Delhi District Court
Mr. Mukesh Kumar Khurana vs Mr. Virender Kumar Malhotra on 13 March, 2014
1
IN THE COURT OF SHIRISH AGGARWAL, CIVIL JUDGE-1
CENTRAL DISTRICT, DELHI
SUIT NO: 272/09
UNIQUE CASE ID: 02401C0370672006
1. Mr. Mukesh Kumar Khurana
2. Mr. Yashpal Khurana
Both sons of Late Mr. Jagdish Mitter Khurana
R/o B-162, Gujranwala Town,
Delhi-110009.
...Plaintiffs
VERSUS
Mr. Virender Kumar Malhotra
S/o Late Mr. Des Raj Malhotra
R/o B-162, Gujranwala Town,
Delhi-110009.
.... Defendant
Date of Institution : 01.05.2006
Date on which Judgment reserved : 10.02.2014
Date of Pronouncing Judgment : 13.03.2014
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT
AND PERMANENT INJUNCTION
Judgment
1. The plaintiffs have pleaded in the plaint that they are
owners of first floor of property bearing no. B-162, Gujranwala
Town, Delhi-110009 as shown in red colour in the site plan filed
alongwith the plaint (hereinafter referred to as "the suit property").
It is stated that plaintiffs became owners of this property after
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demise of their parents. It is admitted by the plaintiffs that they
have other brothers and sisters. However, it is stated that the
mother of the plaintiffs had left a registered Will in their favour by
virtue of which they have become owners of the suit property.
2. It is stated that the suit property was let out by the
father of the plaintiffs to the defendant by written rent agreement
dated 01.3.2000 at the monthly rate of rent of Rs.7,700/- for a
period of eleven months. However, the defendant has not vacated
the property even after expiry of these eleven months. It is
averred that the defendant has not paid rent since July 2004. The
tenancy has also been terminated by service of a legal notice.
3. On the basis of these averments, the plaintiffs have
filed the present suit for recovery of possession of the suit property,
arrears of rent of Rs.1,69,400/- and permanent injunction
restraining the defendant from creating third party interest in the
suit property.
4. After service of summons, the defendant filed written
statement. He stated in the written statement that the rate of rent
is Rs.2,300/- per month excluding electricity charges and water
charges and not Rs.7,700/- per month. He has stated that he has
also paid Rs.50,000/- to the landlord as security/advance payment
of rent.
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5. It is pleaded that the present suit is barred by Section
50 of Delhi Rent Control Act, 1958. It is stated that since the other
Class - I legal heirs of the original landlord have not been
impleaded as parties in the present case, the present suit suffers
from non-joinder of necessary parties and is therefore not
maintainable. It is stated that the landlord had issued rent receipts
in the sum of Rs.2,300/-, to the defendant. It is pleaded that it is
the plaintiff who has refused to accept rent from the defendant and
that it is false that the defendant has not been ready and willing to
pay rent. It is stated that no written rent agreement was executed
between the parties and that the landlord had obtained signatures
of the defendant on blank papers.
6. Replication was filed on behalf of the plaintiffs. The
plaintiffs reiterated the correctness of the averments made in the
plaint and denied the assertions of the defendant. The plaintiff
denied that Rs.50,000/- towards security/rent was paid by the
defendant to the landlord. It is stated that the rent receipts filed by
the defendant are forged and fabricated. It is pleaded that perhaps
the defendant had obtained signatures of the landlord on some
receipts where the defendant has filled the rent as Rs.2,300/- per
month. It is stated that there are tick marks at the places in the
receipts where the landlord has apparently signed. It is averred
that the handwriting in the receipts are not that of father of the
plaintiffs.
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7. It is stated that prior to letting out the suit property to
the defendant, it was let out to another person at the rate of rent of
more than Rs.6,000/- per month. Plaintiff has denied that no
written rent agreement was executed between the parties. It is
stated that before filing of the present suit, in another case pending
between the parties, the defendant had admitted the rent
agreement.
