Delhi District Court
Mrs. Aruna Jain vs Mr. Alimuddin Khan on 18 May, 2023
IN THE COURT OF SH. GAURAV RAO: ADJ - 03
PATIALA HOUSE COURTS : NEW DELHI
CS No. 480/22
CNR No. DLND01-009716-2022
1. Mrs. Aruna Jain, aged about 74 years
w/o Late Sh. Mahavir Kumar Jain,
2. Mrs. Meenakshi, aged about 51 years
w/o Mr. Saptadeep Dutta
Both R/o C1, 1332,
Vasant Kunj,
New Delhi - 110070.
........Plaintiffs
Versus
Mr. Alimuddin Khan, aged about 63 years
s/o Sh. Fateh Mohammad
R/o C7, First Floor, Anand Niketan
Delhi-110021
Also at:
C-46, Emaar Emerald Hills
Sector 65, Gurugram,
Haryana 122101
Also at:
C-1,2925A, C Block,
Sushant Lok 1, Gurugram,
Haryana - 122022
.....Defendant
Date of institution : 11.11.2022
Date on which reserved for judgment : 18.05.2023
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 1/50
Date of decision : 18.05.2023
Decision : Suit decreed &
all applications
disposed of
JUDGMENT
1. Vide this common order/judgment, I shall be disposing of the review petition, application u/s 151 CPC r/w section 17 of the Indian Registration Act and Section 33, 35 & 49 of the Indian Stamps Act for impounding of unregistered lease deed dated 16.03.2021 and an application u/s 151 CPC, all moved by the defendant as well as the present suit.
1.1 The present suit has been filed by the plaintiffs against the defendant for recovery of possession, arrears of rent, use & occupation charges, damages and mesne profits with interest in respect of first floor of property bearing no. C7, Anand Niketan, Delhi-110021, comprising of 4 bedrooms with attached bathrooms, drawing-cum-dining Room, kitchen, and lobby ( as shown in red in the site plan and hereinafter referred to as the suit property).
Plaint/Plaintiff's version
2. It is the case of the plaintiffs that they are the owners of the suit property which was purchased by them vide a Registered Sale Deed dated 28.08.2003 duly registered on CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 2/50 28.08.2003 at the Office of the Sub-Registrar, IX, New Delhi vide Registration No. 882, in Book No. 1, Volume 1094 at pages 1 to 15.
2.1 It is their case that paintiff no. 1 is a senior citizen, aged 74 years and plaintiff no. 2 is her daughter and plaintiff no. 1 has executed a Special Power of Attorney dated 31.10.2022 in favour of plaintiff no. 2 to represent and act on her behalf as required in the present suit.
2.2 It is their case that in March 2021, a property dealer namely Mr. Mukesh Khanna approached them on behalf of defendant, who was interested in taking the suit property on rent @ Rs. 1,00,000/- per month for a period of 3 years and believing the representations of the defendant, they agreed to let out the suit property to him.
2.3 It is their case that accordingly a Lease Deed dated 16.03.2021 was executed between the parties in respect of the fully furnished suit property along with 1 refrigerator, 7 room A/Cs, 5 geysers, lights, fans and washing machine, the defendant paid a security deposit of Rs. 1,00,000/- and the possession of the suit property was handed over to him on 16.03.2021.
2.4 It is their case that in terms of the said agreement, the defendant was to pay rent of Rs. 3,00,000/- per quarter in advance at the rate of Rs. 1,00,000/- per month for the period CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 3/50 16.03.2021 to 15.03.2022 and it was further agreed that for the period 16.03.2022 to 15.03.2023 the rent would be Rs. 3,30,000/- per quarter and for the period 16.03.2023 to 15.03.2024, rent would be 3,63,000/- per quarter.
2.5 It is their case that the defendant was specifically bound under the said agreement to get the said lease registered, however, he with ulterior motives and with a view to avoid paying stamp duty & registration charges, avoided & neglected to get the said lease deed registered, despite their regular follow ups with him.
2.6 It is their case that the defendant even refused to undergo police verification under the garb of being a public figure/ a person with high social standing and that the same would mar & tarnish his public and social image.
2.7 It is their case that after taking the suit property on lease, the defendant, from 16.03.2021 till 15.12.2021 paid rent of Rs. 1,00,000/- on a monthly basis instead of quarterly rents in advance and in fact, he used Covid-19 as an excuse to pay rent late and as on date the arrears of rent and use & occupation charges due is Rs. 12,00,000 and interest payable thereupon is Rs. 40,942/- which has been calculated after adjusting the security deposit.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 4/50 2.8 It is their case that they issued a Notice dated 01.11.2022 to him by email, apportioning the security deposit against the arrears of rent.
2.9 It is their case that each month when plaintiff No. 2, through her husband, approached the defendant for rent, he made some excuse or the other and even claimed that he would vacate the suit property and on one such occasion when he had not paid the rent on time, he stated in his WhatsApp dated 25.07.2021 sent at 10:50 PM that he wishes to vacate the premises by 15.08.2021 to which they even agreed, however, he did not vacate the premises and continued paying monthly rent late.
2.10 It is their case that defendant completely failed & neglected to pay the rent for the period 16.12.2021 onwards and whenever they approached him for payment of rent, he made excuses of the Covid-19 pandemic or that he was travelling out of India, that his wife was unwell etc. 2.11 It is their case that they in good faith and considering the overall situation of the pandemic adjusted & accommodated the defendant as far as possible, however, they have now realized that he always had the means to pay the rent but lacked the intention.
2.12 It is their case that when plaintiff no. 2 visited the suit property to demand rent from the defendant, to her utter CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 5/50 surprise, she found that he was living in the suit property with a large number of people and from the information received from the neighbours, several guests & visitors regularly visited him and even resided with him from time to time for several days and that they strongly apprehend that since they have been chasing him for the unpaid rent and have already terminated the lease and served multiple notices demanding possession, he is housing such a vast family, relatives & visitors with an attempt to create third party rights so as to avoid vacating the primely located suit property.
2.13 It is their case that they have now come to know that ever earlier the defendant had taken another house in the same locality on rent, he had failed to pay the arrears of rent and ultimately the owner of the said property had to file a suit bearing no. 249/2010 against him.
2.14 It is their case that vide email dated 17.07.2022 sent at 9:51 PM, from their family's common email id:
[email protected], to the defendant reminding him that he had represented & agreed to clear the entire dues and vacate the premises by July 2022 and further called upon him to clear the dues & vacate the premises by 17.08.2022.
2.15 It is their case that the lease between the parties had been duly determined by way of email dated 17.07.2022 as well as subsequent written communications/emails and therefore the CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 6/50 defendant and his family are unauthorized occupants in the suit property, liable to pay damages and use & occupation charges.
2.16 It is their case that vide letter dated 07.10.2022, they once again reiterated the termination of the lease due to non- payment of rent and again demanded possession on or before 15.10.2022, however, the defendant failed to comply with the Notice to Quit dated 17.07.2022 or the subsequent Notice / Termination Letter dated 07.10.2022 and has further failed to tender the arrears of rent. It is their case that the defendant has neither challenged the said Notice, nor replied to the same till date.
