Delhi District Court
Waseem Ahmed vs Mohammed Shamim Ahmed on 31 May, 2023
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KARKARDOOMA, DELHI.
CS Comm. No.483/2022
Waseem Ahmed
S/o Sh. Qaiser Hayat
R/o C-19, Street No. 1/6
Mohalla Dilshad Masjid,
Purana Mustafabad, Delhi-110094.
.......Plaintiff
Vs.
Mohammed Shamim Ahmed
S/o Sh. Mohammed Jafar
R/o H. No. 410, Khasra No. 92,
Street No. 19, Metro Pillar
No.171, Jafar Hotel, Jafrabad
Main Road, Delhi-110053.
Also At:
R/o H.No.9957, 3rd Floor
Main Bazaar, Nawabganj,
Azad Market, Delhi-110006. ........Defendant
Date of Institution : 08.08.2022
Date of Final Arguments : 31.05.2023
Date of Judgment : 31.05.2023
Decision : Decreed
Judgment
1. This suit is filed by plaintiff for Possession, Arrears of Rent, Damages
and Permanent Injunction of a Commercial Property.
Plaintiff's Case
2. Case of the plaintiff as per plaint and the evidence led is that he is
owner in possession of H.No. 410, Khasra No. 92, Gali No. 19, Jafar
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Hotel, Jafarabad, Main Road, Delhi-110053. The suit property consists
of a built up basement admeasuring 50 sq. Yards, ground floor 50 sq.
yards, mezzanine floor 25 sq. yards and roof admeasuring 50 sq. yards
and excludes first and second floor. The property is shown Red in the
Site Plan. It is case of the plaintiff that his grandfather late Sh. Sheikh
Nassimuddin had inducted defendant as a tenant in 1995 for
commercial purposes, however, no date, month, year or period is
mentioned in the plaint. It is pleaded that plaintiff's grandfather who
was absolute owner of the suit property and was landlord to the
defendant, had executed a Will dated 11.10.1996 mentioning names of
five beneficiaries of five portions of the larger property of which suit
property is a portion. As per this Will the suit property under
occupation of defendant as a tenant was bequeathed in the name of
Smt. Noor Jahan, plaintiff's grandmother.
3. In view of the above, after death of plaintiff's grandfather late Sh.
Sheikh Nasimmudin, his grandmother Smt. Noor Jahan became
absolute owner and landlady of the suit property. It is case of the
plaintiff that after the death of his grandfather defendant tenant
trespassed into other parts of the property in the basement and ground
floor in the year 2000. When the objection to this was raised by
plaintiff's grandmother the defendant proposed that he will pay
enhanced rent. As such defendant was accepted as a tenant in the
claimed trespassed portion as well in the year 2005. The defendant
started paying rent to the plaintiff's grandmother.
4. It is further case of the plaintiff that as per desire of his grandfather,
his grandmother, during her lifetime, gifted the suit property to the
plaintiff and as such as per plaintiff he became absolute owner of the
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tenanted property. In this backdrop, it is pleaded that plaintiff and
defendant entered into a fresh Rent Agreement on 24.11.2020 whereby
suit property was let out to the defendant for a period of five months at
a monthly rent of Rs.32,000/- from 24.11.2020 to 24.04.2021. Upon
expiry of the above tenancy period, defendant became a statutory
tenant on month to month basis. The rent was enhanced from
Rs.32,000 to Rs.34,000/- from October 2021 onwards as per Rent
Agreement.
5. Since the plaintiff was not desirous of continuing defendant as his
tenant he sent a legal notice to the defendant on 02.07.2022 calling
upon him to vacate the premises and pay arrears of rent for the period
24.06.2022 to 24.07.2022. The property was not vacated by the
defendant despite due service and rather a threat was extended that he
would create a third party interest in the suit property.
6. Terming the defendant to be an unauthorised occupant, it is pleaded
that plaintiff is entitled to occupation charge of Rs.45,000/- till
handing over of possession of the suit property. It is cited that on
03.07.2022, 18.07.2022 and 21.07.2022 defendant negotiated with
some handful of property dealers for sale of the suit property and
creating third party interest. Defendant has admitted receipt of legal
notice dated 02.07.2022, however, admittedly no reply to the same
was filed. With these pleas, suit is filed on 08.08.2022 with following
reliefs:
Prayer:
(a) Pass a decree of possession in favour of the plaintiff and against the
defendant, in property H.No.410, Khasra No.92, Street No. 19, Jafar
Hotel, Jafrabad, Main Road, Delhi-110053 as shown in the red colour
in the site plan attached;
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(b) Pass a decree of permanent injunction in favour of the plaintiff and
against the defendant thereby restraining the defendant and directing
him to not to create any third party interest in the property i.e.
