Smt Manjula Aggarwal & Ors. vs. Sh Vinod Kakkar Since Deceased Through Lrs & Ors.

2022:DHC:3080
$~84(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 8 August, 2022
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Pronounced on:17 August, 2022

+ RSA 79/2022, CAV 220/2022, CM APPL.33525/2022, CM
APPL.33526/2022

SMT MANJULA AGGARWAL & ORS. ..... Appellants
Through: Mr. Harish Malhotra, Sr. Adv.
with Ms. Rekha Aggarwal, Adv.

versus

SH VINOD KAKKAR SINCE DECEASED THROUGH LRS
& ORS. ..... Respondents
Through: Mr. Ravi Gupta, Sr. Adv. with
Mr. Chetan Sharma and Mr. Yashpal Singh,
Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR

J U D G M E N T
% 17.08.2022

1. Vinod Kakkar, Vijay Kakkar and Swati Khurana, as the
plaintiffs, instituted Suit No. CS 613232/16 against Manjula
Aggarwal, Anil Aggarwal and Rekha Aggarwal as the defendants
before the learned Senior Civil Judge (the learned SCJ). The plaintiffs
are the respondents before this Court and the defendants are the
appellants, and would be referred to as such, except where their
individual names (sans patronymics) are used.

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2. The suit pertains to a property located at 24, Patel Road, West
Patel Nagar, New Delhi-110008 which shall, therefore, be referred to
as “the suit property”.

The Suit

The Plaint


3. The respondents claimed to have purchased the suit property
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from M.R. Sethi (HUF) vide registered sale deed dated 16 November
2009. At the time, Brij Mohan Aggarwal, the husband of Manjula and
the father of Anil and Rekha was occupying part of the suit property
as tenant. There is a dispute as to whether the premises, let out to Brij
Mohan Aggarwal, consisted of two bed rooms, one drawing room
with one store, one kitchen and two bath rooms on the first floor of the
suit property or included, in addition, half of the terrace of the suit
property. This aspect of the dispute is of considerable significance, as
would become apparent presently.

4. The plaint further averred that, after purchasing the suit
property from M.R. Sethi (HUF), the respondents-plaintiffs wrote to
Brij Mohan Aggarwal, requiring him to attorn to the respondents.
The respondents also instituted eviction proceedings against Brij
1
Mohan Aggarwal under Clause (a) of the proviso to Section 14(1)

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[hereinafter “Section 14(1)(a)”] of the Delhi Rent Control Act, 1958
(the DRC Act) which were, subsequently, withdrawn by them on a
technical ground.

5. According to the respondents, and as averred in the plaint, vide
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notice dated 9 December, 2009, addressed to Brij Mohan Aggarwal,
the respondents terminated his tenancy. The said notice read thus:

“Date. 09.12.2009

Registered A.D./U.P.C.


SHRI BRIJ MOHAN AGGARWAL
R/O 24, FIRST FLOOR,
PATEL ROAD, WEST PATEL NAGAR,
NEW DELHI.

Dear Sir,

Under and on behalf of the instructions of my client SHRI
VINOD KAKAR, S/O SHRI G.R.KAKKAR, MRS. VIJAY
KAKKAR, W/O SHRI VINOD KAKKAR, BOTH
RESIDENT OF 49/27, EAST PATEL NAGAR, NEW
DELHI AND MRS. SWATI KHURANA, W/O SHRI
RAJAN KHURANA, R/O AP-22, SHALIMAR BAGH,
DELHI, I serve upon you with the following notice:-

1. That my clients are the joint owners having 1/3
undivided share each in the entire property, except two shops
on the Ground Floor, bearing No. 24, Patel Road, West Patel
Nagar, New Delhi, which they purchased by virtue of

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registered sale deeds executed by its owners M.R.Sethi (HUF)
consisting of its Karta Shri B. R.Sethi, S/o Shri Munshi Ram
Sethi and Shri Rohit Sethi, S/o Shri B .R.Sethi, both resident
of C-25, South Extension, Part-II, New Delhi, registered on
18.11.2009 in favour of my clients .

2. That you are a tenant in respect of two bedrooms, one
drawing room with one store and one kitchen with two
bathrooms on the back side of the First Floor of premises
bearing No. 24, Patel Road, West Patel Nagar, New Delhi, at
a monthly rent of Rs. 450/- excluding electricity and water
charges.

3. That the erstwhile owner Shri B.R.Sethi Karta of M/s
.M.R.Sethi (HUF) and Shri Rohit Sethi, S/o Shri B.R.Sethi
had verbally informed you about the sale of the aforesaid ·
property and also informed you to pay the monthly rent of
the portion under your tenancy to my clients. However, I also
on behalf of my aforesaid clients notify you to pay the rent of
the tenanted portion in your occupation to my clients from the
date of its purchase.

4. That my clients do not wish to keep you as their tenant
in the aforesaid tenanted premises and hereby terminate your
tenancy w.e.f. 31.12.2009 after giving you 15 days clear time.

5. That, in case, you failed to deliver the vacant physical
possession of the tenanted premises under your occupation on
or before 01.01.2010, then you will be a
trespasser/unauthorized occupant in the said premises and you
shall be liable to pay the damages/ mesne profit for use and
occupation of the said premises @Rs. 10,000/-. per month
which is the prevalent market rent in the area where the
tenanted premises is situated.

Now, I hereby call upon you to pay the entire arrears of rent
to my clients forthwith and I further call upon you to
surrender the vacant and peaceful possession of the tenanted
premises to my client on or before 01.01.2010, otherwise my
client shall institute appropriate civil proceedings before the
competent court for the recovery of rent as well as for the
recovery of possession, mesne profit/damages in which case
you shall be liable for all the cost and consequences thereof.

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Copy kept.

Sd/-
Sanjeev Sharma
Advocate”

6. As is apparent from a reading of the aforesaid notice, the
portion of the suit property tenanted to Brij Mohan Aggarwal was
described therein as “two bed rooms, one drawing room with one store
and one kitchen with two bath rooms on the back side of the first
floor” of the suit property. There was, therefore, no reference to any
part of the terrace of the suit property as being tenanted to Brij Mohan
Aggarwal.

7. One of the principal contentions of the petitioners before me is
that, as the half terrace in the suit property which was also, according
to them, let out by the respondents to Brij Mohan Aggarwal did not
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find mention in the notice dated 9 December, 2009, the notice was
defective. Mr. Harish Malhotra, learned Senior Counsel for the
petitioners sought to contend that a notice terminating a tenancy,
which was not issued in respect of the entire tenanted premises, was of
no legal effect whatsoever and that, therefore, it could not be treated
as having terminated the tenancy at all. He relied, for this purpose, on
2
Chiman Lal v. Mishri Lal .


2
(1985) 1 SCC 14
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8. To return to the précis recital of the plaint, the respondents filed
three eviction petitions against Brij Mohan Aggarwal, under clauses
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(c), (g) and (h) of Section 14(1) of the DRC Act.

9. During the pendency of the said eviction petitions, Brij Mohan
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Aggarwal expired on 21 September 2015, leaving behind Manjula,
Anil and Rekha, the petitioners herein, as his legal heirs. The plaint
asserted that, as the tenancy of Brij Mohan Agarwal stood terminated
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during his life time by virtue of the notice of termination dated 9
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December 2009, read with Section 111(h) of the Transfer of Property
Act, 1882, Manjula, not being financially dependent on Brij Mohan
Aggarwal, was entitled to continue in possession of the tenanted
premises only for one year from the date of death of Brij Mohan
5
Aggarwal, by application of Explanation II to Section 2(l) of the
DRC Act.

3
14. Protection of tenant against eviction . –
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order
or decree for the recovery of possession of any premises shall be made by any court or Controller in
favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed
manner, make an order for the recovery of possession of the premises on one or more of the
following grounds only, namely:—
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(c) that the tenant has used the premises for a purpose other than that for which
they were let –
(i) if the premises have been let on or after the 9th day of June, 1952,
without obtaining the consent in writing of the landlord; or
(ii) if the premises have been let before the said date without obtaining
his consent;
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(g) that the premises are required bona fide by the landlord for the purpose of
building or re-building or making thereto any substantial additions or alterations and that
such building or re-building or addition or alteration cannot be carried out without the
premises being vacated;
(h) that the tenant has, whether before or after the commencement of this Act,
acquired vacant possession of, or been allotted, a residence;
4
111. Determination of lease . – A lease of immovable property, determines –
*
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the
property leased, duly given by one party to the other.
5
2. Definitions .—In this Act, unless the context otherwise requires, -
*
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10. Additionally, the plaint alleged that though Manjula had
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deposited arrears of rent for the period 9 December 2015 to 8 April
2016 @ ₹ 450/- per month alongwith interest @ 15% per annum
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under Section 27(1) of the DRC Act with the learned Additional Rent
Controller (“the learned ARC”), no rent had been paid for the period
March to August 2016 despite repeated reminders. As a result, the
plaint alleged that Manjula was liable to vacate the suit property and
also disgorge mesne profits/damages @ ₹ 20,000/- per month from
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22 September 2016 till the date when the property would be vacated.

