Delhi District Court
Wazir Mohamad vs Ram Kumar Yadav on 16 February, 2017
IN THE COURT OF MS RAJRANI: ADDITIONAL DISTRICT
JUDGE05: WEST: TIS HAZARI COURTS: DELHI.
RCA DJ/61245/2016
Wazir Mohamad
S/o Late Sh. Sadari Khan
R/o WZ184, G.F. Village Madipur,
Delhi110063. ...........Appellant
Versus
Ram Kumar Yadav
S/o Late Sh. Meer Singh Yadav
R/o WZ641, Village Madi Pur,
New Delhi110063 .........Respondent
Date of institution of the present appeal : 09.11.2016 Date of reserving of orders :
29.11.2017 Date of judgment :. 16.02.2017 J U D G M E N T
1. Vide this judgment, I shall dispose of the present appeal of the appellant under Section 96 CPC r/w Order XLI CPC against judgment and decree dated 27.09.2016 passed by Ld. Civil Judge, West, Tis Hazari in Civil Suit No.610070/16, titled as Ram Kumar Yadav Vs. Wazir Mohamad.RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.1/14
2. Briefly stated the facts of the case before the Ld. Trial Court were that the plaintiff has filed suit for possession and arrears of rent stating that the defendant is the tenant with respect to one room measuring approximately 8'x8' attached with covered verandah measuring approx 8'x5' and open courtyard measuring approx 8'x8' on ground floor in property no.WZ184, Village Madipur, New Delhi. It is further stated that as on the date of filing of the suit, the rate of rent was Rs.3,800/ per month, though initially it was let out at much lower rate of rent which was increased mutually w.e.f. 01.01.2011 to Rs.3,800/. It is stated that the defendant had not paid the rent w.e.f. 01.07.2011 and the water and electricity connection have been thus disconnected and notice dated 25.11.2013, under Section 106 TPA was also duly served upon the defendant, however, defendant had not replied to the same and had also not paid the rent. It is stated that after the termination of the tenancy, vide legal notice dated 25.11.2013, the defendant is an unauthorized occupant in the suit property and is liable to pay arrears of rent @ Rs.3,800/ per month w.e.f. 01.07.2011 along with interest at 12% per annum and rent @ Rs.3,800/ per month till the final decision of the suit.
3. Written statement has been filed by defendant stating therein that the plaintiff has not approached the Court with clean hands and had concealed the material facts. The plaintiff had not filed any ownership documents nor the site plan and the plaintiff had not properly valued the suit for the purposes of court fee and jurisdiction. It is stated that the suit is barred under Delhi Rent Control Act as the rate of rent is Rs.100/ per month, and the same was even lesser when the property was taken on lease by the ancestors of the defendant. Defendant states that he has paid rent upto January 2014, with respect to property no.WZ 184, Ground Floor, Village Madipur, Delhi, RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.2/14 however, no rent receipt was ever issued by the plaintiff. Defendant has alleged that the plaintiff had refused to accept rent from Feb'2014. It has been further stated that the electricity and water connection in the suit premise were disconnected by the plaintiff almost 20 years back. Defendant had further denied the receipt of legal notice as stated by the plaintiff. The other contents of the plaint are also denied by the defendant.
4. In replication, the averments of the written statement have been denied and contents of the plaint have been reaffirmed by the plaintiff.
5. Vide order dated 03.01.2015, Ld. Trial Court framed the following issues:
(i)Whether the plaintiff is guilty of concealing material facts from the Court?
OPD
(ii)Whether the plaintiff is entitled for decree of possession, as prayed for by him in prayer clause(a) of the plaint? OPP
(iii) Whether plaintiff is entitled for recovery of arrears of rent alongwith interest as prayed by him in the prayer clause(b) of the plaint? OPP
(iv) Relief, if any.
6. To substantiate his case the plaintiff has examined four witnesses namely, PW1 Sh. N.S. Khosla, PW2 Sh. Purushottam Pandey, plaintiff himself appeared as PW3 and plaintiff also examined Sh. Mahesh Yadav as PW4. Plaintiff relied upon the following documents:
1)Ex.PW1/1 is the certified copy of the letter no.Tx/WZ/85/2912 dated 01.07.1985;
2)Ex.PW2/1 is the certified copy of rent agreement vide Reg.
RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.3/14no.2844 dated 17.05.2012;
3)Ex.PW2/2 is the certified copy of rent agreement vide Reg.No.4177 dated 07.10.2013;
4)Ex.PW2/3 is the certified copy of rent agreement vide Reg.No.2102 dated 12.05.2014;
5)Ex.PW3/1 is the site plan of the suit property;
6)Ex.PW3/2 is the legal notice dated 25.11.2013;
7)Ex.PW3/3 is the Speed Post receipt of service of legal notice;
8)Ex.PW3/4 is the delivery certificate of legal notice and MarkA is the copy of MCD record showing suit property in the name of Ram Kumar Yadav;
7. Defendant himself appeared as DW1 and examined Hazrat Bilal as DW2 and Mahmood Ali as DW3 and had relied upon the following documents:
1)Ex.DW1/A is the written statement of defendant Wazir Mohammad;
2)Ex.DW1/1 to Ex.DW1/10 are the Court receipts.
8. Ld. Trial Court has decreed the suit of the plaintiff vide judgment and decree dated 27.09.2016. Aggrieved by the impugned judgment and decree dated 27.09.2016, appellant has filed the present appeal.
9. Appellant has challenged the impugned judgment and decree dated 27.09.2016 on the ground that Ld. Trial Court has passed the judgment without any jurisdiction as it is the clear cut stand of the defendant that he was a tenant @ Rs.100/ p.m. only. Thus, the Ld. Trial Court has no jurisdiction to try and decide the suit, thus the judgment and decree are liable RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.4/14 to be set aside. It is further stated that the plaintiff in the plaint intentionally and deliberately neither disclosed the date/month/year of the inception of tenancy nor disclosed the rate of rent at which the suit property was let out in 1940 at monthly rent of Rs.20/ per month and by no stretch of imagination it is possible that in 2011 the rate of rent would have been Rs.3,800/ per month. Thus the judgment and decree, dated 27.09.2016 is liable to be set aside. It is further stated that Ld. Trial Court committed error while coming to the conclusion that on 01.01.2011, rate of rent of the suit property was Rs.3,800/ It is further stated that the said property was taken on rent in year 1940 at a monthly rent of Rs.20/ only whereas the alleged rent agreements i.e. Ex.PW2/1, Ex.PW2/2 and Ex.PW2/3 are of 2012 to 2014 only and not of year 1940 thus the same could not have been relied upon to determine the rate of rent of the suit property. It is submitted that the alleged rent agreements are in respect of new tenancies created in 2012 to 2014 only and not in respect of old tenancy thus the same are not applicable to the present case and the rate of rent in 1940 would be much lesser and the increment if any would be at rate of 10% every three years and the same could not have been Rs.3,800/ on 01.01.2011 as alleged by the plaintiff. Thus, the impugned judgment and decree are liable to be set aside.
10. It is further stated that Ld. Trial Court failed to appreciate the fact that there was no rent agreement and no rent receipts were ever issued by the plaintiff to the defendant. Thus the Ld. Trial Court allowed the plaintiff to take benefit of his own wrong as the plaintiff himself admitted that no rent receipt was ever issued to the tenant thus in the absence of any rent receipt. The Ld. Trial Court should not have believed the plaintiff's version to be true. It is further stated that PW4 i.e. Mahesh Yadav is an interested witness as the RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.5/14 witness is nephew of the plaintiff. Thus the evidence of the witness is not trustworthy.
11. I have heard the arguments on behalf of both the parties and gone through material available on records.
12. It has been argued by the Ld. Counsel for the appellant that plaintiff/respondent has failed to prove the rate of rent of suit property as 3800/ per month. It is further argued that plaintiff/respondent cannot increase the rate of rent of suit property without issuing notice of 30 days as per section 8 of Delhi Rent Control Act 1958 and further argued that the rent of suit property can only be increased according to provisions of Section 6A of Delhi Rent Control Act, 1958.
Ld. Counsel for the appellant relied upon following judgments:
1)Santosh Vaid and Another Vs. Uttam Chand (2012) 188 DLT 293
2)Surjeet Kaur Tuli Vs. Union of India (2002) 95 DLT 322
3)Krishna Vanti Vs. Modi Overseas And Others, (2002) 101 DLT
482.
