Delhi District Court
Shri Deepak Thirwani vs Shri Lachman Das Mansharmani on 8 April, 2015
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer : Dinesh Kumar, DJS
Unique ID No.02406C0047952012
Suit No. 778/2013
In the matter of :
1. Shri Deepak Thirwani
S/o Shri G. D. Thirwani
2. Smt. Madhu Thirwani
W/o Shri Deepak Thirwani
Both R/o 6/35, First Floor
Vikram Vihar, Lajpat NagarIV
New Delhi110024 ..........Plaintiffs.
vs
Shri Lachman Das Mansharmani
S/o Late Sewa Mansharmani
R/o 4/19, Ground floor
Vikram Vihar, Lajpat NagarIV
New Delhi110024 ..........Defendant.
Date of Institution of Suit : 29.02.2012
Date on which Order was Reserved : 23.03.2015
Date of Pronouncement of Order : 08.04.2015
Present: Sh. Bharat Ahuja, Advocate for the plaintiffs.
Sh. Gulab Rai Chhabaria, Advocate for the defendant.
CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 1 of 16
JUDGMENT
1. Vide this order, I shall decided the present suit filed by the plaintiffs. Before discussing further, it is worth mentioning here that the plaintiffs had filed the present suit for recovery of possession and of mesne profits. However, the decree of possession was passed by the Hon'ble High Court of Delhi under Order 12 Rule 6 CPC vide order dated 26.08.2013 in C.R.P. No.36/2013.The decree of possession was passed and the suit was continued to decide the amount of mesne profits and other issues. The defendant herein filed SLP in the Hon'ble Supreme Court of India. The same was dismissed vide Order dated 10.12.2013 in SLP (Civil) No.34129/2013.
2. Vide order dated 05.04.2014, this Court also decided the issue of mesne profits and decreed the suit. The plaintiff herein preferred an appeal aggrieved by insufficiency of mesne profits. Sh. Lalit Kumar, Ld. ADJ01, SouthEast, Saket, New Delhi, Ld. Appellate Court in R.C.A No.05/2014, vide order dated 30.09.2014, set aside the judgment and decree. The matter was remanded back to the Court for adjudication on what was the amount of damages and mesne profits in accordance with law. Sh. Lalit Kumar, Ld. ADJ01, Saket Court, vide order dated 30.09.2014 has remanded back the case to this Court. Fresh arguments have been heard. Therefore, I proceed to decide the issue as directed by the Ld. Appellate Court. CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 2 of 16
3. The facts of the case, necessary for disposal of the issue, as per the plaint, are as under:
3.1. The plaintiffs are the landlord and the defendant is a tenant in the property bearing no.4/19, ground floor, Vikram Vihar, Lajpat NagarIV, New Delhi (hereinafter called suit property). The defendant is a tenant at a monthly rent of Rs.3543.10 paise, exclusive of other charges. The plaintiffs have become landlord of the suit property by virtue of having purchased it from previous owner vide agreement to sell, GPA, receipt of consideration and possession letter dated 17.06.2011.
3.2. The defendant was a tenant of the previous owner in suit property. However, after the plaintiffs purchased the suit property they have become the landlord / owner of the suit property.
Therefore, the plaintiffs called upon the defendant to pay the rent to them. However, the defendant refused to pay any rent to the plaintiffs.
3.3. The plaintiffs sent a legal notice dated 01.11.2011 through their counsel to the defendant calling upon him to pay at least 25,000/ per month as rent. The said notice was duly received by the defendant. He also replied to the notice. It was stated in the reply that the rent of premises was Rs.3221/ per month and the last rent was paid by him to Sh. Rajesh Chandani, erstwhile owner of premises, by way of cheque in February 2007.
CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 3 of 16 3.4. To avoid any controversy, the plaintiffs accepted the rate of rent of Rs.3221/ as in February 2007. Then, the plaintiffs sent another notice dated 14.11.2011 calling upon the defendant to pay entire arrears of rent. They further enhanced the rent of the suit property by 10% as per provisions of Section 6A of Delhi Rent Control Act. It was communicated to the defendant that the rent would stand enhanced to Rs.3543.10 paise w.e.f. January 2012. The said notice was also received by the defendant. He also replied to the said notice taking false and frivolous grounds. He refused to pay the rent.
3.5. The plaintiffs, then, file a Civil Suit for recovery of arrears of rent. The defendant accepted the plaintiffs as landlords and paid the rent which was accepted by the plaintiffs without prejudice to their rights. The defendant further undertook to regularly pay the rent to the plaintiffs and therefore, the said suit was withdrawn. 3.6. Again, the plaintiffs sent a legal notice dated 27.01.2012 thereby terminating tenancy of the defendant w.e.f. 15 days of receipt of notice. They also demanded the defendant to hand over the vacant peaceful possession of the premises to the plaintiffs. It was also made clear in the notice that in case the defendant did not vacate the premises within the given period then he would be liable to pay damages @ Rs.30,000/ per month which was prevalent market rate for similar situated properties. The defendant was duly served. He CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 4 of 16 also sent a reply by taking baseless grounds in the reply. However, he failed to vacate the property. Hence, the present suit was filed for recovery of possession and mesne profits @ Rs.30,000/ per month w.e.f. date of filing of the suit till handing over the possession along with interest @ 12% P.A.
4. The defendant appeared. He filed WS. He took various objections. He admitted receiving of the legal notice. However, it was stated that the notice was not proper as the defendant was protected under Delhi Rent Control Act. He also denied that rent of similar situated properties was Rs.30,000/ per month.
5. The plaintiffs had moved an application under Order XII Rule 6, CPC, for judgment on the basis of admissions. The said application was dismissed by Ld. Predecessor vide order dated 22.12.2012.
6. On the basis of the pleadings, following issues were framed vide order dated 24.05.2013.
1. Whether the plaintiff is entitled for a decree of possession as prayed for ? OPP
2. Whether the plaintiff is entitled for mesne profits @ 30,000/ per month ? OPP
3. Whether the present suit is not maintainable in the present form ? OPD
4. Whether the present suit is barred under the Delhi Rent Control Act ? OPD
5. Whether the plaintiff has no right to increase the rent of the suit property from 3221/ per month to Rs. CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 5 of 16 3543.10 paise ? OPD
6. Relief.
7. In the meantime, the plaintiffs went in revision against the order dated 22.12.2012. The Hon'ble High Court of Delhi in C.R.P. No.36/2013 titled Deepak Thirwani vs Laxman Das Mansharmani vide order dated 26.08.2013 allowed the petition and decreed the suit for possession in favour of the petitioners (plaintiffs herein). The Hon'ble High Court of Delhi had held that the defendant was not protected under the DRC Act. A decree for possession was passed in favour of the petitioners and against the respondent (defendant herein) in respect of the suit property. The defendant herein was directed to hand over the peaceful and vacant possession to the plaintiffs herein within six months from the date of order. It was further directed that during that period the respondent shall pay the enhanced rent as claimed by the petitioners while taking the benefits of Section 6 A of the DRC Act. The relevant paras of the order of the Hon'ble High Court are as under:
"12. In view of the settled provisions of law on this aspect, I am of the view that the petitioners are entitled for the decree of possession in respect of the suit property in their faovur against the respondent. The trial Court has wrongly given its finding despite of the settle law on this aspect. In grant of decree of possession ought to have been allowed. The impugned order id accordingly set aside. The application filed by the petitioners under Order XII, Rule 6 CPC is accordingly allowed. Thus, a decree for possession CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 6 of 16 is passed in favour of the petitioners and against the respondent, in respect of the property bearing no.4/19, Ground Floor, Vikram Vihar, Lajpat NagarIV, New Delhi. The respondent shall hand over the peaceful and vacant possession thereof to the petitioners within six months from today. During this period, the respondent shall pay the enhanced rent as claimed by the petitioners while taking the benefit of Section 6 A of the DRC Act. "13. With regard to the other prayers, i.e. mesne profits and damages, the same would be decided in accordance with law. The parties shall appear before the learned Court on 22nd October, 2013."
