Delhi District Court
Smt. Usha Lungani vs Smt. Anjali Sharma on 14 May, 2010
19 Original Suit No.354/07 New Suit No.22/07
IN THE COURT OF SH. AJAY GUPTA
JSCC/ASCJ/GUARDIAN JUDGE (East) KKD COURTS DELHI
In the matter of:
Smt. Usha Lungani
W/o Sh. Surinder Kumar,
r/o 2/73A, Lalita Park,
Laxmi Nagar, Delhi .....Plaintiff
Versus
Smt. Anjali Sharma,
W/o Arun Kumar Sharma,
R/o 3/116, Lalita Park,
Laxmi Nagar, Delhi92.
And
Ground Floor, 2/73A, Lalita Park,
Laxmi Nagar, Delhi92
And
D.P. Law Book Store, 1/26A,
Lalita Park, Laxmi Nagar, Delhi92 .....Defendants
Date of institution of Suit 07.07.07
Arguments heard/order reserved on 12.05.10
Date of decision 14.05.10
SUIT FOR EJECTMENT AND FOR RECOVERY OF RENT OF
RS.2750 AND DAMAGES RS.6000/ FROM 16.06.07 TO 05.07.07
J U D G M E N T
1. This is a suit for ejectment and recovery of rent Rs.2750/ and damages Rs.6000/ from 16.06.07 to 05.07.07 filed by the plaintiff against the defendant.
29 Original Suit No.354/07 New Suit No.22/07
2. It is averred in the plaint that a hall situated at ground floor of property no.2/73A, Lalita Park, Laxmi Nagar, Delhi92, was let out to the defendant at the monthly rent of Rs.5500/ w.e.f 01.04.06, on the basis of an agreement executed between the parties on 19.08.06. Plaintiff has been receiving rent from the defendant against rent receipts and has been obtaining the signature of defendant on counterfoils of the rent receipt.
3. The tenancy of the defendant has been terminated through legal notice dt. 14.05.07 which was issued through registered AD and UPC. Defendant was to vacate and hand over the vacant and peaceful possession to the plaintiff after fifteen days from the date of receipt of legal notice otherwise she was to pay the damages at the rate of Rs.300/ per day. Defendant has failed to vacate and hand over the peaceful possession of the suit premises despite legal notice. It is also stated that at the time of termination of tenancy the defendant paid rent upto March, 2007 and after service of demand notice the defendant has paid rent upto May, 2007. Thus it is prayed that a decree of ejectment may be passed in favour of plaintiff and against the defendant in respect of suit property. It is also prayed that a decree for recovery of Rs.2750 towards rent w.e.f 01.06.07 to 15.06.07 and damages Rs.6000/ w.e.f 16.06.07 to 05.07.07 may be passed. Plaintiff 39 Original Suit No.354/07 New Suit No.22/07 has also prayed for decree of future damages @300/ per day from 06.07.07 till the date of delivery of the possession of the suit premises to the plaintiff.
4. In the written statement defendant did not deny the creation of tenancy vide rent agreement dt. 19.08.06. Defendant has also not denied the rate of rent, however defendant stated that she has paid rent till June, 2007 against the receipt and she also tendered the rent in the month of July, 2007 which was not accepted by the plaintiff. Defendant has denied the service of legal notice dt. 14.05.07. Defendant has also denied that she is liable to pay the damages Rs.6000/ and future damages @Rs.300/ per day. On these grounds defendant sought dismissal of the present suit.
5. Plaintiff filed replication and rebutted the pleas made by the defendants in the written statement. It is denied that the plaintiff has received rent from the defendant upto June, 2007.
6. From the pleadings of the parties following issues were framed on 17.12.08:
1. Whether the plaintiff is entitled to the decree of ejectment as prayed for? OPP.
2. Whether the plaintiff is entitled to recovery of 49 Original Suit No.354/07 New Suit No.22/07 Rs.2750/? OPP.
3. Whether the plaintiff is entitled to the recovery of damages of @ Rs.6000/ for the period w.e.f 16.06.07 to 05.07.07? OPP.
4. Whether the plaintiff is entitled to payment of damages @ 300/ per day w.e.f 06.07.07? OPP.
5. Relief.
7. Thereafter matter was fixed for plaintiff's evidence. In her evidence plaintiff examined herself as PW1. Defendant examined herself as DW1. After closure of evidence of parties matter was listed for final arguments.
8. I have heard the arguments on behalf of both the parties and gone through the record of the case. Issue wise findings of this court is as under: ISSUE No.1
(a) The onus to prove this issue was on plaintiff. For proving this issue plaintiff was required to establish on record the following ingredients: i. that there exists a relationship of landlord and tenant between the parties and the rate of rent is above Rs.3500/ per month.
ii. That the tenancy/lease between the parties to the suit, has been determined as per the provisions of section 111 of Transfer of Property Act.
(b) Now let us see whether the plaintiff has been successful in establishing the aforesaid ingredients. In the plaint plaintiff contended that the suit 59 Original Suit No.354/07 New Suit No.22/07 premises was let out to the defendant at the rate of Rs.5500/ per month. Defendant has admitted this fact in her written statement. Thus the factum of relationship of landlord and tenant between the parties and rate of rent has been established through the admissions of the defendant. Furthermore, plaintiff has proved on record the counterfoils of the rent receipts vide ex. PW1/2 which pertains to the period 10.05.06 to 22.05.07. These counterfoils also mention the rate of rent as Rs.5500/ per month. These counterfoils have not been disputed by the defendant. Thus the relationship as well as rate of rent has been proved on record by the plaintiff.
