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[Cites 11, Cited by 0]

Delhi District Court

Ms. Mamta vs Sh. A.K. Chibber on 14 February, 2013

                                                              1


     IN THE COURT OF SHRI  KAPIL KUMAR, CIVIL JUDGE­01 
              (WEST) TIS HAZARI COURTS, DELHI

Unique ID No. 02401C0061132012
SUIT NO.   27/12

Date of Institution                                                       :    08.02.2012
Date of reservation of judgment                                           :    12.02.2013               
Date of pronouncement of  Judgment                                        :    14.02.2013

IN THE MATTER OF :

1. Ms. Mamta 
   W/o Sh. Brij Pal Singh
   D/o Dr. Jagbandhan Singh
   R/o GG 1/113 C, Vikas Puri
   New Delhi­18. 

2. Dr. Jagbandhan Singh
   S/o Late Sh. Kanhai Singh
   R/o GG 1/113 C, Vikas Puri
   New Delhi­18. 
                                                                         ...............Plaintiffs
Vs. 

Sh. A.K. Chibber
S/o Sh. R.D. Chibber
R/o YS­6, Shiva Enclave, Paschim Vihar
New Delhi­63. 

                                                                            ............Defendant

                       Suit for Possession, alongwith Mesne Profit

JUDGEMENT

Case of the plaintiffs

1. Plaintiff no.1 is the owner/landlady of the property bearing no. YS­6, Shiva Enclave, Paschim Vihar , New Delhi ( hereinafter referred to as suit property). Plaintiff no.2, the Suit No. 27/12 1/15 2 father of plaintiff no.1, was the original owner of the suit property before he gifted the suit property to plaintiff no.1 out of love and affection. Plaintiff no.1 being a protected child executed a General Power of Attorney dated 03.2.2011 in favour of plaintiff no2 with respect to the management of the suit property. Defendant is the tenant in the suit property who was inducted as tenant in the year 1990 by the plaintiff no.2. The lease was renewed from time to time. Last rent agreement executed between the parties on 30.11.2009 vide which the lease has to be commenced on 01.11.2010 and was to expire on 31.12.2011, the rate of rent as per this lease agreement was Rs. 6,000/­ p.m.

2. Plaintiff no.1 wanted to reside in the suit property and as the period of lease was expiring on 31.12.2011 the plaintiff no.2, the Attorney of the plaintiff no.1 requested the defendant to honour the commitment and to vacate the suit property by 31.12.2011. Plaintiffs further state that as the lease was expiring on 31.12.2011 the plaintiffs were not under obligation to send a legal notice to the defendant for the vacation of the suit premises however plaintiff no.2 being Attorney issued a legal notice dated 11.11.2011 for the vacation of the suit property. Further states that the notice was sent through registered post. After sending the legal notice the plaintiffs requested the defendant to vacate the suit property but the defendant failed to honour the commitment and till date not vacated the suit premises. Since the occupation of the defendant in the suit premises is illegal, the plaintiffs are entitled to mesne profits @ Rs. 35,000/­ p.m w.e.f 01.1.2012.

3. By virtue of present suit the plaintiffs are praying Suit No. 27/12 2/15 3 for relief that decree of possession be granted in favour of the plaintiffs qua suit property further the defendant be directed to pay damages/mesne profits @ Rs. 35,000/­. Case of defendant

4. Written statement filed on behalf of defendant in which he stated that the plaintiffs do not have any cause of action against the defendant. Further the suit is filed by plaintiff nos. 1 and 2 in collusion with each other just to evict the defendant from the suit property who is the lawful tenant since 1990­91. Further states that there is no privity of contract between the plaintiff no.1 and defendant. Further stated that admittedly the plaintiff no.1 has become the owner of suit property by virtue of Gift Deed dated 11.1.2011. However plaintiff no.1 neglected to inform the defendant and never gave any notice to him which is required under law regarding the change of ownership or otherwise.

5. Defendant further states that the suit is bad for mis­ joinder of parties since plaintiff no.2 allegedly gifted the suit property to plaintiff no.1 hence he has no concern with the suit property. Further states that plaintiff no.2 is guilty of suppression of material fact as he failed to disclose the execution of Gift Deed Dated 11.1.2011 to the defendant and kept on receiving the rent @ Rs. 6,000/­ p.m excluding of electricity and water charges from the defendant.

6. Defendant further states that plaintiff no.1 does not require the suit property for her residential purpose rather the plaintiffs want to evict the defendant from the suit property malafidely and wants to sell the suit property. Defendant further states that this court has no jurisdiction to try the Suit No. 27/12 3/15 4 present suit as the value of the suit property is more than 20 lacs and prayed for the dismissal of present suit.