8. The defendant herein filed an SLP before the Hon'ble Supreme Court of India, against the abovesaid judgment of the Hon'ble High Court. The said SLP was dismissed by the Hon'ble Supreme Court of India, vide order dated 10.12.2013. The Hon'ble Supreme Court of India granted time to the defendant herein till 31.10.2014 to hand over vacant possession of the suit premises.
9. The issue of possession had already been decided by the Hon'ble High Court of Delhi and confirmed by the Hon'ble Supreme Court of India. Therefore, the issues no.1, 3, 4 and 5 did not require any findings as they had already been decided in favour of the plaintiffs. Only issue which remained to be decided was the issue no. 2 which reads as under:
"Whether the plaintiff is entitled for mesne profits @ 30,000/per month ? OPP"
10. The plaintiff no.1 has examined himself as PW1 to prove CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 7 of 16 the issue. He has reiterated the facts stated in the plaint. He has relied upon the following documents.
a) Ownership documents of the property are Ex.PW1/1;
b) copy of notice dated 01.11.2011 sent by plaintiffs is Ex.PW1/2;
c) copy of reply to legal notice is Ex.PW1/3;
d) copy of notice dated 14.11.2011 sent by plaintiffs is Ex.PW1/4;
e) copy of reply to legal notice is Ex.PW1/5;
f) copies of statement of counsel for plaintiff, defendant and order dated 22.12.2011 in CS no.418/11 are Ex.PW1/6 to Ex.PW1/8 respectively;
g) copy of notice dated 27.01.2012 and reply by the defendant are Ex.PW1/9 and Ex.PW1/10;
h) copy of lease deed dated 13.07.2012 of property similar to suit property is Ex.PW1/11; and partition deed of this property is Ex.PW1/12;
i) copy of lease deed dated 02.03.2013 of property similar to suit property is Ex.PW1/13.
11. The defendant has examined himself as DW1. He has tendered his evidence by way of affidavit. He has reiterated the facts stated in the WS.
12. The witnesses were cross examined and the matter was CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 8 of 16 fixed for final arguments. Vide order dated 05.04.2014, this Court decided the issue and passed a decree in favour of the plaintiffs, for mesne profits @ Rs.3,543/ per month. Ld. Appellate Court has set aside the said order and has directed to decide it again.
13. I have heard the rival submissions of the Ld. counsel for the parties and carefully perused the material available on record. My findings on the issue are as follows:
14. Issue: Whether the plaintiff is entitled for mesne profits @ 30,000/per month ? OPP The plaintiffs have claimed mesne profits @ 30,000/ per month. PW1 in his affidavit has stated that the prevailing market rent of similar situated premises in the locality is Rs.30,000/per month. He has relied upon Ex.PW1/11, Ex.PW1/12 and Ex.PW1/13 which are separate lease deeds of similarly situated premises in the same locality. The property as shown in Ex.PW1/11 has been rented at a monthly rent of Rs.30,000/ per month w.e.f. 15.07.2012. The another property as shown in Ex.PW1/13 has been rented out at a monthly rent of Rs.32,000/ per month w.e.f. 01.03.2013.
15. Ld. counsel for the plaintiffs has argued that Ex.PW1/11 and Ex.PW1/13 are valid documents proved as per law. It is argued that at the time of examination of PW1 the witness had relied upon these two documents. In starting counsel for defendant had objected to the mode or proof of these documents at the time of their CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 9 of 16 exhibition. However, after completion of cross examination, Ld. counsel for defendant had given no objection to the formal proof of the documents which was duly recorded by the Court in the end of the cross examination of PW1 on 06.07.2013. It is also argued that during cross examination of PW1 no suggestion was given to the witness that the said documents did not depict the annual rent of the properties or that they were not acted upon by the parties concerned. The documents are duly admitted by the defendant. Hence, it is prayed that this Court must consider those documents sufficient proof to reach at a conclusion that the plaintiffs are entitled to mense profits @ 30,000/ per month.