Issues
8. The following are the issues framed by the Ld.
Predecessor of the Court by order dated 29.8.2006:
1. Whether plaintiff is entitled for decree of possession as
prayed? OPP
2. Whether the plaintiff is entitled for the equitable relief of
permanent injunction? OPP
3. Whether the plaintiff is entitled for a decree of Rs.
1,69,400/- as prayed? OPP
4. Whether the plaintiff is entitled for interest, if so at what
rate and for what period? OPP
5. Whether the relief of possession is barred in view of the
provisions of Section 50 of the DRC Act as claimed? OPD
6. Whether the suit is bad for non-joinder of the necessary
parties? OPD
7. Whether the suit is maintainable in the present form? OPD
8. Relief.
Evidence
9. To prove their case, the plaintiffs examined plaintiff no.
2 was PW1, Mr. Subhash Mittal, Property Dealer and attesting
witness to the rent agreement, as PW2. PW1 deposed the facts as
mentioned in the plaint and replication. He deposed that
previously the suit property was let out to one Mr. Ravinder Kumar
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Goel at the monthly rate of rent of Rs.5,500/- per month.
10. Thereafter, it was let out to one Mr. Sunil Jain at the
monthly rate of rent of Rs.7,300/-. PW1 relied upon the following
documents:
Ex.PW1/1 : Rent Agreement
Ex.PW1/2 : Site Plan
Ex.PW1/3 : Certified copy of plaint of Suit
No.595/04
Ex.PW1/4 : Certified copy of Affidavit
Ex.PW1/5 : Certified copy of Written
Statement
Ex.PW1/6 : Certified copy of Affidavit
Ex.PW1/8 : Letter dated 31.7.2006
Ex.PW1/9 : Letter dated 06.8.2006
Ex.PW1/10 : Certified copy of Judgment
dated 03.7.2006
Ex.PW1/11 : Complaint
Ex.PW1/12 : Certified copy of Rent
Agreement
Ex.PW1/13 : Rent Agreement
Ex.PW1/14 : Rent Agreement
Ex.PW1/15 : Will
11. PW2 deposed that the father of the plaintiffs and
defendant had indeed entered into the rent agreement Ex.PW1/1
and he was attesting witness to the same. He stated that he is a
property dealer and was instrumental in creation of tenancy
between the parties. He further testified that the suit property was
let out to the defendant for a period of 11 months at the monthly
rate of rent of Rs.7,700/-.
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12. During cross-examination, PW2 testified that he used to
maintain record of all deals brokered by him. However, he cannot
produce documents pertaining to the present contract as the same
was entered into 12 years back.
13. Plaintiff's evidence was closed on 20.7.2012.
14. To defend himself, the defendant examined himself as
DW1, Mr. Sunil Kumar Malik, son-in-law of the defendant as DW2,
Mr. Anil Kumar from the House Tax Department from MCD as DW3,
Mr. Tirath Babu, Asst. Zonal Inspector, MCD as DW4. DW1 deposed
the facts as mentioned in the Written Statement. He testified that
the terms and conditions of lease were orally decided between the
parties and in the presence of the late father of the plaintiffs,
defendant, defendant's wife and the defendant's son-in-law. The
defendant relied upon the following documents:
Ex.DW1/1 : Legal Notice dated 28.9.2004
Ex.PW1/D1 to
Ex.PW1/D8 : Rent Receipts
Mark A : FIR
Mark B : Complaint
15. During cross-examination of the defendant, he denied
that the rent receipts Ex.PW1/D1 to Ex.PW1/D8 do not pertain to
the suit property.
16. DW2 supported the case of the defendant and stated
that terms of lease were orally decided in his presence. The
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agreed upon monthly rate of rent was Rs.2300/- excluding
electricity and water charges and Rs.50,000/- were paid to the
landlord by the defendant towards security.
17. At the behest of the defendant, the aforementioned
rent receipts Ex.PW1/D1 to Ex.PW1/D8 were sent to the Central
Forensic Science Laboratory, Central Bureau of India (hereinafter
referred to as "CFSL") for an opinion on whether the signatures on
the receipts were of the same person who had signed the rent
agreement Ex.PW1/1. The CFSL opined that the signatures on the
receipts were of the same person who had signed the rent
agreement Ex.PW1/1.
18. Defendant's evidence was closed on 16.7.2013.
19. I have perused the record and have heard arguments.
The suit has been filed within the period of limitation. The issue-
wise findings are as under:
Issue No.5
Whether the relief of possession is barred in view of the provisions
of Section 50 of the DRC Act as claimed? OPD
20. Onus to prove this issues was upon the defendant. It is
the case of the plaintiffs that the suit property has been let out to
the defendant at the monthly rate of rent of Rs.7700/-. It is the
case of the defendant that the monthly rate of rent is Rs.2300/- and
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not Rs.7700/-. It is contended by the defendant that since the rate
of rent is Rs.2300/-, the present suit is barred by Section 50 of
Delhi Rent Control Act, 1958.