2.17 It is their case that they also sent an email dated 11.10.2022 sent at 11:29 AM, from the above email ID to the defendant once again calling upon him to respond to email dated 17.07.2022 and that the defendant on 11.10.2022 at 3:33 PM, sent an email stating that pursuant to his conversation with husband of plaintiff no. 2, he would be returning to Delhi by 14.10.2022 and would clear all dues, however, he wrongfully claimed that the husband of plaintiff No.2 had proposed that he could stay for three months more and further claimed that he would pay monthly advance rent for that period whereas there was no such proposal by them or by the husband of plaintiff no.
2. CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 7/50 2.18 It is their case that the defendant again on 11.10.2022 at 5:10 PM sent another email, wherein he undertook that he would pay the arrears of rent of Rs. 10,70,000/- by 15th October and vacate the suit property as well as clear all electricity water and gas bills etc. 2.19 It is their case that however, on 14.10.2022, the defendant sent a false & malicious email where he claimed that the email sent by him earlier was dictated to him by them and he further maliciously claimed that he sent the said mail in fear for his as well as his wife's life and under pressure. It is their case that the defendant also refused to vacate the premises by 15.10.2022 and claimed that the outstanding was not Rs.
10,70,000/- but agreed that there were some dues and he also falsely claimed that he had paid rent in cash.
2.20 It is their case that the defendant is also a constant nuisance to the neighbours and due to him & his family, the neighbours often complain and trouble them, being the landlords and such conduct causes grave mental agony & harassment to them for which he is liable to compensate them, besides bringing disrepute to the suit property.
2.21 It is their case that they vide email dated 16.10.2022, specifically brought to the notice of the defendant that they had been receiving repeated complaints from the neighbours about him & his family with respect to parking and non-adherence to CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 8/50 cooperative living practices and also for troubling occupants of other floors and residents.
2.22 It is their case that the defendant has been deliberately failing & neglecting payment of rent since January 2022 and even ignores most of the messages being sent by them or on their behalf demanding rent.
2.23 It is their case that a perusal of the WhatsApp Chat between the parties dated 25.09.2022 would show that the defendant had specifically undertaken to vacate the premises by 15.10.2022 as well as clear the arrears of rent. It is their case that the defendant does not even pay the electricity bills on time and they have had to suffer grave mental agony & harassment since the BSES personnel would call them threatening disconnection and on one such occasion when plaintiff no. 2 brought the said fact to his notice, he shamelessly told her to let BSES disconnect the electricity.
2.24 It is their case that the defendant had concealed the factum of dispute, with respect to the possession & rent, with his previous landlord.
2.25 It is their case that they have also learnt that another Suit bearing CS SCJ No. 373 of 2020 is pending against him and he is a habitual litigant and they strongly apprehend that he in order to arm twist them into giving up their claims for arrears of CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 9/50 rent and use & occupation charges, is likely to create third party rights to embroil them into unnecessary litigations.
2.26 It is their case that they have also learnt that an FIR had been lodged against him which he has subsequently sought to get quashed vide W.P. (Crl) No. 1798 of 2020.
2.27 Hence the present suit.
Defendant's status
3. Despite being served with the summons, defendant failed to file written statement on time and accordingly, vide orders dated 03.01.2023, his defence was struck off. Thereafter vide orders dated 20.02.2023, the defendant was proceeded exparte.
Plaintiff's evidence
4. In order to prove their case, plaintiffs examined plaintiff no. 2 as PW1 who tendered her evidence by way of affidavit Ex. PW1/A and relied upon the following documents:-
A. Copy of Aadhar card of plaintiff no. 1 as Ex. P-1. B. Copy of Aadhar card of plaintiff no. 2 as Ex.P-2. C. Special Power of Attorney dated 31.10.2022 of plaintiff no.
1 in favour of plaintiff no. 2 as Ex.P-3.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 10/50 D. Original site plan as Ex. P-4.
E. Copy of registered sale deed dated 28.08.2003 in favour of plaintiffs as Ex. P-5.
F. Copy of Aadhar card of defendant as Mark A. G. Original notarized lease deed dated 16.03.2021 as Ex. P-6. H. Copy of possession letter dated 16.03.2021 as Mark B. I. Original Whatsapp screenshots between husband of plaintiff no. 2 and Mr. Mukesh (property dealer) as Ex. P-
7. J. Original computer generated statement of rent as Ex. P-8. K. Original email dated 01.11.2022 as Ex. P-9. L. Original Whatsapp chat dated 25.07.2021 of defendant as Ex. P-10.
M. True copy of judgment dated 10.02.2012 in the court of Ms. Manika in CS No. 249/10 as Mark C. N. Original internet printout of email dated 17.07.2022 as Ex.
P-11.
O. Letter dated 07.10.2022 as Mark D.
P. Original internet printout of email dated 11.10.2022 as Ex.
P-13.
Q. Original internet printout of email dated 11.10.2022 as Ex.
P-14.
R. Original internet printout of email dated 11.10.2022 as Ex.
P-15.
S. Original internet printout of email dated 14.10.2022 as Ex.
P-16.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 11/50
T. Original internet printout of email dated 16.10.2022 as Ex.
P-17.
U. Whatsapp screenshots of chats with the defendant as Ex. P-
18 (colly).
V. Whatsapp chats with the defendant as Ex. P-19 (colly).
W. Copy of electricity bill as Mark E.
X. Copy of water bill as Mark F.
Y. Original demand letter dated 01.04.2022 raised by Anand
Niketan Co-operative Housing Society Ltd. as Ex. P-22. Z. Certified copies of lease deed dated 23.02.2022 and 02.03.2022 as Ex. P-23 (colly) 5.1 Plaintiffs also examined Sh. Saptadeep Dutta as PW2, who tendered his evidence by way of affidavit Ex.PW2/A and relied upon the following documents:-
A. Certified copy of lease deed dated 16.03.2021 as Ex.PW2/1.
B. Legal notice dated 20.03.2023 as Ex.PW2/2.
5.2 Plaintiffs also examined Ms. Munesh, DEO, Sub Registrar Office VIIA, Sarojini Nagar, Palika Bhawan, New Delhi as PW3, who produced the summoned i.e. registered lease deed dated 21.02.2022 registered as 672 in Book No. 1, Vol.
1799 at pages 50-58 and lease deed dated 02.03.2022 document registered as 798 in Book No. 1, vol. 1805 at pages 96-101 as Ex. PW3/A. CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 12/50 Findings
6. The case of the plaintiffs remains unrebutted, uncontroverted and accordingly I find no reasons to disbelieve the same.
6.1 From the evidence led by the plaintiffs, especially Ex. P5 i.e. registered sale deed dated 28.08.2003, it stands established on record that the plaintiffs are the owners of the suit property and being the owners they let out the suit property to the defendant vide lease deed dated 16.03.2021 i.e. Ex. P6. Ex.P5 and Ex. P6 thus establishes the ownership of the plaintiffs as well as the relationship of landlord and tenant between the plaintiffs and defendant. Mark B proves that the possession of the suit property was obtained by the defendant pursuant to Ex. P6.
6.2 Though the lease deed was for a period of 3 years, however, the lease deed was never registered and in the absence of registration the lease has to be counted as a month to month lease/tenancy.