H.No.410, Khasra No.92, Street No. 19, Jafar Hotel, Jafrabad, Main
Road, Delhi-110053 which consists of basement measuring 50 sq. yards
approx, ground floor measuring 50 sq. yards approx. Mezzanine Floor
measuring 25 sq. yards approx. (excluding first and second floor) and
roof measuring 50 sq. yards, as shown in the site plan attached;
(c) Pass a decree of damages of Rs.1500/- per day charges from
24.07.2022 till possession in favour of the plaintiff and against the
defendant with interest;
(d) Pass any other or further relief (s), which this Hon'ble court may deem
fit and proper in the facts and circumstances of the case in favour of the
plaintiff and against the defendant.
7. Summons of the suit was served upon the defendant who entered
appearance on 17.09.2022. On that day he made a statement in the
Court that he has no intention to part with possession of the property
to a third party.
8. Defendant did not file WS within thirty days of service i.e. 08.09.2022
which expired on 10.10.2022 and as such his right to file WS was
closed. However, subsequently on an application moved by the
defendant the delay of 22 days in the WS was condoned.
Defendant's Case
9. Case of the defendant as per pleadings and the evidence led is that the
suit is not maintainable in so far as plaintiff has not complied with
Section 12A of the Commercial Courts Act, 2015. However, this
issue was decided by this Court vide order dated 25.01.2023 whereby
it was observed that in so far as Order 39 Rule 1 and 2 CPC
application was filed in this matter by the plaintiff, in terms of case
titled Chandra Kishore Chaurasia Vs. RA Perfumery Works Pvt.
Ltd., 2022 Latest Caselaw 2652 Del dated 27.10.2022, plaintiff was
exempted from taking recourse to Pre-Institution Mediation.
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10. It is further pleaded by the defendant that this suit of the plaintiff is
liable to be rejected since after the death of plaintiff's grandmother,
plaintiff requested him to enter into a formal Rent Agreement for a
period of five years. This request was accepted by the defendant. Since
the defendant was an illiterate person, taking benefit of the same,
instead of mentioning the tenure of the tenancy as five years, plaintiff
got it signed for five months. It is mentioned that the mischief of the
plaintiff is evident from the fact that the same lease agreement
provides for enhancement of monthly rent in the month of October
every year. It is pleaded that if the tenancy period was only for a
period of five months, there was no need for entering the clause for
annual enhancement of rent. It is further case of the defendant that the
suit is filed on the basis of false and fabricated documents and rent
agreement. Defendant is running the commercial shop in the property
for the last 25 years and has been paying enhanced rent regularly from
time to time.
11. It is pleaded that the plaintiff did not approach the court with clean
hands and the material facts were suppressed. It is pleaded that
defendant owns four rooms in the property on the first and second
floor along with roof rights where he got a third floor constructed for
his own usage. Defendant became owner of these portions as
plaintiff's grandfather had bequeathed the above portions to his
daughters who, in turn, executed sale documents in favour of the
defendant. It is pleaded that these documents were executed to the
knowledge of plaintiff. He stated that there is no mezzanine floor in
the property as shown in the site plan and there is no reference of such
a floor in the Will of the plaintiff's grandfather.
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12. While replying to the plaintiff's case on merits it is pleaded by the
defendant that the plaintiff is not the owner of the suit property as
claimed and that the site plan is wrong. Defendant has not denied that
H.No. 410, Khasra No. 92, Gali No. 19, Jafar Hotel, Jafarabad, Main
Road, Delhi-110053 was owned by late Sh. Sheikh Nasimmudin who
was grandfather of the plaintiff. It is also not denied that Sh. Sheikh
Nasimmudin executed a Will in favour of five beneficiaries. It is
denied that by virtue of the said Will plaintiff's grandmother became
owner of the tenanted suit property. It is pleaded that there is no
reference of any mezzanine floor. Defendant has not denied that
plaintiff became the owner of the property, however, he denied that he
trespassed on the certain portions. Defendant has not denied that he
used to pay rent to plaintiff's grandmother. He has also not denied that
plaintiff's grandmother gifted the suit property to the plaintiff but has
pleaded ignorance for want of knowledge. Defendant has also not
denied that he executed Rent Deed dated 24.11.2020 with the plaintiff
as landlord. There is no specific denial in reply to para 10 of the plaint
where the lease tenure is mentioned as 24.11.2020 to 24.04.2021. As
per defendant the tenure of the Rent Agreement was supposed to be
for five years with annual enhancement of rent in October each year
but plaintiff purposefully mistyped the tenure of five years as five
months since defendant is illiterate. He accepted that Rs.32,000/- was
enhanced to Rs.34,000/- from October 2022 onwards. With these
pleas, dismissal of the suit is prayed.
13.Perusal of record reveals that no affidavit of admission and denial of
plaintiff's documents as mandated under Order 11 Rule 4 (2) CPC as
amended for commercial suits has been filed by defendant.
