Learned Counsel for defendants/appellants took objection grant of mesne profits against the defendants/appellants by way of impugned judgment and decree on the ground that a claim for mesne profits is not maintainable until an order/decree for eviction is passed. In this connection, she referred to Section 2(1)(A) of the Rent Act, which provides that any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be reopened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976), is not a tenant, as defined under Section 2(1) of the Rent Act. Learned counsel for defendants/appellants probably thought that defendants/appellants continued to be tenants in respect of the suit premises even after expiry of one year from the date of death of the statutory tenant, late De.Suraj Prakash. The argument is fallacious. As already held neither of the defendants/appellants inherited the right o statutory tenancy under Section 2(1)(iii) of the Rent Act and had thus no right to continue in possession of the suit premises after lapse of one year from the date of death of late Dr.Suraj Prakash. In the absence of any right to hold possession of the suit premises, the defendants/appellants were reduce to the status of a trespasser/unauthorised occupant. In the circumstances, no order or decree for their eviction, as contemplated under Section 2(1)(A), was required to maintain a suit for a covery of mesne profits against them.Print Page
Delhi High Court
Smt. Krishna Prakash & Anr. vs Dilip Harel Mitra Chenoy on 10 August, 2001
Equivalent citations: AIR 2002 Delhi 81, 93 (2001) DLT 777
Bench: A Kumar, B Chaturvedi
1. This is an appeal arising out of a judgment and decree dated 5.1.1996, passed by the Court of an Additional District Judge, Delhi in a suit for ejectment and mesne profits.
2. Facts emanating from the pleadings are that late Dr. Suraj Prakash was a tenant in respect of entire ground floor, in addition to one garage and two servant quarters, of 20, Sunder Nagar, New Delhi at a monthly rent of Rs.1,000/- exclusive of water and electricity charges. The said premises were leased out to him by Smt. Shanta Simha Chenoy, the owner of the premises, on 2nd of November, 1963. By a notice dated 10.10.1969, the tenancy of late Dr. Suraj Prakash was terminated w.e.f. 30.10.1969. Late Dr. Suraj Prakash responded tot he notice with his reply dated 27.10.1969 thereto and did not vacate the premises.
3. On 30th of April, 1971, an eviction petition under Section 14(1)(B) & (J) of the Delhi Rent Control Act, 1958 (for short 'Rent Act'), was filed by Smt. Shanta Simha Chenoy against late Dr. Suraj Prakash. During the pendency of the eviction petition, Dr. Suraj Prakash died on 6th of June, 1972. He was survived by Smt. Krishna Prakash (Widow), appellant No.1, Satikshan Prakash(Son), Ms. Renu Prakash (unmarried daughter) appellant No.2, and Ms. Nandini Prakash (daughter). On the death of Dr. Suraj Prakash, an application under Order XXII Rule 4 CPC was made by Smt. Shanta Simha Chenoy for bringing the legal representatives of the deceased tenant on record. Eventually, the eviction petition was dismissed on 26th of February, 1973 by the Additional Rent Controller concerned on the ground that after the death of the tenant, the statutory protection enjoyed by him after termination of his tenancy came to an end and as, such protection was personal to him and could not extend to his legal representatives, the proceedings stood abated.
4. On 25th of October, 1972, a suit No. 456/72 was filed by Smt. Shanta Simha Chenoy for injunction and damages against the legal representatives of late Dr. Suraj Prakash stating that they were not entitled to inherit the statutory protection which had been available to the deceased tenant. After the dismissal of the eviction petition as abated, the suit was amended to introduce therein the relief of possession against the legal representatives of the deceased tenant. The suit was decreed by Prithvi Raj, J. on 31st of March, 1978. The decree so passed was confirmed by a Division Bench of this Court in RFA.(IS).10/78 on 26th of February, 1980. A SLP was filed before the Supreme Court on 18th of March, 1980. The Supreme Court allowed the appeal and vacated the impugned judgment by an order dated 10.12.1986 on the ground that since the widow (appellant No.1) was a tenant on the date of institution of the suit, the civil court had no jurisdiction to entertain the suit and pass a decree for possession.
5. Smt. Shanta Simha Chenoy died on 28th of December, 1981. She bequeathed the suit property, by means of a Will dated 3.1.1980, in favor of her son Dilip Chenoy, plaintiff/respondent. Among the legal heirs of Smt. Shanta Simha Chenoy, there is no dispute in regard to testamentary desposition of the suit property in favor of the plaintiff/respondent.
6. The plaintiff/respondent filed a suit for ejectment and recovery of mesne profits on 23rd of July, 1987 against the defendants/appellants. The suit was contested by the defendants/appellants raising various pleas, which need not be detailed here. Such pleas would be taken note of and dealt with in the course of discussion to follow hereinafter. The suit was decreed by learned Trial Judge vide his judgment and decree dated 5.1.1996. The appellants/defendants preferred the present RFA against that judgment and decree. In pursuance of a direction vide order dated 24.4.1996 to give specific findings on Issue No.6A, the learned Additional District Judge returned his finding on that issue vide his order dated 17.7.1996, which forms part of the impugned judgment.
7. Following issues were framed on 30th of May, 1988:-
(i) Whether the plaintiff is the owner of the property bearing No.20, Sunder Nagar, New Delhi? If so, to what effect? OPP
(ii) Whether the suit is barred by Section 50 of the Delhi Rent Control Act? OPP
(iii) Whether the plaintiff terminated the tenancy of Dr. Suraj Prakash during his lifetime vide notice dated 10th October, 1969? If so, to what effect? OPP
(iv) Whether the defendant No.1 was financially dependent on Dr. Suraj Prakash? If so, to what effect? OPP
(v) Whether the plaint has been properly valued for the purposes of court fee and jurisdiction? OPP
(vi) Whether the plaintiff is entitled to market rate of rent for the property in question for the ground floor? OPP
8. Subsequently, on 25th of 1989 an additional issued to the following effect was framed:-
"6(A) Whether the suit is barred by res judicata or the principle of res judicata as alleged? OPD"
9. The learned trial court decided all the issues in favor of the plaintiff.
10. A combine of multifarious pleas involving questions of law and fact, guide challenge to the impugned judgment and decree. The pleas so raised are being bricketed to be appropriately dealt with under the head of relevant issues.
