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Bhajan Lal Vs. Madan Lal Bajaj - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 103 of 1974
Judge
Reported inAIR1983Delhi555; 1983(4)DRJ191
ActsEvidence Act, 1872 - Sections 31
AppellantBhajan Lal
RespondentMadan Lal Bajaj
Advocates: V.B. Andley,; Rajinder Mathur and; A. Ahlawat, Advs
Excerpt:
the evidence act - section 31 read with section 115.the admission made by the appellant in the rent note and in his reply to the said notice that he was sole proprietor of the firm operates as estoppel and he cannot be permitted to show that it was wrong. mere payment of rent by the firm does not mean it was tenant under the respondent. (para no. 9) - - post as well as under certificate of posting. it is well known that in every case of estoppel there is a representation and consequently an admission of the existence of a fact......of rent. in these two appeals, the only question for decision is : whether the appellant or the firm bhajan lal harcharan lal was inducted as tenant under the respondent with respect to the suit premises. this judgment will dispose of both the appeals.(3) briefly the facts are that on 24th february, 1956 madan lal bajaj, respondent let out shop no. 4878, phatak namak, hauz q, delhi to m/s. bhajan lal harcharan lal on a monthly rent of rs. 110.00 . the respondent received a sum of rs. 660.00 by cheque issued by the said firm for which a receipt dated 24 february, 1956 (ex. r. 1) was issued for the period from 1st march, 1956 to 31 august, 1956. on 27th february, 1956 firm bhajan lal harcharan lal through bhajan lal son of damodar das as sole proprietor of the firm executed a rent note.....
Judgment:

Snltan Siagh, J.

(1) This appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order of the Rent Control Tribunal dated 29th April, 1974 affirming on appeal the Judgment of the Additional Rent Controller dated 27th September, 1973 passing an order of eviction against the appellant.

(2) The appellant above named had also filed another second appeal (R.S.A. No. 221 of 1973) under Section 100 of the Code of Civil Procedure challenging the judgment and decree of the Additional District Judge dated 31st May, 1973 affirming on appeal the judgment of the Subordinate Judge, 1st Class, Delhi dated 22nd February, 1973 passing a decree for the recovery of Rs. 2750.00 with costs against him on account of arrears of rent. In these two appeals, the only question for decision is : Whether the appellant or the firm Bhajan Lal Harcharan Lal was inducted as tenant under the respondent with respect to the suit premises. This judgment will dispose of both the appeals.

(3) Briefly the facts are that on 24th February, 1956 Madan Lal Bajaj, respondent let out Shop No. 4878, Phatak Namak, Hauz Q, Delhi to M/s. Bhajan Lal Harcharan Lal on a monthly rent of Rs. 110.00 . The respondent received a sum of Rs. 660.00 by cheque issued by the said firm for which a receipt dated 24 February, 1956 (Ex. R. 1) was issued for the period from 1st March, 1956 to 31 August, 1956. On 27th February, 1956 firm Bhajan Lal Harcharan Lal through Bhajan Lal son of Damodar Das as sole proprietor of the firm executed a rent note (Ex. A. 1) in favor of the respondent with respect to the said shop premises. On 26th May) 1967 the respondent issued a notice (Ex. A. 3) to the appellant alleging that he was tenant in the said shop on a monthly rent of Rs. 110.00 that he was in arrears of rent, that neither he nor any member of his family was residing in the premises, that he had acquired vacant possession of another premises at Greater Kailash, that he had caused damage to the property. The respondent also terminated the tenancy of the appellant. The appellant through his counsel sent a reply dated 7th June, 1967 (Ex, A. 4) and stated that the premises were in his occupuation and were being used by him, that the respondent was refraining from receiving rent from him, that he had sent rent by money order. It is pertinent to note that the appellant in his reply did not deny his relation as a tenant under the respondent. The respondent sent another notice dated 2nd February, 196S (Ex. A. 5) by registered A.D. post as well as under certificate of posting. The appellant did not reply to this notice.