(c) It is admitted position of fact that the rent agreement was unregistered agreement thus in view of the settled law the tenancy of the defendant is to be treated month to month tenancy which can be terminated by the service of fifteen days notice. It is stated that tenancy of the defendant has been terminated by service of legal notice ex. PW1/3. This legal notice was sent at defendant's three addresses by registered post and UPC. The postals receipts are ex. PW1/6 and ex. PW1/7. PW1 deposed that the legal notice issued by registered post received back with the report of 'unclaimed'/Intimation delivered. The notice sent by UPC has been served as same was not received back. Defendant has denied the service of legal notice, however she has not denied the 69 Original Suit No.354/07 New Suit No.22/07 correctness of the addresses mentioned on the legal notice. Thus it is clear that the legal notice was issued to the defendant at her all three correct addresses. Ld. counsel for plaintiff submitted that the notice sent through UPC should be presumed to be served as the same is sent at correct address. In support of his contention he has cited following case laws: i. 1973 RLR (Note) 17 ii. 1997 III AD Delhi 989 iii. 2005 (2) ACJ 452 SC iv. AIR 1989 SC 630 v. 1991 RLR 463
(d) In the instant case legal notice has been admittedly issued at correct addresses. Thus in view of the law laid down by the Hon'ble Supreme Court and Hon'ble High Court in the aforesaid case, the legal notice is presumed to be served. It is held by the Hon'ble High Court that if a letter is sent at the correct address, it should be presumed to have been served. The judgments cited by the Ld. counsel for plaintiff are directly applicable to the facts and circumstances of the present case. Thus in view of the law laid down by the Hon'ble Supreme Court and the Hon'ble High Court in the aforesaid cases, it is presumed that legal notice Ex. PW1/3 was served upon the defendant.
(e) Furthermore, the report on the registered envelops reveal that the post man had delivered intimation regarding registered 79 Original Suit No.354/07 New Suit No.22/07 post. Thus it is also to be presumed that defendant was intimated about the registered post and despite this she did not collect the same, therefore, it was returned back to the sender. Thus it is to be presumed that defendant deliberately avoided the service of the legal notice and in view of the law laid by the Hon'ble Supreme Court in "AIR 1989 SC 630" it is presumed that legal notice was duly served through registered post also. Thus in view of the aforesaid discussions it is presumed that the legal notice has been served and tenancy of the defendant has been terminated and after termination of tenancy the defendant is liable to vacate and hand over the peaceful possession of the suit premises to the plaintiff. This issue is decided accordingly. ISSUE No.2 The onus to prove this issue was on plaintiff. Plaintiff submitted that defendant did not pay the rent for the month of June, 2007. However, defendant has also stated that she has paid rent upto June, 2007. It is admitted position of fact that rent has always been paid against the receipt. Thus onus to prove this fact shifted upon the defendant, however defendant has not proved any receipt on record to show that she has paid rent for the June, 2007. Thus it is held that plaintiff is entitled to the recovery of Rs.2750/ qua the arrears of rent. This issue is decided accordingly.
89 Original Suit No.354/07 New Suit No.22/07 ISSUE No.3 & 4 The onus to prove both these issues was on plaintiff. Plaintiff has claimed damages at the rate of Rs.300/ per month from the date of termination of tenancy ie 16.06.07. Thus the onus was on plaintiff to establish on record that the suit property would have fetched the rent at the rate of Rs.9000/ per month, if the same would have been let out again in June, 2007. Plaintiff has brought on record one rent deed mark 'A' to prove her entitlement of damages @ Rs.300/ per day. Perusal of this rent deed shows that this rent deed was executed on 08.04.09 ie after about two years of termination of tenancy. Thus this rent deed mark 'A' is of no help to the plaintiff. However, it is well settled law that the judicial notice of increase of rent can be taken by the court. In this regard this court is supported with the following judgment. Head note of the judgment reads as udner: 1993 RLR 563 Baksh Sachdev vs. Concord (I) "Evidence - S57, Judicial notice of fact that increase of rent in Delhi have occurred, can be taken. Mesne profits or damages for use and occupation after termination of tenancy can be substantially more than the agreed rent. If defence is struck out u/o 8 rule 10 CPC".
Thus it can be presumed that rate of rent of the suit premises after one and half year of its letting out would have increased to Rs.7000/ per month. Thus it is held that plaintiff is entitled to the damages at the rate 99 Original Suit No.354/07 New Suit No.22/07 of Rs.7000/ per month from the 16.06.07 till the date defendant actually hands over the vacant and peaceful possession of the suit premises to the plaintiff. Both these issues are decided accordingly. RELIEF Keeping in view of my aforesaid findings, the suit of the plaintiff is hereby decreed with costs in favour of plaintiff and against the defendant in respect of a Hall situated at ground floor of the property 2/73A, Lalita Park, Laxmi Nagar, Delhi92. A decree for recovery of Rs.2750/ is also passed in favour of plaintiff and against the defendant. Plaintiff is also awarded damages at the rate of Rs.7000/ per month w.e.f 16.06.07 till defendant actually hands over the vacant and peaceful possession of the suit property to the plaintiff. Defendant is directed to hand over the vacant and peaceful possession of the suit property to the plaintiff within one month from the date of this judgment. Decree sheet be prepared after plaintiff's depositing court fees on the amount of damages awarded from the date of filing of the present suit till the date of judgment. File be consigned to the record room.
(AJAY GUPTA) JSCC/ASCJ/GUARDIAN JUDGE(E) KKD COURTS/DELHI Announced in open court on 14.05.10