Delhi District Court
Smt. Santosh Rani vs Sh. Ashok Kumar on 28 February, 2011
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
Suit No 1216/06
Unique Case Identification No: 02402C0231522006
1. Smt. Santosh Rani
W/o Prithvi Raj Narang
R/o C4, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi
2. Ms. Seema
D/o Lt. Sh. Prithvi Raj Narang
R/o C4, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi .....Plaintiffs
Versus
Sh. Ashok Kumar
S/o Late Sh. Sikender Lal
At Shop No.1, C4, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi ....Defendant
A. Date of Institution of Suit : 25/04/2006
B. Reserved for Order on : 23/02/2011
C. Date of Order : 28/02/2011
D. Final Order : Suit Dismissed.
Suit No. 1216/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 1/18
SUIT FOR POSSESSION AND RECOVERY OF ARREARS OF RENT,
MESNE PROFITS AND DAMAGES.
J U D G M E N T
Plaintiffs have filed this suit with a prayer for a decree for possession in respect of shop No.1 forming part of premises No.C4 Guru Ram Dass Nagar, Laxmi Nagar, Delhi (hereinafter referred to as "suit property") as shown in red colour in the Site Plan Ex. PW1/1 in favour of plaintiffs and against the defendant. Further plaintiffs have prayed for a decree for recovery of Rs.21,000/ as rent w.e.f. 01/10/2005 till 31/03/2006 and decree of damages/mesne profits of suit property with future interest @ Rs.24% p.a. till the realisation of the decreetal amount with future damages/ mesne profits/rent @ Rs.3500/ p.m. till the possession of the suit property is handed over to plaintiffs by defendant.
In brief case of plaintiffs against defendant is that Mr. Prithvi Raj Narang S/o Sh. Ram Bhaj R/o C4 Guru Ram Dass Nagar, Laxmi Nagar Delhi was owner of suit property and defendant was a tenant of abovesaid Mr. Prithavi Raj Narang in respect of "suit property" since 1st June 2002 at a monthly rent of Rs.3500/ p.m. excluding water and electricity charges. As alleged, tenancy was created through a oral agreement.
Further case of plaintiffs is that Mr. Prithvi Raj Narang died on Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 2/18 2/01/06 and plaintiffs being wife and unmarried daughter, respectively, of Mr. Prithvi Raj Narang are the only legal heirs of late M. Prithvi Raj Narang and,hence, plaintiffs have become the coowners and landlords of the suit property and now since 2/01/06 defendant has become tenant of the plaintiffs. As per plaintiffs, tenancy months starts from the first day of each English calender month and ends on last day of the same month. As alleged, defendant has not paid rent since 1/10/2005 being in dominating position despite repeated requests and demands made by Late Mr. Prithvi Raj Narang and plaintiff no.1 time and again. Also, as per plaintiffs, Late Mr. Prithvi Raj Narang got served (through Regd. AD/UPC) a legal notice dated 24/11/2005 through his advocate upon defendant terminating the tenancy of defendant in respect of suit property. The said notice was replied by defendant. As per plaintiff, defendant has not complied with the legal notice dated 24/11/2005 sent by Late Mr. Prithvi Raj Narang to the defendant and has not handed over the vacant possession of the suit property to plaintiffs or Sh. Prithvi Raj Narang after the termination of her tenancy nor the defendant has made payment of rent of the suit property. Hence this suit.
3. Defendant has contested suit of plaintiff. In his WS defendant has admitted that Late Mr. Prithvi Raj Narang and Smt. Santosh Rani were the landlord and landlady of the defendant. But, as per defendant, defendant Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 3/18 is tenant in shop no.3 in the property no. C4 Guru Ram Dass Nagar, Laxmi Nagar, Delhi110092. Further, as per defendant, defendant is a tenant at a monthly rent of Rs.800/ p.m. including electricity and water charges. It is also admitted by defendant that Sh. Prithvi Raj Narang died on 2/01/2006. Defendant has further admitted that tenancy month starts from first day of each English calender month and ends on last day of the same month. Further defendant has alleged that defendant has paid the rent till the month of October 2005 to Late Mr. Prithvi Raj Narang and Smt. Santosh Rani but there after they refused to take the rent from the defendant and hence defendant was left with no option but to send the same through money order and since then defendant is depositing the same before the Court of Sh. S.S. Malhotra, ARC Delhi. As per defendant, defendant has never been harassing the plaintiff but it is the plaintiff who has been harassing the defendant either by disconnecting the electricity or through other ways on one pretext or another. As alleged legal notice dated 24/11/2005 has been served upon the defendant upon false and filmsy ground simply to get the shop vacated from defendant as the rent and property rate in this locality has gone high and plaintiff wants to get the said shop vacated from defendant through illegal ways. Further, as per defendant, that plaintiff has concealed the fact that defendant has filed a suit for permanent injunction wherein defendant Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 4/18 has disclosed all the relevant information regarding rent, Pagri and other information. At last defendant has prayed for dismissal of suit with heavy cost in the best interest of justice.