6.3 The defendant repeatedly defaulted in payment of rent, to clear the arrears of rent as well as other dues. In fact way back in July 2021 vide his message dated 25.07.2021 sent at about 10.50 p.m. he had expressed his desire to vacate the suit CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 13/50 property by 15.08.2021, which was also agreed to by the plaintiffs, but the defendant did not vacate the suit property. Plaintiff has placed on record the said message i.e. Ex. P10 as well as screen shots, the transcript of the other whatsapp messages/chats i.e. Ex. P18 and Ex. P19. Ultimately, the lease/tenancy was terminated by the plaintiffs vide email dated 17.07.2022 i.e. Ex. P11 which is reproduced hereunder:-
"From: Jains jains.newdelhi@gmailcom Subject: Notice to Vacate Premises of C7, Anand Niketan Date: 17 July 2022 at 9:52PM To : [email protected] To Mr Alimuddin Khan s/o Sh Fateh Mohammed r/o C46, Emaar Emerald Hills, Sector 65, Gurugram, PIN:
122101 Currently occupying properties of Mrs Aruna Jain and Meenakshi at First Floor of C-7, Anand Niketan, New Delhi 110021 We bring to your notice:
-That the last rent paid by you was on 20th December 2021.
-That we have been trying in vain to collect our due rent as per agreement signed with you.
-That as per the last discussion with Mr Dutta on May 9th 2022, you agreed to clear the entire dues and vacate the premises by July 14th, 2022.
-That July 13th onwards your phone was reporting switched off and when Mr Dutta visited the premises (C7), twice he came to know that you are not at home.
We now request you to settle the due rent and vacate the premises latest by August 17th.
Mrs Aruna Jain and Dr Meenakshi."
6.4 Plaintiff's letter Mark D dated 07.10.2022 to the defendant demanding the arrears of rent and the fact that lease has already been terminated in this regard is reproduced hereunder:-
"October 7th 2022 CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 14/50 To Mr Alimuddin Khan s/o Sh. Fateh Mohammed r/o C 46, Emaar Emerald Hills, Sector 65, Curugram, PIN: 122101 (currently occupying properties owned by: Mrs Aruna Jain and Meanakahi at First Floor of C-7, Anand Niketan, New Delhi 110021.) Mr. Khan Refer to the Lease Rental Agreement for the property/premises rented and occupied by you.
This is to bring to your notice:
1. That the last monthly rent paid by you was on 20th December 2021. We have been requesting you to settle the pending monthly rent since January 2022 and to vacate the premises.
2. That on 9th May 2022, you informed our representative Mr Dutta that you will clear the entire rental dues on 13th July 2022 and vacate the premises on 14th July 2022; which did not happen.
3. That from 13th July 2022 onwards, your phone was reporting switched off and when Mr Dutta visited the said premises (C7, Anand Niketan), twice on 15th July 2022, he came to know from your daughter Ms Marfua, and your sons Mr Kashif Khan and Mr.Shakir Khan that you are out of the country and thus you are unable to communicate with us.
4. You telephonically spoke with Dr. Meenakshi on 17th September 2022 and informed that you will clear the pending monthly rents and other dues and vacate the premises by 15th October 2022.
Per the above it is evidently clear that you have breached the Lease Rental Agreement. Although we have been accommodative throughout, despite our best efforts you have not made good on your assurances to comply with the terms of the agreement. Therefore, please note that we will take over the possession of the premises on 15th October 2022. (Mrs Aruna Jain and Dr Meenakshi) CC:Ms Marfua, Mr Keshif Khan and Mr Shakir Khan, Currently occupying properties owned by: Mrs Aruna Jain and Meenakshi at First Floor of C-7, Anand Niketan, New Delhi 110021."
6.5 On 11.10.2022 plaintiffs wrote an email at about 11.29 a.m. i.e. Ex. P14 to the defendant asking him to respond to their mail Ex. P11 and vide his email Ex. P13 dated 11.10.2022 CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 15/50 sent at 03.33 p.m. the defendant undertook to clear all dues, which he has clearly failed to do so. Furthermore though he talked about plaintiff's proposal that he can stay for 3 more months at the suit property, however, there is no such proposal proved on record by the defendant. Ex. P13 is reproduced hereunder:-
"From: alim khan d meo [email protected] Subject: C7 anand niketan Date: 11 October 2022 at 3:33 PM To: [email protected] Dear Sir As per our telephonic discussions I am sending you this email I am presently out of country I will be reaching delhi by 14th octuber And clear all dues As you propose I can stay three month more I will pay monthly advance rent for that period Thanks for you kind cooperation Best regards Alimuddin khan Thanks & Regards AM KHAN"
6.6 On the same day he wrote another email at about 04.27 p.m. i.e. Ex. P14 acknowledging the mail sent to him on the same day at 11.29 a.m., as discussed above and the said email is reproduced hereunder:-
From: alim khan d meo [email protected] Subject: Re: Notice To Vacate Premises of C7. Anand Niketan Date : 11 October 2022 at 4:27 PM To: [email protected] Dear Sir I acknowledge your mail I am out of country at present and facing financial problems I will pay your 1070000 due amount by 15th octuber and vacate the house as well CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 16/50 I will clear all electric water and gas etc bills May I request you and Mr Dutta to communicate with me in future instead of going to my wife bedroom as she is heart patient It's an an humble request Hope you understand her position Thanks and best regards Almuddin khan On Tue, 11 Oct 2022 at 11:29 AM, Jains< [email protected]> wrote:
Dear Mr. Khan Can you please respond to this mail Regards Mrs Aruna Jain and Dr Meenakshi"
6.7 He had also written another email to the plaintiffs at about 05.10 p.m. on the same day which is on record as Ex.P15 wherein again he also undertook to vacate the suit property. Thus vide Ex.P14 and Ex.P15 the defendant undertook to vacate the suit property by 15.10.2022 but he miserably failed to do so. Ex.
P15 is reproduced hereunder:-
"From: alim khan d meo [email protected] Re: C7 first floor anand niketan Date: 11 October 2022 at 5:10 PM To : [email protected] I agree that:
I will transfer the due rent RS 1070000 ((Rupees ten lakh seventy thousands) due since 17 th december 2021 latest by 15 october 2022.
I will also clear any penalty due to late payment of rent I will pay for any damages to the house if there is I will pay all utility bills including electricity water and gas consume till 15 th october 2022 including any penalty if there is And I will vacate the house by 15th octuber 2022 without any hesitation. Regards Alimuddin khan On Tue, 11 Oct 2022 at 12:25 PM, alim khan d meo [email protected]> wrote:
I agree that:
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 17/50 I will transfer the due rent RS 1070000 ((Rupees ten lakh seventy thousands) due since 17 th december 2021 latest by 15 octuber 2022.