21. For the purpose of deciding this issue, the rate of rent
at which the suit property was let out to the defendant by the late
father of the plaintiffs is to be determined.
22. In support of the case, the plaintiffs have relied upon
the rent agreement dated 01.3.2000 Ex.PW1/1 which prescribes
that the rate of rent was Rs.7700/- per month. The defendant has
admitted his signatures on this document but has contended that
the signatures were obtained on blank papers by the late father of
the plaintiffs.
23. At the outset, it is noticed that in a previously instituted
suit between the parties, the defendant had not denied the
authenticity of the rent agreement Ex.PW1/1. The certified copy of
the Plaint and Written Statement of this suit bearing no.595/04 has
been proved as Ex.PW1/3 and Ex.PW1/5 respectively.
24. The property dealer, PW2, who had brokered the rent
agreement in question has supported the case of the plaintiffs and
has affirmed the authenticity of the rent agreement Ex.PW1/1.
PW2 is an independent person with no personal interest in either of
the parties. Therefore, his testimony carries more weight.
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25. It has been deposed by the plaintiffs that before the
defendant, the suit property was let out to different persons at a
monthly rate of rent which is higher than the rate that the
defendant is contending it to be. It has been testified that suit
property was let out to one Mr. Ravinder Kumar Goel at the monthly
rate of rent of Rs.5,500/-. Copy of the agreement by which the
property was let out to Mr. Ravinder Kumar Goel has been proved
as Ex.PW1/13. The suit property was let out to one Mr. Sunil Jain at
monthly rate of rent of Rs.7,300/-. Copy of agreement by which the
property was let out to Mr. Sunil Jain has been proved as
Ex.PW1/14.
26. The defendant has not disputed the authenticity of
these rent agreements. The defendant did not seek the presence of
the parties to these lease agreements and attesting witnesses to
disprove the case of the plaintiffs that the suit property was
previously let out at these higher rates of rentals. This court can
take judicial notice of the general rise in rental rates in Delhi.
Reference may be made to the case of Bakshi Sachdev (D) by L.Rs.
v. Concord 1993 RLR 563 and Vinod Khanna v. Bakshi Sachdev AIR
1996 Delhi 32. It is highly improbable that once the suit property
has been let out at the monthly rate of Rs.5500/- and Rs.7300/-, it
would have been let out at a meager sum of Rs.2300/- per month.
27. To appreciate the contention of the defendant that the
late father of the Plaintiffs had obtained his signatures on blank
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papers, in proper perspective, reference may be made to the Rent
Agreement. This document bears the signatures of the defendant
and of the late father of the plaintiffs. The rent agreement has
been executed on a stamp paper and in the presence of attesting
witness, Mr. Subhash Mittal, PW2. The Rent Agreement has been
attested by a Notary Public.
28. The attestation of the said document by Notary Public
shows that it was signed by the defendant only after being fully
prepared and that the said signatures were obtained in the
presence of a Notary Public.
29. Significantly, the defendant has not denied his
signatures on the abovementioned documents. He has also not
pleaded that the documents were prepared against his will or
without his authority or that they were not intended to be used for
the present purpose. Having admittedly signed and executed the
said documents, it is not open to the defendant to take a contrary
plea before the Court. The contention of the defendant is barred by
Section 92 of the Evidence Act, 1872.
30. The defendant is an educated person. There is no
reason for him to have signed a blank document. It is not the case
of the defendant that any kind of pressure, influence or coercion
was exerted upon him to compel him to sign the said document.
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Yet, if the defendant did so, it must be at his own peril. The
defendant cannot now be permitted to assail the validity of the
document on the ground that it was blank when he signed it.
31. Even if it is assumed that the defendant had signed
blank documents, by doing so, the defendant is deemed to have
admittedly authorized the father of the Plaintiffs to fill up the
documents on his behalf. Hence, while filling up the documents, the
father of the Plaintiffs was acting as an agent of the defendant. In
conformity with Section 226 of the Contract Act, 1872, the
defendant is bound by this act of the agents.
32. Further, had the defendant wanted to disclaim or
repudiate the agreement on the ground that he had not consented
to the terms of rent agreement, he ought to have done so at the
earliest opportunity. He should not have waited for the stage of
filing of written statement in the present case i.e. July, 2006. The
defendant knew of the existence of the rent agreement when
summons of the suit no. 595/2004 filed on 19.11.04, were served
upon him. Summons were served before 22.02.2005 as the written
statement filed by the defendant in that case is dated 22.02.2005.