4. Plaintiffs have filed replication to the WS of defendant wherein the stand taken by defendant has been denied and averments made in plaint have been reaffirmed.
5. Vide order dated 6/09/06, ld. predecessor of this Court framed the following issues :
1. Whether the plaintiffs have validly, legally terminated the tenancy of the defendant qua the suit property ? OPP
2. Whether the rent of the suit property is Rs.3500/ excluding the water and electricity charges ? OPP
3. Whether the suit of the plaintiff is barred under the provisions of section 50 of Delhi Rent Control Act ? OPP
4. Relief.
6. To substantiate their case on judicial file, plaintiff no.1 Smt. Santosh Rani has appeared in the witness box as PW1 Smt. Santosh Rani. PE was closed on 4/05/2009 by Court Order. Defendant has himself appeared in the witness box as DW1 Mr. Ashok Kr. Defendant has examined Mr. Atul Jain, Mr. Amit Jain as DW2 and DW3 respectively. DE Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 5/18 was closed on 28/09/2010 by defendant by making a separate statement to that effect.
7. I have heard Sh. Sunil Kr. Kalra Adv. for plaintiffs and Sh. Pratyush Chirantan Adv. for defendant and have gone through the material available on judicial file very carefully. In the course of arguments ld. counsel for plaintiffs has relied upon the case laws reported as (i) Karnani Properties Ltd. Vs. Miss Augustine and others AIR 1957 SC 309 (ii) Puspa Sen Gupta Vs. Susma Ghose (1990) 2 SCC 651 and (iii) Sewa International Fashions Vs. Smt. Suman Kathpalia & Ors. 82 (1999) DLT 104 in support of his submission that this case is not covered under the DRC Act in as much as monthly rent of the suit property was Rs.3500/ pm excluding water and electricity charges. It is submitted that if water and electricity charges are added to the monthly rent of Rs.3500/, the rent will be exceeding Rs.3500/ pm & thus suit property will not be covered under the provisions of Delhi Rent Control Act. Also attention of the Court has been drawn towards contents of para.4 of reply on merits in the WS of defendant wherein defendant has alleged the "............ that defendant has paid rent till the month of October 205 to late Sh. Prithi Raj Narang and Smt. Santosh Rani ............................". Also ld. counsel for plaintiff relied upon the following case laws (i) S. Kumar Vs. G. R. Kathpalia & Anr. 77 (1999) Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 6/18 DLT 266 (DB) and (ii) Standard Pharmaceuticals Ltd. Vs. Gyan Chand Jain and Anr. 97 (2002) DLT 290. Ld. counsel for the plaintiff has further submitted that tenancy of the defendants stands duly terminated vide notice Ex. PW1/2 which was replied by defendant vide reply Ex. PW1/3. As per ld. counsel for plaintiff, tenancy being not covered under the DRC Act, after the termination of tenancy vide Ex. PW1/2, defendant was supposed to vacate the suit property but defendant has not done so. As per ld. counsel for plaintiff, defendant has failed to prove on judicial file that he has paid the uptodate rent to plaintiff. In this regard attention of court was drawn towards cross examination of DW1 Mr. Ashok Kr. Wherein DW1 Mr. Ashok Kr. has failed to depose as to upto which month rent has been paid or as to in which court he paid the rent. Further ld. counsel for plaintiffs has submitted that to prove the rent receipt Ex. DW3/1, defendant must have examined the owner/ landlord of DW3 Mr. Amit Jain. As per ld. counsel for plaintiffs, Ex. DW3/1 does not bear the signature of DW3 Mr. Amit Jain. At last, ld. counsel for plaintiff submitted that suit of the plaintiffs deserves to be decreed. Written submissions has been placed on record on behalf of defendant. Ld. counsel for defendant had argued in terms of his written submissions. To say in brief, ld. counsel for defendant submitted that as per averments made in plaintiff suit property was let out to defendant on Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 7/18 01.06.2002 but in her cross examination PW1 Ms. Santosh Rani has deposed that the shop was given to defendant on 1.08.2005. PW1 Ms. Santosh Rani further deposed in her cross examination that the shop which was given on rent to defendant was constructed in 2004. It is submitted that if the shop was constructed in 2004, it could not have been given on