11. It is not really the question of ownership as such of the plaintiff/respondent in relation to the suit property, which was raised by the defendants/appellants in their written statement. They rather questioned the maintainability of the suit on the grounds that the Will forming basis of ownership having not been probated and the plaintiff/respondent being only one of the co-owners, could not maintain the suit without joining the other co-owners. Viewed in the context of the plea so set up by the defendants/appellants, the issue No.1 would not appear to have bene correctly framed. Instead of being an issue relating to ownership, issue No. 1 is treated as one concerning maintainability of the suit by the plaintiff/respondent. The issue is, therefore, re-case to read as under:
"(i) Whether the plaintiff is competent to maintain the suit in view of preliminary objection 1 in the written statement? OPP"
12. Two-pronged attack spells out the plea raised on behalf of the defendants/ appellants questioning the maintainability of the suit. The first contention is that the Will purported to have been executed by late Shanta Simha Chenoy, bequeathing the entire suit property in favor of plaintiff/respondent to the exclusion of her other two legal heirs, namely, Kamal Chenoy (son) and Shahpur N. Chenoy (husband), has not been proved on record, nor probated to form a basis to maintain the suit exclusively in the na,me of plaintiff/respondent. Second limb of argument that in the absence of any testamentary desposition of the suit property in favor of the plaintiff/respondent in the face of aforesaid reason, proceeds on the assumption that the suit property was inherited by all the three legal heirs of late Smt. Shanta Simha Chenoy, including the plaintiff/respondent and thus from his acclaimed status of being an exclusive owner, he is down-graded to the category of a co-owner. On this premise, the learned counsel for the defendants/appellants sought to develop her argument to the effect that being one of the co-owners, without joining other two co-owners of the suit property, the plaintiff/respondent lacks competence to maintain the suit. To buttress her argument, the learned counsel for the defendants/appellants referred to a Full Bench decision of the Gujarat High Court in "Nanalal Girdharlal & Another Vs. Gulamnabi Jamalbhai Motorwala & Others,, .
13. This is a fact that the plaintiff/respondent did not prove the Will, executed in his favor by his mother, late Shanta Simha Chenoy, bequeathing the suit subject in his favor. A photocopy of a certified copy of probate relating to the Will in question has been annexed to the written submissions filed on behalf of plaintiff/respondent to offset the first contention.
14. The decision of a probate court operates as judgment in rem. In view of certification of due execution of the Will by late Smt. Shanta Simha Chenoy in favor of the plaintiff/respondent, its due execution no longer remains questionable. Shri Kamal Chenoy(son) and Shri Shahpur N.Chenoy (husband) of late Smt. Shanta Simha Chenoy appeared as witnesses for the plaintiff/respondent to depose that he was the exclusive owner of the suit property on the basis of the Will by late Smt. Shanta Simha Chenoy, and that they have no interest int he suit property. As a matter of fact, Shri Shahpur N. Chenoy is executor of the Will and it is he who had applied for grant of probate in respect of the Will dated 3.1.1980, executed in favor of the plaintiff/respondent by late Smt. Shanta Simha Chenoy.
15. Leaving apart the issue relating to the Will, referring to the other argument concerning maintainability or otherwise of an ejectment suit by one of the co-owners, solution to he problem is not difficult to find. Amidst fleeting moments of change, much water has flown since Gujarat High Court decision in Nandlal Girdharlal's case (supra). Various pronouncements by the Apex Court, particularly in "Sri Ram Pasricha Vs. Jagannath & Others, ; " Smt. Kanta Goel Vs. B.P.Pathak & Others, ; " Pal Singh Vs. Sunder Singh (Dead) by Lrs & Others, ; and "Kanta Udharam Jagasia (Miss) Vs. C.K.S. Rao", , appropriately relied upon by learned counsel for the plaintiff/respondent, clear any possible doubt regarding maintainability of a suit for recovery of possession by one of the co-owners without joining other co-owners.
16. It is not disputed by the defendants/appellants that after the death of late Shanta Simha Chenoy the rent of the premises was being paid or offered to be paid to the plaintiff/respondent and he was, thus, landlord of the premises. Further, the defendants/appellants themselves admit the plaintiff/respondent as one of the co-owners and, thus, a co-landlord. Under the general law, in a suit between landlord and a tenant, the question of title to the leased property is irrelevant.
17. Though the above referred cases dealt with eviction suits filed under various Rent Control Legislations, nonetheless the observations made therein can equally be applied in general law in a suit for recovery of possession/ejectment. In Sriram Pasricha's case (supra), which precedes the other pronouncements in the above referred cases, following observations provide a complete answer to the issue of maintainability of a suit by one of co-owners. It runs as under:-
"Jursprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning ofSection 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants."
The same principle of law is reiterated in Smt. Kanta Goel, Pal Singh and Kanta Udharam Jagasia (supra).
18. A Division Bench of this Court in "Mahavir Prasad Vs. Sukhdev Mongia & Another, 1990 (2) RCJ 254 Delhi, relying on the cased "Currimbhoy & Co. Ltd. Vs. L.A.Creet & Others, AIR 1930 Calcutta 133; Ram Niranjan Das Vs. Loknath Mandal, ; Ajmer Singh Vs. Shamsher Singh, ; and Pal Singh (supra), also held that a suit for possession by a co-owner against a trespasser without impleading the other co-owners is maintainable. There is, thus, no substance in the plea raised against the maintainability of the suit. As a matter of fact, while making her oral submissions, the learned counsel for the defendants/appellants concluded her arguments giving up the said plea against maintainability of the suit. In any case, the plea against maintainability of the suit is not well founded and the plaintiff/respondent is held to be fully competent to maintain the suit. Issue No. 1 is, thus, answered affirmatively.
19. Next plea advanced by the learned counsel for the defendants/appellants is that the question if defendant/appellant No. 1 was financially dependent or not on the deceased tenant on the date of his death and whether she continued to enjoy statutory protection beyond a period of one year could be adjudicated upon by the court of Rent Controller only, and that the jurisdiction of the civil court is barred under Section 50 of the Rent Act. Relevant part of Section 50 of the Rent Act reads to the following effect:-
"50.Jurisdiction of civil courts barred in respect of certain matters. (1) Save a otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.