I will also clear any penalty due to late payment of rent I will pay for any damage if house in house I will pay all utility bills including electricity water and gas consume by 15 th octuber 2022 including any penalty if there is And I will vacate the house by 15th octuber 2022 without any hesitation. Regards Alimuddin khan Thanks & Regards AM KHAN Thanks & Regards AM KHAN"
6.8 Vide his email dated 14.10.2022 i.e. Ex. P16 the defendant backtracked from his promise to vacate the suit property by 15.10.2022 and yet again admitted that amount is due towards the plaintiffs, though he disputed the amount claimed by the plaintiffs. Nonetheless he did not give his own calculations as regards the amount due. Furthermore his claim that the earlier email was written by him under the dictation of the plaintiffs does not appeal to a prudent mind and is nothing but an afterthought, falsehood. Ex.P16 is reproduced hereunder:-
"From: alim khan d meo [email protected] Re: C7 first floor anand niketan Date: 14 October 2022 at 4:46 PM To: Jains [email protected] Dear Sir, Hope you doing well We have a commitment of continuing agreement and now you say it's breach of contract You dictated email I wrote to you by taking advantage of my ailing wife weakness as she got harassed in her room by you and your husband thus fearing her health condition I had to write what ever you say CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 18/50 You sent me draft of email written by you and dictated me to write the same and I did under pressure due to fear of my life of my wife I am out of country as you know I will not be able to vacate premises tomorrow on 15/10/2022 as our agreement in force already for longer period written in agreement I have to pay some of your dues and it is not 107000 Ten lakh seventy thousands We will calculate once we sit together as my statements are not here and sometimes I paid cash as well Dear Sir You made my wife more sick as you shouted on her in her room despite knowing that she is a heart and depression patient and bed ridden due to arthritis as well I humbly request you not to put her life in Danger You are a Doctor and your husband told me you are a psychologist as well Your agreement is with me and my family lives with me at C 7first floor anand niketan Hope we can resolve issues between us without involving families I wish to avoid any dispute in this regard but if you force me to do I will not hesitate to take legal help Kindly understand my concern as I am willing to address yours Let us resolve issue amicably and don't take law in your hands by trying force eviction We are law abiding people and expect shame from you Please don't go to my home in my absence as I am out of station and my wife is not well I tried to reach Mr Dutta on phone It would be better we keep dialogue on I will try to call you and Mr Dutta again Hope we stay away from disputes Thanks and regards Alimuddin khan"
6.9 Another email written by the plaintiffs whereby the defendant was yet again informed that the tenancy has already been terminated and he was called upon to clear the arrears, the CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 19/50 outstanding, is on record as Ex.P9 and same is reproduced hereunder:-
From: Jains Jains. [email protected] Subject: Notice Date: 1 November 2002 at 7:03 PM To: alim khan meo [email protected] Mr. Alimuddin It has been several months since you have not paid the rent. We have already served you Notice to Quit and you are an unauthorised occupant in our property You had initially given a security deposit of Rs. 1,00,000/- which was liable to be adjusted against any dues. As on date the Outstanding rent and use and occupation charges (post termination of lease) is about Rs 13,00,000/- I hereby put you to notice that I am adjusting the aforesaid security deposit of Rs. 1,00,000/- against the arrears of rent and use and occupation charges.
The balance outstanding is now Rs. 12,00,000/-. You are also liable to pay interest on such unpaid amounts Dr. Meenakshi"
6.10 Apart from the above emails plaintiffs have placed on record screen shots of various whatsapp messages, as discussed above, exchanged with the defendant wherein also there are categoric undertakings of the defendant to clear the arrears of rent, electricity dues as well as to vacate the suit property by 15.10.2022. In the messages the plaintiffs can be clearly seen virtually begging the defendant to clear the arrears, pay the rent and also to vacate the property as the lease had already been terminated. Some of the screen shots/messages Ex. P18/Ex.P19 are reproduced hereunder:-
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 20/50 CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 21/50 CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 22/50 CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 23/50 CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 24/50 6.11 Such was the defendant's behaviour, attitude that he did not even bother to pay the electricity bills/dues and when the plaintiffs asked him to settle the dues, as BSES was threatening to disconnect, he simply told the plaintiffs "let them disconnect".
The screen shot of whatsapp message in this regard is reproduced hereunder:-
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 25/50 6.12 Hence not only the relationship of landlord and tenant was proved but it also stands proved that the lease/tenancy was duly terminated and that the defendant had undertaken to vacate the suit property. Even otherwise the law is well settled that filing of the suit is itself sufficient notice for termination of tenancy. It was held by the Hon'ble High Court of Delhi in Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) reported as 183 (2011) DLT 712 that :
"..................7 (ii). The Supreme Court in the case of Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), 146 (2008) DLT 217 (SC)=1 (2008) SLT 195=2008 (2) SCC 728 has held that the tenancy would stand terminated under the general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (Supra) I hold that even assuming the notice termination tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.
........8. Therefore, looking at it from any point i.e. the fact that legal notice termination tenancy was in fact served, the suit plaint itself can be taken as a notice terminating tenancy or that the copy of the notice along with documents was duly served to the appellant/tenant way back in the year 2007, I hold that the tenancy of the appellant/tenant stands terminated and the appellant/tenant is liable to hand over the possession of the tenanted premises...................."
6.13 In fact the plaintiff's suit qua the possession of the suit property was already decreed vide order dated 26.04.2023 in view of the undertaking given by the Ld. Counsel for the defendant as well as in view of admission made on that day. The relevant portion of the statement of Ld. Counsel for the defendant and the order is reproduced hereunder:-
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 26/50 Statement "I am the counsel for the defendant in the present matter. I have instructions from the defendant as well as his son, who is present in the court today and who has similar instructions, to state that defendant shall handover the vacant and physical possession of the suit property to the plaintiffs positively by 15.05.2023 and suit of the plaintiff may be decreed qua the relief of possession in terms of my above statement, instructions as received from the defendant. For the relief of arrears of rent/occupation charges it is requested that the matter may be referred to mediation centre.
Order Present:Ld. Counsel Sh. Ashok Rajagopalan for the plaintiffs along with plaintiff no. 2.
Ld. Counsel Sh. Himanshu Jain for the defendant along with son of defendant. Fresh vakalatnama filed on behalf of the defendant.
Part final arguments heard. At this stage, Ld. Counsel for the defendant states that he has instructions from the defendant as well as his son, who is present in the court today that defendant is ready and willing to handover the vacant and physical possession of the suit property to the plaintiffs positively by 15.05.2023 and suit of the plaintiff may be decreed qua the relief of possession. Ld. Counsel for the plaintiffs states that he has no objection to the same.
Statement of Ld. Counsel for the defendant as well as plaintiff no. 2 to this effect has been recorded separately.
In view of the statement made by Ld. Counsel for the defendant, defendant is directed to handover the vacant and physical possession of the suit property to the plaintiffs positively on or before 15.05.2023. The above order though passed as per the statement/settlement, however same may also be treated to have been passed under Order 12 Rule 6 CPC as it is categorically admitted by the defendant that he is/was the tenant in the suit property and is willing to handover the vacant & physical possession of the suit property to the plaintiffs/landlord as tenancy has already been terminated.
As far as relief of arrears of rent/occupation charges is concerned, it is requested by the parties that the matter may be referred to the Mediation Centre. In these circumstances on the joint request of parties and upon signing of referral form, matter is referred to Mediation Centre, Patiala House Courts, Delhi.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 27/50 Parties are directed to appear before Ld. Mediator now on 17.05.2023 at 12.00 noon.
Put up before this court for compliance of the above order and report of settlement/further proceedings now on 18.05.2023.
At this stage, ld. Counsel for the plaintiffs has moved an application under Order 38 Rule 5 r/w Order 39 Rule 1 and Section 151 CPC for attachment of bank accounts of the defendant as detailed in the application. Copy supplied.