rent to defendant in June 2002 as alleged in plaint. Further ld. counsel for defendant has submitted that PW1 Smt. Santosh Rani has improved upon her version by deposing that on 1.08.2005 (when the shop was given to defendant on rent) she was also present apart from her husband and defendant. Ld. counsel for defendant has submitted that the case laws relied upon by ld. counsel for plaintiff have no application in the facts & circumstances of this case in as much as water and electricity charges were not agreed to be paid to plaintiffs and no consolidated rent was agreed upon between the parties which included electricity & water charges. Also it has been submitted that no fixed amount was agreed to be paid by defendant to plaintiffs towards electricity and water charges. As submitted water and electricity charges can be included in "rent" if and only if (i) a fixed sum is paid on that account and (ii) it is paid by tenant to landlord. Also it is submitted that stand taken by DWs in their crossexamination has not been controverted by plaintiff by given appropriate suggestions to DWs & this Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 8/18 amounts to admission, by plaintiff, of the depositions made by DWs in their cross examination. Further ld. counsel for defendant has submitted that PW1 Smt. Santosh Rani in her crossexamination has admitted that the defendant never paid any rent to her. At last ld. counsel for defendant has submitted suit of the plaintiff merits dismissal.
8. I have given a thoughtful consideration to the rival submissions made by ld. counsel for the parties keeping in view the facts an circumstances of this case as they arise on the basis of material available on judicial file.
9. My issue wise findings are as under : Issue No.1
1. Whether the plaintiffs have validly, legally terminated the tenancy of the defendant qua the suit property ? OPP In the present case there is no dispute as to existence of relationship of landlord of tenant between the plaintiffs and defendant. Originally Mr. Prithvi Raj Narang, husband of the plaintiff no.1 and father of plaintiff no.2 was owner/landlord of defendant qua the suit property. After the death of Mr. Prithvi Raj Narang, present plaintiffs stopped into the shoes of Mr. Prithvi Raj Narang. Prior to his death Mr. Prithvi Raj Narang served the defendant with notice Ex. PW1/2 which was dispatched vide Ex.
Suit No. 1216/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 9/18
PW1/4 and UPC Ex. PW1/5. There is no dispute as to the service of notice Ex. PW1/3 on defendant. In fact notice Ex. PW1/4 was replied by defendant vide Ex. PW1/3. The tenancy is oral. It is not the stand of defendant that it was for a particular fixed period. No legal or other infirmity has been pointed out in notice Ex. PW1/2.
The dispute raised by defendant as regards the identity of suit property by taking a stand that suit property bears shop no.3 instead of shop no.1, as alleged by plaintiffs, comes to an end by virtue of the depositions that "The site plan Ex. PW1/1 is correct and correctly showing my shop"
made by defendant while appearing as DW1 Mr. Ashok Kumar. As such there is no dispute as to the identity of the suit property. The tenancy like the one involved in this suit is liable to be terminated by 15 days notice. The notice Ex. PW1/2 gives 15 days time to defendant to hand over the vacant physical possession of the suit property to plaintiff. Suit has been filed much after the period of 15 days from the date of receipt of notice Ex. PW1/2 by defendants. Thus it is held that tenancy has been legally terminated. In my opinion, tenancy can be terminated irrespective of whether a particular tenancy is covered under the DRC Act or not. The fact that for filing a eviction petition under the DRC Act, notice of termination of tenancy is not required does not mean that in cases covered under the DRC Act contractual Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 10/18 tenancy cannot be termination as per the provisions of Transfer of Property Act. Even in cases covered under the DRC Act, termination of contractual tenancy has its own legal significance/consequences in view of provisions of section 2(l) of the DRC Act. In view of above discussion this issue is decided in favour of plaintiff and against the defendant.