13. On the other hand, it has been argued by the Ld. Counsel for the plaintiff/respondent that rate of rent of suit property was Rs.500/ in the year 1970 which was enhanced mutually by the plaintiff and defendant. He further argued that Section 6A of the Delhi Rent Control Act came into operation w.e.f. 01.12.1988 and before 01.12.1988, there was no bar for enhancement of rent more than that of as mandated by Section 6A of Delhi Rent Control Act 1958 w.e.f. 01.12.1988. He had drawn the attention of this Court towards the testimony of plaintiff witnesses and three rent agreements Ex.PW2/1 to RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.6/14 Ex.PW2/3 submitting that plaintiff has proved on record the rate of rent of similar properties in the locality where property situate, which is around 4000/ per month. Ld. Counsel for the respondent pointed out that the defendant has admitted that rent of suit property has been enhanced by the parties but he has failed to disclose current rate of rent of suit property and as such failed to prove on record that rent of suit property is 100/ per month.
Ld. Counsel for the respondent filed following judgments:
1)M/s Pearey Lal Workshop P.Ltd. Vs. Raghunandan Saran Ashok Saran 2008 STPL 22196 Delhi;
2)Model Press Pvt. Ltd. Vs. Mohd. Saied 155(2008) DLT 403;
3)Raghunanandan Saran Ashok Saran(HUF) Vs. Union of India 2002 STPL 1987 Delhi
4)Sardar Pal Singh Vs. Kalu Ram Sisodia & Anr. RFA No.183/2012, passed by Hon'ble High Court of Delhi dod 23.04.2012
14. It is the case of the plaintiff that the defendant is the tenant of the suit property and plaintiff and defendant have mutually enhanced the rate of rent of suit property Rs.3800/ per month w.e.f 01.01.2011. The defendant did not pay the rent w.e.f. 01.07.2011 and vide legal notice dated 25.11.2013 his tenancy was terminated by the plaintiff and now the defendant is unauthorized occupant of the suit property. On the other hand it has been contended by the defendant that the present suit is barred under Delhi Rent Control Act as the rate of rent of suit property is Rs. 100/ per month and not 3800/ per month and no rent receipt was ever issued by the plaintiff. It has been stated that the plaintiff had refused to accept the rent from February, 2014.
RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.7/1415. To prove his case, plaintiff himself stepped into witness box as PW3 and supported on oath the case set up in the plaint. Plaintiff has examined PW2 in order to prove current rate of rent of similar properties in the locality, where suit property is situate. PW2 exhibited three rent agreement Ex. PW2/1, Ex.PW2/2 and Ex. PW2/3. Plaintiff has also examined PW4 who deposed that rate of rent of suit property was increased to Rs. 3800/ w.e.f. 01.01.2011, he further deposed that defendant had rendered rent @ of Rs. 3800/ to the plaintiff in front of him fourfive times.
16. To demolish the case of the plaintiff, defendant has examined three witnesses namely Wazir Mohammad as DW1, Hazrat Bilal as DW2 and Mahmood Ali as DW3 and relied upon documents Ex. DW1/A, Ex. DW1/1 to Ex. DW1/10.
It is not in dispute that no rent agreement was executed between the parties nor plaintiff ever issued any rent receipt to the defendant. Plaintiff has stated on oath that rate of rent of suit property is Rs.3800/ per month. Plaintiff has proved on record three rent agreements Ex. PW2/1 to Ex. PW2/3 which prove that rate of rent of similar properties in the locality where suit property is situate, which is around Rs. 4,000/ per month. Plaintiff/respondent has filed suit for possession and arrears of rent stating that the rent of suit property is 3800/ per month w.e.f. 01.01.2011. On the other hand, defendant denied that rate of rent of suit property is increased to 3800/ per month w.e.f. 01.01.2011 and stated that the rate of rent of suit property is 100/ per month. In order to prove his case, plaintiff appeared in witness box as PW3 and during crossexamination, PW3 admitted that the rent of suit property was 500/ per month in the year 1970. He further admitted that the defendant had sent him rent as alleged by him through RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.8/14 speed post which he has refused.