Put up for reply and arguments on the application on date already fixed i.e. 18.05.2023. In the meanwhile in view of the apprehension shown by the plaintiffs, the fact that defendant, his son have been embroiled in similar controversies with regard to other properties/other landlords, it is directed that till the next date of hearing, the Manager of HDFC Bank, C-17, Anand Niketan Branch and the Manager Indian Overseas Bank, Sector 28 Branch, Chandigarh shall not permit any withdrawal from the account of the defendant as detailed in the application."
6.14 A review petition was filed by the defendant on 11.05.2023 which was taken up today and it is the case of the defendant that the said order suffers from vice of error apparent on the face of the record in as much as he did not make any categoric, unequivocal & unqualified admissions and therefore there was no occasion for this court to pass an order under Order XII Rule 6 CPC. It is also his case that the erstwhile counsel did not have any instructions from him or his son to make the statement as above and he reserves his right to take action against the erstwhile counsel in this regard. It is further his case that as he never admitted the fact that his tenancy was lawfully terminated, there was no occasion for the impugned order to be passed.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 28/50 6.15 As far as review petition is concerned, the same is completely devoid of merits and is in fact a gross abuse of the process of law. The order dated 26.04.2023 does not suffer any error apparent on face of it or any mistake whatsoever. The said order was passed upon the statement made by erstwhile counsel for the defendant who had made the said statement upon instructions from the defendant. The said statement was in fact made by the Ld. Counsel in the presence of defendant's son. The defendant now malafidely wants to disown the statement/ instructions which cannot be permitted. If petitions like the present one are entertained it will lead to travesty of justice and embolden unscrupulous litigants like the defendant. If such petitions are entertained the judicial proceedings will loose their sanctity. The petition has been filed merely to wriggle out of the statement, undertaking dated 26.04.2023 and ha no merits whatsoever. It has in fact now become routine to blame the erstwhile counsel to seek relief from the court without taking any action against the counsel. With change of counsel, the parties keep changing their stand but a change like the present one cannot be permitted or allowed as it is full of malice & caprice and tantamount to gross abuse of the process of law.
6.16 Undoubtedly no written statement was filed by the defendant, however, the admissions, on the basis of which judgment/decree under Order XII Rule 6 CPC can be passed, need not be in the written statement alone. What is required is there should be admissions and those admissions have to be by CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 29/50 the defendant. Those admissions were not specifically discussed in order dated 26.04.2023 for the simple reason that Ld. counsel for the defendant had made the statement as above and the court believing the statement, made upon the instructions from the defendant, passed the order as was deemed fit at that stage.
6.17 But to say that there was no admission is factually incorrect and contrary to the records. As discussed above in detail the plaintiff's case has gone unrebutted and not only the plaintiffs proved their case through the evidence but the documents which have been relied upon by the plaintiffs and which are/were part of pleadings and which have been discussed in detail as above i.e. P9, P10, P11, Ex.P13 to Ex.P19 contain umpteen number of admissions by the defendant and it was these admissions which were the basis of order dated 26.04.2023 in addition to the statement of Ld. Counsel for the defendant.
6.18 In Raveesh Chand Jain vs Raj Rani Jain dated 12.02.2015 in Civil Appeal NO. 1822 OF 2015, (arising out of SLP(C)No.29805 of 2014) the Hon'ble Apex Court held as under:-
"11. The provision of Order XII Rule 6 has been discussed by this Court in the case of Karam Kapahi and Others vs. Lal Chand Public Charitbale Trust and Another, (2010) 4 SCC 753, wherein this Court observed:-
"39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 30/50 Judges to use it "ex debito justitiae", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment.
40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by "pleading or [pic]otherwise in writing" but in Order 12 Rule 6 the expression "or otherwise" is much wider in view of the words used therein, namely: "admission of fact ... either in the pleading or otherwise, whether orally or in writing".
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan, SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas's Commentary on the Code, 16th Edn., Vol. II, p. 2177).
42. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India this Court, while construing this provision, held that the Court should not unduly narrow down its application as the object is to enable a party to obtain speedy judgment."
6.19 In Charanjit Lal Mehra (supra) the Hon'ble Supreme Court held:
".......In fact, Order XII, Rule 6, C.P.C. is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon. .............In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal and Co. Ltd. v. United Bank of India and others, reported in 2000 (7) SCC 120. Their Lordships have held as follows:
"In the Objects and Reasons set out while amending Rule 6 of Order 12, CPC it is stated that 'where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 31/50 enable to the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled."......"
6.20 Order XII Rule 6 CPC confers very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The Court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well-established principles. Admission must be clear and unequivocal, it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part. Even a constructive admission firmly made can be made the basis of passing appropriate orders. {Rama Devi Vs. Punam Chand Aggarwal 2008 (4) Civil Court Cases 701 (Delhi)} 6.21 In Gajender Kumar Loond Vs. Samant Barara in IA no. 13740/2011 in CS (OS) 1132/2011 it was held as under:
"it is now well-established that admissions are not restricted to pleading. More often than not, contents of the plaint are denied in order to delay proceedings and procrastinate the incidence of liability. Admissions can, therefore, be justly and soundly drawn even from attending circumstances, such as pleadings in other suits or proceedings, or documents exchanged between the parties. In fact, in my opinion, documents constitute the best source of admissions of facts. In the present case, admittedly a license deed was executed by the parties, and the Court need not travel any further. It is bound to treat the contents of such a document as admissions between the parties, and give effect to CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 32/50 its contents at the very earliest. Failure to do so would tantamount to encouraging dishonest pleadings. All the averments put forward by the plaintiff are predicated and are sustainable merely from a reading of this deed itself."
6.22 Here is a litigant (defendant) who has been absolutely dishonest not only with the landlord/plaintiffs but with this court too. Despite the above several undertakings, in his messages/chats/emails, neither he had paid the rent to the plaintiffs nor he vacated the suit property. Despite giving instructions to his counsel he disowned those instructions subsequently. The defendant, and this court is constrained to say so, is an unscrupulous litigant and dishonest to the core. The above discussion speaks for itself. Nonetheless the plaintiffs have been able to prove the defendant's dishonesty, his malafide conduct and the fact he is a habitual litigant, who has been harassing various landlords by placing on record the details of earlier litigations filed against him i.e. CS No. 249/10 i.e. Mark C and CS No. 345/22 which was filed against his son. These two litigations would reveal that he & his son are habitual defaulter and it appears to be their modus operandi to take the properties on rent and thereafter default in payment of rent or in vacating the same thus causing severe loss, agony, hardship and pain to the landlords. If that is not the case nothing stopped the defendant to rebut the plaintiff's case, however, as discussed above, for reasons best known to the defendant, no efforts were made to do so. No WS was ever filed, no application was ever moved seeking to set aside the exparte order and only at the stage CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 33/50 of final arguments and after having given undertaking, through the counsel, the present petition was filed. This itself speaks volume about the defendant's conduct and approach. In fact apart from other two litigations defendant is also embroiled in other litigations, as proved by the plaintiffs i.e. WP (Crl.) no. 1798/2020.
6.23 There is one important fact. The present review petition has been filed by the defendant not by himself but through his daughter Ms. Marufa Khan who has been issued an authority letter dated 10.05.2023 in this regard. The said daughter was never present in the court and instead the defendant's son was present on 26.04.2023 when the impugned order was passed. Had there been any merit in the review petition, it should have been filed by the defendant himself or through/with the affidavit of his son who was present on 26.04.2023. This itself proves that there is no merit in the review petition. It will be also pertinent to point out at this stage that Ms. Marufa is the same daughter of the defendant, who had refused to accept the summons returnable for 03.01.2023.