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Replication:
14.Separate replication was filed by the plaintiff wherein he reiterated his
pleaded case and denied the averments of the defendant. Plaintiff has
denied that the fresh tenancy was only supposed to be for a period of
five months or was supposed to be for a period of five years. The
plaintiff has not denied that his grandfather had bequeathed the first
and second floor to his daughters who in turn, executed sale
documents in favour of defendant. Plaintiff has pleaded ignorance
about execution of such documents.
15.Upon completion of pleadings following issues were identified by this
Court on 25.01.2023.
Issues:
(a) Whether this suit is liable to be rejected for non-compliance of
Section 12A of Commercial Courts Act, Pre-Institution Mediation?
OPD
(b) Whether the suit h as not been valued for the purpose of Court
fees? OPD
(c) Whether plaintiff is entitled for decree of possession of tenanted
property bearing No.410., Khasra No. 92, Street No.19, Jafar
Hotel, Jafrabad, Main Road, Delhi? OPP
(d) Whether plaintiff is entitled to decree of permanent injunction
against the defendant restraining him from creating any third
party interest in the suit property? OPP
(e) Whether plaintiff is entitled for damages @ Rs.1500/- per day from
24.07.2022? OPP
(f) Relief
16.Evidence in this case was ordered to be recorded before Ld. LC as per
following protocol created by this Court under Order 18 Rule 4 CPC
read with Order 15A Rule 6(l) CPC as applicable to Commercial
suits. Evidence was recorded before Ld. LC Mohd. Shamim
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Advocate appointed by this Court for the sake of timely disposal of
this case. For ready reference the Protocol designed by this Court for
recording of Evidence through the LC is reproduced hereunder:
"Protocol for Recording of Evidence before Court Commissioner appointed by
District Judge, Commercial Court, 2022"
Part - 1
Preliminary
1. Short title- This Protocol is titled "Protocol for Recording of Evidence before Court Commissioner
appointed by District Judge Commercial Court 2022."
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l)
CPC as applicable to Commercial Court.
3. Court- Whenever the term 'Court' appears in this Protocol it should refer to Commercial Court
as defined under Section 2(b) of Commercial Court Act 2015.
Part - 2
Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases may be
carried out before the Court Commissioner.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the
Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing
when the issues are identified, the Court may pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of
issues, appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to
the parties as well as the Court Commissioner.
Part - 3
Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not later
than 15 days of identification of issues before the Court while sharing an advanced copy thereof with the
opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, following aspects
shall be complied :
i. Schedule of evidence- Recording of evidence shall start within two weeks of identification of
issues. Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for
recording of evidence, if needed, shall be decided by the Court Commissioner as per convenience
CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 8 of 24
of all concerned, as far as possible. However, entire evidence shall be concluded within Eight
weeks of initiation.
ii. Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evidence
by the Court Commissioner.
iii. Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be
supplied to opposite party preferably one week in advance. However, no adjournment shall be
granted in case of non-supply of advance copy.
iv. Production of documents for cross-examination- In case the opposite side is desirous of
production of any document by the witness or any other entity for the purpose of cross-
examination, an application requesting the same shall be moved well in advance before the
Court.
Part - 4
Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner-
i. Place and Time- Court Commissioner shall record evidence either in Lawyer's chamber, or
Judges/Bar Library, Court Room or any other public place within the Court Complex as
mutually agreed by all concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM.
It can carry on beyond 5.00 PM as well in case both parties agree. It can be recorded even on
a holiday if all the stakeholders are comfortable and agree to the same.
ii. Chronology of recording- Court Commissioner shall proceed to record the examination by
first recording the deposition of litigating party before examining additional summoned
witnesses.
iii. Oath to witnesses- Court Commissioner shall administer oath to the witnesses under
examination as a delegatee of the Court as per Oaths Act, 1969.
iv. Recording of evidence- The evidence shall be preferably typed on a computer but can also be
recorded by hand neatly.
v. Time frame- Court Commissioner shall conclude the recording of evidence, as early as
possible, but not later than eight weeks of assignment of a case. In case, for any reason the
parties are unable to adhere to the time schedule, extension can be sought from the Court.
vi. Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting
space by the Court Commissioner.
vii. Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be
proved by a party on record. In case of any objection to exhibition of the documents by either
side, the objection shall be recorded in some detail and left open with an assurance that mere
marking of such exhibits will not be treated as conclusive proof thereof and that admissibility
of such document shall be decided by the referral Court at final stage.
viii. Original documents to be retained by parties- Court Commissioner shall make an
observation in the record of evidence of all original documents produced and shall sign the
exhibits with an endorsement OSR (original seen and returned) wherever necessary. If a party
has filed original documents alongwith pleadings in Court, the same can be taken back as per
rules for the purpose of recording of evidence before the Court Commissioner.
ix. Language- Recording of evidence shall preferably be carried out in English or Court
language, as the case may be, unless requested by the parties otherwise.
x. Adjournments- Once started, the cross-examination shall preferably concluded on the same
day or continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be
deferred but preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the
side other than who is leading evidence, without 24 hour advance notice.
CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 9 of 24
Explanation: In case a witness scheduled to be examined or under examination is reported to
be unwell or unavailable, the party leading the evidence shall produce the next witness in line
in the list for recording of evidence.
xi. Recording of objections- All the objections raised during cross-examination/reexamination
shall be recorded in the deposition under title objections and shall be left open for the decision
of the Court at the stage of final arguments. Witness shall not refuse to answer the question
asked.
xii. Questions to be allowed- In case Court Commissioner finds any question not related to the
fact and issue, he shall record his objection but shall allow the question to be put and witness
must answer.
xiii. No third person intervention- Court Commissioner shall ensure that the witness is not
assisted by his Counsel or any other person while under examination in answering the
questions.
xiv. Recording of demeanour of witness- Court Commissioner shall record the demeanour of the
witness wherever it is found pertinent and necessary for sharing with the Court.
xv. Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the
evidence recorded, free of cost by Court Commissioner.
xvi. Safe keeping of original deposition- Court Commissioner shall keep the original depositions
in his safe custody till such time they are filed in the Court in original upon completion of each
witness individually.
xvii. Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceeding
sheet for each day of work and shall submit it in the Court at the time of submission of final
report.
xviii. Hostile Witness- In case a witness is sought to be declared hostile, then Court Commissioner
shall refer both the parties to Court at the earliest and the Court shall decide the issue within
three days.
Part - 5
Miscellaneous
10. Summoning of Witness-
i. Summons from Court- In case a litigating party is desirous of summoning a person for
deposition or production of documents, it shall obtain summons from the Court with an
endorsement that such person shall appear before the address of Court Commissioner on
scheduled date, time and place.
ii. Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as
per rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court
Commissioner shall ensure the following:
i. Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an
indiscriminate manner while recording of evidence.
ii. Polite- Court Commissioner shall be polite with the witness and other stakeholders while
recording of evidence.
iii. Confidentiality- Court Commissioner shall maintain confidentiality during the whole
process.
iv. Keeping professional distance- Court Commissioner shall not solicit professional work
from the parties.
v. Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind
from the parties over and above the honorarium fixed by the Court.
CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 10 of 24
vi. Non-judgmental- Court Commissioner shall not criticize the professional conduct of
lawyers and litigating parties on their understanding of law.
vii. Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses
like being engaged in some personal or Court work etc.
viii. Coordination- In case of any unforeseen circumstances warranting change of dates of
hearing, for his own case or the request of other side, he shall apprise the other side in
advance via phone call, email, SMS, Whatsapp Group etc..
ix. No third party sharing- Court Commissioner shall not allow the deposition to be inspected
by any third party and shall not share a copy thereof with any stranger without permission of
the Court.
x. Inspection- Court Commissioner shall allow any party to inspect the recorded proceedings
only in his presence.
xi. Recusal- In case either of the parties or Counsel for the parties are related or closely known
to Court Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
i. Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and
Rule 2(o) of the Code, Court Commissioner shall be paid remuneration for the work carried
out.
ii. Mode of payment- Such remuneration shall be paid by the party directly for the work
carried out by way of cash, UPI, Bank Transfer, cheque or draft against due receipt.
iii. Cost to parties- Each party shall individually bear the cost incurred in leading its evidence.
iv. Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.10,000/- per
witness. Court Commissioner shall record the Evidence himself and in case the
Stenographer services are taken it can either be arranged by a litigating party on its own cost
or in case the same is arranged by Court Commissioner, then the actual cost of typing shall
be reimbursed by the party to the Court Commissioner.
v. Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost
of litigation at the end of the suit.
13. Judicial Intervention during recording of evidence-
i. Parties to cooperate- It is expected that both the sides will cooperate with Court
Commissioner as well as with each other in recording of evidence and carry out proceedings
in a cordial manner.
ii. Dissolution of hindrances- In case of any conflict resulting into hindrance recording of
evidence, it shall be resolved amicably by the parties at their own level with the active help
of the Court Commissioner.
iii. Court intervention- However, in case of any unforeseen situation requiring judicial
intervention, Court Commissioner shall fix date and time for joint appearance of both sides
before the Court for removal of any such impediment.
14. Miscellaneous Applications-
i. Moving the application- In case either of the parties is desirous of moving any
miscellaneous application viz. amending of pleadings, interim injunction etc. it shall share
an advance copy with the opposite side and reply thereof, if any, shall be filed and shared
within seven days.
ii. Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for
disposal in the Court with the help of Reader of the Court and shall not wait till next date
fixed for hearing. All such miscellaneous applications shall be registered, numbered and
indexed separately.