16. Per contra, Ld. counsel for defendant has argued that every documents has to be proved according to law. Any admission made by the counsel cannot be considered as sufficient proof of documents. Certified copies are secondary evidence. There is only presumption in their favour to be considered as true copy of the original. However, the documents are required to be proved as per law. Further, any admission of fact made by the counsel for parties is not binding on the Court. The Court has discretion not to accept such admission. Further, there is no estoppel against the Advocate and therefore parties cannot be take advantage of any admission made by the Advocate.
17. I have heard the submissions. The arguments raised by the CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 10 of 16 Ld. counsel for defendant cannot be accepted at this stage. Ld. Appellate Court in RCA No.05/2014 in its order dated 30.09.2014, in para8, has held that once the witness for proving the documents Ex.PW1/11 and Ex.PW1/13 was dispensed with by giving no objection by the opposite party, the documents treated were to be treated as admitted documents. No formal witness to prove them was required. Thus, Ld. Appellate Court has held that the documents stands proved as per law and there is no need to call any formal witness to prove those documents. It is settled position of law that a party can waive the formal proof of a document. I get strength from the judgment of the Hon'ble High Court of Delhi in Food Corporation of India Vs. Sarvshri Bal Karan Singh & Ors, RFA No.681/2005, decided on 05.12.2011 wherein Hon'ble High Court has held as under:
"The submissions made on behalf of defts that Ex.PW2/1 and PW4/1 are not proved according to law, is misconceived and not tenable in the eyes of law. The reason being that both documents are certified copies of lease deeds which have been regd. with the office of Sub Registrar. They are public documents and are perse admissible as per provision of Indian Evidence Act, 1872.
"....
"I may note that there is no challenge to these lease deeds, Ex.PW2/1 and Ex.PW4/1 on the ground that these lease deeds are bogus or fabricated documents or that the same were not acted upon by the concerned parties".CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 11 of 16
18. In these circumstances, I am of the considered opinion that the documents Ex.PW1/11 and Ex.PW1/13 stand proved as per law. Therefore, they have to be read in evidence.
19. Ld. counsel for the defendant has further argued that even if the documents are considered to be proved as per law, the Court cannot grant the amount prayed by the plaintiff as mense profit. It is argued that Hon'ble High Court of Delhi in its order dated 26.08.2013 in C.R.A. No.36/2013, in para12 had held that during the period of handing over the peaceful vacant possession to the petitioners within six months, the respondent shall pay the enhanced rate of rent as claimed by the petitioners while taking the benefit of Section 6A of the Delhi Rent Control Act. The para of the judgment reads as under:
"12. In view of the settled provisions of law on this aspect. I am of the view that the petitioners are entitled for the decree of possession in respect of the suit property in their favour against the respondent. The trial Court has wrongly given its finding despite of the settled law on this aspect. In fact, the application under Order XII Rule 6 CPC to the extent of prayer for grant of decree of possession ought to have been allowed. The impugned order is accordingly set aside. The application filed by the petitioners under Order XII, Rule 6 CPC is accordingly allowed. Thus, a decree for possession is passed in favour of the petitioners and against the respondent, in respect of the property bearing no.4/19, Ground floor, Vikram Vihar, Lajpat NgarIV, New Delhi. The respondent shall hand over the peaceful and vacant possession thereof to the petitioners within six months from today. During this period, the respondent CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 12 of 16 shall pay the enhanced rent as claimed by the petitioners while taken the benefit of Section 6A of the DRC Act."