(2) XXXXXX XXXXXX XXXXXX (3) XXXXXX XXXXXX XXXXXX (4) XXXXXX XXXXXX XXXXXX
20. It may be noticed that the plaintiff/respondent sued the defendants/appellants alleging that they are unauthorised occupants of the suit property. It is pleaded that with the expiry of one year period from the date of death of deceased tenant, protection available to defendant/appellant No.1 had ceased to exist and on the dated of institution of the suit there was no relationship of landlord and tenant between her and the plaintiff/respondent. In "Sanwarmal Kejriwal Vs. Vishwa Cooperative Housing Society Limited & Others, , cited on behalf of the plaintiff/respondent, the Supreme Court laid down:
"But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defense taken by the adversary party. For example,m if the plaintiff goes to court alleging that the defendant is a trespasser, the ordinary court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy. If, however, the defendants succeeds in proving that he is a tenant in respect of premises, possession whereof is sought,m the court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser."
21. A plain reading of Section 50(1) of the Rent Act makes it evident that existence of landlord tenant relationship is a must to attract the jurisdiction of the Rent Controller in respect of a particular premises. The jurisdiction of the civil court to entertain any suit or proceeding is barred if it relates to the eviction of a tenant from a particular premises to which the Rent Act applies. In Lakhmi Chand Khemani Vs. Kauran Devi, , where a decree for ejectment was made under the Delhi and Ajmer Rent Control Act, 1952 against a tenant but the decree could not be executed because of Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, it was held that Section 50 of the Rent Act does not bar a civil suit for ejectment of a person who is not a tenant under Section 2(1) of the Rent Act. It was observed by their Lordships of the Supreme Court:
"....Section 14 provides for an order in ejectment being made by the Controller appointed under the Act on any of the grounds mentioned in it but not otherwise. Section 50, therefore, bars the jurisdiction of a civil court to try a suit for the eviction of a tenant, that is to say, a tenant as defined in the Act. It would not bar a suit for eviction against a person who is not a tenant as so defined. Under the ordinary law applicable to landlords and tenants, a tenant who has suffered an ejectment decree is not considered a tenant any more; he has after the decree none of the rights which as tenant the earlier possessed."
Learned counsel for the plaintiff/respondent rightly contended that the position of the legal heir, who ceased to enjoy statutory protection under the Rent Act, is no different from a tenant against whom an eviction order has been passed. Though the plaintiff/respondent has come up with an averment in the plaint that the defendant/appellant No. 1 ceased to enjoy any statutory protection after expiry of one year from the date of death of the deceased tenant, the acceptability of such a plea is, of course, dependent on final adjudication on the point if the defendant/appellant No.1 was financially dependent on the deceased tenant on the date of his death, as in case of her financial dependencethe statutory protection that was available to her being widow of the deceased tenant for one year would extend to her for life.. In the eventuality of defendant/appellant No.1 being held entitled to continue in possession for life by virtue of Explanation II to Section 2(1) of the Rent Act, the suit would be liable to fail against her. However, for the present, as the jurisdiction of he civil court is to be determined on the averments in the plaint and not on the defense set up by the defendant/appellant No.1, the jurisdiction of the civil court cannot be held to be barred.
22. Learned counsel for defendants/appellants placed reliance on a Single Bench decision of this Court in Shri Kishori Lal (Deceased) represented by his legal representatives) Vs. Shri Siri Krishan1966 II AD (Delhi) 36, in support of their plea against the jurisdiction of the civil court. We, however, find that reliance on the decision in Kishori Lal's case (supra) is wholly misplaced. It was a case where an eviction petition had been filed against the tenant after terminating his tenancy and int he course of proceedings on the death of statutory tenant his legal representatives were brought on record. The legal representatives of the deceased statutory tenant were, however, held to have had no defense to make to resist the eviction petition as they were found to have not been financially dependent on the statutory tenant on the date of his death. In spite of the fact that no relationship of landlord and tenant existed between the petitioner and the legal representatives of the deceased statutory tenant, an eviction order was passed against them. The decision in Kishori Lal's case (supra) simply lays down that where in an eviction petition before the Rent Controller filed against a statutory tenant, his legal representative are substituted on the death of statuary tenant, notwithstanding that the legal representatives of the statutory tenants did not inherit the right of the statutory tenant to continue in possession of the tenanted premises beyond one year, an eviction order could be passed against such legal representatives even if no relationship of landlord and tenant existed any longer. There is nothing in that decision to support the plea that even where proceedings to seek recovery of possession from the legal heirs of the deceased statutory tenant, who have acquired no right to continue in possession of the tenanted premises beyond a period of one year and have become trespassers/unauthorised occupants, the proceedings are to be initiated in the Court of Rent Controller and the Rent Controller will have jurisdiction to entertain and decide the eviction petition.
23. There is, thus, no merit in the plea that the suit is barred under Section 50 of the Rent Act. No fault can be found with the finding of the learned trial court deciding the issue No.2 in negative against the defendants/appellants.
24. Service as such, of the quit notice Ex. PW-4/2, on late Dr. Suraj Prakash terminating his tenancy in respect of the suit premises stands admitted by the defendant/appellants in their written statement. No argument was advanced against the validity of such notice. A plea has however been raised on their behalf that the quit notice dated 10.10.1969(Ex.PW-4/2) had exhausted with the previous litigation and before bringing the present suit a fresh notice should have bene served. Learned counsel for the defendants/appellants conceded that there is no statutory provision requiring service of a fresh notice on the defendants/appellants in the given situation. In "Calcutta Credit Corporation Limited & Another Vs. Happy Homes (Private) Limited, , the Hon'ble Supreme Court said:
"Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting."
25. As per averments int he plaint on the date of institution of the suit, the defendants/appellants were holding possession of the suit premises as trespassers/unauthorised occupants. There is no statutory pre-condition of service of a notice on an unauthorised occupant before bringing a suit for recovery of possession against him/her. No plea stating that the quit notice(Ex.PW-4/2) had exhausted and a fresh notice was required to be served before bringing the present suit, has been raised in the written statement, nor any issue in this respect has been framed. Thus, the said plea, apart from being devoid of merit, is also beyond pleadings and is, therefore, liable to be discarded. The issue No.3 is held to have been correctly decided in favor of the plaintiff/respondent.