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iii. Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view
that the interim application moved by either of the parties is such that evidence cannot be
recorded before its disposal, the recording of PE/DE shall continue unabatedly.
Plaintiff's Evidence
17.In the evidence recorded before Ld. LC, to prove his case plaintiff
examined PW1 Waseem Ahmed. Vide his affidavit Ex.PW1/A, he
deposed on the lines of plaint and exhibited following documents:
i. Rent Agreement dated 24.11.2020 as Ex.PW1/1;
ii. Certified Copy of Will deed dated 11.10.1996 as Ex.PW1/2;
iii. Office Copy of legal notices dated 02.07.2022 alongwith postal receipts as
Ex.PW1/3;
iv. Site Plan is Ex.PW1/4.
18.In his cross-examination done on behalf of Ld. Counsel for defendant
plaintiff has stated that he is graduate by education. He accepted that
defendant is his tenant since 1995. He also accepted that a portion of
the larger property, of which suit property is a portion came to the
ownership of his Buas (Paternal Aunties). He accepted that first and
second floor are in occupation of the defendant but he is unaware if he
is tenant or otherwise in the same. He said that his grandmother is
alive and she gifted the suit property to him orally in May 2020 and no
written gift deed was executed. The Rent Agreement Ex.PW1/1 was
prepared at Karkardooma Court Complex on 24.11.2020 and was
typed in the presence of both the sides. He denied the suggestion that
it was supposed to be for five years. As per him defendant has not paid
the rent since July 2022. At the time of recording of evidence, plaintiff
accepted receipt of Rs.1.50 lakhs on 07.03.2023 as part damages. He
denied that while enhancing the rent from Rs.32,000/- to Rs.34,000/-
he extended the period of tenancy as well up to Septemenber 2022.
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19.PW2 is Lakshman Singh, Draughtsman (Civil). He proved Site
Plan Ex.PW1/4. In his cross-examination he stated that he has
inspected the suit property two days prior to 02.08.2022. As per him
there is a hall on the mezzanine floor. The height of the shop is said to
be 13-14 feet. He denied that he prepared Site Plan on the asking of
plaintiff without inspecting the property.
20. PW3 is Safdar Riaz, Attesting Witness of Rent Agreement
Ex.PW1/1. He exhibited his Affdavit in Evidence as Ex.PW3/A. He
stated that the Rent Agreement was prepared and got signed by both
the sides on 24.11.2020. In his cross-examination, he stated that the
lease deed was prepared in his presence and he signed it after going
through the same. Both the sides have gone through the contents of the
lease before signing the same. He accepted that the copy of the lease
deed was not supplied to the defendant in his presence.
21. PW4 is Qamar Uzzaman, Advocate Notary Public, who attested the
Lease Deed Ex.PW1/1 and proved the entries in the register as
Ex.PW4/1. He denied that the document was already signed before he
attested it.
Defendant's Evidence
22. On the other hand defendant examined himself as DW1 Shamim
Ahmed. In his affidavit in chief Ex.DW1/A he deposed on the lines of
his WS. In his cross-examination he stated that he does not know Eng-
lish and is educated up to 9th standard. He can read and write Hindi.
He identified his signature on Lease Deed Ex.PW1/1 and accepted
that Legal Notice Ex.PW1/3 carries his correct address. He also iden-
tified photograph of the Lease Deed and accepted that it was executed
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between the parties. He claimed that he signed the Lease Deed in a
hurry without reading the contents. He was supplied copy of the same
after five days of execution. He visited the Notary Public for attesta-
tion with plaintiff and other witnesses. He accepted that he did not re-
ply the Legal Notice Ex.PW1/3. He agreed that the Site Plan
Ex.PW1/4 is correct except that there is no mezzanine floor. He ac-
cepted that he had gone through the copy of the Rent Agreement after
it was supplied to him. He admitted that plaintiff is his landlord and
plaintiff got the property from his grandfather through his grand-
mother. He denied the suggestion that the Lease Deed was for the five
months and claimed that it was agreed to be for a period of five years.
He stated that the height of the mezzanine floor was 6-7 feet while that
of the shop was 15 feet. He denied that he is an unauthorised occupant
in the suit property.
23.I have heard arguments of Sh. Himal Akhtar, Sh. Mohd. Unais, Sh.
D.D.Sharma and Sh. Juned Salmani, Ld. Counsels for plaintiff
along with plaintiff in person and Sh. Ranjan Kumar, Ld. Counsel
for defendant alongwith defendant in person.
24.Now I shall dispose of individual issues framed in this case.