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11. Predicated on the aforesaid, the respondents, vide CS
613232/16, sought a decree in their favour and against the petitioners
(i) for recovery of possession of the suit property, (ii) for arrears of
rent of ₹ 2,250/- and (iii) for damages/ mesne profits @ ₹ 20,000/- per
month after requisite inquiry under Order XX Rule 12 of the CPC,
along with costs.

Written Statement

12. The petitioners, in their written statement filed in response to
the suit instituted by the respondents, raised various objections. Of
these, however, Mr. Harish Malhotra, learned Senior Counsel for the
petitioners has pressed only two. The first is that there was no valid
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termination of tenancy, as the notice dated 9 December 2009 covered
only part of the property which was tenanted to Brij Mohan Aggarwal,
omitting to include the half terrace which was also part of the tenanted
premises. Such a notice, issued in respect of a part of the tenanted
premises, submits Mr. Malhotra, cannot be treated as a valid notice of
termination of tenancy. There being no valid notice of termination of
tenancy, he submits that Brij Mohan Aggarwal continued as a
contractual tenant in the premises so that, on his death, Manjula
succeeded to the tenancy as a contractual tenant. As the tenancy in
respect of the tenanted premises was less than ₹ 3,500/- per month, the
premises were covered by the DRC Act and, by virtue of Section
7
50(1) thereof, the suit instituted by the respondents, he submits, was

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incompetent. The entire premise on which the suit was predicated,
i.e., that (i) there had been a termination of tenancy during the life
time of Brij Mohan Aggarwal, (ii) consequent on his demise,
therefore, Manjula succeeded to the tenancy as the successor of Brij
Mohan Aggarwal and (iii) being financially not dependent on Brij
Mohan Aggarwal, Manjula was entitled to continue in the suit
premises only for a period of one year from his death, submits Mr.
Malhotra, was without any legal basis whatsoever.

13. The second ground urged by Mr. Malhotra was that there was
no evidence to indicate that Manjula was not financially dependent on
Brij Mohan Aggarwal. That being so, Explanation II to Section 2(l)
would not apply, even if the tenancy were to be treated as having been
validly terminated during the life time of Brij Mohan Aggarwal.

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Judgment dated 14 January, 2021 of the learned SCJ

Issues

14. The learned SCJ framed the following issues as arising for
consideration in the suit:

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3) Whether the plaintiff is entitled to the decree of mesne
profits @ Rs.20,000/- per month from 09.09.2016 till handing
over of vacant possession of the suit property by the
defendant to the plaintiff? OPP

4) Whether the suit of the plaintiff is barred by Section 50
of the DRC Act? OPD

5) Whether the suit of the plaintiff is liable to be stayed in
view of pendency of eviction petition under the DRC Act
already filed by the present plaintiff against Sh. Brij Mohan
Aggarwal, husband of the defendant no.1? OPD

6) Relief, if any.”

Evidence

15. The respondents led the evidence of Kanika, Probation Officer,
Punjab & Sind Bank, West Patel Nagar, as PW-1 and Vinod Kakkar,
Respondent 1 as PW-2. PW-1 Kanika produced inter alia , in the
proceedings, a certified copy of a joint bank account bearing no.
00541000020065 of the Punjab & Sind Bank which was exhibited as
Ex. PW-1/1. The petitioners led the evidence of Petitioner 2 Anil
Aggarwal as DW-1 and Divya Prakash Gautam, who had prepared the
site plan in respect of the property as DW-2. The witnesses were
examined and cross examined and evidence was closed.

Findings

16. The learned SCJ noted that, after the death of Brij Mohan
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Aggarwal on 21 September, 2015, Manjula had deposited arrears of
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rent for the period 9 December, 2012 to 8 April, 2016 @ ₹ 450/- per
month along with interest @ 15% p.a. under Section 27 of the DRC
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Act. It was observed that both sides had relied on the photocopy of
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the rent agreement dated 12 March, 1965 between M.R. Sethi (HUF)
and Brij Mohan Aggarwal. There was no dispute about the fact that
the respondents had indeed purchased the suit property from M.R.
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Sethi (HUF) vide registered sale deed dated 16 November, 2009
(Ex.PW-2/1).

17. It may be noted here, that the tenanted area is described, in the
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rent agreement dated 12 March, 1965 as comprising of “two bed
rooms, one big hall drawing cum dining, one store, one kitchen, with
two bath rooms attached with both the bed rooms”, with the words
“and half terrace” inserted in hand above and after the words “two bed
rooms”. To understand this, one may provide a screen shot of the
said recital, in the rent agreement, thus:




18. Inasmuch as the relationship of landlord and tenant between
Brij Mohan Aggarwal and M.R. Sethi (HUF) stood thus admitted and
acknowledged by both parties, the learned SCJ held that the law did
not require Brij Mohan Aggarwal to separately attorn to the
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respondents. The fact that Manjula deposited rent in respect of the
tenanted premises even after the death of Brij Mohan Aggarwal, held
the learned SCJ, amounted to acknowledgement of the relationship of
landlord and tenant between the respondents and Manjula.

19. Apropos the submission of the petitioners that the notice of
termination of tenancy was invalid, as it pertained only to part of the
tenanted premises omitting to “half terrace” which had also been let
out to Brij Mohan Aggarwal, the learned SCJ held thus:

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taken, there is no mention of half terrace of second floor of
the suit/tenanted premises.

31. Thus, the said contention of the defendants has
remained not proved and not found to be tenable in view of
the above judgment 04.05.1998 between the deceased
husband of defendant no.1 and the predecessor in interest of
the plaintiffs.”

20. Dealing with the submission of the petitioners that Manjula was
financially dependent on Brij Mohan Aggarwal, the learned SCJ held
thus:
“23. In order to prove that the defendant no.1 was
financially independent on the date of death of her husband,
the plaintiffs have got the record summoned i.e. the bank
account statement of the account in the name of defendant
no.1 and 2 from Punjab and Sind Bank, West Patel Nagar, as
Ex. PW-1/1 and account opening form as Ex. PW-1/2 through
PW-1 Ms. Kanika, Probation Officer from the said bank.
During her cross-examination, PW-1 deposed that defendant
no.1 alongwith her daughter i.e. defendant no.3 are having a
joint saving account with their branch. The statement of
account shows that the said bank account is being operated by
the defendant no.1 and 3 jointly. Once, the plaintiffs have
proved the certified copy of the account statement alongwith
the account opening form, the onus of proof shifting upon the
defendants. However, neither defendant no.1 nor defendant
no.3 has appeared in the witness box to show that the said
account does not belong to defendant no.1 or that the
transactions as mentioned in the said account do not pertain to
her.

24. The contention of the defendants that PW-1 did not
have any authority to depose on behalf of the bank does not
hold ground as Ex. PW-1/1 is computer generated copy with
seal of the bank, the authenticity which document cannot be
doubted. Further, the defendant no. 1 has not stepped up in
the witness box to deny that the copy of the account opening
form Ex.PW- 1/2 is not correct. Perusal of the above
mentioned documents show that the said account was opened
by the defendant no.1 and 3 jointly, which was operated as
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"either or survivor", which means jointly. The said account
opening form mentions the date as 26.07.2007, which is much
prior to the death of Sh. B.M. Aggarwal on 21.09.2015.

25. During cross-examination dated 03.11.2018, DW-1
deposed that the said account belongs to his sister Rekha
Aggarwal (defendant no.3). Defendant no.1 has no concern
with the same. He stated that as per general banking practice,
the bank usually advise not to have an account in single name
to avoid any legal consequences in the event of any mishap.
However, DW-1 did not produce any document regarding any
such general banking practice to support his contentions.
Moreover, no cogent reason has been furnished why the best
evidence which would have been by way of examination of
defendant no.1 or defendant no.3 has not been produced in
this matter regarding the said account. Moreover, DW-1
deposed that the income tax return as well as Wealth tax
return of his mother for the financial year 2011-12 till 2017-
18 are in possession of his mother as she is dealing with her
financial affairs, which further show that defendant no.1 is
independently dealing with her financial affairs from 2011 to
2018 i.e. since prior to the death of her husband. DW-1 has
further deposed that he cannot tell whether his father left any
movable assets or movable property because his mother and
his father looking after their movable assets and properties.

26. From the cross-examination of DW-1, it is clear that
defendant no.1 is having a joint saving account in Punjab
National Bank, which was opened prior to the death of late
Sh. B.M. Aggarwal. Defendant no.1 is also having movable
and immovable properties and she alone is dealing with her
financial affairs. Therefore, the defendant no.1 was not at all
financially dependent upon her late husband at the time of his
death. Defendant no.1 chose not to appear as witness in the
witness box, nor she has given any authority to defendant
no.2 (Sh. Anil Aggarwal) to depose on her behalf. Therefore,
the statement of DW-1 as far as the same is related to the
bank account in the name of defendant no.1 and 3 cannot be
relied upon.”