26. Financial dependence, or otherwise, of the defendant/appellant No.1 constitutes the core issue as the fate of the suit largely rests on final adjudication on this point, either way. Since in the order of succession, spouse of a statutory tenant gains precedence over other categories of legal heirs to their exclusion, so far as heritability of statutory right of tenancy is concerned, the question of 'financial dependence' of the defendant/appellant No.2(daughter) need not be attempted at all.
27. The defendant/appellant No.1 resists the suit for recover of possession on the plea that she was financially dependent on late Dr. Suraj Prakash on the date of his death, and thus, by operation of law, she acquired the right of statutory tenancy for her lifetime.
28. Rent Act is a piece of Welfare Legislation. It is a step in the direction of achieving an objective of making provision for a home to one and all. Majority of urban population, with limited income, hardly sufficient to make both ends meet, cannot afford a house of their own to live in. Rent Actprovides a protective umbrella to the larger sections of urban populace to help overcome acute housing problem. While interpreting a beneficent provision and extent of applicability thereof to a given situation, laudable objective which it seeks to achieve, should not be lost sight of. It is in this background that an answer to 'financial dependence' occurring in Explanation II to Section 2(1) of the Rent Act has to be found. It is a lend a helping hand to a hapless spouse, son, daughter, or parents, etc., as the case may be, by protecting him/her/them from vagaries of being rendered homeless in the face of loss of the bread winner, that the concept of 'financial dependence' has been incorporated. Ostensible 'financial dependence' may at times present a distorted picture of real financial status of a legal heir of a deceased statutory tenant seeking to retain possession of the tenanted premises for life, by invoking the beneficent provision contained in Explanation II under Section 2(1). There may be cases where in spite of his/her sound financial status, necessity of spending for one's own maintenance may not arise, since head of the family, having handsome income, is there to provide for maintenance and comfortable living of his all family members. Ours is a society with a patriarchal family set-up where the head of the family considers it as his duty to make sufficient provision for the maintenance of his family members, of course, subject to the constraints of his income, notwithstanding that some of them may have their own regular source of income and can easily bear expenses towards their all sorts of needs, including requirement of housing. It would be contrary to the letter and spirit of the beneficent provision embodied in Explanation II to Section 2(1) to treat even such a legal heir, as 'financially dependent' who has sufficient means to meet his/her all necessities of life, during the lifetime and on the date of death of the statutory tenant but who did not do so since the statutory tenant himself had sufficient income to maintain all his family members, singularly. Therefore, it is not always ostensible 'financial dependence' which may justify a finding in favor of a particular legal heir regarding his/her 'financial dependence', as contemplated by Explanation II to Section 2(1). The difference between ostensible financial dependence and factual financial dependence has, therefore, to be kept in mind. Lest, ostensible financial dependence is mistaken for factual financial dependence, the financial capacity or status of the legal heir concerned must hold key to determine the kind of 'financial dependence' set for the in Explanation II to Section 2(1), before extending the benefit of that provision to a particular legal heir of the deceased statutory tenant to continue in possession of the tenanted premises for life. It is utmost essential to assign a purposeful meaning to eh expression --'financial dependence'-- occurring in Explanation II to Section 2(1) while undertaking to interpret its true purport int eh context of its application so as to abort any unscrupulous move on the part of persons motivated with vested interests.
29. Adverting to the facts of the given case, but for solitary statement of the widow(defendant/appellant No.1), there is no other evidence to form basis to find if she was really, 'financially dependent' on her husband -- the deceased statutory tenant -- on the date of his death. The expression on the date of death does not seek to refer to the particular day of death. It rather takes in its fold any span of time prior tot he death of the statutory tenant culminating on the day of demise of such statutory tenant.
30. The evasive posture which the defendant/appellant No.1 presented in the course of her cross-examination in answering the questions relating to her financial status during the lifetime of her husband, did not really help her in concealing the truth. In the face of probing questions, she had ultimately to succumb to the cross-examination. In the process, her testimony stands discredited to a great extent, particularly in regard to her financial capacity or status during the lifetime of her husband. Her statement, thus, travels beyond the range of acceptability and cannot constitute a basis to find that she was really financially dependent on her deceased husband.
31. The admitted position emerging out of the statement of defendant/appellant No.1 in the course of her cross-examination is that she owned a huge house built on a plot of land admeasuring 800 sq.yds. in a posh locality known as Anand Niketan, New Delhi, fetching a monthly rental of Rs.2,500/- in the year 1971. Conscious of the fall out of her admission with respect to the ownership of the said house and monthly rental income there from, she added that the entire amount of rental income used to be deposited with the American Express International Banking Corporation towards liquidation of loan, advanced for construction of the said house, to the tune of Rs.1.9 lakhs plus interest thereon. She testified that at the time of death of her husband she had an outstanding liability to the extent of Rs.1.4 lakhs on that account. Though she further admitted that the piece of land on which the said house was built, was purchased by her for Rs.1.8/1.9 lacs but she evaded to make a definite statement with respect to the year of purchase thereof by feigning memory-lapse. It is difficult to assimilate that she really did not remember the year of the purchase of the plot of land. An aspect which needs to be noticed here in connection with purchase of the land underneath the house is that the defendant/appellant No.1 does not say that purchase thereof was financed by her deceased husband or anybody else. The obvious inference would, therefore, he that the purchase of the plot was made by her with her own funds. Wherefrom did she get Rs.1.8 or 1.9 lakhs, in the absence of any apparent source of income of her own, is anybody's guess.
32. Then, there is a further admission on her part, albeit a qualified one, relating to ownership of a commercial flat, with an area of 1,800 sq.ft. in Himalaya House, New Delhi accounting for additional monthly rental income, which is not specified. The defendant/appellant No.1 stated that this flat was owned by her deceased husband. She, however,m conceded that it is she who holds the documentary title of the flat in her own na,me. Having failed to conceal her ownership with respect to the flat, she made yet another smart move by deposing that though the ownership of the flat was in her name, the entire rental income there from used to be appropriated by her late husband. She, however could not deny that the income from the flat was never shown by her deceased husband as part of his income in any of his income tax returns. The defendant/appellant No.1 herself was n income tax payee during the life time of her husband. Of course, she claimed that she was assessed to income tax for her rental income from Anand Niketan house only, in the absence of a copy of her income tax return, it is not a fact to be readily accepted as true. If her statement relating to appropriation of rental income from her Himalaya House flat by her husband is disbelieved, in view of impeachable nature of her testimony, the defendant/appellant No.1 would have no explanation to an obvious conclusion that the entire amount of rental income from the commercial flat constituted part of her personal income only.