17. However, no material whatsoever has been placed on record by the plaintiff/respondent to show or suggest that rate of rent of suit property is 3800/ per month. In his plaint as well as in his testimony, plaintiff/respondent has not stated the exact date, month or year as to when the suit property was let out to defendant/appellant. However, during crossexamination, it has been admitted by the plaintiff/PW3 that in the year 1970 rate of rent of suit property was 500/ per month. It has been deposed by the witness that the rent of suit property is 3800/ w.e.f.01.01.2011. It has been argued by the Ld. Counsel for the respondent that admittedly the rent of suit property was 500/ per month in 1970 but the same has been increased by the parties to 3800/ per month mutually. This Court found no force in the contention of the Ld. Counsel for the respondent as plaintiff/respondent has failed to prove that rent of suit property was enhanced to Rs.3800/ per month on 01.01.2011 as there is specific denial by the defendant that rent of 3800/ per month has been enhanced mutually by the parties. During crossexamination defendant who appeared in the witness box as DW1, denied all the suggestions given by the Counsel for the plaintiff that rent of suit property was enhanced to 3800/ per month w.e.f. 01.01.2011. DW1 further denied that rent of suit property was 500/ per month in 1970. Plaintiff has proved three rent agreement Ex.PW2/1 to PW2/3 which prove the current rate of rent of similar properties in the locality where the suit property situate. Ex.PW2/1 to PW2/3 are of no help to the plaintiff/respondent as all the rent agreements are of from year 2012 to year 2014 and the suit property has admittedly been let out to the defendant in year 1970. Even otherwise, plaintiff/respondent has failed to prove on record the rent of suit property and these documents RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.9/14 have in no case proved the rate of rent of suit property.
18. In A. Raghavamma & Anr. Vs. A. Chenchamma & Anr. AIR 1964 SC 136, Hon'ble Supreme Court of India held that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon the person who has to prove a fact. It never shifts, but the onus of proof shifts. In the instant case burden to prove the monthly rate of rent of suit property was upon the plaintiff/respondent which plaintiff/respondent has failed to prove on record.
19. Section 50(1) of Delhi Rent Control Act 1958 reads as under: "Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court or other authority"
20. Section 3(c) of the Delhi Rent Control Act 1958 reads as under: Nothing in this Act shall apply: "to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees; or....."
21. Section 6A of Delhi Rent Control Act provides that: "Notwithstanding anything contained in this Act, the standard rent, or RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.10/14 where no standard rent is fixed under the provisions of this Act in respect of any premises, the rent agreed upon between the landlord and the tenant, may be increased by ten per cent. every three years."
22. Following legal question for adjudication was framed in Santosh Vaid and Another Vs. Uttam Chand (Supra): "whether in the case of premises fetching rent of less than Rs.3500/ per month, the owner/landlord can claim increase in rent other than as provided under Section 6A & 8 of the Act or have the rent increased in proportion of the rate of inflation or devaluation of money and if so on what basis and/or to what extent."
23. After appreciating the law as laid down in the cases of Raghunanandan Saran Ashok Saran(HUF) Vs. Union of India, M/s Pearey Lal Workshop P.Ltd. Vs. Raghunandan Saran Ashok Saran and Model Press Pvt. Ltd. Vs. Mohd. Saied, Hon'ble High Court of Delhi answered the above framed legal question as follows: "A landlord of a premises governed by the Delhi Rent Control Act 1958 is entitled to have increase(s) in rent only in accordance with Section 6A and 8 thereof and not otherwise; such a landlord cannot approach the Civil Court contending that the rent stands increased or should be increased in accordance with the inflation or cost price index; the jurisdiction of the Civil Court in this regard is barred by Section 50 of the Delhi Rent Act"
24. Counsel for the respondent pointed out para 12 of the judgment of Model Press Pvt. Ltd.Vs. Mohd, Saied(Supra)wherein it has been held by RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.11/14 Hon'ble High Court that: "But, with respect to the agreed rent, wherever the same is less than Rs.3500 per month and the tenant willingly paid the same, the question of fixation of standard rent does not arise. In such scenario, the issue of Section 4, 6 and 9 becomes irrelevant. The only issue which can be urged by the landlord is that the agreed rent was limited to the duration of the lease and after the same was over, the landlord would be entitled to increase the rent."