21. As a result, the learned SCJ held that the respondents had
succeeded in establishing that (i) the premises tenanted to Brij Mohan
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Aggarwal by M.R. Sethi (HUF) did not include the “half terrace”, (ii)
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the notice of termination of tenancy dated 9 December, 2009,
therefore, covered the entire tenanted premises and was valid and in
order, (iii) as the tenancy stood terminated during his life time, Brij
Mohan Aggarwal, at the time of his death, was occupying the suit
property as a statutory tenant and (iv) there being no credible evidence
to indicate that Manjula was financially dependent on Brij Mohan
Aggarwal, she was entitled to continue in occupation of the tenanted
premises only for a period of one year from the death of Brij Mohan
Aggarwal.

22. The learned SCJ, therefore, decreed the suit in the following
terms:
“50. In view of the above discussions, the suit of the
plaintiffs is decreed with following reliefs in their favour:-

(i) A decree of recovery of possession is passed in
respect of the first floor of the property bearing no. 24,
Patel Road, West Patel Nagar, New Delhi- 110008
comprising of two bed rooms, one drawing room with
one store, one kitchen, two bathrooms, as shown in red
colour in the site plan against all the defendants.

(ii) A decree of arrears of rent as prayed by the
plaintiff in the sum of Rs.2,250/ against the defendant
no.1 alongwith interest @ 6% p.a. from the date of
order till the realization of the decreetal amount.

(iii) A decree of damages/mesne profits against the
defendant no.1 as prayed is passed for a total sum of
Rs. 29589.77/- along with interest @ 6 % per annum
as per Section 34 CPC from date of order till the
realization of the decretal amount. Further, the mesne
profit will be calculated for each month thereafter with
increase of 10% every year till the date of handing
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over the possession by the defendants alongwith
interest @ 6% per annum.”

23. I may note here, that Mr. Harish Malhotra, learned Senior
Counsel for the petitioners did not join issue with the decision either
of the learned ARC or of the learned RCT on the aspect of rent or
mesne profits and, therefore, no allusion is being made to the said
aspects in this judgment.

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Impugned judgment dated 16 April, 2022 of the learned ADJ

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24. Aggrieved by the aforesaid judgment dated 14 January, 2021
of the learned SCJ, Manjula, Anil and Rekha appealed to the learned
ADJ vide Appeal No. RCA/DJ/11/2021 and RCA/DJ/12/2021. Of
these, RCA/DJ/11/2021 was against the rejection of the counter claims
preferred by the petitioners before the learned SCJ, which forms
subject matter of RSA 81/2022. It is not, therefore, relevant for the
purposes of the present judgment which is limited to RSA 79/2022.

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25. Re: Validity of termination notice dated 9 December 2009

25.1 The learned ADJ noted the contention of the appellants that the
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notice dated 9 December 2009 could not be regarded as a valid
notice of termination of tenancy as it was restricted to part of the
tenanted premises, and excluded the half portion of the terrace on the
second floor. As such, it was sought to be submitted that the notice
8
was not a valid notice within the meaning of Section 106 of the

8
106. Duration of certain leases in absence of written contract or local usage . –
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Transfer of Property Act. The learned ADJ observed that the Rent
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Agreement dated 12 March 1965, whereunder the tenanted premises
were initially let by M.R. Sethi (HUF) to Brij Mohan Aggarwal was
for a period of one year less one day and was not, therefore,
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operational on the date when the notice dated 9 December 2009 was
issued. On that day, therefore, the tenancy of Brij Mohan Aggarwal,
in respect of the suit property, was governed by Chapter V of the
Transfer of Property Act, which included Sections 106 and 111(h).
Section 106 envisaged termination of leases of immovable property,
not let out for agricultural or manufacturing purposes, as being
terminable by 15 days’ notice either by the lesser or lessee. The
learned ADJ noted that 15 days’ clear time had been granted by the
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notice dated 9 December 2009 (Ex. PW-2/3) for the appellants to
vacate the suit property. Though the notice was defective insofar as it
demanded arrears of rent, the learned ADJ has held that the notice
could not be regarded as defective for termination of tenancy. I may
note that Mr. Harish Malhotra did not seek to argue that the notice
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dated 9 December 2009 was invalid as a notice of termination owing
to the defect, in the notice, insofar as it demanded arrears of rent.


(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable
property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year,
terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable
property for any other purpose shall be deemed to be a lease from month to month, terminable, on
the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the
period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the
period mentioned therein falls short of the period specified under that sub-section, where a suit or
proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the
person giving it, and either be sent by post to the party who is intended to be bound by it or be
tendered or delivered personally to such party, or to one of his family or servants at his residence,
or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

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25.2 The contention of Mr. Malhotra, noted more than once
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hereinbefore, is that the notice dated 9 December 2009 did not cover
the entirety of the tenanted premises, as it did not include the half
terrace which also constituted part thereof and was not, for that
reason, a valid notice terminating the tenancy of Brij Mohan Agarwal.
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On this aspect, the impugned judgment dated 16 April 2022 of the
learned ADJ observes and holds as under:
“62. As per record, there is a dispute between the parties
regarding the portion of the suit property that was let out by
the original landlord Sh. M. R. Sethi, (HUF) to the original
tenant Sh. B. M. Aggarwal. While the case of the plaintiffs is
that the tenanted premises consisted of two bedrooms with
attached bathrooms, one drawing room with one store and
one kitchen on the first floor of the suit property, as per the
case of the defendants, half portion of terrace above on the
second floor of the suit premises was also of the part of the
initial tenancy. Admittedly, there was a rent agreement dated
12.03.1965 executed between original landlord and the
original tenant. Neither the original landlord nor the original
tenant are present before the court to clarify as to what was
the original portion let out to Late Sh. Brij Mohan Aggarwal.
The plaintiffs herein were not in picture at the time of
execution of the original rent agreement as they had
purchased the suit property only in the year 2009. The
defendant no. 2, on the other hand, has admitted in his cross
examination that he was born in the year 1959 and was thus,
merely six years of age at the time of execution of original
rent agreement dated 12.03.1965. The original rent agreement
has never seen the light of the day as it has not been placed on
record by either of the parties. Defendant no. 1, being the
wife of Late Sh. B.M. Aggarwal was a competent person to
prove the portion of the suit property taken on rent by Late
Sh. B. M. Aggarwal, in case, she was married to Late Sh.
B.M. Aggarwal at that time. However, she has never stepped
into the witness box and deposed anything about the same.

63. Defendants have relied upon a copy of the rent
agreement dated 12.03.1965 which is Ex.PW2/Dl. The
defendants have also put this document to PW2 during his
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cross examination and have relied on certain portion of cross
examination of PW2 wherein he had accepted the suggestion
that the copy of the rent agreement received by him by the
previous owner was Ex.PW1/D1 and contained the
handwritten portion at points X and Xl. However, when we
go through the complete cross examination of PW2, it is
absolutely clear that although he had admitted the rent
agreement Ex.PW2/ D1 but he has stated that the cutting and
over writing at point X and X1 were not present on the copy
of the agreement initially. At this stage, it is important to note
that the cutting/over writing at point X is the handwritten
addition of the words and “half terrace above” bearing one
initial which is the bone of contention between the parties.

64. Perusal of document i.e. Rent Agreement Ex.PW2/D1
also shows that although the same has been signed by both.
the landlords and the tenants but the hand written portions at
point X and Xl are having a single initial. There is no clarity
on record as to whose initials are there at these points. Since,
it is the defendants who are alleging that this hand written
portion including "half terrace above" in the tenanted
premises was mutually added in the rent agreement, dated
12.03.1965, the onus was on them to prove the said fact.

65. It is also an admitted fact that the present litigation is
not between the parties to the rent agreement dated
12.03.1965 i.e.Ex.PW2/Dl but their successors in interest.
While the plaintiffs have allegedly stepped into the shoes of
the landlord Sh. M. R. Sethi after having purchased the suit
property vide documents dated 16.11.2009, the defendants are
the wife and children of the original tenant of Late Sh. Brij
Mohan Aggarwal who has already expired in the year 2015.
As per the cross examination of DW1 defendant no. 2, he was
born in the year 1959 and was thus merely six years old at the
time of execution of rent agreement Ex.PW2/Dl. Thus,
neither the plaintiffs nor defendant nos. 2 and 3 had any
personal knowledge regarding the original tenanted premises
taken on rent vide rent agreement Ex.PW2/Dl. Accordingly,
neither the plaintiff nor defendants no. 2 and 3 could depose
as to whether the handwritten portion at point X and X1 in
rent agreement Ex.PW2/D1 was added with mutual consent
of original landlord and tenant. At the max, the defendant no.
1 who was the wife of Late Sh. Brij Mohan Aggarwal could
have deposed about the tenanted premises which was initially
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taken on rent by Late Sh. Brij Mohan Aggarwal, that too if
she was married to Sh. Brij Mohan Aggarwal prior to
12.03.1965 i. e. the date of rent agreement (Ex.PW2/D1).
However, there is no clarity in this regard that defendant no. 1
never stepped into the witness box or deposed about the same.