7. Replication filed on behalf of plaintiffs in which they denied all the contentions of the defendant and reiterated their stand as taken by them in the plaint.

8. Vide Order dated 31.5.2012 following issues were framed for the consideration of this court :

1. Whether the plaintiff is entitled for decree of possession as prayed for ? OPP
2. Whether the plaintiff is entitled for decree of Rs. 35,000/­ p.m with interest of @ 18 % OPP.
3. Whether the plaintiff is entitled for decree of damages? If yes for what rate and for what period ? OPP.
4. Whether the plaintiff is entitled for Interest @ 18 % p.a. If yes at what rate.
5. Whether the suit of the plaintiff is bad for mis­joinder of parties ? OPP.
6. Whether this court has pecuniary jurisdiction to try the present suit.
7. Relief.

9. To prove their case plaintiff no.1 was examined as PW­2 and plaintiff no. 2 was examined as PW­1. In their testimonies following documents were exhibited :

" Site plan Ex. PW 1/1, rent agreement as Ex. PW 1/ 2 ( OSR), Gift deed as Ex.
PW 1/3 ( OSR), GPA as Ex. PW 1/ 4
( OSR), notice as Ex. PW 1/5, postal Suit No. 27/12 4/15 5 receipts as Ex. PW 1/6, confirmation of AD as Ex. PW 1/7 . "

10. On the other hand, defendant examined himself as DW­1 and Sh. Ashok Vig was examined as DW­2 in whose testimony the documents i.e Society Maintenance Receipt and bank statement were exhibited as DW 1/1 and Ex. DW 1/ 2 respectively.

11. I have heard arguments advanced by Ld. Counsels for parties and carefully perused the record.

12. My issuewise findings are as under :

First I shall take legal issues 13. Issue No. 5 Whether the suit of the plaintiff is bad for mis­joinder of parties ?
Ld. counsel for defendant states that plaintiff no.2 is not a necessary party as he has already gifted the suit property to the plaintiff no.1 and accordingly the plaintiff no.2 has no concern with the suit property.
14. Perusal of record reveals that a GPA was executed by the plaintiff no.1 in favour of plaintiff no.2 for management of the property dated 03.2.2011. In view of this the plaintiff no.2 have the authority to file the present suit and to manage/take care of the suit property. Initially the plaintiff no.2 was the original landlord and after the execution of Gift Deed in favour of plaintiff no.1, the plaintiff no.2 was acting as Attorney of plaintiff no.1. Further on the basis of the Attorney plaintiff no.2 was collecting the rent from the defendant on behalf of plaintiff Suit No. 27/12 5/15 6 no.1. Accordingly the GPA holder i.e plaintiff no.2 is a necessary party in the present suit.

Issue is decided in favour of plaintiffs and against the defendant.

15. ISSUE No. 2

Whether this court has pecuniary jurisdiction to try the present suit.

The objection of defendant is that the value of the suit property is more than Rs. 20,00,000/­ hence the plaintiffs have to value the suit on this amount and accordingly the jurisdiction of this court is barred as the value of the suit property is more than Rs. 3,00,000/­ .

16. For the purpose of jurisdiction the suit is valued at Rs. 72,000/­. The relationship of landlord and tenant is admitted between the parties and it is well settled law that for a suit of eviction the landlord has to value the relief of possession on the amount of rent for 12 months. Admittedly the rate of rent between the parties was Rs.6,000/­. Accordingly the valuation of the suit at Rs. 72,000/­ for the relief of possession is correct. The suit is within the jurisdiction of this court.

This issue is decided in favour of plaintiffs and against the defendant.