20. Ld. counsel for defendant has argued that Hon'ble High Court of Delhi had already decided the issues of mense profits by giving the abovesaid findings that the defendant shall pay the enhanced rent till eviction of the suit property. Therefore, now the amount claimed by the plaintiff cannot be awarded. It is also argued that Hon'ble Supreme Court of India also, while dismissing the SLP, had asked the defendant to pay the enhanced rent as damages. Therefore, issue stands settled that plaintiffs are entitled to only monthly rent as damages.
21. Ld. counsel for plaintiff, on the other hand, has argued that Hon'ble High Court of Delhi and Hon'ble Supreme Court of India had not given any findings in relation to mense profits. Rather, they had directed the defendant herein to pay the rent @ enhanced rent for the property as they were staying in the suit property. However, in para13 of the said judgment the Hon'ble High Court had categorically held that mesne profits and damages shall be decided by the Court in accordance with law.
22. I have considered the submission. I have studied the judgment of Hon'ble High Court of Delhi and order of Hon'ble Supreme Court of India. In para12 of the judgment titled "Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani in RCA CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 13 of 16 No.36/2013 decided on 26.08.2013, on a revision petition moved by the plaintiff herein the Hon'ble High Court had passed a decree under Order 12 Rule 6 CPC in favour of petitioners (plaintiffs herein) thereby allowing the prayer for grant of decree of possession. The Hon'ble High Court had given six months time to the respondent (defendant herein) to hand over the peaceful and vacant possession of the suit property to the petitioners (plaintiff herein). It was directed that during that period the respondent (defendant herein) would pay enhanced rent as claimed by the petitioners. However, in para13 of the judgment, the Hon'ble High Court had held that issue of mesne profits and damages would be decided in accordance with law by the trial Court. Thus, it becomes clear that Hon'ble High Court had not given any findings in relation to mesne profits and damages. The defendant herein was directed to pay the enhanced rent for the period of six months because defendant could not be permitted to enjoy the property for a period of six months without paying the enhanced admitted rate of rent. Therefore, observations of the Hon'ble High Court have to be read in the said context. The Hon'ble High Court has given the opportunity to trial court to decide the mesne profits and damages. Hon'ble Supreme Court also had directed defendant to pay the enhanced rent due to the aforesaid reasons. SLP was dismissed by the Hon'ble Supreme Court. Therefore, I do not find any merits in the arguments of Ld. counsel for the defendant.
CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 14 of 16
23. In the light of discussion hereinabove, I am of the considered opinion that the plaintiffs have proved on the preponderance of probability, that the similar situated properties in the same locality are getting rent of Rs.32,000/ to Rs.35,000/. There is nothing on record to show that the suit property could not fetch monthly rent equal to the amount mentioned in Ex.PW1/11 and Ex.PW1/13. DW1 in his cross examination had admitted that prevailing rate of rent of suit property would be around Rs.20,000/ and Rs.25,000/ per month. The plaintiff have claimed mesne profits @ 30,000/ per month which is less than the amount mentioned in Ex.PW1/11 and Ex.PW1/13. Therefore, I am of the considered opinion that the plaintiffs are entitled to mesne profits @ 30,000/ per month. The issue is decided in favour of the plaintiffs.
24. Issue: Relief.
In the light of discussion hereinabove, suit of the plaintiffs is decreed. The plaintiffs are entitled to damages / mense profits @ 30,000/ per month from the date of filing of the suit till the date of possession. Plaintiffs are also entitled to interest @ 6% P.A. from the date the amount became due till realization of amount. The plaintiffs are also entitled to cost of the suit.
25. The plaintiffs are directed to file deficient Court Fee if any, CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 15 of 16 within 45 days of this order. Decree sheet be prepared accordingly after receiving the deficient Court Fee if any, from the plaintiffs.
Pronounced in the open Court (Dinesh Kumar)
th
on this 08 day of April, 2014. Civil Judge, South East, Saket Court, New Delhi.
CS No.778/13 Shri Deepak Thirwani & Anr. vs Shri Lachman Das Mansharmani Page 16 of 16