66. It is also interesting to note that the defendants have
moved an application in RCA No. 12/21 for placing on record
certified copy of the rent agreement dated 12.03.1965. Vide
order dated 19.02.2022, it was observed by the court that the
said certified copy was only a photocopy and was not
accompanied with the first page of petition from which it has
been obtained. Accordingly, the appellants/defendants were
given permission for filing the certified copy of said
document on record subject to payment of cost to the opposite
counsel. However, the said certified copy was never placed
on record. Still, I deem it appropriate to look into the
document which is on record and relied upon by the
appellants/defendants. At the time of submissions of
application under section 151 CPC whereby the said copy
was placed on record, it was alleged that this was the copy of
the rent agreement filed by the father of appellants no. 2 and 3
in a rent petition bearing no. E-83/1967/75 which was
referred to in judgment dated 04.05.1998 and was marked as
Ex.AW-13/1. Perusal of this photocopy shows that this is an
entirely different document than the rent agreement relied
upon by the defendants in the original suit i.e. Ex.PW2/Dl.
While the rent agreement Ex.PW2/D1 is typed on stamp
paper of one rupee fifty naye paise, the document Ex.AW-
13/1 is on a plain white paper. Even the handwritten addition
at point X are in different handwritings and bearing different
initials in both the documents. The second page of Ex.AW-
13/1 is not bearing the signatures of the tenant and witnesses
while the signatures of tenant and one witness are present on
the second page of rent agreement Ex.PW2/Dl. There are also
certain handwritten additions after the signatures on the
second page of Ex.AW-13/1 which are missing from rent
agreement Ex.PW2/Dl. These contradictions in two different
copies of rent agreement dated 12.03.1965 being relied upon
by the defendants are sufficient to doubt the genuineness of
these copies especially the hand written contents thereon.
Since the addition of hand written portion at pt. X in Rent
Agreement Ex. PW2/D-1 including "the half portion above"
in the tenanted premises was pleaded by the defendants. The
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onus was on them to prove that handwritten additions were
genuine additions made in the rent agreement with mutual
.consent of both the parties. However, they have failed to
discharge this onus.

67. Considering the overall documents on record, I have
no hesitation in holding that the defendants have miserably
failed to prove that "half portion of terrace above" was a part
of the tenanted portion let out to Late Sh. Brij Mohan
Aggarwal by the erstwhile owner. Accordingly, the notice
dated 09.12.2009 Ex.PW2/3 terminating the tenancy of Late
Sh. Brij Mohan Aggarwal cannot be faulted with on the
ground of' not specifying the complete tenanted premises.

68. In this regard, Ld. Trial court has also relied upon the
certified copies of judgment dated 04.05.1998 in petition
number in E-39/83 (Old No.196/75) (date of institution -
17.11.1975) titled as B. M. Aggarwal Vs. Munshi Ram Sethi
under Section 45 of DRC Act passed by the court of Smt.
Asha Menon, the then Ld. ARC, Delhi. Although, none of
the parties have exhibited this judgment but there is no
dispute regarding its authenticity and accordingly, judicial
notice of the same has been taken. In fact, the copy of the said
judgment was put to DWl/defendant no. 2 during his cross-
examination and he had admitted the same which is marked
as Mark A. This was a petition filed by the erstwhile
tenant/predecessor in interest of the present defendants
namely Late Sh. Brij Mohan Aggarwal against the erstwhile.
owner/predecessor in interest of the plaintiffs namely Sh.
Munshi Ram Sethi. In paragraph no. 2 of the said judgment
the then Ld. ARC has described the tenanted premises as
mentioned in the petition to be "comprising of two bedrooms
of terrace above, one drawing-cum-dinning room, one
kitchen, one store, two bathrooms on the first floor of the suit
property". There is no mention of "the half portion of the
terrace above" on ·the second floor to be a part of tenanted
premises. Relying upon the said judgment, it is observed by
Ld. Trial Court that the contention of the defendant that the
half portion on the second floor of the suit property was a part
of the tenanted premises is misfounded and without any
evidence. I find no infirmity in the reliance of Ld. Trial court
upon this judgment or the findings arrived at by Ld. Trial
Court relying upon this judgment.

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69. From the evidence on record, I have no hesitation in
holding that the defendants have failed to prove that half
portion of terrace on the second floor of the suit property was
a part of the tenanted premises. Accordingly, the failure of the
plaintiffs to mention the said portion in the termination notice
Ex.PW2/3 is not, in any way, fatal to the case of the plaintiff.
The citations relied upon by the defendants/appellants to
support their arguments that there is no valid termination of
tenancy in case the notice of termination is defective and does
not mention the entire tenanted premises, are of no support to
them in view of their failure to prove that "the half portion of
the terrace on the second floor of the suit property" was also a
part of initial tenancy.

70. Even otherwise, the intention of the defendants to
terminate the complete tenancy of the plaintiffs is very clear
from the notice Ex.PW2/3 and there is no reason to arrive at a
conclusion that there was no clarity from the notice as to the
intention of the plaintiffs to terminate the complete tenancy of
the defendants.”

25.3 On the issue of the want of financial dependence of Manjula on
Brij Mohan Aggarwal, the learned ADJ has held thus, in paras 78 to
81 of the impugned judgment:

“78. It is argued on behalf of the defendants that the bank
account statement of defendant No. 1 has not been properly
proved on record as it was not certified under Banker's Book
Evidence Act and the witness proving the same i.e. PWl had
no authority to depose before the court.

79. Contentions of the defendants in this regard have been
duly dealt with by Ld. Trial Court in paragraph nos. 23 to 26
of the impugned judgment. After going through the reasoning
given by the Ld. Trial court while rejecting the contention of
the defendants in this regard, I find no illegality or infirmity
in the same. DWl/defendant no. 2 who is the son of defendant
no. 1 has not disputed in his examination as DWl that the
bank account bearing no. 00541000020065 was not the joint
bank account of defendant no. 1 and defendant no. 3. When
specifically questioned in this regard during his cross-
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examination, DW1 showed his ignorance and stated that he
cannot state anything in this regard. The relevant portion of
his cross examination in this respect is reproduced
hereinunder for the sake of clarity:

“Cross examination dated 03.11.2018

Q. It is correct that your mother have joint account
with her daughter Smt. Rekha Aggarwal in Punjab and
Sindh Bank, Patel Nagar Branch, New Delhi?

A. The said account belongs to my sister Smt.
Rekha Aggarwal, defendant no. 3. Defendant no. 1 has
no concern with the same. As per general banking
practice, banks usually advice not to have an account
in single name to avoid legal complications in the
event of any mishap.

Q. I put it to you that the said joint bank account
was operated jointly and severally by defendant no. 1
and 3 and there were transactions of deposit and
withdrawal by both defendant no. 1 and 3?

A. I can not say.

Q. I put it to you that same joint bank account in
Punjab and Sindh Bank in the name of defendant no. 1
and 3 was in operation even prior to the death of your
father?

A. I can not say.

Q. The plaintiff had given a notice to you under
Order 12 Rule 8 CPC to produce the income tax return
as well as Wealth Tax Return of your mother for FY
2011-12 till 2017-18, have you brought same today in
the court?

A. I have not brought the same Income Tax and
Wealth Tax are in possession of my mother as she is
dealing with the financial affairs.

Q. I put to you that your mother is assessed to
income tax?
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A. I can not say.

Cross dated 05.12.2018

Q. Had your father left any movable assets or
movable property?

A. I can not tell about this because my mother and
my father were looking after their movable assets and
properties.

Q. Please tell after the death of your father to
whom those movable assets and properties belong?

A. I do not know.

Q. Had your father make any provision for the
maintenance of your mother at the time of his death
and in what manner?

A. My father had not left any provision for my
mother at the time of his death.

Q. It means I take it that your mother D-1 was not
financial dependent upon your father?

A. It is wrong to suggest.”

80. Relying upon these evasive replies given by DW1
regarding alleged financial dependence of defendant no. 1 on
her husband Late Sh. Brij Mohan Aggarwal at the time of his
demise, Ld. Trial Court rightly observed that after the
deposition of PW1 and cross-examination of DW1, the onus
was on the defendant no. 1 to stepped into the witness box to
support her contention that she was financially dependent
upon her Late husband. In the alternative, if defendant no. 1
not in a position to appear before the court on account of her
medical condition, defendant no. 3 who was having a joint
account with defendant no. 1 could have examined herself to
prove that the bank account bearing no. 00541000020065,
though in the joint name with defendant no. 1 was actually
operated by her only and there was no income of defendant
no. 1 reflected in the said bank account. However, none of the
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defendants no. 1 or 3 stepped into the witness box to produce
the best evidence in this regard before the court. Testimony
of defendant no. 2/DW1 regarding the financial dependence
of defendant no. 1 on her late husband cannot be relied upon
considering his cross-examination and evasive reply
reproduced above.

81. I find no infirmity or illegality in the findings of Ld.
Trial Court on this aspect. Merely because PW1 could not
produce any authority for deposing before the court, it is not
sufficient to ignore his evidence especially when the best
evidence within the control of the defendants has not been
produced on record. Perusal of bank account statements Ex.
PWl/1 clearly show that they bear the stamp of concerned
bank. Although, it is correct that the statements Ex.PW1/1 are
not duly certified under Banker's Book Evidence Act,
however, they can be looked into as the defendants have
failed to raise any clear dispute against the same.”

