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2007 DIGILAW 227 (DEL)

GUJRAL PACKAGING v. PRAKASH KAUR

2007-02-02

J.M.MALIK

body2007
JUDGMENT J.M. Malik, J.- This is the second appeal filed by the appellant. The brief history of the facts of this case is this: The respondent/landlord filed a suit for recovery of Rs. 50,910/- against the appellant/tenant in respect of premises No. D5/16A, Dharampuri, Vishnu Garden at the rental of Rs. 4,500/- p.m. for the period w.e.f. 1.9.1998 to 24.5.1999. He also claimed Rs. 3,410/- as arrears of electricity charges and Rs. 7.000/- as interest @ 24 per cent per annum. The defence set up by the appellant was that he had paid rent upto October 1998 and had vacated the premises on 31.10.98. Both the Courts have decided the case against the appellant/tenant with costs, except that the first appellate Court granted interest @ 9 per cent per annum. 2. The first submission raised by learned Counsel for the appellant is twofold. Firstly, he has pointed out that learned Trial Court has wrongly drawn up the decree sheet. The Trial Court has wrongly shown that the certificate of Advocate was filed by Counsel for the plaintiff/respondent when as a matter of fact it was filed by Counsel for the defendant/appellant. There appears to be an apparent mistake. Learned Counsel for the respondent/plaintiff has conceded this point. I therefore, hold that decree sheet was wrongly prepared. The necessary correction be made, pleader fees @ 5500/- be written on the side of defendant/appellant, meaning thereby that the costs of the suit would be in the sum of Rs. 2908/- instead of Rs. 8408/-. 3. Secondly, he has pointed out that decree sheet prepared by the learned first appellate Court has been wrongly drawn up. The first appellate Court modified the order of the Trial Court to the extent that respondent/plaintiff would be entitled to a sum of Rs. 41,160/- with proportionate costs. He further ordered that respondent/ plaintiff shall also be entitled to interest @ 9 per cent per annum on the amount of Rs. 40,500/- from the date of filing of the suit till realisation. It is hereby ordered that the Trial Court will draw up fresh decree sheet in accordance with the order passed by the first appellate Court and directions of this Court and if still there is any mistake, the appellant shall be at liberty to move an application under Section 152 read with Section 151, CPC for correction of the decree sheet. 4. 4. The next submission made by learned Counsel for the appellant was that both the lower Courts have wrongly drawn adverse inference under Section 114 Clauses (g), (f) and (h) of the Indian Evidence Act, 1972. The facts regarding this objection are these. The appellant/tenant had sent a letter dated 26.10.98 to the respondent/landlord asking her to take possession of the premises in question on 31.10.98. He had handed over the possession of the tenanted premises to the respondent on the same very day. But these facts were denied by the plaintiff/landlord. 5. The Courts below observed that the appellant/tenant had not obtained any writing in token of handing over the possession of the tenanted premises from the respondent/landlord. On the one hand, the appellant was giving notice in writing to the plaintiff/landlord to take over the possession, on the other hand, he did not obtain anything in writing from his landlord. Secondly, the respondent/plaintiff filed a suit against the appellant on 19.11.98 for permanent injunction restraining the appellant from handing over the possession of the tenanted premises to somebody else. Both the Courts displayed their surprise as to how could she have filed the suit if she was in possession of the suit premises with effect from 31.10.98. Firstly, the respondent/landlord sent a notice to the appellant on 15.11.98, where she clearly stated that he had not come to the spot to deliver the possession of the premises to her on 31.10.98. No suggestion was ever given to PW-1 that the said notice was not sent. 6. Learned Counsel for the appellant argued that plaintiff/landlord did not appear in the witness box to support her case without any plausible reason. She however, sent special power of attorney who took care of her case. Learned Counsel for the appellant submitted that taking of any receipt by tenant is not at all required or mandated under law and filing of the suit for permanent injunction which is contested by the opposite party does not call for raising any presumption under law. This is an admitted fact that on 19.7.99, PW-1 had stated in the Court of Mr. Sanatan Prasad, Civil Judge that the defendant/appellant had taken away his lock but not handed over the possession. This is an admitted fact that on 19.7.99, PW-1 had stated in the Court of Mr. Sanatan Prasad, Civil Judge that the defendant/appellant had taken away his lock but not handed over the possession. Learned Counsel for the appellant pointed out that under these circumstances, it cannot be presumed that possession of tenanted premises was not handed over to the respondent. The above said findings recorded by the two Courts are passed on proper appreciation of evidence and the material on record and there is no perversity, illegality or irregularity in these findings. There lies no rub in drawing up such like inferences/presumptions which are based on, solid, concrete and unflappable facts. These facts remain unrebutted on the record. Every fact has to be read in harmony with the issues involved herein with. The Court is not to be enamoured by synthetic fairy tales. The axiomatic truths are truths recognised by the simplest order of reasoning. The Court has to be empirical and practical in confronting reality. Consequently, on merits the appeal is dismissed at the admission stage, however, the prayer regarding the decree sheets in respect of both the Courts is hereby allowed upto the extent mentioned above. The Trial Court file be sent back with the copy of this judgment forthwith. Appeal dismissed.