17. ISSUE NO.1.

Whether the plaintiff is entitled for decree of possession as prayed for ? OPP The capacity of the defendant as a tenant in the suit property is an admitted fact. Rent agreement Ex. PW 1/ 2 is an admitted document. DW­1 admitted in his cross­examination that he is residing in the suit property as a tenant. Plaintiff no.2, Suit No. 27/12 6/15 7 original landlord, gifted the suit property to plaintiff no.1 vide registered Gift Deed Ex. PW 1/3. Plaintiff no.1 executed a GPA Ex. PW 1/ 4 in favour of plaintiff no.2 to administer/take care of the suit property. Plaintiff no. 2 was receiving the rent from defendant as Attorney of plaintiff no.1. The objection of the defendant that he was tenant under plaintiff no. 2 and after the ownership of the suit property is transferred to plaintiff no.1, the privity of contract between the plaintiff no.2 and defendant stands terminated. The execution of the Gift Deed by plaintiff no.2 in favour of plaintiff no.1 is not assailed by the defendant. In view of this as per Section 109 of Transfer of Property Act, 1882 the plaintiff no.1 has all the rights of lessor which were existing in favour of plaintiff no.2. The defendant is under obligation under law to attorn plaintiff no.1 as his landlady. Defendant further objects that plaintiff no.2 was not entitled to receive the rent as he had no authority to collect the rent as per GPA Ex. PW 1/4. It is well settled law that the documents has to be read as a whole to know the real intention of parties behind the documents. Perusal of Ex. PW 1/4 i.e GPA reveals that plaintiff no.1 executed GPA in favour of plaintiff no. 2 to do all acts necessary/incidental to the proper management/administration of the suit property. Not mentioning the authority to collect the rent in specific word will not affect the capacity of plaintiff no.2 to act as Attorney of plaintiff no.1 and to receive the rent from defendant. Further a combined reading of Clause nos. 9, 10 and 15 of Ex. PW 1/4 the authority of plaintiff no.2 to receive the rent from defendant could be deduced. Accordingly, the objection of defendant regarding the capacity of plaintiff no.2 for receiving the rent Suit No. 27/12 7/15 8 from defendant is meritless.

In view of the above discussion, the capacity of defendant as tenant in the suit property, landladyship of plaintiff no.1 and the authority of plaintiff no.2 to act as Attorney on behalf of plaintiff no.1 stands established.

18. The rate of rent of suit property as per the last rent agreement Ex. PW 1/ 2 was Rs. 6,000/­ accordingly, there is no bar of Delhi Rent Control Act on the present suit.

19. Ld. Counsel for defendant argued that no notice U/s 106 TPA received by defendant. The execution of registered Rent Agreement Ex. PW 1/2 stands admitted between the parties and the tenancy of the defendant has expired on 31.12.2011.

20. The said denial by the defendant is inconsequential in view of settled proposition of law to the effect that if registered lease deed expired by efflux of time no notice of termination is required.

21. Reliance could be placed upon Canara Bank Vs. Smt. Shanti Vaish 73 (1998 ) DLT 51 ( DB) wherein it was held that :

"In the instant case, the contract of lease expired by efflux of time. There is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111 of the Tansfer of Property Act. There is, therefore, no question of giving a notice to quit under Section 106 of the Transfer of Suit No. 27/12 8/15 9 Property Act. "

22. Further support could be drawn from the well established judgment of Hon'ble Supreme Court titled as Smt. Shanti Devi Vs. Amal Kumar AIR 1981 SC 1550 ; Pooran Chand vs Moti Lal & Another AIR 1964 SC 461. The same is the view of the Hon'ble Delhi High Court in a case titled as UCO Bank Vs Amarnath Jinda RFA No. 393 of 1996 decided on 10.10.1997; P.S Bedi Vs. Project and Equipment Corporation of India decided on 28.2.1994 ; Zulfikar Ali Khan ( dead by LRs )and Another Vs. Straw Products Ltd. And Others 2000 VI AD ( Delhi) 347; Sky land International Pvt. Ltd. Vs Kavita P.Lalwani 191 (2012) DLT 594

23. Further more Hon'ble Supreme Court of India and Hon'ble High Court have held that the suit itself is a notice and if a copy of the notice alongwith plaint is served upon the defendant, the requirement of Section 106 of Transfer of Property Act stands fulfilled. Here reliance could be placed upon a judgment of Hon'ble Supreme court tot;ed as Nopany Investments (P) Ltd. Vs. Santokh singh ( HUF), I 2008 SLT 195 wherein the Hon'ble Supreme Court held that filing of suit is itself a notice to quit on the tenant and therefore, no notice to quit under Section 106 of the Transfer of Property Act is necessary to enable the landlord to get the decree of possession. The observations of the Hon'ble Supreme Court are reproduced hereunder :

" In any view of the matter, it is well settled that filing of an eviction suit Suit No. 27/12 9/15 10 under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. "

24. Reliance could be placed upon the well established judgment of Hon'ble High Court of Delhi titled as M/S. JEEVAN DIESELS & ELECTRICALS LTD. VERSUS M/S. JASBIR SINGH CHADHA (HUF) & ANR.RFA No.179/2011of 25th March, 2011 , wherein the court observed:­ The Supreme Court in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under 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 terminating 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.