Discussion and Findings on Issues:
Issue No. 1
(i) Whether this suit is liable to be rejected for non-compliance of
Section 12A of Commercial Courts Act, Pre-Institution
Mediation? OPD
25.This issue was answered in favour of plaintiff and against the
defendant vide separate order dated 25.01.2023.
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Issue No. 2
(ii) Whether the suit has not been valued (property) for the
purpose of Court fees? OPD
26.The perusal of para 25 of the plaint shows that the plaintiff has valued
the suit amount at Rs.4.08 lakhs which is equivalent to 12 months rent
at the rate of Rs.34,000/- per month. A court fees of Rs.7,029/- is paid
on the same. The relevant law which governs the court fees payable in
a possession suit between landlord and tenant is Section 7 (xi) of
Court Fees Act. The same is reproduced as under:
Section 7 (xi): Computation of Fees Payable in Certain Suits
(between landlord and tenant)
"In the following suits between landlord and tenant:
(a) for the delivery by a tenant of the couterpart of a lease;
(b) To enhance the rent of a tenant having a right of occupancy;
(c) for the delivery by a landlord of a lease;
[cc for the recovery of immovable property from a tenant, including a tenant
holding over after the determination of a tenancy,]
(d) to contest a notice of ejectment;
(e) to recover the occupancy of [immovable property] from which tenant has
been illegally ejected by the landlord, and
(f) for abatement of rent
according to the amount of the rent of the [immovable property] to which the
suit refers, payable for the year next before the date of presenting the plaint.
As such no flaw has been pointed out by Ld. Counsel for defendant in
the pecuniary valuation of the suit as assessed by the plaintiff.
Issue No. 3
(iii)Whether plaintiff is entitled for decree of possession of
tenanted property bearing No.410, Khasra No. 92, Street No.19,
Jafar Hotel, Jafrabad, Main Road, Delhi? OPP
27.As far as the relief of possession of the suit property is concerned it is
admitted case of both the sides, as per pleadings, the evidence led and
the documents that plaintiff is the landlord of the suit property albeit
CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 15 of 24
existence of mezzanine floor in the Site Plan is objected to by the
defendant. It is admitted case of both the parties that Rent Agreement
Ex.PW1/1 was executed between them qua the suit property on
24.11.2020 on a monthly rent at Rs.32,000/- with a provision to
enhance the same by Rs.2,000/- annually. Issuance in receipt of Legal
Notice Ex.PW1/3 seeking eviction of the suit property is also
admitted. It is not denied by the defendant that the legal notice was not
replied despite due receipt.
28. The broader points of differences between the parties are that
according to the plaintiff the contractual tenancy stood expired on
24.04.2021 whereas according the defendant the tenancy was for a
period of five years.
29. Law in this regard is well settled as per Section 92 of the Evidence
Act. For ready reference the same is reproduced hereunder:
Section 92 Evidence Act: Exclusion of evidence of oral agreement
"When the terms of any such contract, grant or other disposition of property,
or any matter required by law to be reduced to the form of a document, have
been proved according to the last section, no evidence of any oral agreement
or statement shall be admitted, as between the parties to any such instrument
or their representatives in interest, for the purpose of contradicting, varying,
adding to, or subtracting from, its terms:
Proviso (1). -- Any fact may be proved which would invalidate any document,
or which would entitle any person to any decree or order relating thereto; such
as fraud, intimidation, illegality, want of due execution, want of capacity in any
contracting party, want or failure of consideration, or mistake in fact or law.
Proviso (2). --The existence of any separate oral agreement as to any matter
on which a document is silent, and which is not inconsistent with its terms, may
be proved. In considering whether or not this proviso applies, the Court shall
have regard to the degree of formality of the document.
Proviso (3). --The existence of any separate oral agreement, constituting a
condition precedent to the attaching of any obligation under any such contract,
grant or disposition of property, may be proved.
Proviso (4). --The existence of any distinct subsequent oral agreement to
rescind or modify any such contract, grant or disposition of property, may be
proved, except in cases in which such contract, grant or disposition of property
is by law required to be in writing, or has been registered according to the law
in force for the time being as to the registration of documents.
CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 16 of 24
Proviso (5). -- Any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of that description,
may be proved:
Provided that the annexing of such incident would not be repugnant to, or
inconsistent with, the express terms of the contract.
Proviso (6). -- Any fact may be proved which shows in what manner the
language of a document is related to existing facts.
(Emphasis Supplied)
30. While opening his submissions it is submitted by Ld. Counsel for
plaintiff that in so far as defendant has admitted the entire pleaded
case of the plaintiff, the plaintiff is entitled to decree of possession of
the suit property. It is stated that the landlord-tenant relationship is
admitted, the five month lease executed between the parties is
admitted, the legal notice which terminated the month to month
statutory tenancy too is admitted and there is nothing which can allow
the defendant to continue in possession of the suit property.