(4) On 3rd October, 1968 the respondent filed petition for the eviction of the appellant on various grounds mentioned in Section 14 of the Act. The appellant in his written statement dated 5th January, 1970 pleaded that he was not a tenat but the firm Bhajan Lal Harcharan Lal a partnership concern was tenant under the respondent that rent had always been paid by the firm, and the receipts were issued in its favor. The Additional Rent Controller held that the appellant in his individual capacity and not the firm .Bhajan Lal Harcharan Lal was tenant. An order of eviction was passed on various grods. The appeal was dismissed by the Rent Control Tribunal and hence second appeal.

(5) On 11th November, 1970 the respondent also filed a suit for recovery of arrears of rent amounting to Rs. 2750.00 for the period from 1st October, 1908 to 31st October, 1970 at Rs. 110/ per month. The appellant again pleaded that the firm Bhajan Lal Harcharan Lal was tenant and he was not the tenant with respect to the suit premises. The trial court held that the appellant was tenant and passed the decree for recovery of the arrears of rent. The appeal filed before the Additional District Judge was dismissed and hence he filed the second appeal R.S.A. No. 221 of 1973.

(6) The learned counsel for the appellant submits that the appellant was never a tenant in the suit premises, that the firm Bhajan Lal Harcharan Lal a partnership concern had taken the premises on rent from the respondent and that rent has always been paid by the said firm and as such the firm and not the appellant was tenant. The learned counsel for the responrent on the other hand submils that in eviction proceedings and the suit for recovery of rent there has been concurrent finding of fact, that appellant alone was tenant and there is no question of law involved in the two appeals. The learned counsel for the respondent further submits that the appellant executed the rent note dated 27th February, 1956 (Ex. A. 1) as sole proprietor of the said firm Bhajan Lal Harcharan Lal, that he admitted the execution of the rent note, that the appellant in his reply dated 7th June, 1967 (Ex. A. 4) to the notice dated 26th May, 1967 (Ex. A. 3) issued by the respondent did not deny the relationship of landlord and tenant between the parties and never claimed that the said firm was tenant of the suit premisci.

(7) The learned counsel for the appellant submits that the rent note was executed by the firm Bhajan Lal Harcharan Lal through Bhajan Lal son of Damodar Dass. He says that this rent note was executed by the appellant as 'Malik' i.e. proprietor and not as 'Wahid Malik' i.e. sole proprietor of the firm. He further submits that a true copy of rent note certified by counsel for the respondent was filed in the suit for recovery which shows that the appellant was described as 'Malik' and not as 'Wahid Malik' of the said firm. He says that 'Malik' means proprietor and not sole proprietor. In other words, he submits that a partner in a firm may be described as one of the proprietors of the firm and as such the appellant described himself as proprietor of the firm meaning thereby that he was partner. I do not agree. Firstly the copy of the rent note filed in the recovery suit has not been proved to be a true copy of the original rent note. On the contrary a certified copy of the rent note was proved on the records of the suit for recovery wherein the word 'Wahid Malik has been used The contention of the learned counsel for the appellant that the word 'Wahid' must have been added in the rent note after the filing of the ordinary copy on 18th March, 1971 in the suit for recovery cannot be accepted. There is nothing on the record to show that the ordinary copy filed by the respondent was not correct copy of the original. No attempt was ever made by either party to prove the said copy. The learned counsel for the respondent also submits that there was neither any allegation nor any statement by the appellant as his own witness that the word 'Wahid' was written subsequently in the rent note. Further during the course of eviction proceedings the rent note (Ex. A. 1) was admitted by the counsel for the appellant on 17th January, 1970. Admission of documents of facts contained in the document (See: Sitaram HotiLal Kalalv. Sanfan Prasad JaishankarBhatt, : [1966]3SCR527 ). In this rent note as already stated the appellant admitted that he was sole proprietor of the firm Bhajan Lal Haicharan Lal. He, thereforee cannot be permitted to contend to the contrary during the subsequent stages of the litigation. The courts below after appreciation of the evidence on record have concluded that there was no interpolation and that the word 'Wahid' before the word 'Malik' was written at the same time when the rent note was executed. After going through the contents of the rent note and other evidence on record I am also of the same view and there is no ground for holding that the word 'Wahid' was a subsequent interpolation.