33. The defendant/appellant No.1 owned a car(No.DDU 6180) registered in her name. She also held shares for a value of Rs.2,500/-. About 20 times she made trips to USA to visit her son there., She, however, stated that some of her such trips to USA were financed by her son, while for the remaining trips she herself purchased the air tickets. She had also been having salaried income of Rs.850/- p.m. from her late husband, earned by assisting him in his Homoeopathic Medical practice. According to her, salaried income on this account lasted only for a short period of 2/3 years as she had discontinued to render her services before 1970. She further stated that she had undertaken a business venture in partnership with one Dr. Kapoor, but added that it was started after 1972 only. From her deposition, it is quite apparent that the defendant/appellant No.1 is endowed with required acumen to make her independent earning. Evidently, she is not a kind of lady in the mould of a normal housewife who could have been content by depending on the income of her deceased husband.
34. Foregoing discussion, with reference to the factual content emanating from the deposition of defendant/appellant No.1, clearly leads to a conclusion that she has been a person of means, with her personal income, sufficient to make a good living independent of any financial support from her late husband, during his lifetime. It is an altogether different matter that in spite of her independent financial status, out of his sheer sense of duty as head of family or love towards his wife that the deceased husband had taken upon himself to provide for her comfortable living and thereby enabling the defendant/appellant No.1 to net her entire income from whatever source, as her personal saving.
35. Wile taking a composite view of the evidence on record, it is clearly borne out that left to herself, defendant/appellant No.1 did not suffer from any disability on financial place. Being possessed of sufficient means, she enjoyed a sound financial status of her own, independent of her husband's earnings and monetary support, if any. Thus, even if the defendant/appellant No.1 was being looked after by her deceased husband during his lifetime, that would by itself not suffice to justify a finding that she was 'financially dependent' on him, in true sense of the term, and, consequently, it is difficult indeed to record a finding of 'financial dependence' in favor of the defendant/appellant No.1 to invoke Explanation II to Section 2(1) to hold that she inherited the right of statutory tenancy of her late husband to continue in possession of the suit premises for her life. There can, thus, be no reason to find fault with the finding of the trial court on Issue No.4, and, therefore, no interference therewith is called for.
36. Another plea raised on behalf of defendants/appellants relating to the court fee and jurisdictional aspect is based on the contention that, according to the plaintiff/respondent, the defendant/appellant No.1, inherited tenancy rights to the exclusion of defendant/appellant No.2 in respect of the suit premises for a limited period of one year and her right in that regard got extinguished thereafter in view of Explanation II to Section 2(1) of the Rent Act and that since the defendant/appellant No.2 is alleged to have not inherited the tenancy rights at all, she is in no better position than a trespasser or an unauthorised occupant. Consequently, for the relief of possession, it is argued, the suit is liable to be valued and court fee is payable in terms of Section 7(v)(e) and not Section 7(xi)(cc) of the Court Fees Act, 1870.
37. For the relief concerning recovery of possession, the suit has been valued, for the purposes of court fee and jurisdiction, at Rs. 12,000/-, which is the annual rent of the property and a court fee of Rs. 1,272/- has been paid by the plaintiff/respondent accordingly.
38. According to the defendants/appellants, the market value of the suit property consisting of entire ground floor along with a garage and two servant quarters, built on a plot admeasuring 866 sq. yds. in Sunder Nagar, New Delhi, was worth several lakhs at the time of institution of the suit in the year 1987. It is pointed out that a suit seeking possession from the defendants/appellants was filed earlier by the deceased mother of the plaintiff/respondent, on the plea that neither of them had inherited the enancy rights, wherein the market value of the suit property was fixed at Rs.1 lakh. It was contended that as the market value of the property in question exceeded the pecuniary jurisdiction of the trial court and the suit was not properly valued for the purposes of court fee and jurisdiction and the requisite court fee had not been paid, the suit is liable to be dismissed.
39. Needless to state that the plaintiff/respondent, countering the aforesaid plea, sought to maintain that the suit has been properly valued for the purposes of court fee and jurisdiction and that correct court fee has been paid. It was pointed out that it being not a title suit rather one for ejectment, the valuation was liable to be fixed in terms of Section 7(xi)(cc) of the Court Fees Act, 1870 and not as per Section 7(v)(e) of the Act and the court fee was payable accordingly.
40. To support her plea against valuation and court fee, the learned counsel for the defendants/appellants referred tot he decisions in "T.S.Venkatanarayana Iyer Vs. The State of Madras, through the District Collector, Madurai", ; " Pritam Singh Vs. Emperor", AIR 1930 Lahore 833; and " Re D.Lakshminarana Chettiar & Others" . Reference tot he decisions in the last two cases appears to be totally out of place, as therein, the question of application of Section 7(v)(c)and Section 7(xi)(cc) of the Court Fees Act, 1870 finds no mention at all. T.S.Venkatanarayana's case (supra) deals with interpretation of Section 17 of the Court Fees Act, 1870 and the facts of that case are altogether different. The law discussed therein with reference to Section 17 bears no relevance to the point raised by the learned counsel for the defendants/appellants.
