Payee's Accounts Cheques in the month of June as well as July, 2006. Page4 of8

¶2That the alleged Lease Deed dated 1.3.2006 is a forged document because the stamp paper was purchasedon 23"^ March, 2006 by the plaintiffand the defendant was never in any know-how of the same. The plaintiff got. the signatures of the defendant on one standardized lease term on 1®' March, 2006 without specifying any amount of the rent or the period with a malafide to create a false evidence. It appears that the stamp paper has been purchased on 23.3.06 whereas the signatures of the defendant have been taken on 1.3.06. The para No. 12 has been deleted whereas the Clause No.l & 2 carries the forged amount of Rs.9,000/- and March, 2006 which are hand-written and without the signatures of the parties. The defendant reserves her right to challengethe same being a forged one on the examination of the original documents which the plaintiff has produced along with the plaint. The plaintiff has committeda forgery by causing material alteration in the said docuinent with a view to defraud the defendant to create a false evidence with the purpose to evict the defendant from the suit premises. The plaintiff is liable to be prosecuted for the above said forgery as per law.

¶3That the plaintiff sent a notice dated 5.2.07 through his lawyer Sh. Vir Vikram Malhotra which was duly repliedon 12''^March, 2007 giving'thecircumstances under which the defendant was called upon to vacate the premises on the second floor and to make the ground floor habitable by causing material alteration and renovation. The defendant has spent a sum of Rs.4,10,000/- in causing total renovation of the ground floor to make it habital. Therefore, the rent of Rs.3,000/- p.iTL was reduced to Rs.2,500/- p.m. by the plaintiff which was so entered in the said rent agreement and the same has been , changed to. Rs.9,000/- p.m. by the plaintiff by putting fluid on the said amount of Rs.2,500/-. However, the said Lease Deed has got only 1 witness and as such, the, said document cannot be read in evidence and the same is also not registered with the office of the Sub- . Registrar as per law. The tenancy is in perpetuity and not for 11 months, as reflected in the first page of CM (M) No.855/2010 Page 5 of7 Jp the forged Lease Deed. Therefore,the presentsuitis liable to be dismissed with costs."

¶12Section91 ofthe IndianEvidenceAct, deal with the exclusionoforal by documentaryevidence. This Section,therefore,lays down that when the terms and conditionsofa contracthave been set out in writingby agreementofparties, the documentis intendedto be a recordofthe transactionand therefore,no other evidenceshall be givento provethe transaction,exceptthe documentitself Oral evidence is excluded equally when a documentdoes exist.

¶13Once the executionof lease deed dated 1'.' March,2006 is admittedby the petitionerherself,then no amountoforal evidencecan be led to the contrary. As stated above,-onthe first page of lease deed dated 1.3.2006,periodof tenancyas well as rentof Rs.9,000/-p.m. hasbeen mentionedclearly.

¶14Case of the petitioneris that, lease deed dated 1®' March, 2006 is a forged document.'This plearegardingforged leasedeed, has been takenbythe petitioner for the first time, when she filed her written statement in the Court in. August, 2007. There is no explanationas to why she signed On a forged lease deed on 1®' March, 2006. Further, it is nowhere mentioned as to when petitioner has come to know about alleged forged lease deed and why she did not take any action immediately, thereafter.

¶15During the course of arguments before this Court, learned counsel for petitioner fairly admitted the execution of the lease deed and signatures of the I # petitioner,but contendedthatsignaturesofthe petitionerwere taken onnumberof blank papers.

¶16This plea has. been taken up in this Court for the first time and it is nobody'scasethatsignaturesofthe petitionerweretakenon blankpapers.

¶17Since, executionof the lease deed has been admitted by the petitioner, there is clear cut admissionon behalfof petitioner,that there is relationshipof landlord-tenantbetweenthe partiesand as per lease deed rent is Rs.9,000/-p.m., which she is bound to pay.

¶18Under these circumstances, judgments cited by learned counsel for petitioner are not applicable to the facts of the present case, since in the case in hand, petitioner admitted the execution of lease deed.

¶19Under these circumstances, present petition is wholly misconceived and is not maintainable. The same is hereby dismissed. CM No.11613/2010

¶20Dismissed.

¶21Copy of this order be sent to the trial court. 9"'July, 2010 RB

V.B.GUPTA, J. Page 7 of8

a- % HIGH COURT OF DELHI: NEW DELHI CM fM) No.855/2010 & CM No.11613/2010