26. Following on the aforesaid, the learned ADJ has declined to
th
interfere with the judgment dated 14 January 2021 of the learned SCJ
and has, therefore, dismissed RCA 12/2021.

27. Aggrieved thereby, the appellants have moved this Court by
way of second appeal under Section 100 of the CPC.

Rival contentions

28. I have heard Mr. Harish Malhotra, learned Senior Counsel for
the appellants and Mr. Ravi Gupta, learned Senior Counsel for the
respondents at length.

Contentions of Mr. Harish Malhotra

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29. As already noted hereinbefore, Mr. Harish Malhotra essentially
th
urged two pleas, to challenge the impugned order dated 16 April
2022, passed by the learned ADJ.

30. The first ground of challenge, urged by Mr Malhotra, was that
th
the notice dated 9 December 2009 was not a valid notice of
termination of tenancy of Brij Mohan Aggarwal qua the suit property,
as it did not cover the entirety of the tenanted premises. Relying on
2
the judgment in Chiman Lal , Mr. Malhotra submits that a notice
which was not covering the entire tenanted premises could not be
treated as a valid notice in the eyes of law. He has invited my
th
attention to the reply, dated 26 December 2009, of Brij Mohan
th
Aggarwal to the notice dated 9 December 2009, in which it was
specifically pointed out that Brij Mohan Aggarwal was a lawful tenant
not only of two bedrooms, with bathroom, one drawing room, one
store and one kitchen on the rear portion of the first floor, but was also
a lawful tenant in respect of a half terrace on the second floor and the
driveway on the ground floor. Despite this defect in the notice of
termination of tenancy having been pointed out by Brij Mohan
Aggarwal to the respondents, Mr. Malhotra submits that the
respondents chose, consciously, not to include the entire tenanted
premises in the suit.

31. Mr Malhotra also placed reliance on the Rent Agreement dated
th
12 March 1965 and on the handwritten interpolation “and half terrace
above”, to be found therein. Mr. Malhotra submits that it had been
admitted, in evidence, by the witness of the respondents, that the Rent
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th
Agreement dated 12 March 1965, has originally drawn up, contained
the aforesaid interpolation “and half terrace above”. To demonstrate
this position, Mr. Harish Malhotra drew my attention to the cross-
examination of Respondent 1 Vinod Kakkar as PW-2, conducted by
th
Anil as well as by learned Counsel for Manjula and Rekha on 20 July
2016. In the said record of cross-examination, PW-2 Vinod Kakkar
acknowledged having received a photocopy of the Rent Agreement
th
dated 12 March 1965 from Baldev Raj Seth, the previous owner of
the suit property, at the time of purchase of the suit property by him,
though he had not received the original of the Rent Agreement. As
such, the photocopy of the Rent Agreement was exhibited as PW-1/D-
1, and was identified as the copy of the Rent Agreement received by
PW-2 Vinod Kakkar from the previous owner Baldev Raj Sethi. In
this context, the cross-examination records thus:

“The witness has identified the Ex PW-2/D-1 as the correct
copy of the Rent Agreement received by him from the
previous owner/landlord. However, the cuttings, the over
writing as Point X and X1 were not present initially. I do not
remember whether this is the same copy which I have filed in
the Court of Ms. Harleen Singh (two eviction petitions) and
Sh Naveen Kashyap (one eviction petition) Ld. ARC
respectively. I have to check whether I have a copy of Rent
Agreement which does not have the cuttings / over writing as
shown at Point X and X1 on Ex PW-2/D-1. It is true that the
copy of Ex PW-2/D-1 was filed by me in the three eviction
petition referred hereinabove. It is true that the copy of Ex
PW-2/D-1 is identical to the copies filed by me in the eviction
petitions in the Court of Ms. Harleen Singh and Sh Naveen
Kashyap the then Ld. ARC's. When I briefed my counsel for
sending the notice Ex PW-2/3 I did not show him the copy of
Rent Agreement Ex PW-2/D-1. At the time of sending the
notice Ex PW-2/3, I did not have the copy of the Rent
Agreement Ex PW-2/D-1.”
(Emphasis supplied)
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32. Mr. Malhotra also relies on the subsequent query put, in respect
of the aforesaid Rent Agreement to PW-2 Vinod Kakkar and his
response thereto, thus:
“Q You have stated that you received the copy of the Rent
Agreement from Sh Baldev Raj Sethi previous owner after
the issue of notice dated 9.12.2009 Ex PW-1/3. It is put to
you that the copy of the Rent Agreement received by you
from previous owner Sh Baldev Raj Sethi contained the hand
written initials at Point X and X1 at the time when you
received the same?

A It is true.”


33. Mr. Malhotra submits, therefore, that it had been categorically
admitted in evidence by Respondent 1 himself, deposing as PW-2 in
cross-examination, that a copy of Rent Agreement received by him
contained the handwritten interpolations “and half terrace above”.
Adverting to the orders passed by the learned SCJ and the learned
ADJ, on this aspect, Mr. Malhotra submits that the learned SCJ
returned no finding whatsoever on the issue, whereas the findings of
the learned ADJ, though detailed, were markedly perverse and,
therefore, gave rise to a substantial question of law within the meaning
of Section 100 of the CPC.

34. He submits that a finding of fact, returned on appreciation of
evidence, is liable to be characterized as perverse if it arrives at a
conclusion which is opposed to the sole inevitable inference to which
the evidence unmistakably points. The admission by Respondent 1
Vinod Kakkar, deposing as PW-2 in cross-examination, that the copy
of the Rent Agreement received by him contained the interpolation
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“and half terrace”, submits Mr. Malhotra could lead to one and only
one inference, which was that the tenancy of Brij Mohan Aggarwal
included the half terrace. The sequitur, which inevitably had to
th
follow, was that the notice dated 9 December 2009 was an invalid
notice as it did not cover the entirety of the tenanted premises,
2
applying the law laid down in Chiman Lal .

35. In this context, Mr. Harish Malhotra has also relied on the
following recital, contained in para 3 of the replication filed by the
respondents in respect of the written statement of the petitioners in the
suit.
“It is correct that Shri B.M. Aggarwal husband of defendant
no.l and father of defendant no.2 and 3 was the tenant in the
suit premises vide alleged Rent Agreement dated 12.03.1965
executed between one Shri Munshi Ram Sethi and Shri Brij
Mohan Aggarwal. The Tenanted premises has been correctly
described in the site plan filed along with the suit. It is,
however, denied that Shri Brij Mohan Aggarwal was the
tenant in respect of alleged half terrace in the said property.
In any case the doctrine partial eviction cannot be used as
means to defeat the suit because if the case of the defendant is
that, in addition to the suit premises there was also in Brij
Mohan Aggarwal's tenancy half terrace, the decree for
possession to be passed in the suit will be treated as a decree
not only for the suit premises but also for the half terrace.”

Mr. Malhotra submits that the aforesaid defence taken by the
respondents in their replication to the written statement filed by the
petitioners in response to the respondents’ suit indicates that the
respondents were impliedly recognizing the fact that the tenancy of
Brij Mohan Aggarwal also included the half terrace on the second
floor.

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36. Mr. Malhotra has also placed reliance on an interlocutory order
th
dated 18 January 2019, passed by the learned SCJ during the course
of the proceedings in CS 613232/16, which also notes the fact that
words “and half terrace above” were to be found in the copy of the
th
Rent Agreement dated 12 March 1965 contained on the file.

37. The finding of the learned ADJ, to the effect that the tenanted
premises did not include the half terrace was, therefore, according to
Mr. Harish Malhotra, perverse on its face, and constitutes a palpable
error on the face of the record of the orders passed by the learned SCJ
and the learned ADJ and, therefore, made out a case for interference
by this Court.

38. The second ground of challenge, by Mr. Malhotra, to the
impugned order, was on the aspect of alleged financial independence
of Manjula vis-a-vis her husband Brij Mohan Aggarwal. With respect
to the findings returned by the learned SCJ and the learned ADJ on
this aspect, Mr. Malhotra has invited my attention to the bank
statement of Rekha, on which both Courts below placed reliance to
hold that Manjula was not financially dependent on Brij Mohan
Aggarwal. Part of the screenshot of the said statement, as figuring on
the record of the learned ADJ, may be provided thus:

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RSA 79/2022 Page 31 of 57

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39. Mr. Malhotra points out that the aforesaid statement of account
was of the joint account of Appellant 1 Manjula and Appellant 3
Rekha. As Rekha was a practicing advocate, Mr. Malhotra submits
that the income shown in the aforesaid account represented receipt of
professional charges by Rekha. They could not be treated as the
income of Manjula or used as a ground to hold that Manjula was not
financially dependent on Brij Mohan Aggarwal. Both the Courts
below, submits Mr. Malhotra, failed to appreciate this ground reality
and relied on the aforesaid statement of the joint account of Manjula
and Rekha as a ground to hold that Manjula was not financially
dependent on Brij Mohan Aggarwal merely because the statement
stood proved, without appreciating what exactly it disclosed.
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40. Apropos the observations of the learned SCJ and the learned
ADJ that Manjula did not appear in the witness box to clarify the
position, Mr. Malhotra submits that Manjula is a lady of advanced
years of declining health and that the initial onus, which lay on the
respondents to show that Manjula was financially dependent on Brij
Mohan Aggarwal, could not be said to have been discharged merely
because Manjula did not enter the witness box. He submits that it is
not the case of the respondents that Manjula was in receipt of any
earnings out of any independent business or job. The mere existence
of a bank balance, submits Mr. Malhotra, cannot be treated as
definitive proof of financial independence, in the absence of any
identified source of regular independent income.