6.24 It is trite that sanctity of judicial record is not assailable and has to be maintained at all costs unless it has led to any illegality or failure to deliver justice. In Gulshan Sahni Vs. Faquir Chand Sahni 2016 Law suit (DEL) 4700 it was held as under:
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 34/50 "6.In this context reference may be had to to the judgment of this Court in Paul Properties Pvt. Ltd. & Anr. Vs. Estate Officer Life Insurance Corporation of India & Anr. LPA 298/2010 wherein this court held as follows........
It is not the case where there was no consultation whatsoever. On a scrutiny of the entire gamut of the facts, it emerges with utmost clarity which can be envisioned that a maladroit attempt was made to take a somersault and wriggle out of the same. In case the same, if we allow ourselves to say so, is permitted, it ill usher in a state of anarchy in the process of adjudication and the high tradition of the Bar and the acceptance of statements made at the Bar would be in jeopardy. The law does not countenance the same either in the expanse of substantive law or in the expansion of adjective law."
6.25 There is a certain amount of sanctity attached to the judicial orders and in case such a sanctity is not imparted to judicial orders then any litigant can toss around a judicial order simply raising false, frivolous and meritless pleas after taking the advantage in terms of the said order. The review petition is frivolous and has been filed merely to wriggle out of undertaking and order dated 26.04.2023. This kind of attitude/approach on the part of the defendant, who seems to have turned dishonest and unscrupulous, cannot be permitted because if it is permitted to be done then there will be no sanctity or credibility attached to the orders passed by the Court and the Court will be tossed around by litigants of such hue. Reliance may also be placed upon the law laid down in Metal Box India Ltd. vs T.K. Sehgal & Sons (Huf) & Ors. RFA No. 92/2012 dated 26.05.2016.
6.26 In fact for his conduct as above, he needs to be penalized appropriately. This abuse of the process of law has to be dealt with sternly. This kind of an evil trend needs to be CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 35/50 nipped in the bud before it spreads any further or else litigants like the present defendant will get emboldened and with impunity flout the undertaking and orders passed by the court.
6.27 In Goyal MG Gases Pvt. Ltd. Vs. AIR Liquide Deutschland th Gmbh & Ors. CCPO No. 130/2005 in OMP No. 361/2004 decided on 19.10.2006 by Hon'ble High Court of Delhi it was held as under:
"Vexatious and frivolous litigation poses a number of threats to the efficient operation of any civil justice system. Those threats stem from the manner in which the vexatious and frivolous litigant conducts litigation before the courts. Such proceedings, apart, from the oppression and the harassment inflicted on the adversary, are extremely damaging to public interest. Judicial resources are valuable and scarce. The resources of the court are not infinite, especially in terms of judicial time. Therefore, administration of justice and interests of equity and fair play mandate that a party which succeeds is compensated by award of costs in respect of false or vexatious claims or defences. A faulting party may be required to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date and payment of such costs on the next date following the date of such order if unreasonable adjournments are taken by the parties.
However, many unscrupulous parties take advantage of the fact that either costs are not awarded or nominal costs alone are awarded against the unsuccessful party.
The legislature has recognised the need for imposition of costs and consequently, so far as the civil proceedings are concerned, has enacted Section 35 of the Code of Civil Procedure which provides for imposition of costs. The Hon'ble Apex Court was concerned with the manner in which the costs are imposed resulting in undue advantage being taken by parties of the fact that notional costs are awarded which do not deter or discourage persons from filing vexatious or frivolous claims or defences. ................ The courts have recognised the inherent power of the court to award costs in the interest of justice. .................................... In this background, there is yet CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 36/50 another more imperative reason which necessitates imposition of costs. The resources of the court which includes precious judicial time are scarce and already badly stretched. Valuable court time which is required to be engaged in adjudication of serious judicial action, is expended on frivolous and vexatious litigation which is misconceived and is an abuse of the process of law. A judicial system has barely sufficient resources to afford justice without unreasonable delay to those having genuine grievances. Therefore, increasingly, the courts have held that such totally unjustified use of judicial time has to be curbed and the party so wasting precious judicial resources, must be required to compensate."
6.28 In Salem Advocate Bar Association Vs. Union of India (2005) 6 SCC 344 , Hon'ble Supreme Court observed as under:
"Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits."
6.29 In Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 the Hon'ble Supreme Court observed as under:
"There is an increasing tendency on the part of the litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem readily to oblige. We think such a tendency should be curbed."
6.30 In Rajappa Hanamantha Ranoji v. Sri Mahadev Channabasappa & Ors. 2000(4) SCALE 692 the Hon'ble Apex CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 37/50 Court held that such tendency deserves to be taken serious note of and curbed by passing appropriate orders including imposition of exemplary costs. In this behalf , the court observed as under:
"It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious notices of and curbed by passing appropriate orders and issuing necessary directions including imposition of exemplary costs."
6.31 In Satyender Singh Vs. Gulab Singh MANU/DE/ 1047/ 2012 the Hon'ble Delhi High Court following Dalip Singh v. State of U.P. (2010) 2SCC 114 observed that the courts are flooded with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Court's time for a wrong cause. It was further observed as under:
"As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of cautions, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 38/50 6.32 In Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249, the Hon'ble Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the costs. The relevant paragraphs of the said judgment are reproduced hereunder:
"We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigations, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for frivolous litigations, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.................The main question which arises for our consideration is whether that prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials. C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings...".
6.33 Vexatious litigation drain the resources of the court, which are already scarce and barely sufficient to afford justice to those who have genuine needs and grievances. Having regard to the entire conspectus and facts noticed above, in my view, punitive and exemplary costs deserve to be imposed on the defendant as he has deliberately wasted precious time of this court with impunity & without remorse apart from harassing the plaintiffs and he cannot be permitted to get away without compensation to the judicial system and the plaintiffs. Therefore CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 39/50 in view of above discussion the review petition stands dismissed with a cost of Rs. 2 lacs, out of which Rs.1.5 lacs shall be paid to the plaintiffs, Rs. 25,000/- shall be deposited with DLSA, New Delhi and remaining Rs.25,000/- shall be deposited with New Delhi Bar Association, New Delhi.
6.34 As the review petition stands dismissed no question arises of stay of order dated 26.04.2023. Accordingly, application u/s 151 CPC also stands dismissed.
6.35 At this stage, it will be worthwhile to point out that inadvertently no specific order for drawing a decree was passed on 26.04.2023. The said error is rectified. It is directed that a proper decree sheet be drawn in terms of order dated 26.04.2023 as the said order is an executable one qua the possession of the suit property. Furthermore it is well settled law that the acts of the courts or its mistake should not prejudice any party. Reliance may be placed upon the law laid down in Shri Abdul Saliq Khan Vs. Shri Nahid Khan & Ors 179 (2011) DLT 347 and United Phosphorous Ltd. Vs. A.K. Kanoria AIR 2003 Bom 97.