The defendant chose not to do any of this. Instead, he continued
using the suit property. This is not permissible under law. The delay
in raising this plea shows that it is a mere afterthought. In this
behalf, reference may be made to the case of KLG Systel Ltd. vs.
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M/s. Fujitsu ICIM Ltd. AIR 2001 Delhi 357. In that case, the Hon'ble
High Court of Delhi rejected the defence and declined leave to
defend on the ground that this plea had been raised for the first
time after institution of the suit. It was observed as under :
"To judicially countenance complaints raised after several months
would tantamount to violating the legislature's intent of an
expeditious disposal of commercial complaints. Leave to defend
should be granted only if a valid defence, requiring a trial, is
disclosed. Such a defence if entertained may be allowed subject to
terms. However, in the present case the defence in essence is of the
unsuitability of Autovesl and Isogen, and not delay in their supply.
No triable issue has arisen. The present case is what was envisaged
in category (d) of the decision of the Supreme Court in the M/s.
Mechalec Engineers case (supra).
In this analysis the defendant's application is dismissed. The suit is
decreed with costs."
33. Having continued to reside in the suit property, the
defendant had impliedly accepted the terms of the loan, in keeping
with Section 8 of the Contract Act, 1872. He cannot now avoid the
said terms. Hence, even if the explicit agreement bearing the
signatures of the defendant is not taken into consideration, the
implied acceptance of the defendant fortifies the claim of the
plaintiffs.
34. Further, the mere alleged filling up of the documents by
the father of the Plaintiffs does not invalidate the agreement. It
does not indicate that the consent of the defendant was not free or
that it was induced by coercion, undue influence, fraud or
misrepresentation so as to impinge upon the validity of the
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agreement.
35. In the case of Vipin Gupta v. Prem Singh 2007(5) R.C.R.
(Civil) 223, the Hon'ble High of Court of Delhi emphasized the
binding nature of written documents and observed as under :
"We have perused the record and we find that the
appellant/defendant has not denied his signatures on any of the
documents which have been annexed and relied upon by the
plaintiff/respondent in filing the present suit. Both these cheques in
question bear the signatures of the appellant. We have also perused the non judicial stamp paper placed on record by the plaintiff/respondent in which the appellant/defendant has given an undertaking in writing that he will return the sum of Rs. 3,00,000/- by 13.06.2001. The appellant has put his signatures on this undertaking on nor judicial stamp paper and besides that, he has also put his thumb impression on the said undertaking. We have also gone through the receipt placed on record by the plaintiff/respondent. The receipt has also been duly executed by the appellant for having received Rs. 3,00,000/- in cash. This receipt is also duly signed by the appellant. After perusing all these documents, it appears that the appellant has taken a false defence that he had lost these two cheques in question which have been stolen by the plaintiff/respondent and has filed a false suit against the appellant. We do not find any force in the plea taken by the appellant in this case. The other documents which have been signed by the appellant are the undertaking given by the appellant on a non judicial stamp paper in which he has stated that he will refund the amount of Rs. 3,00,000/- by 13.06.2001 and the appellant has also put his signatures as well as the thumb impression on the undertaking. The appellant has also executed a receipt duly signed by him for having received a sum of Rs. 3,00,000/- in cash. So, we are of the opinion that all these documents cannot be created by the plaintiff/respondent. In our opinion, the plea taken by the appellant is a sham and has got no force."
36. The defence raised by the defendant does not inspire confidence. In the aforementioned facts and circumstances, it is apparent that the defendant had consciously executed the rent Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:13/26 14 agreement. This document contain the terms and conditions of the lease. The defendant cannot be permitted to plead ignorance thereof. After having signed the agreement, after having availed the property and after defaulting with its terms by not surrendering possession of the property, he cannot be permitted to resile from its terms on flimsy grounds. If the defendant is permitted to release himself from the document admittedly signed by him, the very purpose of executing documents would be frustrated and the documents would be rendered devoid of sanctity.