31. The plea is controverted by Ld. Counsel for defendant with an
argument that the plaintiff took undue benefit of illiteracy of the
defendant and reduced the five year tenancy agreement to a five-
month one. In this regard record reveals that the defendant is not a
totally illiterate person as in his cross-examination done on 08.05.2023
he stated that he is educated up to 9th and is fully conversant and can
read and write in Hindi. The Rent Agreement Ex.PW1/1 is a
document created in Hindi and there is nothing which can suggest that
he could not have read it. Attesting witness PW3 Safdar Riaz has
stated that both the sides had gone through the terms of the lease
before they appended their signatures in the presence of PW4 Qamar
Uzzaman, Notary Public. Even otherwise there is nothing on record to
suggest that the defendant opposed the terms of the tenancy at any
point of time either during or even after its execution on 24.11.2020.
CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 17 of 24
Moreover, the defendant could have raised this issue when the plaintiff
served him Legal Notice Ex.PW1/3 dated 02.07.2022. Despite due
service of the legal notice the same was neither replied nor acted upon.
The law has developed in this regard as under:
32.As per case titled Jayam Company Vs. T. Ravi Chandaran 2003 (3)
RCR (Cr.) 154 Madras presumption is drawn against defendant that
he has admitted the contents of the legal notice.
33.In another case titled as Metropolis Travels & Resorts (I) Pvt. Ltd.
Vs. Sumit Kalra and Ors., 2002 Latest Caselaw 714 Del wherein it
was observed that :
"13. There is another aspect of the matter which negates the argument
of the respondent and that is that the appellant served a legal notice
on the respondent vide Ex. PW1/3. No rely to the same was given by the respondent. But in spite of the same, no adverse inference was drawn against the defendant. This court in the case of Kalu Ram Vs. Sita Ram 1980 RLR 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality, adverse inference should be drawn because he kept quite over the notice and did not send any reply. Observations of Kalu Ram's case (supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice, respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices/ bills in question. But the Ld. Trial court failed to draw inference against the respondent".
(Emphasis Supplied)
34.Ld. Counsel for plaintiff has also relied upon case titled as Krishan Kumar Aggarwal Vs. Life Insurance Corporation 2010 Latest Caselaw 3344 Del wherein Hon'ble Delhi High Court observed that:
"65. No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice send by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23 rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 18 of 24 Hindustan Everest Tool Ltd. MANU/SC0396/1988: (1988) 2 SCC 165 & Hirallal Kapur Vs. Prabhu Chaudhary MANU/SC/0189/1988 : (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant.
"66. In a Division Bench proceedings of this court reported in Metropolis Travels and Resorts Vs. Sumit Kalra MANU/DE/0562/2002 : 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality, adverse inference should be drawn".
(Emphasis Supplied)
35.In the light of the above judgments of Division Bench of Hon'ble High Court of Delhi, plaintiff has successful to show on record that non-reply of legal notice by the defendant may be looked into as a presumption to correctness of the facts contained therein.
36. As such a presumption is drawn against the defendant and in favour of plaintiff that the defendant has accepted the facts contained in the legal notice.
37. Attention of this Court is drawn by Ld. Counsel for defendant to para 17 of affidavit in chief of PW1 Waseem Ahmed wherein it is mentioned that the monthly rent originally agreed between the parties was Rs.32,000/- which was enhanced to Rs.34,000/- as per Rent Agreement from October 2021 onwards. It is argued that this reference to the Lease Deed Ex.PW1/1 by the plaintiff amounts to renewal of the lease in another period of eleven months. It is stated that the existence of clause of renewal enhancement of rent in October every year also indicate that the lease continued on year to year basis. These pleas are of no avail to the defendant in so far as mere reference to terms contained in the rent agreement which had already expired does CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 19 of 24 not per se amounts to extension of the lease. Reference to Clause 5 of the lease shows that it was for a period of five months only starting from 24.11.2020 expiring on 24.04.2021. This carries a clear stipulation that the lease can be extended with mutual consent of both the parties. A running reference cited for enhancement of rent by Rs.2,000/- per month cannot be said to be an acceptance by the plaintiff for yearly lease.
38. In my considered view, the cross-examination of plaintiff and his other three witnesses has not brought to the record any such plea, fact or ground which can save the otherwise apparently proving case of the plaintiff that the contractual relationship of landlord and tenant between them stood expired on 24.04.2021 and that, thereafter, the defendant became a statutory tenant by virtue of Section 106 of Transfer of Property Act, 1882. The legal notice Ex.PW1/3 gave categorical 15 days period for eviction. For ready reference the same is reproduced as under:
Section 106 Transfer of Property Act: Duration of certain leases in absence of written contract "(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 CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 20 of 24 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."