6.36 As far as arrears of rent, as discussed above plaintiff's case has gone unrebutted, uncontroverted and therefore I find no reasons to disbelieve them. It stands proved from Ex. P8 that a sum of Rs. 10 lacs remained due as rent for the period 17.12.2021 till 15.10.2022.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 40/50 6.37 As the tenancy stood terminated, the defendant is in unauthorized use and occupation of the suit property and is liable to pay the damages for illegally occupying the suit property. As per the lease agreement, the rent for the period 16.03.2022 to 15.03.2023 was Rs. 1,10,000/- per month and from 16.03.2023 to 15.03.2024 it was Rs. 1,21,000/- per month. Additionally plaintiffs have proved through the evidence of PW1 as well as PW3, which as discussed above has gone unrebutted, that the rate of rent, of a similarly located property is around Rs 1.8 to Rs. 2 lac per month approximately. To prove the same plaintiffs have placed on record copy of registered lease deed Ex. PW3/A (also Ex.P23 (colly) in respect of property no. C-47, Anand Niketan, New Delhi and C-121, Anand Niketan, New Delhi. Considering the rent as was agreed by the defendant and the market rent as proved by the plaintiff, it is hereby held that the plaintiffs are entitled to a sum of Rs. 1,50,000/- per month as use & occupation charges w.e.f. 16.10.2022 till the vacant & peaceful possession of the suit property is handed over, obtained by the plaintiffs.
6.38 Having been in use & occupation of the suit property and in terms of Ex.P6 the defendant is liable to electricity, gas, water and other charges as agreed by him. As regards these charges the plaintiffs have proved on record electricity bill Mark E and water bill Mark F apart from notice issued by IGL i.e. PW2/2 as regards the outstanding amount due towards the PNG/gas. Plaintiffs are entitled to electricity, water, IGL/gas dues to the tune of Rs. 16,590/-, Rs.1952/- and Rs. 5310/- respectively.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 41/50 6.39 Though the plaintiffs have also claimed charges to the tune of Rs. 13,100/- as per the demand raised by Anand Niketan Cooperative Housing Society vide Ex.P22, however, the defendant is not liable to pay the same as he had not agreed to pay the said charges vide Ex. P6.
6.40 As far as damages are concerned, the fact that the plaintiffs were constrained to file the present suit and considering the repeated failures of the defendant to honour his commitment to vacate the suit property as well as his overall conduct, the plaintiffs have been able to make out a case of having been undergone mental agony and harassment, solely attributable to the defendant. Therefore and considering the age of plaintiff no.1, the fact that she was constrained to initiate the present legal action against the defendant, the plaintiffs are entitled to damages to the tune of Rs. 1 lac.
6.41 As far as the application moved u/s 151 CPC r/w section 17 of the Indian Registration Act and Section 33, 35 & 49 of the Indian Stamps Act for impounding of unregistered lease deed dated 16.03.2021 is concerned, in view of section 36 of the Indian Stamps Act, 1899 no question arises of raising any question as regards the instrument being not duly stamped. In fact the purpose of the application is solely to delay the trial and there is no other purpose. In Rakesh Jain and ors Vs. Vinod CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 42/50 Kumar Bhola MANU/DE/1505/2010 the Hon'ble High Court of Delhi held as under:-
"29. After considering the rival submissions of the parties and the precedents cited at the bar, I am of the considered opinion that Section 36 of the Indian Stamp Act is couched in mandatory terms and admits of no exceptions, except as provided in Section 61. Thus, the challenge to the admissibility of an insufficiently stamped instrument stands foreclosed as soon as the said instrument is admitted in evidence. The reason is not far to seek. Section 35 of the Indian Stamp Act, as held by the Supreme Court in Hindustan Steel Ltd. Vs. Messrs Dilip Construction Company, AIR 1969 SC 1238, is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. Its stringent provisions are conceived in the interest of the revenue. It is not enacted with a view to enable a litigant to defeat the legitimate claim of the other party based on an insufficiently stamped instrument, by raising a technical objection as to its admissibility once the document has been admitted in evidence, whether rightly or wrongly.
30. In other words, Section 36 of the Indian Stamp Act has been enacted to ensure that there is no miscarriage of justice on fiscal grounds alone and towards this objective mandates that in case that an instrument is once admitted in evidence, the same shall not be susceptible to challenge on the ground that it has not been duly stamped. The words "at any stage", which occur in the said Section, are a pointer to the legislative intent. Looked at it from another angle, once an instrument has been admitted in evidence even if it has been so admitted mistakenly, and the parties proceed to trial on the said basis, examining and cross- examining the witnesses on the premise that the instrument is an integral part of the record, for a Court of law to order the de- exhibiting of such a document at a subsequent stage, by ordering that it shall not be reckoned as admissible, may result in grave injustice to the party at whose behest the document has been admitted in evidence. The provisions of Section 36 in a sense, therefore, in my view, are intended to operate as a manner of estoppel by enacting that the admissibility of a document shall not be reconsidered/considered once the document has crossed the barrier of being admitted in evidence, whether by intent or by mistake, whether rightly or wrongly. As already stated, to hold otherwise would be to afford a limited play to the provisions of Section 36, which, in fact, are by legislative design intended to foreclose challenge to the admission of a document at a subsequent stage of the same suit CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 43/50 or proceeding on the ground of it falling short of the fiscal requirements.
31. Further, as held by the Supreme Court in the case of Shyamal Kumar Roy (supra), an objection to the admissibility of a document must be raised at the appropriate stage by the party objecting to its admission in evidence. In case of failure to do so, admissibility of a document cannot be questioned by such a party at a subsequent stage. Once the document is marked as an exhibit, the party loses its right to reopen the question of its admissibility. A conjoint reading of Section 35 and Section 36 of the Act thus lead to the conclusion that a party who does not object to the admissibility of a document at an appropriate stage does so at his peril. Indeed, the Supreme Court in the Shyamal Kumar Roy case (supra) has gone a step further by stating that though a duty has been cast upon the Court to apply its mind when an instrument having insufficient stamp duty is brought to its notice, only thereby Section 36 of the Indian Stamp Act cannot be made inapplicable. Section 36 applies on its own force, i.e., it comes into operation automatically once a document is admitted in evidence. Thus, where the opposing party whether on account of the failure or neglect of the Court or on account of its own lack of vigilance loses its right to object to the admissibility of the document at the appropriate stage, it cannot at a subsequent stage of the same suit or proceedings challenge the admissibility of the very same document or instrument."
6.42 In Shyamal Kumar Roy Vs. Sushil Kumar Aggarwal MANU/SC/8588/2006 the Hon'ble Apex Court held as under:-
"7. It is not in dispute that Development Agreement dated 16.1.1995 was typed on a non-judicial stamp paper of Rs.10/-. It was also not registered. We, however, in this matter are not concerned with the effect of non- registration of the said instrument. There is no doubt or dispute that in terms of Section 33 of the Indian Stamp Act, as amended by the State of West Bengal, a duty is cast upon the authorities concerned including the Courts to impound a document where the instrument produced before it is insufficiently stamped. When a deficiency in stamp duty is brought to the notice of the Collector or it otherwise comes to his notice, he may call for the instrument for the purpose of satisfying himself as to the adequacy placed CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 44/50 thereon and proceed to deal with the instrument in terms of Section 38 thereof. Section 36, however, provides for a 'stand alone' clause. It categorically prohibits a court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf, viz., the provisions contained in Section 61 providing for reference and revision. In a case where Section 33 of the Act, as amended by West Bengal Act would be applicable, the proviso appended to Sub-Section (5) carves out an exception that if no action would be taken after a period of four years from the date of execution of the instrument.