37. In the case of Sapna Saree Centre v. Bank of Rajasthan AIR 2001 Raj 67, the Hon'ble Rajasthan High Court held that merely denying the execution of incriminating documents is a sham. It was observed:
"15.As regards other issues, mere denial of the documents as to the execution being made in favour of the plaintiff Bank under credit facility for being renewed from time to time would not by itself entitle the defendants to the grant of leave to defend in view of partial acknowledgment as the deposits having been made by them towards repayment of the loan and the last deposit was admittedly made by them on 15-7-88. In this view of the matter, in my considered view, the defence set up by the defendants in their application for leave to defend is sham, illusory and practically moonshine and their contentions are contrary to the material on record and hence the learned trial Court has rightly declined to grant leave to defend the suit by rejecting the application under Order 37, Rule 3, CPC thereby has also rightly decreed the suit for recovery of outstanding loan amount under the credit facility. The findings recorded by the learned trial Court do not warrant any interference by this Court in this first appeal, because they are based on due appreciation of the material on record and is supported by cogent reasons."
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38. In the present case, the claim of the plaintiffs is crystallized by the document filed by them. The credibility of the document is not eroded by the aforesaid plea of the defendant, which is hereby rejected.
39. The defendant has relied upon certain documents Ex.PW1/D1-Ex.PW1/D8 claiming the same to be rent receipts issued by late father of the plaintiffs to the defendant. It is contended that these receipts prescribe that the rate of rent was Rs.2300/- and have been signed by late father of the plaintiffs. The plaintiffs have disputed the authenticity of these receipts. These receipts were sent to the CFSL at the behest of the defendant for seeking an opinion on whether the signatures on the receipts purported to have been of late father of the plaintiffs are the same as signatures on rent agreement Ex.PW1/1. The CFSL has opined that the signatures on the receipts match with the signatures of the late father of the plaintiffs which appear on the rent agreement.
40. However, I am of the opinion that the admission of the defendant that the signatures on Ex.PW1/1 are indeed his shall have precedence over expert opinion. Having upheld the validity of the rent agreement Ex.PW1/1, I am of the opinion that rent agreement shall have precedence over the rent receipts of which authenticity is in dispute and is deriving sanctity only on the basis of an opinion of a handwriting expert. In R vs. Ahmed Ali 11 WR Cr. 25 Nariman, J had made observations on expert evidence. It was Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:15/26 16 stated by the learned Judge that the evidence of an expert witness, however eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however confidently he may speak, is ordinarily a matter of mere opinion. In this regard, reference is also made to the following decision:
State of Punjab v. Hakam Singh AIR 2005 SC 3759:
"So far as the medical evidence is concerned, P.W.2 is Dr. S.K. Gupta who conducted the post-mortem examination. P.W.2 nowhere says that Harbans Singh was incapable of firing shot, likewise Dr. Malik. Moreover, whenever there is conflict between medical evidence and ocular testimony normally ocular testimony should be preferred unless it belies fundamental facts. Moreover when the ocular testimony of P.W.3 which speaks volume that her husband fired two gun shots which proved fatal so far as Bhola Singh is concerned, that leaves no manner of doubt that the gun shots were fired by Harbans Singh."
41. In the cases of Virender Vs. The State of NCT of Delhi Crl.A.No. 121/2008 dated 29.09.2009 and Narender Singh Vs. State Crl. A. No. 560/1999 dated 23.04.2013, the Hon'ble High Court of Delhi held the expert opinion is not perfect science.
42. In the written submissions filed on behalf of the defendant, certain discrepancies in the testimony of the plaintiffs' witnesses have been pointed out. At the outset, it is observed that there have been contradictions and discrepancies even in the testimony of the defendant's witnesses. However, it is not every discrepancies or contradiction that renders the witness or evidence tendered by him unacceptable or tainted so as to call for their rejection in toto. The maxim falsus in uno, falsus in omnibus i.e. Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:16/26 17 false in one things, false in everything, is neither a sound rule of law nor a rule of practice. Hardly, one comes across a witness whose testimony is flawless. It is the duty of the court to scrutinize the evidence carefully and in terms of the felicitous metaphor, separate the grain from the chaff. I am of the opinion that the discrepancies in the testimony of plaintiffs' witnesses are minor and inconsequential.
43. In these facts and circumstances, it is held that the rate of rent as stated in the rent agreement shall be deemed to be correct and not the amount as stated in the alleged receipts. As such, the suit property was let out to the defendant by the late father of the plaintiffs at the monthly rate of Rs.7,700/- and not Rs.2,300/-. Thus, the relief for possession is not barred by Section 50 of Delhi Rent Control Act, 1958. This issue is decided against the defendant and in favour of the plaintiffs.
Issue No.6 Whether the suit is bad for non-joinder of the necessary parties? OPD
44. Onus to prove this issue was upon the defendant. It is contended by the defendant that since the plaintiffs have not impleaded other Class-I legal heirs of the original landlord i.e. father of the plaintiffs, present suit is not maintainable on account of non-joinder of necessary parties.