41. On both these scores, therefore, Mr. Malhotra submits that the
findings of courts below are perverse and, therefore, give rise to
substantial questions of law for consideration and determination by
this Court.

42. No other contention was advanced by Mr. Harish Malhotra.

43. Responding to the submissions of Mr. Malhotra, Mr. Ravi
Gupta submits that the findings of the courts below are pure findings
of fact on appreciation of evidence and cannot, therefore, be regarding
as giving rise to any substantial question of law within the meaning of
Section 100 of the CPC.

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44. Apropos the contention of Mr. Malhotra that the notice of
th
termination of tenancy dated 9 December 2009 was an incomplete
notice as it did not cover the entire tenanted premises, Mr. Ravi Gupta
th
relies on the judgment dated 4 May 1998 of the learned Additional
Rent Controller (as she then was) in a petition under Section 45 of the
9
DRC Act , instituted by Brij Mohan Aggarwal against M.R. Sethi.
Para 2 of the said judgment contains the following recital:

“This petition was filed on 17 .11. 75 and was subsequently
amended on 16.3.79. In the petition the petitioner has stated
that he was the tenant of the respondent in respect of left hand
flat storey of the premises 24, Main West Patel Road
comprising of 2 bed rooms of terrace above 1 drawing cum
dining room, 1 kitchen, 1 store, 2 bed rooms on a monthly
rent of Rs 450/- under an agreement dated 12.3.65.”

45. Mr. Gupta submits that, therefore, even in the judgment of the
learned ARC in the petition filed by Brij Mohan Aggarwal under

9
45. Cutting off or withholding essential supply or service . –
(1) No landlord either himself or through any person purporting to act on his behalf shall
without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the
tenant in respect of the premises let to him.
(2) If a landlord contravenes the provisions of sub section (1), the tenant may make an
application to the Controller complaining of such contravention.
(3) If the Controller is satisfied that essential supply or service was cut off or withheld by the
landlord with a view to compel the tenant to vacate the premises or to pay an enhanced rent, the
Controller may pass an order directing the landlord to restore the amenities immediately, pending
inquiry referred to in sub-section (4).
Explanation .—An interim order may be passed under this sub-section without giving
notice to the landlord.
(4) If the Controller on inquiry finds that the essential supply or service enjoyed by the tenant
in respect of the premises was cut off or withheld by the landlord without just and sufficient cause,
he shall make an order directing the landlord to restore such supply or service.
(5) The Controller may in his discretion direct that compensation not exceeding fifty
rupees—
(a) be paid to the landlord by the tenant, if the application under sub-section (2)
was made frivolously or vexatiously;
(b) be paid to the tenant by the landlord, if the landlord had cut off or withheld the
supply or service without just and sufficient cause.
Explanation I .—In this section, “essential supply or service” includes supply of water, electricity,
lights in passages and on staircases, conservancy and sanitary services.
Explanation II .—For the purposes of this section, withholding any essential supply or service shall
included acts or omissions attributable to the landlord on account of which the essential supply or
service is cut off by the local authority or any other competent authority.
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Section 45 of the DRC Act, it was specifically stated by Brij Mohan
Aggarwal that the tenanted premises consisted only of the terrace
above one drawing room, one kitchen, one store and two bedrooms.
There was, therefore, no reference of any half terrace in the said
recital. This being the recital in the petition by Brij Mohan Aggarwal
as the original tenant, Mr. Ravi Gupta submits that it had to be
accorded pre-eminence. This judgment had been relied upon by both,
learned SCJ as well as by the learned ADJ and, in Mr. Ravi Gupta’s
submissions, no exception can be taken thereto.

46. Mr. Ravi Gupta further placed reliance on para 66 of the
th
judgment dated 16 April 2022 of the learned ADJ to highlight what,
according to him, was contumacious conduct on the part of the
th
appellants in producing fabricated copies of the Rent Agreement 12
March 1965 before the Court. The appellants who resort to such
conduct, submits Mr. Gupta, cannot be extended any leniency.

47. With respect to the financial status of Manjula, Mr. Gupta
submits that the best witness who could testify in that regard was
Manjula herself and, despite her being available, she did not enter the
witness box. Nor, for that matter, did Rekha, who is also available,
choose to depose in the proceedings either before the learned ARC or
before the learned RCT. Manjula and Rekha being the two persons
whose joint account was relied upon by the courts below to hold that
Manjula was not financially dependent on Brij Mohan Aggarwal, Mr.
Gupta submits that want of any evidence from Manjula or Rekha as
witnesses in the present case, were fatal to the stand that the appellants
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sought to urge. In this context, Mr. Ravi Gupta has drawn my
attention to the following questions and answers in the cross-
examination of DW-1 Anil Aggarwal:

“Q. The plaintiff had given a notice to you under Order 12
Rule 8 CPC to produce the income tax return as well as
Wealth Tax Return of your mother for FY 2011-12 till 2017-
18, have you brought same today in the Court?

A. I have not brought the same Income Tax and Wealth
Tax are in possession of my mother as she is dealing with her
financial affairs.

Q. I put to you that your mother is assessed to income
tax?

A. I can not say.”

48. In view of the above, Mr. Gupta submits that either Manjula, or
Rekha, or both, ought to have clarified the position with respect to the
joint bank account, on which the Courts below had placed reliance.

49. Mr. Gupta has also raised a preliminary objection with respect
to the plea, of Mr. Malhotra, regarding the invalidity of the notice of
th
termination of tenancy dated 9 December 2009 for want of inclusion,
in the said notice, of the entire tenanted premises. He submits that no
separate issue in this regard had been framed, either as to the portion
of the suit property which was tenanted to Brij Mohan Aggarwal or
regarding the validity or invalidity of the notice of termination of
th
tenancy dated 9 December 2009 on that score. No such issue having
been framed, Mr. Gupta would seek to contend that the impugned
judgment of the learned ADJ or the judgment of the learned SCJ
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which has been affirmed thereby cannot be called into question on this
score.

50. Mr. Ravi Gupta has also placed reliance on the following
judgments:
(i) the judgement of a learned Single Judge of this Court in
10
Parvati Devi v. Mahindra Singh , which holds that the mere
omission to mention the open terrace as part of the rented
residential premises would not affect an application for eviction
on the ground of bona fide requirement under Section 14-1(e)
of the DRC Act,
(ii) the judgment of a Coordinate Bench of this Court in
11
Sangeeta Aggarwal v. Sohni Devi , which holds that the
doctrine of partial eviction could not be used as a means to
defeat the suit and
(iii) the judgment of a Division Bench of this Court in Silicon
12
Graphics Systems India Pvt. Ltd. v. Nidas Estates Pvt. Ltd. ,
to the effect that Courts would not go into issues which are not
framed by the Court unless the Court was satisfied that a new
fact had arisen which was required to be taken note of and that a
new issue, relevant to the said fact, was required to be framed.

Analysis and findings

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51. An appeal under Section 100 of the CPC lies only on substantial
questions of law. The classical exposition of what a “substantial
question of law” is, may be found in the following words from the
judgment of the Supreme Court in Sir Chunilal V. Mehta & Sons Ltd
13
v. Century Spinning & Manufacturing Co. Ltd :
“ 6. … The proper test for determining whether a question
of law raised in the case is substantial would, in our opinion,
be whether it is of general public importance or whether if
directly and substantially affects the rights of the parties and
if so whether it is either an open question in the sense that it
is not finally settled by this Court or by the Privy Council or
by the Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by the
highest court or the general principles to be applied in
determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial
question of law .”
(Emphasis supplied)

An exhaustive discussion on the scope of Section 100 of the CPC, and
the concept of a “substantial question of law” envisaged therein, is to
14
be found in Nazir Mohamed v J. Kamala and others :
“ 22. A second appeal, or for that matter, any appeal is not a
matter of right. The right of appeal is conferred by statute. A
second appeal only lies on a substantial question of law. If
statute confers a limited right of appeal, the court cannot
expand the scope of the appeal. It was not open to the
respondent-plaintiff to reagitate facts or to call upon the High
Court to reanalyse or reappreciate evidence in a second
appeal.

23. Section 100 CPC, as amended, restricts the right of
second appeal, to only those cases, where a substantial
question of law is involved. The existence of a “substantial

13
AIR 1962 SC 1314
14
(2020) 19 SCC 57
RSA 79/2022 Page 38 of 57

15
(2006) 5 SCC 545
RSA 79/2022 Page 39 of 57

16
(1927-28) 55 IA 235 : AIR 1928 PC 172
17
AIR 1951 Mad 969
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2022:DHC:3080
arrived at by courts of facts, and it must be necessary to
decide that question of law for a just and proper decision of
the case .

