FATEH SINGH (D) THR. LRS. Vs. HARI CHAND & ORS.

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 11337 of 2011, Judgment Date: Feb 15, 2017

                                                              NON-REPORTABLE

                   IN THE SUPREME COURT OF INDIA
                    CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO.11337/2011

FATEH SINGH (D) THR. LRS.                                       Appellant(s)

                                VERSUS

HARI CHAND & ORS.                                              Respondent(s)

                              J U D G M E N T

    KURIAN JOSEPH, J.

1.    The appellants have challenged the judgment dated 30th  October,  2009
in second appeal being RSA No.116A/1996 passed by the High Court  of  Delhi.
The matter pertains to eviction.  Though  the  learned  Senior  Counsel  has
strenuously made a very persuasive attempt to canvass  for  the  proposition
that the High Court exceeded  in  its  jurisdiction  in  re-considering  the
whole case on  re-appreciation  of  evidence,  and  upsetting  the  findings
rendered by the Court of First Appeal, we find it difficult  to  accept  the
same.
2.    Perversity was  the  only  substantial  question  of  law  framed  and
pressed before the High Court. There is a specific averment  in  para  6  of
the plaint that the appellants had been evicted from the premises  but  were
re-inducted and permitted to stay for a short while to have the marriage  of
the daughter performed in the premises.  But  thereafter,  they  refused  to
vacate and  that  necessitated  the  filing  of  the  Suit.   This  specific
averment is not denied in the written statement and no issue in that  regard
has been framed also. It is also a fact that no  rent  whatsoever  has  been
collected by Sh. Chunnamul who according to the appellants is the  landlord.
 No doubt, in the year 2011, during the pendency of these  proceedings,  the
appellants deposited the rent from the year 1982 to 2011 in the name of  Sh.
Chunnamul who expired as far back  as  in  the  year  1979.   In  the  above
background,  such  deposit  will  not  take  the  appellants  anywhere.  The
appellants did not examine  the  munshi  of  Chunnamul  to  whom  they  have
allegedly paid the rent prior to 1982.   It  is  shocking  as  to  how  such
weighty evidence as rightly appreciated by the trial Court has been  ignored
by the First Appellate Court.
3.    Having analysed such perversity, we are of  the  view  that  the  High
Court was well within its jurisdiction under Section  100  of  the  Code  of
Civil Procedure in restoring the decree of  eviction  passed  by  the  trial
Court.
4.    Having realized  the  situation,  Mr.  Keshav  Dayal,  learned  Senior
Counsel appearing for the  appellants,  on  humanitarian  grounds  requested
that the appellants may be granted a period of minimum two years  to  vacate
the premises. Mr. Nidhesh Gupta, learned Senior Counsel, appearing  for  the
respondents submitted that this is a litigation which started  in  the  year
1982 and the whole family of the respondents is actually getting  suffocated
in the small premises and, therefore, only a short time may  be  granted  to
the appellants for shifting and re-locating to other premises.
5.    Having regard to the facts and circumstances of the case,  we  are  of
the view that time up to 31st December, 2018  would  be  reasonable  in  the
peculiar facts of this case.  Therefore, while dismissing the Civil  Appeal,
the appellants are granted time up to 31st December,  2018  subject  to  the
appellants filing usual undertaking in this behalf before this Court  within
a period of one month stating therein that they will vacate the premises  on
or before 31st December, 2018.  They shall also  undertake  that  they  will
surrender vacant possession to the  respondents  herein  without  any  other
objection.  The appellants will not induct any other person in the  premises
and the whole premises occupied by them will be  surrendered  to  respondent
No.1 on or before 31st December, 2018.  The  undertaking  shall  also  state
the names of all major members of the family residing in the premises as  on
today.
6.    We make it clear that other than the order as above,  the  respondents
in the peculiar facts of this case, will  not  make  any  other  claim  with
regard to money, use and occupation charges etc. till 31st  December,  2018.
The appellants are free to withdraw  whatever  amount  they  have  deposited
before any forum.
      7.    The Civil Appeal is disposed of in the above terms.



                                            …..…..........................J.
                                                             [KURIAN JOSEPH]


                                          …...............................J.
                                                           [A.M. KHANWILKAR]

      NEW DELHI;
      FEBRUARY 15, 2017.