The court further observed "(iii) In the suits for rendition of accounts of Suit No. 27/12 10/15 11 a dissolved partnership at will and partition of HUF property, ordinarily it is required that a notice be given of dissolving the partnership at will or for severing the joint status before the filing of such suits because such suits proceed on the basis that the partnership is already dissolved or the joint status of an HUF stands severed by service of notices prior to the filing of such suits. However, it has been held in various judicial pronouncements that the service of summons in the suit will be taken as the receipt of notice of the dissolution of the partnership or severing of the joint status in case of non service of appropriate notices and therefore the suits for dissolution of partnership and partition of HUF property cannot be dismissed on the technical ground that the partnership was not dissolved before filing of the suit or the joint status was not severed before filing a suit for partition of the HUF property by serving of appropriate notices. In my opinion, similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit Suit No. 27/12 11/15 12 to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 CPC can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section 106 of the Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted Suit No. 27/12 12/15 13 premises."

25. Reliance could also be placed upon Rabindernath Saha Vs. Sushma Jain, 182 (2011) DLT 456; Sh. Radha Krishnan Temple Trust Maitha, Agra Vs. M/s Hindco Rotaron Pvt. Ltd. (2012) DLT 548. The same view is of the Hon'ble Delhi High Court in the recent judgment of Skyland International Pvt. Ltd. Vs. Kavita P. Lalwani 191 (2012) DLT 594.

26. Hence the plea of the defendant that he has not received the notice of eviction U/s 106 TPA is inconsequential. To sum up the relationship of landlord and tenant stands admitted between the parties, rent is above Rs. 3,500/­ p.m and in view of above discussion the requirement of notice U/s 106 TPA also stands fulfilled. All the requirements necessary for passing a decree of eviction against the tenant in a suit by landord stands fulfilled.

27. Accordingly the defendant is liable to vacate the suit premises. Issue is decided in favour of plaintiffs and against the defendant.

28. ISSUE NOS. 2 ,3 and 4

Whether the plaintiff is entitled for decree of Rs. 35,000/­p.m with interest of @ 18 % ?

OPP.

Whether the plaintiff is entitled for decree of damages? If yes for what rate and for what period ? OPP.

Whether the plaintiff is entitled for Interest @ 18 % p.a. If yes at what rate.

Suit No. 27/12 13/15 14

These issues are taken together as fining upon them depends upon appreciation of common facts and evidences. The onus to prove these issues was upon the plaintiffs.

29. The plaintiffs are claiming damages @ Rs. 35,000/­ p.m. No documentary evidence led on behalf of plaintiffs to substantiate their claim regarding this amount. PW­1 stated in his cross­examination that he cannot tell the basis upon which he is claiming Rs. 35,000/­ as damages. He further stated that he has not verified the amount of damages from anywhere. DW­2 stated in his examination in chief that at present the prevailing rent of flat in the society where the suit property is situated is around Rs. 8,000/­ . He denied the suggestion of Ld. Counsel for plaintiffs that the prevailing rent of the society where suit property is situated is around Rs. 20,000/­22,000/­ p.m. DW­2 stated that the society where suit property is situated is a backward class society. Nothing could be revealed from the oral evidence which could suggestive of the fact that the suit property could fetch a rent @ Rs. 35,000/­ p.m at the market rate. Ld. Counsel for plaintiffs himself put a suggestion that the suit property could fetch rent @ Rs.20,000/­ 22,000/­ p.m to DW­2. In absence of any substantial evidence qua these issues the court is inclined to grant damages @ Rs.8,000/­ p.m to the plaintiffs w.e.f January, 2012.

30. The plaintiffs is claiming interest @ 18 % p.a. The same is exorbitant. The plaintiffs are hereby granted interest @ 10 % p.a upon the above mentioned amount.

Issues are decided in favour of plaintiffs and against the defendant.

Suit No. 27/12 14/15 15 31. ISSUE NO. 7

Relief.

The defendant is hereby directed to vacate the suit property i.e property bearing no. YS­6, Shiva Enclave, Paschim Vihar, New Delhi within two months of this order. The plaintiffs are entitled to the damages @ Rs. 8,000/­ p.m w.e.f January, 2012 till the vacation of the suit property by the defendant. The plaintiffs are entitled to this amount after deducting the amount paid by the defendant in compliance of order dated 11.9.2012 i.e. after deduction of amount of rent received by the plaintiffs.

Plaintiffs are entitled to costs of this suit also. Decree Sheet be prepared accordingly.

File be consigned to Record Room after due compliance.

Announced in the open court ( Kapil Kumar ) today i.e 14.2.2013 Civil Judge­01(West)/Delhi Suit No. 27/12 15/15