30. Where no such question of law, nor even a mixed
question of law and fact was urged before the trial court or
the first appellate court, as in this case, a second appeal
cannot be entertained , as held by this Court in Panchugopal
18
Barua v. Umesh Chandra Goswami .

31. Whether a question of law is a substantial one and
whether such question is involved in the case or not, would
depend on the facts and circumstances of each case. The
paramount overall consideration is the need for striking a
judicious balance between the indispensable obligation to do
justice at all stages and the impelling necessity of avoiding
prolongation in the life of any lis . This proposition finds
19
support from Santosh Hazari v. Purushottam Tiwari .

32. In a second appeal, the jurisdiction of the High Court
being confined to substantial question of law, a finding of fact
is not open to challenge in second appeal, even if the
appreciation of evidence is palpably erroneous and the
finding of fact incorrect as held in V. Ramachandra
20
Ayyar v. Ramalingam Chettiar . An entirely new point,
raised for the first time, before the High Court, is not a
question involved in the case, unless it goes to the root of the
matter.

33. The principles relating to Section 100 CPC relevant for
this case may be summarised thus:

33.1. An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.


18
(1997) 4 SCC 713
19
(2001) 3 SCC 179
20
AIR 1963 SC 302
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33.2. The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material bearing
on the decision of the case (that is, a question, answer to
which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any specific
provisions of law or settled legal principle emerging from
binding precedents, and, involves a debatable legal issue.

33.3. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents,
but the court below has decided the matter, either ignoring or
acting contrary to such legal principle. In the second type of
cases, the substantial question of law arises not because the
law is still debatable, but because the decision rendered on a
material question, violates the settled position of law.

33.4. The general rule is, that the High Court will not
interfere with the concurrent findings of the courts below. But
it is not an absolute rule. Some of the well-recognised
exceptions are where : (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts by applying
the law erroneously; or (iii) the courts have wrongly cast the
burden of proof. A decision based on no evidence, does not
refer only to cases where there is a total dearth of evidence,
but also refers to case, where the evidence, taken as a whole,
is not reasonably capable of supporting the finding.

34. With the greatest of respect to the High Court, neither
of the two questions framed by the High Court is a question
of law, far less a substantial question of law. There was no
controversy before the High Court with regard to
interpretation or legal effect of any document nor any wrong
application of a principle of law, in construing a document, or
otherwise, which might have given rise to a question of law.
There was no debatable issue before the High Court which
was not covered by settled principles of law and/or
precedents.

35. It is nobody's case that the decision rendered by the
first appellate court on any material question, violated any
settled question of law or was vitiated by perversity. It is
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nobody's case that the evidence taken as a whole does not
reasonably support the finding of the first appellate court, or
that the first appellate court interpreted the evidence on record
in an absurd and/or capricious manner. It is also nobody's
case that the first appellate court arrived at its decision
ignoring or acting contrary to any settled legal principle.

36. The first appellate court examined the evidence on
record at length, and arrived at a reasoned conclusion, that the
appellant-defendant was owner of a part of the suit premises
and the respondent-plaintiff was owner of the other part of the
suit premises. This finding is based on cogent and binding
documents of title, including the registered deeds of
conveyance by which the respective predecessors-in-interest
of the appellant-defendant and respondent-plaintiff had
acquired title over the suit premises. There was no erroneous
inference from any proved fact. Nor had the burden of proof
erroneously been shifted.”
(Emphasis supplied)


52. Findings of fact based on appreciation of evidence cannot,
therefore, result in any substantial question of law, even if they are
palpably erroneous. Having so observed, relying on V. Ramachandra
19 14
Ayyar , the decision in Nazir Mohamed proceeds to somewhat
relax the rigour of this dictum, by holding that findings of fact based
on appreciation of evidence may result in a substantial question of law
if the evidence, taken as a whole , is not reasonably capable of
supporting the finding.

53. As to when findings of fact, arrived at by the learned Trial
Court and the learned First Appellate Court, can justify interference in
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2022:DHC:3080
second appeal, the following passages from Municipal Committee,
21
Hoshiarpur v. Punjab State Electricity Board are instructive:
“27. There is no prohibition on entertaining a second
appeal even on a question of fact provided the court is
satisfied that the findings of fact recorded by the courts
below stood vitiated by non-consideration of relevant
evidence or by showing an erroneous approach to the matter
i.e. that the findings of fact are found to be perverse. But the
High Court cannot interfere with the concurrent findings of
fact in a routine and casual manner by substituting its
subjective satisfaction in place of that of the lower courts .
22
( Vide Jagdish Singh v. Natthu Singh ; Karnataka Board of
23
Wakf v. Anjuman-E-Ismail Madris-Un-Niswan and
24
Dinesh Kumar v. Yusuf Ali .)

28. If a finding of fact is arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant material or if the finding so outrageously defies
logic as to suffer from the vice of irrationality incurring the
blame of being perverse, then the finding is rendered infirm
in the eye of the law. If the findings of the Court are based
on no evidence or evidence which is thoroughly unreliable
or evidence that suffers from the vice of procedural
irregularity or the findings are such that no reasonable
person would have arrived at those findings, then the
findings may be said to be perverse. Further if the findings
are either ipse dixit of the Court or based on conjecture and
surmises, the judgment suffers from the additional infirmity
of non-application of mind and thus, stands vitiated. ( Vide
25
Bharatha Matha v. R. Vijaya Renganathan .)


26
54. In Illoth Valappil Ambunhi v. Kunhambu Karavanan , the
Supreme Court held that it was well settled “that perversity in arriving
at a factual finding gives rise to a substantial question of law,

21
(2010) 13 SCC 216
22
(1992) 1 SCC 647 : AIR 1992 SC 1604
23
(1999) 6 SCC 343 : AIR 1999 SC 3067
24
(2010) 12 SCC 740 : AIR 2010 SC 2679
25
(2010) 11 SCC 483 : AIR 2010 SC 2685
26
(2020) 18 SCC 317
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2022:DHC:3080
attracting intervention of the High Court under Section 100 of the
Code of Civil Procedure”.

55. On the jurisprudential concept of “perversity”, the Supreme
27
Court held, in Kilasho Devi Burman v. C.I.T. that “a conclusion is
perverse only if it is such that no person, duly instructed, could upon
the record before him, have reasonably come to it”. Vishwanath
28
Agrawal v. Sarla Vishwanath Agrawal holds that “any finding
which is not supported by evidence or inferences is drawn in a
stretched and unacceptable manner can be said to be perverse”.
Specifically dealing with “perversity” as a permissible ground to
interfere with findings of fact in a second appeal under Section 100 of
the CPC, the Supreme Court held thus, in Damodar Lal v. Sohan
29
Devi :

27
(1996) 7 SCC 613
28
(2012) 7 SCC 288
29
(2016) 3 SCC 78
30
(2007) 12 SCC 190
RSA 79/2022 Page 45 of 57

31
(2010) 15 SCC 530
32
(2001) 4 SCC 262
RSA 79/2022 Page 46 of 57

33
(2013) 6 SCC 602
34
(1984) 4 SCC 635
RSA 79/2022 Page 47 of 57

56. Applying the above principles to the facts at hand, it is clear
that the findings of the learned ADJ are pure findings of fact, which
do not give rise to any substantial question of law.


35
(1999) 2 SCC 10
36
(2009) 10 SCC 636
37
(2010) 9 SCC 189
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th
57. Mr. Malhotra’s first submission is that the notice dated 9
December 2009 was an invalid notice and could not be regarded as
terminating the tenancy of Brij Mohan Aggarwal. This, he submits, is
because the notice did not cover the entire tenanted premises but left
13
out the half terrace at the second floor. He relies on Chiman Lal to
contend that a notice which is issued in respect of part of the tenanted
premises cannot be treated as a notice terminating the tenancy at all.

58. Mr. Malhotra’s reliance, to substantiate this submission, is
entirely on the cross examination of Respondent 1 as PW-2, during
trial. In fact, his reliance is fundamentally on one question addressed
to PW-2 and his answer thereto, which stand reproduced, in para 32
supra . Mr. Malhotra seeks to point out that, when queried as to
whether the copy of the rent agreement received by Respondent 1
from Baldev Raj Sethi contained the hand-written initials at points X
and X-1, PW-2 answered in the affirmative. This indicates, according
to Mr. Malhotra, unequivocally and unambiguously, that the words
“and half terrace above” were contained in the original rent agreement
th
dated 12 March, 1965. Any finding to the contrary, in the face of
this evidence, submits Mr. Malhotra, is ex facie perverse and,
therefore, gives rise to a substantial question of law within the
meaning of Section 100 of CPC.

59. The passages from the impugned judgment of the learned ADJ,
extracted in para 25.2 supra reveal that the learned ADJ has dealt with
this aspect in great detail. He has noted the reliance, by the
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2022:DHC:3080
petitioners, on the evidence in cross examination of Respondent 1
deposing as PW-2 Vinod Kakkar. He specifically notes thus:

“63. Defendants have relied upon a copy of the rent
agreement dated 12.03.1965 which is Ex.PW2/Dl. The
defendants have also put this document to PW2 during his
cross examination and have relied on -certain portion of cross
examination of PW2 wherein he had accepted the suggestion
that the copy of the rent agreement received by him by the
previous owner was Ex.PW1/D1 and contained the
handwritten portion at points X and Xl.”