41. Notably, the defendants/appellants had come to stay with late Dr.Suraj Prakash in the suit premises as his family members. The defendant/appellant No.1 continued to retain possession of the premises after the death of her husband, Dr.Suraj Prakash, for a period of one year by virtue of protection available to her under Section 2(1) of the Rent Act. Such protection was available to her being the widow of the deceased tenant. The defendant/appellant No.2 continued to stay in the premises with defendant/appellant No.1 being her daughter. She had not been in possession of the premises in her independent capacity. In other words, neither of the defendants/appellants could be characterised as a rank trespasser. They have not made a rival claim of ownership with respect to the suit-subject. Thus, the suit brought forth against them by the plaintiff/respondent for recovery of possession cannot be described as a title suit. Hence, the court fee was not payable under Section 7(v)(e) of the Court Fees Act, 1870, as contended by the learned counsel for the defendants/appellants. Such a view finds support from a decision of a Division Bench of this Court in "Smt.Lajwanti & Others Vs. Bahadur Singh & Others", AIR 1981 Delhi 67, referred to by the learned counsel for the respondent/plaintiff. This decision is based on a Full Bench decision of this Court in "Kedar Nath Vs. Smt.Mahini Devi", . Lajwanti's case (supra) was one where the tenancy of the erstwhile tenant was determined by means of a quit notice during his lifetime. He, however, continued in possession of the tenanted premises as a statutory tenant until his death. Thereafter, his heirs continued to retain the possession thereof and did not hand back the same to the landlords. Consequently, a suit for possession was filed against he heirs. Like the present defendants/appellants, the defendants/heirs in that suit raised a preliminary plea that the suit was liable to be valued on the market value of the suit property and the court fee was accordingly payable under Section 7(v)(e) of the Court Fees Act, 1870. Relying on Full Bench decision in Kedar Nath's case (supra), such plea was, however, negatived by the Division Bench. The relevant part of the said judgment, as extracted hereunder, provides a complete answer to the plea raised on behalf of the defendants/appellants. It reads thus:
"I appears to us that on ground of equity and legislative intention it could not have been contemplated that suits for the recovery of possession from the heirs of deceased statutory tenant should bear a court-fee at the full market value of the property. It should be appreciated that the landlord in the case of tenanted premises is deemed to be in possession of the premises though symbolically through his tenant. It is for this reason that when a suit is filed for recovery of possession against a statutory tenant court-fee is leviable under Section 7(xi)(cc). This is the very nature of the present suit which has been filed to recover the premises from the heirs of the deceased statutory tenant. Simply because the statutory tenant has died and his heirs are in possession and had, therefore, to be imp leaded to the suit, so that any defense which was open to the deceased tenant could be taken by him, it does not make it into a suit on the basis of title against rank trespassers. It still remains a suit for recovery of premises from a tenant after the determination of his tenancy. Statutory tenant had been inducted into the premises with the permission of the owner, the recovery of possession of that premises must continue to bear the same colour of the suit even when possession is sought to be recovered from the heirs of the deceased statutory tenant. To accede to the contention of Mr.Sabharwal would put a premium on the unauthorised occupation by the heirs because in many cases the high rate of court-fee would act as deterrent and be prohibitive for filing a suit of the ad valorem court-fee has to be paid on the market value of the property. It appears to us that there is no justification for asking the plaintiff to pay court-fee on the market value under Section 7(v)(e) of the Act and why he should not pay under Section 7(xi)(cc) of the Act when all that the plaintiff seeks to recover is the premises which had at one time been given on tenancy to the deceased statutory tenant. That is why we are of the opinion that in the present case the court-fee would be payable under Section 7(xi)(cc) of the Act."
43. Manifestly, thus, for the purpose of court fee and jurisdiction, the present unit was liable to be valued on the basis of twelve months' rent and the court fee thereon was payable accordingly. It is Section 7(xi)(cc) and not Section 7(v)(e) of the Court Fees Act, 1870, which governs the issue. It is the aggregate of annual rent and mesne profits, leaving apart pendente lite and future mesne profits which will determine the jurisdictional value of the suit and not the market value. As the suit has been valued and the court fee paid in accordance with Section 7(xi)(cc) of the Court Fees Act, there is no substance in the plea that the suit has not been properly valued for the purpose of court fee and jurisdiction. The plea is, therefore, liable to be negative. The issue No.5 is, accordingly, held to have rightly been decided against the appellants/defendants.
44. Learned Counsel for defendants/appellants took objection grant of mesne profits against the defendants/appellants by way of impugned judgment and decree on the ground that a claim for mesne profits is not maintainable until an order/decree for eviction is passed. In this connection, she referred to Section 2(1)(A) of the Rent Act, which provides that any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be reopened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976), is not a tenant, as defined under Section 2(1) of the Rent Act. Learned counsel for defendants/appellants probably thought that defendants/appellants continued to be tenants in respect of the suit premises even after expiry of one year from the date of death of the statutory tenant, late De.Suraj Prakash. The argument is fallacious. As already held neither of the defendants/appellants inherited the right o statutory tenancy under Section 2(1)(iii) of the Rent Act and had thus no right to continue in possession of the suit premises after lapse of one year from the date of death of late Dr.Suraj Prakash. In the absence of any right to hold possession of the suit premises, the defendants/appellants were reduce to the status of a trespasser/unauthorised occupant. In the circumstances, no order or decree for their eviction, as contemplated under Section 2(1)(A), was required to maintain a suit for a covery of mesne profits against them.
45. Learned counsel for the defendants/appellants, citing a decision of the Supreme Court in "Smt. Chander Kali Bail & Others Vs. Jagdish Singh Thakur & Another", , and another decision of Rajasthan High Court in "Gopal Krishan Vs. Ram Lal", , contended that in the absence of an order or decree for eviction, the claim for mesne profits could not be maintainable. In both the said decisions, it has been laid down that on termination of contractual tenancy by serving a quit notice, continuance of tenant in possession of the tenanted premises does not become wrongful until and unless a decree for eviction is made. He being a statutory tenant cannot be treated as unauthorised occupant of the accommodation, and, therefore, no claim for damages could be maintained. In the present case defendants/appellants obviously do not enjoy the status of a statutory tenant, and, therefore, there could be no occasion to seek an order or decree for their eviction from the suit premises as a tenant. Neither of the said decisions, thus, help promote the argument advanced by learned counsel for the defendants/appellants. We find no reason to take a view contrary to the one expressed by the learned trial court on issue No.6. The finding of the court below is accordingly upheld.
