Delhi District Court
Smt. Uttra Bajaj vs Shri Parveen Kumar Mehta on 29 January, 2011
IN THE COURT OF SHRI SUNIL KUMAR AGGARWAL: ADDL.
DISTRICT JUDGE (C) 10: DELHI.
Suit No. 103/07
Smt. Uttra Bajaj
Wife of Shri Dharampal Bajaj
Resident of A15, LIC Colony
Paschim Vihar, New Delhi110087 ...Petitioner
VERSUS
Shri Parveen Kumar Mehta
Son of Shri Shyam Lal,
Mezzanine Floor of Plot No.7, M. M. Road
Motia Khan, New Delhi110055 ...Defendant
Plaint presented on 01.06.2007
J U D G M E N T
1. This suit for recovery of possession, damages/mesne profits and perpetual injunction has been filed by the plaintiff in respect of Mezzanine Floor measuring 1000 sq ft. in property bearing plot no. 7, M.M. Road, Motia Khan, New Delhi with entrance from the front side, (hereinafter called "the suit property"). The suit property had been let out to the defendant as per registered sale deed dated 22.03.2006 for a period of one year from 01.02.2006 to 31.01.2007 on a monthly rent of Rs. 11,500/ exclusive of electricity and water charges. The defendant had deposited a sum of Rs. 30,000/ as Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 1 of 15 interest free security with the plaintiff to be refunded at the time of vacating the suit property after adjusting the dues, if any. The defendant did not vacate the suit property despite termination of lease by efflux of time therefore, plaintiff had got legal notice dated 16.04.2007 issued to him formerly terminating the tenancy with effect from 31.05.2007. The defendant became liable to pay market rent of the suit property which on termination of his tenancy was prevailing at not less than Rs. 25,000/ per month. Defendant himself had agreed to pay Rs.17,000/ per months after expiry of period of lease but did not adhere to the commitment. From reliable sources the plaintiff has come to know that the defendant is contemplating to abandon the suit property and deliver its possession to land grabbers/goonda elements so as to harass the plaintiff and to frustrate her claim, therefore the suit for decree of possession, damages @ 25,000/ p.m. with effect from 01.06.20007 and for restraining defendant from creating third party interest in the suit property till delivery of possession to the plaintiff.
2. In the written statement defendant has taken preliminary objections that plaintiff is not the owner of the suit property and therefore has no locus standi to file this suit. The service of legal notice dated 16.04.2007 has been denied. It is averred that the suit has not been properly valued for the purposes of Court Fee and jurisdiction. In fact, the suit property was let out to the defendant by Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 2 of 15 Sh. Surjit Singh Anand with effect from 10.12.2002 at a monthly rent of Rs. 10,000/. It had been agreed that defendant can continue to retain the property after three years by enhancing rent @ 15%. In terms thereof, the rent at such enhanced rate was being paid to the plaintiff. On merits, the defendant has disputed the correctness of site plan of the suit property as copy thereof was not supplied to him. On the expiry of initial lease period, Sh. D. P. Bajaj, husband of the plaintiff demanded rent @ Rs. 11,500/ per month for the mezzanine floor in occupation of the defendant by introducing himself to be the owner. Believing him, defendant started making payment of rent at that rate to him. Subsequently, a lease deed was also executed and registered between the parties and Sh. Bajaj had instructed to pay rent by means of cheques drawn in favour of plaintiff. Rent up to June 2007 stands paid to her. Defendants stopped paying rent thereafter on realizing that he has been cheated by the plaintiff and her husband. In as much as the address of defendant on the lease deed is wrong and plaintiff claimed herself to be owner of first floor but let out mezzanine floor to the defendant. There are several other discrepancies in the documents revealing fraud played upon the defendant. The plaintiff has never visited the suit property for any purpose. The defendants always used to interact with her husband for payment of rent and otherwise. The suit property is being used as an assembly unit for automobile cables and it is not easy to wind up and Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 3 of 15 remove the articles. It has been denied that the defendant has become trespasser. In any case he is already paying market rent of the suit property. The ground and first floor of the same building are lying vacant for which there are no takers. It has been refuted that the defendant had agreed to pay rent @ Rs. 17,000/ for a further period of one year. It is claimed that the suit property can be legally retained for a period of three with effect from 01.02.2006 by invoking the renewal clause of lease deed. It is denied that prevailing rent of comparable premises is Rs. 25,000/ p.m. In fact, first floor of property no. 21 MM Road, Motia Khan, Delhi with 2,500 sq ft. area with roof right was offered to the defendant at a rent of Rs. 20,000/ p.m. but he did not opt for shifting there as his lease in the suit property continue till 31.01.2009. It is stated that no cause of action has accrued in favour of the plaintiff therefore the suit is liable to be dismissed with costs.