60. Thus, the precise submission advanced by Mr. Malhotra has
been noted and taken into account by the learned ADJ. Once the
submission has been noted and taken into account, the scope for
urging that a substantial question of law arises as the appreciation of
evidence, by the learned ADJ, is perverse, reduces considerably.
Perversity can be attributed to findings returned consequent on
appreciation of evidence only if (i) the order takes into account
extraneous material or (ii) fails to take into account evidence which is
relevant and which could tilt the scales against the findings that the
order arrives at, or (iii) arrives at a finding which is so unreasonable
that no person conversant with the facts and the law and the evidence
in the case, would arrive at such finding.

61. Once, therefore, the learned ADJ is seen to have considered the
submission, of the petitioners, that the afore-extracted question put to
Respondent 1 as PW-2 in cross examination and his answer thereto
amount to an acknowledgement that the words “and half terrace
th
above” did indeed find place in the original rent agreement dated 12
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March 1965, the first two circumstances [(i) and (ii) supra ] in which
perversity could be attributed to the findings of fact of the learned
ADJ are no longer available to the petitioners. All that can be seen,
then, is whether the manner in which the learned ADJ has appreciated
the evidence is unsustainable to the extent that no reasonable person
would appreciate the evidence in such a manner or arrive at the
conclusion at which the learned ADJ has arrived at. Short of this high
plato, no perversity can be attributed to the findings of the learned
ADJ.

62. When one peruses the findings in the impugned judgment dated
th
16 April, 2022 of the learned ADJ, it is seen that, even while noting
the reliance, by the petitioners, on the afore-extracted response of
Respondent 1 as PW-2 in cross examination, the learned ADJ goes on
to observe that, earlier in his cross examination, PW-2 had specifically
stated that the over-writing at points X and X-1 were not present on
the initial copy of the agreement. Dealing with this aspect, the learned
ADJ notes that
(i) though the rent agreement (Ex.PW-2/D-1) was signed
both by the landlord and the tenants, the hand-written portions
at points X and X-1 were accompanied only by a single initial,
(ii) there was no clarity as to the person who had initialled
the said interpolations,
(iii) as the respondents were seeking to contend that the
words “and half terrace above” had been entered in the rent
agreement by mutual consent, the onus was on the respondents
to prove the said fact,
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(iv) Brij Mohan Aggarwal, the original tenant, had expired in
2015,
(v) the cross examination of Anil Aggarwal as PW-1,
disclosed that, at the time of execution of the rent agreement
Ex.PW-2/D-1 in 1959, he was merely six years of age,
(vi) neither the respondents, nor Petitioners 2 and 3, i.e Anil
and Rekha, therefore, had any personal knowledge regarding
the identity of the original premises which had been tenanted by
Brij Mohan Aggarwal,
(vii) consequently, neither the respondents nor Petitioners 2
and 3 could depose as to whether the hand-written portion at
points X and X-1 in the rent agreement Ex.PW-2/D-1 had been
added with mutual consent of landlord and tenant,
(viii) the only party to the proceedings who could have
deposed in that regard would be Manjula, assuming she was
married to Brij Mohan Aggarwal prior to 1965 when the rent
agreement Ex.PW-2/D-1 was executed,
(ix) Manjula, however, never stepped into the witness box,
(x) though the petitioners had, in RCA 12/21, moved an
application to place on record the certified copy of the rent
th
agreement dated 12 March,1965, and the petitioners had, in
fact, placed the purported certified copy of the rent agreement,
as filed in Rent Petition E-83/1967/75 (disposed of by the
th
learned ARC vide judgment dated 4 May 1998 supra ) on
record, the said document, as placed on record by the
petitioners, was discrepant in several respects from Ex.PW-2/D-
1,
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(xi) these discrepancies were, even by themselves, sufficient
to doubt the genuineness of the copies of the rent agreement
th
dated 12 March 1965 which had been placed on record,
especially with respect to the hand-written interpolations
therein,
(xii) the onus was on the petitioners, as the defendants placing
reliance on the interpolation “and half portion above” in the rent
th
agreement dated 12 March, 1965 (Ex.PW-2/D-1) to prove the
genuineness of the hand-written additions and the fact that the
additions have been made by mutual consent of the parties and
(xiii) this onus was, however, not discharged by the petitioners,
in the case.

63. It is on the basis of this detailed analysis of the material on
record that the learned ADJ has not condescended to accept the sole
question and answer, put to Respondent 1 as PW-2 in cross
examination, on which Mr. Malhotra placed reliance, as conclusive
th
evidence of the existence, in the original rent agreement dated 12
March, 1965, of the interpolated words “and half terrace above”.
This finding cannot, in any manner of speaking, be regarded as
perverse for having failed to take into account relevant material, or for
having taken into account irrelevant material or because the finding is
such as no reasonable person conversant with the facts and the law
and the evidence in the case, taken as a whole , would arrive at.

64. Still weaker is the case pleaded by Mr. Malhotra regarding the
purported financial dependence of Manjula on Brij Mohan Aggarwal.
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The bank statement, on which the courts below placed reliance, was a
joint bank statement of Rekha and Manjula. The contention of Mr.
Malhotra that the said statement could not be treated as reflective of
the financial condition of Manjula, as the increase therein reflected the
professional earnings of Rekha, is unsubstantiated by any factual
material. The bank statement speaks for itself. In the face of the
entries in the bank account statement, the onus was clearly on the
petitioners to disabuse the Court that the bank statement could not be
treated as reflecting the actual financial condition of Manjula.


65. The submission of Mr. Malhotra that a mere bank statement is
not reflective of financial independence, in the absence of any
evidence of independent earnings and any other independent source of
earning, has no foundation either in fact or in law. It is not possible to
accept the said submission. Indeed, I am completely unable to
understand as to how it can even be sought to be contended that the
financial condition of a person cannot be discerned from the statement
of the bank account of that person.


66. If the statement of the bank account is actually not reflective of
the actual financial wherewithal of the account holder, the onus would
be on the party who seeks to so assert, to so establish. Neither
Manjula nor Rekha chose to lead evidence in the matter. It is obvious
that, as the joint account holders of the bank statement on which the
courts below had placed reliance, they would be the best witnesses to
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depose in that regard. Neither Manjula nor Rekha having chosen to
step into the witness box, no exception whatsoever can be taken to the
findings of the courts below that, on the basis of the joint bank
statement of Manjula and Rekha, the plea of financial dependence of
Manjula on Brij Mohan Aggarwal could not sustain.

67. Section 2(1)(l)(iii), read with Explanation II thereto, indicates
that, in normal course, a person who succeeds to the tenancy by virtue
of succession consequent on the death of the original tenant is entitled,
where the tenancy has been validly terminated prior to the death of the
original tenant, to continue in the premises only for a period of one
year. An exception is statutorily carved out in a case where the
succeeding tenant is financially dependent on the original tenant. The
onus is, therefore, on the person seeking to plead and invoke the
38
exception, to prove that the pre-requisites of the exception are met.
The onus was, therefore, on the petitioners, who sought to invoke,
against the respondents, Explanation II to Section 2(1)(l)(iii) of the
DRC Act, to establish that the ingredients of the explanation stood
satisfied. It was, therefore, for the petitioners to establish that Manjula
was, in fact, not financially dependent on Brij Mohan Aggarwal, and
not for the respondents to establish to the contrary. No evidence, to
that effect, has been led by the petitioners. Rather, the joint bank
account statement of Manjula and Rekha indicates a considerable
degree of solvency. If the petitioners desired to urge to the contrary,
the onus was on them to lead evidence to that effect. The best

38
See M.A. Rumugam v. Kittu, (2009) 1 SCC 101, Subramanian Swamy v. U.O.I., (2016) 7 SCC 221 ,
which hold that the onus to prove the existence of the pre-requisites for an Exception to apply is on the person
pleading the Exception
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evidence in that regard would have been the evidence of Manjula and
Rekha – though it might be questionable as to whether any oral
evidence of Manjula and Rekha could militate against what was
apparent from their joint bank account statement. Be that as it may,
neither Manjula nor Rekha chose to step into the witness box.

68. As a result, the concurrent findings of fact, based on
appreciation of evidence, by the learned SCJ and the learned ADJ, to
the effect that Manjula could not be treated as financially dependent
on Brij Mohan Aggarwal are in order, and cannot be said to be
unsustainable on any ground whatsoever, much less perverse, on any
ground whatsoever.


69. Neither of the twin submissions urged by Mr Malhotra as
grounds on which to challenge the impugned decisions of the learned
Civil Judge and the learned ADJ, therefore, impresses.


Conclusion


70. In view of the aforesaid, no substantial question of law can be
said to arise in the facts of the present case.


71. The appeal is accordingly dismissed in limine.

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72. Caveat also stands disposed of. Pending applications, if any, do
not survive for consideration and accordingly stand disposed of.




C.HARI SHANKAR, J
AUGUST 17, 2022
kr / r.bararia
RSA 79/2022 Page 57 of 57