46. The next argument canvassed by the learned counsel for the defendants/appellants was that by reason of judgment of Supreme Court in Civil Appeal No.666/80 arising out of suit No.456/92, filed by late Smt.Shanta Simha Chenoy, mother of the plaintiff/respondent, the present unit is barred by principles of res judicate. It may be recalled hee that earlier late Smt.Shanta Simha Chenoy had filed a suit No.456/72 on 25th of October, 1972 against he defendants/appellants for injunction and damages, which was later converted into one for recovery of possession. That suit was decreed by Prithvi Raj, J.(as His Lordship then was) of this Court on 31st of March, 1978. A Division Bench of this Court in RFA.(OS).10/78 confirmed the judgment and decree passed by the learned Single Judge, against which a SLP was filed before the Supreme Court on 18th of March, 1980 which was eventually allowed vide Order dated 10.12.1986(Ex.PW-4/9) and the judgment dated 31.3.1978 was vacated. It is worthwhile to insist for verbatim reproduction of the order in Civil Appeal No.666/80 of the Supreme Court. It reads thus:
"Heard learned counsel for the parties.
In view of the Constitution Bench decision in Gian Devi Anand v. Jeevan Kumar & Ors., the statutory tenancy is heritable. The widow and the children of the tenant would step into the shoes of the tenant as defined in Section 2(L) of the Delhi Rent Control Act, 1958. On the date when the suit out of which the present appeal arises was filed, the widow was a tenant and, therefore, the Civil Court had no jurisdiction to entertain the suit and pass a decree for her ejectment.
An attempt was made before us to bring the case within the ambit of Explanation II of clause (L). We are not inclined to accept the submission in the facts of the present case. The Trial Court's jurisdiction has to be determined with reference to the date of the institution of the suit and once it is held that the widow, defendant No.1, was tenant within the meaning of the Delhi Rent Control Act, the Civil Court would have no jurisdiction.
The appeal is allowed and the impugned judgment is vacated.
In view of the fact that the benefit of hertabiluty has been available pursuant to a judgment delivered during the pendency of this appeal, parties are directed to bear their own costs throughout."
47. The contention of the learned counsel for the defendants/appellants is that in suit No.456/72 also a decree for recovery of possession against the defendants/appellants was sought on the same very grounds as in the present suit and in view of finding by the Supreme Court that the widow and children of the tenant would step into the shoes of the tenant, as defined in Section 2(1) of the Rent Act, second suit for the same relief on the same cause of action against defendant/appellant No.2 is barred by res judicata. Learned counsel for the defendants/appellants added that Explanation II to Section 2(1) of the Rent Act was held to be not applicable to the facts of the case. It was added that as far as defendant/appellant No.1 is concerned, it was held that the civil court had no jurisdiction to entertain the suit against her at the time of institution of the suit and the decree was, therefore, a nullity. According to the learned counsel for defendants/appellants though reference to the date of institution was made in the context of appellant No.1, but there was a positive finding that Explanation II was not applicable in the facts and circumstances of the case and the suit is, thus, barred against both the 0.
48. In the context of aforesaid plea raised by the learned counsel for os, it may be noted that the suit No.456/72 was filed on 25th of October, 1972. Dr.Suraj Prakash had died on 6th of June, 1972. Clearly, the suit was filed before expiry of one year from the date of death of late Dr.Suraj Prakash. Section 2(1) of the Rent Act, defines a 'tenant'. It runs as under:-
"2.(1) "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes--
(i) a sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to eh order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's--
(b) son or daughter, or, where there are both son and daughter, both of them,
(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living int he premises with such person as a member or members of his family up to the date of his death, but does not include,--
(A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976);
(B) any person to whom a license, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.
Explanation I.-xxxx xxxx xxxx Explanation II.--If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
Explanation III.-xxxx xxxx xxxx
49. In the order of succession, the surviving spouse takes precedence over categories (b) to (d). Explanation II to Section 2(1) provides that the person, acquiring by succession, the right to continue in possession after the termination of the tenancy, if not financially dependent on the debased tenant on the date of his death, such person shall acquire such right for a limited period of one year; and, on the expiry of the period, or on his/her death, which ever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. It is, thus, clear that irrespective of financial dependence or otherwise of the person acquiring, by succession, the right to continue in possession after the termination of the tenancy, such person in any case acquires the right to continue in possession for a period of one year. The question of financial dependence becomes relevant only after expiry of one year, to determine if the successor acquired the right to continue in possession for the whole life. The order dated 10.12.1986 of the Supreme Court(Ex.PW-4/9), making refence to the definition of tenant in Section 2(1) of the Rent Act simply states that on the date when the suit No.456/72 was filed, the defendant/appellant No.1 was a tenant and, therefore, civil court had no jurisdiction to entertain the suit and pass a decree for her ejectment.
50. There is no controversy with respect to the proposition of law that a widow of a deceased tenant would fall in the category of tenant, as defined in Section 2(1) of the Rent Act as irrespective of the fact whether she was financially dependent or not on the deceased tenant on the date of his death, she has in any case a right to continue in possession of the tenanted premises for a period of one year from the date of death of the deceased tenant. It was in this context that the defendant/appellant No.1 was held to be a tenant on the date of institution of the suit No.456/72. It is clearly inferable from the order Ex.PW-4/9 that on behalf of plaintiff/respondent's dependent on the deceased tenant, Dr.Suraj Prakahs, on the date of his death and that the period of one year from the date of death of the deceased tenant having already elapsed long back, she had no right to continue to occupy the suit premises. However, such plea was not entertained on the ground that the trial court's jurisdiction had to be determined with reference to the date of the institution of the suit and once it was held htat the widow(0 No.1) was a tenant, the civil court was found to have had no jurisdiction. The order dated 10.12.1986 is quite clear and unambiguous leaving no scope to import therein an argument like the one being advanced on behalf of the defendants/appellants. It is abundantly clear that the judgment in suit No.456/92 was vacated purely on the ground that the trial court had no jurisdiction to entertain the suit and pass a decree for ejectment again the defendant/appellant No.1. The Order could not be stretched to find support to the argument that there had been a final adjudication by the Supreme Court that the defendant/appellant No.1. was financially dependent on the deceased tenant on the date of his death and that she acquired, by succession, the right to continue in possession of the suit premises for the whole life.
51. To constitute a matter res judicata, it is essential that apart from other conditions, the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit (Shedan Singh Vs. Daryao Kunwar, 1966 SC 1332).