3. In replication the plaintiff has reaffirmed the contents of plaint and controverted adverse contents of the written statement. It is clarified that there is no question of site plan being wrong as none has been filed because the premises are identifiable from its description itself. It has been denied that there is renewal of tenancy or that the defendant can dispute the title of plaintiff of the suit property.
4. Vide order dated 14.03.2008 passed on an application under Order 39 Rule 10 CPC, the defendant was directed to pay the use and Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 4 of 15 occupation charges of suit property to the plaintiff @ 11,500/ p.m. with effect from July 2007 to February 2008 within a period of 8 weeks and continue to do so monthly at same rate till the disposal of the suit. Simultaneously, the defendant was restrained from parting with the possession or creating third party interest in the suit property during pendency of this suit, by a consent order.
5. Following issues were framed on 15.05.2005 at the beginning of the trial:
1. Whether the plaintiff is entitled to a Decree for Possession of the suit premises, as prayed for? OPP.
2. Whether the plaintiff is entitled to a Decree of Mesne Profits/Damages, as prayed for? OPP.
3. Whether the plaintiff is entitled to a decree for Perpetual Injunction, as prayed for? OPP.
4. Relief.
6. Parties have examined themselves to substantiate their respective versions. Plaintiff has proved site plan Ex. PW 1/1, lease deed Ex. PW 1/2, legal notice Ex. PW 1/3, postal receipts Ex. PW1/4 and Ex. PW 1/5, UPC slip Ex. PW 1/6, AD cards Ex. PW 1/7 and photographs Ex. PW 1/D1. She had closed her evidence on 13.02.2009. Defendant has narrated the facts by way of affidavit and Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 5 of 15 proved lease deed Ex. DW1/P1. His evidence was closed by order on 11.02.2010.
7. I have heard Sh. Ajay Gulati, Advocate, Ld. Counsel for the plaintiff, Sh. Mahesh K. Chaudhary, Advocate, Ld. Counsel for the defendant and carefully perused the file.
8. An objection regarding the valuation of suit has been raised by the defendant but it had not been elaborated at the time of arguments. For the relief of possession suit has been valued at annual rental of the suit property and court fee has accordingly been fixed. The relief of injunction has been valued at Rs. 1,62,000/ and independent court fee for the same has been paid as per the provisions of Section 17 of Court Fees Act. Mesne profit/damages @ Rs. 25,000/ p.m. for the suit premises have been claimed by plaintiff w.e.f. 01.06.2007 since suit had been filed on that very day, no amount by way of damages had accrued. The relief therefore was notionally valued at Rs. 200/ and court fee of Rs. 20/ was affixed with an undertaking that additional court fee will be paid as and when the quantum of damages will be determined by the Court.
9. Plaintiff claimed to have received rent only till January, 2007 from the defendant. Question about payment of rent for period February 2007 onwards was asked from the defendant in cross examination but that has no bearing as no relief for recovery of Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 6 of 15 arrears of rent has been sought. The doubt of defendant therefore about the valuation of suit is baseless and is repelled.
My issue wise findings are recorded herein: Issue No. 1
10. One of the foremost contentions of defendant is that plaintiff is not owner of the suit property, she therefore thus no locus standi to file this suit. In this behalf reference to lease deed Ex. PW1/2 is made where on page 3 plaintiff had claimed herself to be the absolute owner of entire first floor and above of the building in which suit property is situated. While letting out the mezzanine floor, she did not whisper about her ownership of that portion. The defendant is also feeling cheated by the plaintiff by misrepresentation about her claim to the suit property.
11. Plaintiff has not filed title documents of the suit property in her favour. There is absolutely no denial of the execution of the registered lease deed Ex. PW1/2 between the parties and that the defendant continued to take rent demised wherein to the plaintiff regularly. There thus existed relationship of landlady and tenant between the parties. It was held in Mercury Travels (India) Ltd. Vs. Mahabir Prasad, 89(2001) DLT 440 that the relationship of landlord and tenant between the parties is the determinative factor for deciding the locus standi of the landlord to file a suit for ejectment against the defendant. Further in M/s. Bhartia Industries Ltd. Vs. Rajiv Saluja, Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 7 of 15 112(2004) DLT 82, it was observed that the tenant is estopped from raising any challenge to the right of landlord to seek ejectment by virtue of Section 116 of the Evidence Act which stipulates that a tenant cannot deny the title of the lessor. On the same lines it was pronounced the Bhogadi Kanna Babu Vs. Vugginna Pydamma Vugging 2006 (5) SCC 532, that a tenant cannot deny his landlords title, however defective it may be, so long as he has not openly restored the possession or surrendered the premises to him. The opposition of defendant therefore, is not sustainable.