This judgment is not applicable to the facts and circumstances of the present case as in the present case defendant has specifically denied the enhancement of rent of Rs.3800/ per month w.e.f 01.01.2011 and as such it has not been proved on record that agreed rent of suit property is 3800/ per month w.e.f. 01.01.2011.
25. Sardar Pal Singh Vs. Kalu Ram Sisodia(Supra) Judgment relied upon by Counsel for the respondent, is also of no help to the plaintiff/respondent for proving the rent of suit property as it has been held by Hon'ble High Court of Delhi that : "While calculating/deciding mesne profits, some amount of honest guesswork is always called for, and once there is a clear cut admission of the appellant/defendant/tenant, I do not think that the trial Court has faulted in directing the payment of mesne profits @ 5000/ per month. "
In the present case the dispute between the parties is regarding the rent of suit property which the plaintiff has failed to prove on record.
26. The judgments M/s Pearey Lal Workshop P.Ltd. Vs. Raghunandan Saran Ashok Saran, Model Press Pvt. Ltd. Vs. Mohd. Saied and RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.12/14 Raghunanandan Saran Ashok Saran(HUF) Vs. Union of India, relied upon by Ld. Counsel for respondent, have been referred by the Hon'ble High Court of Delhi in the judgment of Santosh Vaid & Anr. Vs. Uttam Chand(Supra) and all these judgments are of no help to the plaintiff/respondent.
27. It is settled proposition of law that increase of rent from contractual rent can only be done by recourse to Section 6A thereof. An unilateral increase of rent is not permissible under Section 6A of DRC Act and cannot be acted upon to take the case out of the purview of Delhi Rent Control Act.
As admitted by plaintiff, the rent of suit property was 500/ per month in the year 1970 and same has been increased to 3800/ per month we.f. 01.01.2011. In the present case, the rent of suit property was having less than 3500/ per month, plaintiff/respondent can claim increase of rent only in accordance with the provision of Section 6A of DRC Act. After hearing the contentions of the Ld. Counsels for the parties and after going through the case file very carefully, this Court is of considered view that plaintiff/respondent has failed to prove on record that rate of rent of suit property is 3800/ per month.
28. A plain reading of Section 50 of DRC Act makes it clear that suit for eviction of tenant from a premises otherwise than in accordance with provision of DRC Act is barred. A tenant can be evicted only by rent controller appointed in accordance with the DRC Act. For reasons stated above, there is illegality and infirmity in the findings of Ld. Trial Court and findings of Ld. Trial Court is set aside as the suit of the plaintiff/respondent is hit by Section 50 of DRC Act and Civil Court lacked jurisdiction to entertain RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.13/14 and decide the present suit.
29. Plaintiff as a landlord of suit property which is governed by Delhi Rent Control Act 1958, cannot approach the Civil Court contending that the rent stands increased to Rs.3800/ per month w.e.f. 01.01.2011. The jurisdiction of the Civil Court in this regard is barred by Section 50 of DRC Act 1958. Accordingly, the suit is barred by Section 50 of DRC Act.
Plaintiff is not entitled for possession of suit property and also not entitled for any arrears of rent claimed on enhanced monthly rent of Rs.3800/ per month. Plaintiff can only be entitled to have increase in rent in accordance with Section 6A & 8 of the DRC Act, 1958 and not otherwise. There is illegality or infirmity in the finding of the Ld. Trial Court and same is hereby set aside and suit of the plaintiff is dismissed.
30. In view of above discussion, the appeal filed by appellant against the impugned order dated 27.09.2016, passed by Ms Aditi Garg, Ld. Civil Judge, Tis Hazari, Delhi in Civil Suit No.610070/2016 in case titled as "Ram Kumar Yadav Vs. Wazir Mohammad", is allowed. Suit of the plaintiff is dismissed.
Parties to bear their own costs.
Decree sheet be prepared accordingly.
Trial Court Record be sent back alongwith copy of judgment. Appeal file be consigned to record room after due compliance.
Announced in the open court. (RAJRANI)
Dated : 16.02.2017 Additional District Judge:05
West:Tis Hazari Courts:
Delhi
RCADJ/61245/2016 Wazir Mohamad Vs Ram Kumar Yadav Page No.14/14