(Emphasis Supplied)
39. Thus post expiry of five months contractual lease the tenancy becomes a statutory one which starts on Ist of each month and ends on the last date and is terminable with a 15-day notice.
40. Another plea raised by Ld. Counsel for defendant that mezzanine floor was not part of the tenanted suit property as there is no reference of the same in the Will Ex.PW1/2 purportedly executed by plaintiff's grandfather in favour of plaintiff's grandmother. Be that as it may, the said non-reference is inconsequential in so far as the mezzanine floor stands duly mentioned in the Lease Deed Ex.PW1/1. Initially, it was argued by Ld. Counsel for defendant that there is no mezzanine floor at all but in his cross-examination done by Ld. Counsel for plaintiff, defendant has accepted that there is a mezzanine floor and its height is 6 feet as compared to other floors which are of 15 feet height as mentioned in the cross-examination done on 08.05.2023. In view of the above this issue is answered in favour of the plaintiff and against the defendant.
Issue No.4 iv. Whether plaintiff is entitled to decree of permanent injunction against the defendant restraining him from creating any third party interest in the suit property? OPP
41.The defendant had made a statement in the Court that he would not create a third party interest. In the plaint it is mentioned by the plaintiff that the defendant had contacted few local property dealers for sale which created third party interest but no witness has been CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 21 of 24 examined by the plaintiff. However, once the issue no. 3 is answered in favour of plaintiff, in the fitness of things, the defendant deserves to be injuncted from transferring the possession or creating any third party interest in the suit property. This issue is answered in favour of plaintiff and against the defendant.
Issue No.5 v. Whether plaintiff is entitled for damages @ Rs.1500/- per day from 24.07.2022? OPP
42.Plaintiff has claimed damages of Rs.1500 per day. No separate evidence has been led by the plaintiff in this regard. The contractual monthly rent of this period was Rs.32,000/- as in November 2020 which was enhanced to Rs.34,000/- as in October 2021. Even with that agreed rate of enhancement, the rent as on October 2023 should have been Rs.36,000/-. Just because PW1 has not been cross-examined on the plea of Rs.1500 per se does not suffice that the same shall be allowed to plaintiff. In view of the above, occupation charges is assessed at Rs.36,000/- from August 2022 onwards till actual vacation of the property. Court is apprised that plaintiff has already received Rs.2.86 lakhs during the course of trial, the same shall be set off from the above assessed damages.
43. Record reveals that no affidavit of admission and denial of plaintiff's documents as mandated under Order 11 Rule 4 (2) CPC as amended for commercial suits has been filed by defendant. In judgment titled "Unilin Beheer B. Vs. Balaji Action Buildwell" 2019 Latest Caselaw 2540 Del, the Hon'ble High Court of Delhi dealt in detail with Rules 3 and 4 of Chapter VII titled "Appearance by defendant, written statement, set off, counter claim and replication" of the High CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 22 of 24 Court Rules and it was held, "In the event of written statement being filed without affidavit of admission/denial of documents, not only shall the written statement be not taken on record but the documents filed by the plaintiff shall also be deemed to be admitted and on the basis of which admission the court shall be entitled to proceed under Order 8 Rule 10 CPC."
44. Similarly, in case titled "Brijesh Kumar Agarwal and Ors. Vs. IFCI Factors Ltd." 2021 Latest Caselaw 468 Del, it was held:
"This court is also of the prima facie opinion that since the appellants written statement was not accompanied by admission/denial of documents, it should not have been looked into by Ld. Single Judge in view of judgment in Unilin Beheer B. Vs. Balaji Action Buildwell (Supra) and Chapter VII Rule 4 of Delhi High Court(original side) Rules 2018."
45.As such even on this score albeit and technically defendant is deemed to have admitted plaintiff's documents.
Relief
46.In view of the decision of above issues, the suit of the plaintiff is decreed with cost as under:
i. a decree of possession be passed in favour of plaintiff and against the defendant qua suit property no. 410, Khasra No. 92, Gali No. 19, Jafar Hotel, Jafarabad, Main Road, Delhi-110053 shown in Red in Site Plan Ex.PW1/4 for vacating the same and handing over peaceful possession to the plaintiff forthrightly; ii. The decree is passed in favour of plaintiff and against the defendant restraining the defendant from creating third party interest or transferring the possession of the suit property in any manner. iii. Decree in favour of plaintiff be also passed for damages @ Rs.36,000/- per month w.e.f. 01.08.2022 onwards till actual CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 23 of 24 vacation of the suit property.
47.The suit of plaintiff is decreed in view of above terms. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge, Commercial Court -03 Shahdara District, KKD Delhi/31.05.2023 CS Comm. No.483/2022 Waseem Ahmad Vs. Mohd. Shamim Ahmad Page 24 of 24