12. It has next been contended that the plaintiff has wrongly represented as if she had let out the suit property to the defendant whereas in fact she never interacted with him nor ever visited the suit property even for collection of rent. The suit property was let out to him by Sh. S. S. Anand vide rent deed Ex. PW1/D1. On expiry of fixed period lease thereunder, the husband of plaintiff had claimed rent of the suit property and the defendant had obliged. Plaintiff having taken over surreptitiously cannot take benefit of the provisions of Section 116 of Evidence Act. Even this contention has not legs to stand firstly because the defendant does not himself name the owner of the suit property. No one else apart from the plaintiff is stated to have claimed rent of the suit property from him. He had not raised grievance to the plaintiff claiming rent either at the beginning or during the tenure of lease deed Ex. PW1/2. It has been held in Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 8 of 15 Zulfikar Ali Khan Vs. J. K. Helene Curtis Ltd., 2002(62) DRJ 442 that ownership is required to be proved only in those cases where there is a dispute as to the title of land and not in a case between the landlord and the tenant as the eviction proceedings cannot be allowed to be converted into suit for title nor for that purpose suit for recovery of possession can be allowed to be converted into a title suit.
13. The defendant has grossly resented the terms of lease deed Ex. PW1/2 where material particular and terms are incorrect including his address. According to him the security of Rs. 30,000/ had been paid by him to the previous landlord. It ought to have been refunded to him by the plaintiff as she claims to have terminated the lease. Even the physical possession of the suit property was not delivered to the defendant by her the purpose of lease deed got defeated by providing for termination of lease by the landlady by giving one month notice. The defendant thus wants this Court to hold lease deed to be a sham and unenforceable document.
14. Defendant does not deny the execution of lease deed in the office of SubRegistrar, Asaf Ali Road, New Delhi. He is a qualified engineer. He was expected to go through the contents of documents he was going to execute and gets registered and on failure on that count, the blame cannot be shifted on the opposite party particularly after having enjoyed the benefits of document. He had not asked the plaintiff for executing the rectification document nor initiated Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 9 of 15 proceedings for declaring the lease deed to be null and void. The terms specifically pointed out by the defendant have not prejudiced him in any manner. The pleas against the lease deed thus are found to have been raised by way of an afterthought so as to somehow cling to the suit property.
15. It has been contended that as per rent deed Ex. PW1/D1 the defendant had an option to renew the tenancy for another three years with increase in rent by 15%. The mention of duration of just one year in lease deed Ex. PW1/2 in negation of said term cannot be effective and it should be held that the lease of defendant of the suit property continued till 31.01.2009.
16. The terms regarding further tenancy of the suit property on efflux of lease Ex. PW1/D1 do not have the scope as represented by the defendant. Term no. 4 on page 4 thereof provides that the lessee shall handover vacant possession on expiry of agreed period unless the lessor agrees to extend the period at mutually agreed terms, fresh agreement will be made. Term no. 10 on the same page provides that if the tenancy will be extend after three years, then the rent will be increased @ 15%. None of these terms infer availability of option of renewal of lease to the defendant. Provision for extension of lease at mutually agreed terms on execution of fresh agreement only was made. In consonance thereof fresh lease deed Ex. PW1/2 was executed. The defendant having remained oblivious and over Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 10 of 15 confident at the time of its execution and registration about the period of lease mentioned therein cannot beat around bushes now.
17. In any case the notional period of three years having also expired on 31.01.2009 the defendant has no legal ground to retain the suit property. It has been laid down in K. Kishore Construction Vs. Allahabad Bank, 1998 RLR 248 that the Court can grant judgment on admitted facts. If tenancy agreement expires during pendency of the case, decree may be granted upon such expiry by ignoring objection that suit when filed was premature.
18. Although in pleadings, service of legal notice Ex. PW1/3 sent on behalf of the plaintiff was denied yet the defendant fairly admitted signatures of his brotherinlaw on acknowledgment card Ex. PW1/7 at the suit property besides confirming that someone on his behalf must have received the notice vide AD Card Ex. PW1/8 at his home. It has not been denied that the acknowledgment card were signed in token of receipt of notice Ex. PW1/3. No reply thereto has been sent. The defendant thus is deemed to have accepted the contents of notice in view of law laid down in Atma Ram Properties Vs. Air India, 1997(1) Delhi Lawyer 406. The tenancy of defendant of the suit property thus stood terminated on expiry of lease deed on 31.01.2007 and specifically by virtue of statutory notice w.e.f. from 31.05.2007. Reference to the judgment in M/s. Bhartia Industries Ltd. may again be made in this behalf.
Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 11 of 15
19. Admittedly the suit property is not a subject matter of the provisions of Delhi Rent Control Act as its rate of rent was more than Rs. 3,500/ p.m. All the essential ingredients for grant of decree of possession to the plaintiff having been found in the facts of this case, the issue is decided in affirmative.
Issue no. 2
20. Having established defendant to be pariah in the suit property, the plaintiff is entitled to recover its use and occupation charges from his w.e.f. 01.06.2007. The defendant although claimed to have paid rent @ 11,500/ p.m. to the plaintiff upto June, 2007 but could produce no document to discern the payment for the month of June, 2007.
21. PW1 claimed that the defendant had initially acceded to the request of her husband to enhance the rent to Rs. 17,000/ p.m. but had subsequently refused. She was however not present at the relevant time. Sh. D. P. Bajaj having not being examined by her in support of the case, the hearsay evidence cannot be accepted. She has vaguely alleged about occupation of the tenant on the first floor of the same building on rent @ Rs. 20,000/ p.m. She has admitted that a portion of the building is also lying vacant. The defendant on his part candidly admitted registered lease deed Ex. DW1/P1 between plaintiff and M/s. Kashkanya Marketing Pvt. Ltd. but denied that the tenancy portion thereunder is only 600 sq. ft. According to him, the tenant is Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 12 of 15 occupying about 900 sq. ft. area in the same building. He also denied the rate of rent of said premises being Rs. 15,000/ p.m. No other evidence in respect of the prevailing rents in the area has been adduced.
22. Not much credibility on document Ex. DW1/P1 can be put because it has not been proved by either of the executants. The location and suitability of tenancy premises demised therein cannot be perceived unilaterally. The defendant has doubted the area and rate of rent mentioned therein. Taking into account the terms agreed by the defendant with the predecessor in interest of plaintiff in Ex. PW1/D1 and rising trend of commercial rents and given benefit of being a good pay master to the defendant it is deemed just and reasonable to fix use and occupation charges of the suit property @ Rs. 13,000/ p.m. w.e.f. 01.06.2007 till 31.05.2010 and Rs. 15,000/ p.m. w.e.f. 01.06.2010. The issue is decided accordingly.
Issue No. 3
23. Plaintiff has utterly failed to disclose the particulars of source, date and place from where she perceived that defendant is trying to abandoned the suit property by delivering its possession to antisocial elements in order to frustrate her present claim. Her statement in this behalf is hearsay and thus cannot be believed. Except a suggestion, which has been refuted, no questions were asked from the defendant. Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 13 of 15 The plaintiff has failed to discharge the onus to prove this issue. It is decided against her.
Issue No. 4
24. The correctness of site plan Ex. PW1/1 was denied by the defendant but by that time the document itself had not been produced on judicial record by the plaintiff. No question about the veracity of the suit property delineated in red colour in this plan have been asked in evidence. The suit property otherwise is adequately identifiable from its description.
25. In view of the above decree of possession of the suit property being mezzanine floor measuring 1,000 sq. ft. in property bearing plot no. 7, MM Road, Motia Khan, New Delhi with entrance from the front side, specifically earmarked in red in site plan Ex. PW1/1 is passed in favour of the plaintiff and against the defendant. The defendant shall pay mesne profit in respect of the suit property to the plaintiff @ Rs. 13,000/ p.m. from 01.06.2007 to 31.05.2010 and @ Rs. 15,000/ p.m. from 01.06.2010 till vacant physical possession is handed over to her. Payments made by the defendant pursuant to order dated 14.03.2008 shall of course, be adjusted against the accrued amount of mesne profit. The security amount of Rs. 30,000/ shall be refunded to the defendant at the time of vacating the suit property after adjustment of dues payable by him. Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 14 of 15
26. The plaintiff shall make up deficiency in court fee on the amount of mesne profit. Decree sheet be prepared which shall be executable only after the deficiency is made up by the plaintiff. File be consigned to Record Room.
Announced in the open court On 29th January, 2011 (Sunil K. Aggarwal) Addl. District Judge (C )10 Delhi Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 15 of 15 Suit No. 103/2007 29.01.2011 Present: Proxy Counsel for the plaintiff.
Ms. Geeta Vohra, Adv. Ld. Counsel for the defendant. Vide separate judgment the suit of the plaintiff has substantially been decreed. The plaintiff shall make up deficiency in court fee at the earliest. Decree sheet be prepared which however shall be executable only after the deficiency is made up. File be consigned to Record Room.
(Sunil K. Aggarwal) Addl. District Judge (C)10 Delhi: 21.01.2011 Suit No. 103/2007 Uttra Bajaj Vs. Parveen Kumar Mehta Page No. 16 of 15