Sharda v. Kusum Gupta

RAJIV SAHAI ENDLAW, J. AUGUST 28, 2018 bs/sr..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 28th August, 2018 + RSA 196/2017 & CM No.27311/2017 (for stay) SHARDA ..... Appellant Through: Mr. Yog Verdhan, Adv. Versus KUSUM GUPTA ..... Respondent Through: Mr. Shamindra Kadian, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 27th March, 2017 in RCA No.4/2017 of the Court of Additional District Judge (South-West)] of dismissal of First Appeal under Section 96 of the CPC filed by the appellant against the judgment and decree [dated 26th December, 2016 in Civil Suit No.425372/2016 of the Court of Senior Civil Judge (South-West)] allowing the suit of the respondent/plaintiff against the appellant/defendant for recovery of possession of immoveable property and for recovery of rent and mesne profits. 2. The appeal came up first before this Court on 1st August, 2017, when notice thereof was ordered to be issued and execution stayed, though without formulating or indicating the substantial question of law, if any arising and the Trial Court record was requisitioned. 3. The counsel for the respondent/plaintiff has been appearing and the proceedings have been adjourned from time to time. None of the subsequent orders also record or indicate the substantial question of law, if any entailed in this appeal. 4. The counsels for the parties have been heard and the Trial Court record requisitioned perused. 5. The respondent/plaintiff instituted the suit, from which this appeal arises, pleading (i) that the respondent/plaintiff had purchased the subject property from the appellant/defendant vide Agreement to Sell, Power of Attorney etc. and the appellant/defendant had put the respondent/plaintiff into possession of the property agreed to be sold; (ii) however, after some time, the appellant/defendant approached the respondent/plaintiff for taking the same property on rent and which was agreed to by the respondent/plaintiff and the property was let out by the respondent/plaintiff to the appellant/defendant at a rent of Rs.5,000/- per month; (iii) that the appellant/defendant was irregular in payment of rent; and, (iv) that the respondent/plaintiff thus determined the tenancy of the appellant/defendant. Hence, the suit for recovery of possession and for recovery of arrears of rent and mesne profits. 6. The appellant/defendant contested the suit inter alia denying any transaction of sale or letting and pleading that the respondent/plaintiff had taken the signatures of the appellant/defendant on some blank papers. 7. The following issues were framed/got framed in the suit: "1. Whether the plaintiff obtained the signatures and thumb impression of the defendant on some blank papers and fabricated the same as documents dated 16.07.2012 in the nature of GPA etc. with respect to the suit property? ….OPD 2. Whether the defendant is still the owner of the suit property?….OPD 3. Whether a landlord – tenant relationship was created between the parties in November 2012? …….OPP 4. If a landlord-tenant relationship was created, whether the plaintiff has terminated the tenancy of the defendant?..OPP 5. Whether the plaintiff is entitled to the recovery of arrears of rent, and interest upon the same, if so, at what rate and for what term? .....OPP 6. Whether the plaintiff is entitled to the recovery of damages, if so, at what rate and for what term?....OPP 7. whether the defendant has attempted to create third party interest in the suit property? …..OPP 8. Relief." 8. The Suit Court allowed the suit reasoning, (i) that the defence of the appellant/defendant qua Agreement to Sell, Power of Attorney etc. in favour of the respondent/plaintiff was of bald denial; (ii) though the appellant/defendant admitted her signatures on documents other than possession letters and Will, she denied the contents of these documents asserting that her signatures were obtained on blank