Issue No.2
2. Whether the rent of the suit property is Rs.3500/ excluding the water and electricity charges ? OPP Here "rent" means rent as agreed between the parties at the time of start of tenancy or enhanced rent as agreed between the parties or as enhanced as per law. "Rent" does not mean the rent which a particular property can fetch at a given point of time keeping in view the rates of rent of a similar property in a given locality. To determine the rent of a particular property one has to make a decision as to what was the rent which was agreed to be paid by tenant to the landlord at the time of start of the tenancy. In the case in hand, plaintiff has even failed to establish on record as to when the tenancy between the plaintiffs/their predecessor in interest and the defendant came into existence. As alleged in plaint defendant is a tenant since 1st June 2002. But in her cross examination PW1 Smt. Santosh Rani has deposed that "The said shop was given to the defendant on 1.08.05 on Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 11/18 rent". Further DW1 Smt. Santosh Rani has deposed that "The shop was given on rent to Ashok Kumar was constructed in 2004". Now if the shop/suit properly was constructed in 2004, it, obviously, could not have been rented out to defendant on 1st June 2002. Also DW1 Mr. Ashok Kr. in his cross examination has been made to depose that "I am in the property in question since 1999". Same was the stand taken by defendant in the cross examination of PW1 Smt. Santosh Rani. Plaintiff has neither been able to prove her on stand on judicial file that defendant was inducted as a tenant on 1st June 2002 nor the stand taken by defendant that defendant is in property since 1999 has been disproved by plaintiffs. Due to failure on the part of plaintiff to prove her stand as to when tenancy came into existence case of the plaintiff has to suffer. No other witness has been examined by plaintiff to corroborate her stand as taken in plaint.
As per Ex. PW1/A, plaintiffs stepped into the shoes of the original landlord Mr. Prithvi Raj Narang after his death being the wife and daughter of the said Sh. Prithvi Raj Narang. It has not been pleaded in the plaint that plaintiffs are the landlords of the defendant since the very beginning of tenancy. Also it has not been pleaded that at the time defendant was inducted as tenant by Mr. Prithvi Raj Narang and the terms of the tenancy were orally agreed between defendant and Mr. Prithvi Raj Narang, Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 12/18 either of the plaintiff was also present & they witnessed the said oral tenancy agreement. By making the following depositions PW1 Smt. Santosh Rani has made on attempt to improve upon her version : "It is correct that the suit shop was rented out by my husband to the defendant. The said shop was given to the defendant on 01/08/05 on rent. Apart from my husband and the defendant, I was the only person present on the said date."
The abovesaid date of 01.08.05 is not consistent with the stand taken by plaintiffs in the plaint as regards the date of start of tenancy. As per plaintiff tenancy came into existence on 1st June 2002. It has not been pleaded that on 1st June 2002 when the defendant and Mr. Prithvi Raj Narang orally contracted the tenancy PW1 Smt. Santosh Rani was also present. PW1 Smt. Santosh Rani has deposed about her presence on 01.08.2005 only. In these circumstances, when plaintiff has not been successful in establishing on record the date on which tenancy between defendant and Prithvi Raj Narang came into existence, in the facts and circumstances of this case, it is hard to believe that plaintiff no.1 Smt. Santosh Rani witnessed the oral tenancy contract between the defendant and Mr. Prithvi Raj Narang. More so when plaintiff has not so pleaded in the plaint & when the above version is for the first time coming in the course of crossexamination of PW1 Smt. Santosh Rani.
Suit No. 1216/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 13/18
Also PW1 Smt. Santosh Rani in his crossexamination has deposed that "My husband did not execute any rent receipt in favour of the defendant. No record was maintained by my husband regarding the rent received by him. The defendant never paid any rent to me personally."
The above depositions also suggest that plaintiffs have no documentary proof to prove that rent was Rs.3500/ per month excluding water and electricity charges. Also above depositions suggest that plaintiffs could not have gained any knowledge about he agreed rate of rent between defendant & Mr. Prithvi Raj Narang, from any record possessed by Mr. Prithvi Raj Narang. Contrary to stand of plaintiffs, stand of the defendant is that he is tenant at the suit property since 1999 & the rate of rent unitially was was Rs.300/ pm. Defendant has pleaded that rate of rent is Rs.800/ pm including electricity and water charges. But it is for the plaintiffs to prove their stand on judicial file by leading cogent and convincing evidence. Even if it is assumed that rent was paid by defendant to Smt. Santosh Rani, though Smt. Santosh Rani is denying to have personally received the rent from plaintiff, it does not mean that it was paid @ Rs.3500/ pm excluding water & electricity charges. As per stand of defendant rate of rent is Rs.800/ including electricity & water charges. Thus even if we act upon the admission of defendant that rent was paid to Smt. Santosh Rani, this Court Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 14/18 has to proceed with assumption that it was paid @ Rs.800/ pm. Above admission cannot be taken as proof of payment of rent @ Rs.3500/ pm excluding electricity & water charges. In my considered opinion in the totality of facts and circumstances of this case plaintiffs have failed to establish on judicial file that rate of rent of suit property is Rs.3500/ pm excluding electricity and water charges. The issue is accordingly decided against the plaintiff.