52. In the present case, the Supreme Court evidently did not at all delve into the merits of the earlier suit and disposed of the matter simply by holding that the civil court had no jurisdiction to try the suit on the date of institution of the suit. This was so held as the defendant/appellant No.1, being the widow of the deceased statutory tenant, had in any case a right to continue in possession of the suit premises for one year, irrespective o her financial dependence or otherwise on the deceased tenant on the date of his death, by virtue of Explanation II to Section 2(1) of the Rent Act.
53. In the instant case, contended Shri Arun Mohan, learned counsel for the plaintiff/respondent, with reference to a number of decisions in "State of Maharashtra & Another Vs. National Construction Company Bombay & Another", ; "Bhagwati Singh Vs. The Board of Revenue, Allahabad & Others", ; "Pandurang Mahadeo Kavade & others Vs. Annaji Balwant Bokil & Others", ; "P.Dasa Muni Reddy Vs. P.Appa Rao", ; "State of UP Vs. Civil Judge, Nainital & Others", ; "Sayyed Ali & Others Vs. A.P.Wakf Board, Hyderabad & Others", "Mathura Prasad Bajoo Bajwa Jaiswal & Others Vs. Dossibai N.B.Jeejeebhoy", and "Richpal Singh & Others Vs. Dalip", , that the plea of res judicata is not avilable to the defendants/appellants. Instead of making a detailed reference to the above referred cases individually, it suffices to take note of the following observations of their Lordships of the Supreme Court in National Construction Company (supra0:
"The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata."
54. As pointed out, suit No.456/72 was disposed of in appeal by the Supreme Court, without looking into the merits of the case, on a technical ground that on the date of institution of that suit, the civil court had no jurisdiction to deal with the same. Thus, suit No.456/72 cannot be held to have been heard and finally decided by the Supreme Court. Issue No.6A was, thus, correctly decided against defendants/appellants and there is no reason to interfere with the finding of the trial court.
55. The learned trial court decreed the claim for past and future mesne profits, including pendente lite, in terms of prayer made in the plaint. The plaintiff/respondent did not file any appeal or cross-objection against part of the decree in respect of mesne profits passed by the learned trial court. Learned counsel for the plaintiff/respondent at the rate ought by him, it was still open to the plaintiff/respondent to seek a decree in respect of pendente lite and future mesne profits at a rate higher than that claimed in the plaint. He sought to rely upon a Single Bench decision of Bombay High Court in "Nattumal Chadermal & Company and Another Vs. Damodar Prabhat Sharma & Others", 1979 Mh.LJ 23, and other two decisions of Kerala High Court in "Koshy Vs.Luckose", 1975 KLT 443; and "Saraswathi Pillai Vs. Prameshwara Kuru", 1977 KLT 638. The learned counsel for plaintiff/respondent also sought to invoke Order XLI Rule 33 CPC for grant of pendente lite and future mesne profits at a rate higher than the one claimed in the plaint. Here the real question is not if the pendente lite and future mesne profits can be granted at a rate higher than the one claimed in the plaint rather the point for determination is if an enquiry under Order XX Rule 12 CPS should be directed to be undertaken by the learned trial court for grant of pendente lite and future mesne profits at a rate higher than the one claimed in the plaint in spite of no appeal or cross-objection against that part of decree having been filed by the plaintiff/respondent, by invoking Order XLI Rule 33 CPC. Clearly, the answer is No.
56. In "Chaudhary Sahu (Deed) by LRs. Vs. State of Bihar", , dealing with the object of Rule 33 of Order XLI CPC, the Supreme Court held:
"The object of Rule 33 is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this Rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favor of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience."
In the present case, it may be noticed that the impugned decree is not being interfered with in favor of the defendants/appellants, and, therefore, further interference therewith, as sought on behalf of plaintiff/respondent, is also not called for as no occasion for adjusting the rights of the paries arises. There is, thus, no scope for application of Order XLI Rule 33 CPC and, consequently, in the absence of any appeal or cross-objection against the rate of pendente lite and future mesne profits granted in favor of the plaintiff/respondent by the learned trial court, the plea for direction to hold an enquiry under Order XX Rule 12 CPC for granting the mesne profits at a rate higher than the one claimed in the plaint, cannot be accepted.
57. The defendants/appellants have made an application(IA.No,648/96) under Order XLI Rule 27 CPC seeking to produce copies of certain statements of account from American Express International Banking Corporation purportedly to show that the defendant/appellant No.1 had been depositing all her rental income from her Anand Niketan house and the commercial flat in Himalaya House with the said Bank to liquidator liability on account of loan and interest accruing thereon. These documents were very must within the knowledge of the defendant/appellant No.1 from the very beginning. The same were, however, never produced before the trial court. The reason for not doing so as stated in the application is that two certificates vide Ex.DW-1/1 and Ex.DW-1/2, produced earlier, were thought to be sufficient to establish her case of 'financial dependence' on the deceased statutory tenant.
58. It may be noted that in her statement before the trial court the defendant/appellant No.1 deposed that thought eh amount of initial deposit and monthly rent in respect of commercial flat in Himalaya House during the period six months prior to June, 1972 was paid by the tenant by account payee cheques in her name, but the amount so received was utilised by her late husband since he was the real owner of the flat. Now, by way of additioner evidence she seeks to prove that even the initial security deposit and monthly rent in respect of commercial flat in Himalaya House was being deposited by her towards repayment of balance amount of loan and interest thereon. They very ground set out in the application for non-production of these statements of account earlier, clearly indicates that the defendant/appellants now seek to coverup the shortcomings in their evidence by producing said additional evidence. Clearly, it is not a case where the additional evidence now sought to be produced was not within the knowledge of the defendants/appellants or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed from was passed.
59. In "Natha Singh & Others Vs. The Financial Commissioner, Taxation, Punjab & Others", (1976) SCC 28, cited on behalf of the plaintiff/respondent, it was laid down that true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. In view of the reasons set out in the course of discussion in the earlier part of the judgment while recording finding on the issue of 'financial dependence' of defendant/appellant No.1, it would be evident that the production or non-production of the documents in question is not going to make any material difference so far as final outcome of the appeal is concerned. There being no sufficient ground for exercise of discretion in relation to production of additional evidence, the application(IA.No.648/96) under Order XLI Rule 27 CPC is disallowed.
60. Finding no merit, the appeal is dismissed with costs quantified at Rs.20,000/-.