8. The agreement, as notice hereinbefore, was executed in the year 1995. The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this Court in Javer Chand (supra). An attempt to distinguish the said decision of this Court was made, inter alia, on the premise that therein this Court was concerned with interpretation of the provisions of Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been admitted in evidence on payment of duty and penalty, but sought to be made inadmissible in evidence in terms of the provisions contained in the 1947 Act. This Court opined that once the said document was admitted in evidence, the new Act i.e. the 1947 Act would be inapplicable, stating :
"Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction."
The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefor. If a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 45/50 must raise an objection thereto at the appropriate stage. He may not do so only at his peril.
9. Objection as regards admissibility of a document, thus, specifically required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially. Reliance has been placed on Ram Rattan (Dead) by Legal Representatives vs. Bajrang Lal & Ors. [AIR 1978 SC 1393], which in our opinion has no application to the fact of the present case. When there had been no determination as regards sufficiency of the stamp duty paid on an instrument and in the event the document is taken in evidence with an endorsement, that "objected, allowed subject to objection", this Court in Ram Rattan (supra) held that the objection was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted. Ram Rattan (supra) also, therefore, is an authority for the proposition that the party objecting to the admissibility of the document must raise an objection so as to enable the trial judge to determine the issue upon application of his judicial mind at the appropriate stage. If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question.
10. What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in evidence and before it is marked as an exhibit in the case. Before the learned Trial Judge, reliance was placed on a decision of a learned Single Judge of the Andhra Pradesh High Court in Vemi Reddy Kota Reddy vs. Vemi Reddy Prabhakar Reddy [(2004) 3 ICC 832]. In that case there was nothing on record to show that the document was marked as an exhibit after an objection has been raised. The said case, therefore, has also no application to the facts of the present case. It may be true that the object of Indian Stamp Act is to collect revenue and the amendments carried out by the State of West Bengal provides for more stringent steps in that behalf. It may also be true that by reason of Sub-Section (4) of Section 33 of the West Bengal Act, a duty has been cast upon the court to apply its mind when an instrument having insufficient stamp duty is brought to its notice, but, only thereby Section 36 of the Indian Stamp Act cannot be made CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 46/50 inapplicable. Section 36, as indicated hereinbefore, applies on its own force.
Appellant filed an application under Section 38 of the Indian Stamp Act. The said provisions were clearly not applicable as thereby procedure has been laid down as to what steps are required to be taken upon impounding a document. It furthermore appears that even the question in regard to the applicability of Sub-Section (4) of Section 33 of the Act had not been raised.
11. Our attention has also been drawn to a few decisions of the Calcutta High Court, wherewith we may now deal with. 11.1 In Tridip Das Roy vs. Chitta Ranjan Jana [1992 (2) CLJ 259], the question which arose for consideration was: 'as to whether an agreement for sale is an instrument within the meaning of Section 2(14) of the Indian Stamp Act?' It was held to be so, inter alia, having regard to the explanation appended to Item No.5 of Schedule 1A.
There is no quarrel with the aforementioned proposition of law. 11.2 In Biswajit Chakraborty vs. Mira Sen Ray [2002 (2) CLJ 449], the Calcutta High Court was dealing with a case where an objection was raised that the document tendered was insufficiently stamped, holding :
"My reading of the provisions of Sections 33, 35, 38, 39, 40 & 61 of the Indian Stamp Act, 1899 is that when a document is tendered in evidence by a party and an objection is raised by the other side that the document is insufficiently stamped, at that stage, the Court assumes the jurisdiction to impound the document as it was obligatory to apply the mind of the Court in accordance with the relevant provisions of the said Act. The object of Section 33 is to protect the revenue and as such the Court or such person, as referred to in the said section, must however, exercise the powers as envisaged under the said section, if necessary, suo motu, irrespective of the raising of objection by any of the party." Again, we are not concerned such a question in this appeal. 11.3 In Mujibar Rahman Mondal v. Md. Abdulla Molla & Ors. [2005 (1) CLJ (Cal.) 249], this Court held:-
"...The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an `exhibit' in the case. Once a document has been marked as an "exhibit" in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, it is not open either to the trial Court itself or to a Court of Appeal or revision to go behind that order. In the case on hand, the document in question was marked exhibit with CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 47/50 objection which leads to show that the objection as to admissibility on the ground that the instrument is not duly stamped has not been judicially determined but it was merely postponed with tentatively marking it as an "exhibit". In such circumstance, the said provision of Section 36, in my view is not attracted..."
6.43 Furthermore as discussed above, while discussing Ex. P7, it was the defendant who was to purchase the stamp duty in terms of clause 21 of Ex. P6 but he deliberately, malafidely failed to do so and therefore he cannot be permitted to take advantage of his own wrong or to agitate that the said lease agreement cannot be taken into consideration for the purpose of adjudication of the present suit. Relevant portion of Ex.P6 in this regard is reproduced hereunder:-
"21. That the lease deed will be Registered with appropriate authority and the expenses towards the stamp duty, registration and other charges incidental to Registration shall be borne by the LESSEE."
6.44 The relevant portion of the screen shots of whatsapp chat i.e. Ex. P7 between the plaintiff and the property dealer through whom the property was taken on rent by the defendant is reproduced hereunder in this regard:-
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 48/50 6.45 The document having been duly exhibited and no objection being raised at the relevant time, no objection can be entertained at this stage. Nonetheless considering the provisions of Indian Stamp Act 1899 Ex. P6 stands impounded and is being sent to the Collector in terms of section 38 for levy of the penalty as per the Act. Copy of Ex. P6 be retained on record by the Ahlmad and endorsement be made on the same as regards being true copy of Ex.P6. The Collector shall consider the aspect that it is the defendant who is/was liable to pay the stamp duty and therefore also liable to pay the penalty or else it will defeat the ends of justice and shall be against the equity. Burdening the plaintiffs for no fault of theirs would amount to rewarding the defendant for the deliberate, malafide omissions by him in buying the stamp duty which has resulted into fiscal loss to the exchequer. With these observations the said application stands disposed of.
Relief
7. In view of the above discussion, the suit of the plaintiffs stands decreed and it is held that the plaintiffs are entitled to recovery of arrears of rent to the tune of Rs. 10 lacs as well as Rs. 1,50,000/- per month as use & occupation charges from October 2022 till the vacant & peaceful possession of the suit property is handed over, obtained by the plaintiffs. Plaintiffs are further entitled to recovery to electricity, water IGL/gas dues to the tune of Rs. 16,590/-, 1952/- and 5310/- respectively.
CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 49/50 Plaintiffs are also entitled to the damages to the tune of Rs. 1 lac. Plaintiff is also entitled to pentenlite and future interest @ 6% per annum till the realization of the decreetal amount. Defendant is also restrained from creating any third party interest in any manner whatsoever in the suit property. I order accordingly.
8. Decree sheet be prepared in terms of judgment.
9. File be consigned to record room after necessary compliance.
Announced in the Open Court on 18th May 2023 (Gaurav Rao) Additional District Judge-3 New Delhi District Patiala House Courts, New Delhi CS 480/22 Aruna Jain and anr Vs. Alimuddin Khan Pages 50/50