It would not be out of place to mention here that plaintiff is claiming arrears of rent from October 2005 till 31/03/2006. But in her cross examination PW1 Smt. Santosh Rani has deposed that "It is correct that the last rent received from Ashok Kumar related to October 2005 and was paid on 1/10/2005". Thus rent for October 2005 stands paid & defendant is not in arrears in this regard. The stand of the defendant is that after October 2005 Late Sh. Prithvi Raj Narang and Smt. Santosh Rani refused to take the rent from defendant and hence defendant was left with no option but sent the rent through money order & since then the defendant is depositing the same before the Court of Sh. S.S. Malhotra, ld. ARC Delhi.
Issue No.3
3. Whether the suit of the plaintiff is barred under the provisions of section 50 of Delhi Rent Control Act ? OPP Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 15/18 As per section 3(c) of DRC Act, DRC Act is not applicable to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees. Meaning thereby that if the monthly rent is upto Rs.3500/, the premises is covered under the DRC Act and tenant is entitled the protection against eviction as per the provisions of the DRC Act. While deciding issue no.2, it has been held that plaintiff has failed to establish on judicial file the monthly rent of suit property was Rs.3500/ excluding electricity & water charges. In my considered opinion even if the above stand of plaintiff is taken as correct (that monthly rent is Rs.3500/ excluding electricity and water charges) in the facts and circumstances of this case the suit property is still covered under the provisions of the DRC Act & suit of the plaintiff for possession and mesne profits is barred u/s 50 of the DRC Act. None of the case laws relied upon by ld. counsel for plaintiffs is of any help to the plaintiffs in the facts and circumstances of this case. Simple and straight forward case of the plaintiff is that monthly rent of suit property is Rs.3500/ excluding electricity and water charges.
It is not at all the case of plaintiffs that electricity and water charges are being paid by defendant to plaintiffs besides monthly rent of Rs.3500/. Further it is not the case of the plaintiffs herein that a fixed sum of money is being paid by defendant to plaintiffs towards electricity & Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 16/18 water charges in addition to Rs.3500/ pm. The case laws relied upon by ld. counsel for plaintiffs would have found their application in this case had the case of the plaintiffs would have been that electricity and water charges are also being paid to plaintiffs by the defendant in addition to monthly rent of Rs.3500/ and in that eventuality only electricity and water charges were liable to be added to the monthly rent of Rs.3500/ or any other rent amount to determine the "rent" for the purposes of section 3(c) of the DRC Act. In view of my finding on issues 2 and independently of that finding as well this issue deserves to be decided against the plaintiff.
Only those payments towards electricity & water charges, maintenance charges, charges for other amenties etc. etc. are to be included in "rent" for the purposes of section 3(c) of DRC Act which are payable by the tenant to the landlord which case has not been pleaded by plaintiff herein. Thus even if rent of suit property is taken to be Rs.3500/ excluding of water and electricity charges, the suit property is still cover under DRC Act because to go outside the purview of DRC Act "rent" has to be more than Rs.3500/ pm. This issue is accordingly decided against the plaintiff. Relief:
In view of my finding on issue no.2 and 3, suit of the plaintiff for possession & mesne profits/damages is found to be barred u/s 50 of the Suit No. 1216/06 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 17/18 DRC Act. Further as substantially the suit of the plaintiff is barred u/s. 50 of the DRC Act and plaintiffs have failed to establish their stand as to the rate of rent no order can be passed as regards arrears of rent as claimed in suit. As such suit of the plaintiff is hereby dismissed. Parties to bear their own cost. Decree sheet be prepared. File be consigned to RR. Pronounced in the open court.
28/02/2011
(Anand Swaroop Aggarwal)
SCJ/East/KKD/Delhi
Suit No. 1216/06 ANAND SWAROOP AGGARWAL
SCJCumRC:East, Delhi
Page No. 18/18