(8) The learned counsel for the appellant next submits that the firm Bhajan Lal Harcharan Lal has always been a partnership firm and that rent of the premises has always been paid by the said firm to the respondent by cheques, by money order and that receipts for such payments were always issued by the respondent in favor of the said firm. The learned counsel relies upon various documents. He refers to Form 'A' of the firm Bhajan Lal Harcharan Lal showing its registration under the Indian Partnership Act. The certified copy of Form 'A' dated 11th August, 1951 is Ex. Rw 6/1 and it mentions that three persons namely Kishori Lal, Madan Lal and Bhajan Lal joined the partnership firm with effect from 14th October, 1940 and that the said firm was registered with the Registrar of Firms on 11th August, 1951 at Arnritsar. Next he refers to the Account Opening Form with the Punjab National Bank, Chawri Bajar Delhi dated 25th November, 1948 (Ex. RW6/5) showing that the firm was a partnership firm. Next he relies upon the first rent receipt dated 24th February, 1956 (Ex. R. 1) issued by the respondent in favor of the said firm. This receipt shows payment of six month's rent fiom 1st March, 1956 to 31st August, 1956 bymeans of cheque. He also refers to various other receipts on record issued by the respondent and also the money order receipts showing receipt of rent by the respondent fiom the said firm. From the documentry evidence on record it cannot be denied that the firm Bhajan Lal Harcharan Lal has been a partnership firm of which the appellant has been one of the partners. The question however, remains whether the firm was ever inducted as a tenant. The learned counsel for the appellant submits that the appellant is not bound by the contents of the rent note showing him as sole proprietor of the said firm as the said admission is wrong and that the appellant is entitled to withdraw the same. In other words he submits that the appellant is entitled to show that the admission he made was wrong. He submits that he is not estopped from denying the said admission and that such an admission does not operate as estoppel againt the appellant. He refers to section 31 of the Indian Evidence Act, 1872 which reads as under :

'ADMISSIONSare not cenlusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.'

Section 115 of the Indian Evidence Act, 1872 reads as under

'WHENone person has, by his declaration set or omission, intentionally caused o.' permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.'

(9) Section 31 of the Evidence Act provides that an admission, unless it operates as an estoppel, is not conclusive. An admission though not a conclusive proof, raises a presumption that it is true until the contrary is shown. It is well known that in every case of estoppel there is a representation and consequently an admission of the existence of a fact. If such an admission is accepted and acted upon by the person to whom it is made, the maker of the admission subsequently cannot be permitted to show that the admission he made was false. Thus it has to be determined whether the appellant in the persent case is estopped from showing that he was not the sole proprietor of the firm Bhajan Lal Harcharan Lal. It is apparent from the record that appellant represented himself to be the iolc proprietor of the said firm. The respondent accepted his representation and agreed to let out the premises to him. He issued the rent receipt in favor of his firm and also got the rent note dated 27th February, 1956 executed from ihe appellant in his favor. The respondent let out the premises only after the acceptance of the representation of the appellant that he was the sole proprietor of the firm. The respondent has always been treating the appellant as sole proprietor and as such he alone in his individual capacity was his tenant. The respondent accepted the representation and acted upon it. The reipondent served a notice dated 26th May, 1967 (Ex. A. 3) upon the appellant alleging that he was his tenant. The appellant hid on oppertunity to say that he was not a tenant. He could have also said that his firm Bhajan Lal Harcharan Lal was the tenant. Both these facts were not alleged by the appellant in his reply dated 7th June, 1967 (Ex A-4) to the said notice. Under these dircumstances it is not permissible for the appellant now to withdraw the representation made by him at the time of taking the premises on rent from the respondent to the effect that he was the sole proprietor of the said firm. Thus under section 31 read with section 115 of the Evidence Act the admission made by the appellent in the rent note and in his reply to the said notice that he was sole proprietor of the lirm operates as estoppel and he cannot be permitted to show that it was wron?. Further mere payment of rent by the firm does not mean it was tenant under the respondent.

(10) After giving my careful considration to the facts of the present case I am of the opinion that the appellant in his individual capacity as sole proprietor of the said firm took the premises as tenant from the respondent altohugh the rent has always been paid by the firm. There is thereforee, no infirmity in the two impugned judgments The appeals i.e. S.A.O. No. 103 of 1974 and R.S.A. No. 221 of 1973 are thereforee, dismissed with no order as to costs.


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