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45. The plaintiff no.2 has deposed that after demise of his father, his mother had become the owner of the suit property. He has testified that his mother has died and has executed a Will by which the suit property has been given to the plaintiffs and they have equal share in the suit property. The registered Will dated 12.11.2003 has been proved as Ex.PW1/15.
46. On the other hand, the defendant has not led any evidence to controvert the testimony of plaintiff no.2 that the plaintiffs are the sole owners of the suit property. The onus of proof of the present issue was upon the defendant and he ought to have come forward with cogent evidence to prove that the plaintiffs are not the sole owners of the suit property. Authenticity of the Will has also not been disputed. Therefore, there is no reason to disbelieve the submission that the plaintiffs are absolute and sole owners of the suit property.
47. Even otherwise, even if the assertion of the plaintiffs that they are the sole owner of the suit property is false and that they are only co-owners of the suit property, the suit is still maintainable.
48. The full bench of the Hon'ble Supreme Court has held the following in the case of Shri Ram Pasricha Vs. Jagannath and Ors. AIR 1976 SC 2335:
"25. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:18/26 19 property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will, change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.
26...We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is."
49. A similar question arose in the case of Pal Singh Vs. Sunder Singh 29 (1986) DLT 385, in which the following was held by the Hon'ble High Court of Delhi:
"The law has been correctly noticed and followed by the learned Tribunal. I agree with its findings that in the present case the petition for eviction was maintainable without implicating Smt. Sham Kaur who is co-owner of the property. I may notice that in Mohan Lal Goela v. Shri Sri Krishan & Ors. MANU/DE/0028/1978 : AIR 1978 Delhi 92 , it was observed by Avadh Behari.J. that a co-owner was as much an owner of the property as any sole owner."
50. The following was held by the Hon'ble High Court of Delhi in the case of Kanhiya Lal Bansal Vs. Raj Nath Sharma and Ors. 14 (1978) DLT 69:
"(10) Now where a co-owner is managing the property on behalf of other co-owners, he has the implied consent to terminate the tenancy and evict the tenant. A full Bench of the Gujrat High Court in Nand Lal Girdhari Lal and another v. Gulamnabl Pamalbhai and others, held : "Where a co-owner is, by common consent of all co-
owners, entrusted with the management of the leased property he may give notice to quit in his own name and the notice to quit need not show on the face of it that he is acting as agent on behalf of the co-owners." It was also held :
"WHEN it is said that the notice to quit must be given by all co-owners, it is not necessary that it should be Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:19/26 20 signed by all co-owners. It is sufficient if it is given by some one acting as agent on behalf of the co-owners. The agent may be one of the co-owners himself or he may be one of the co-owners himself or he may be a third person such as, for example a solicitor or an advocate. Such an agency may be expressed or implied. So long as the agency is established, notice to quit given by the agent would be valid notice determining the tenancy."
Similar was the view taken by a Single Judge of Patna High Court in Indu Bhusan Base Choudhary v. Hari Bhajan Singh and others AIR1976 Pat 282 . The Supreme Court in Smt. Kanta Gael v. B. P. Pathak and others, [1977] 3 SCR 412 , after referring to its earlier decision in Shri Ram Pasricha [1977] 1 SCR 395 , that a co-owner is as much an owner of the entire property as any sole owner of the property is, held that where a co-owner functioned for all practical purposes as the landlord he was entitled to institute proceedings of eviction under the Delhi Rent Control Act against the tenant. (11) In the instant case, as already stated, it has been found that Raj Math Sharma was managing the property on behalf of all the co- owners which includes the guardian of the minor, and it cannot be said that he could not terminate the tenancy and take proceedings for the eviction of the tenant."
51. Also, even if there is any dispute of ownership of the suit property, that is a matter between legal heirs of the father of the plaintiffs. It is not even the case that the defendant has instituted an interpleader suit. Therefore, the objection of the defendant does not appear to be bonafide.
52. In these facts and circumstances, the objection of the defendant is not tenable. The plaintiffs were competent to institute the present suit. The suit does not suffer from non-joinder of necessary parties. This issue is decided against the defendant and in favour of the plaintiffs.
Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:20/26 21 Issue no.7 Whether the suit is maintainable in the present form? OPD
53. Onus to prove this issue was upon the defendant. The defendant has failed to disclose how the present suit is not maintainable in its present form. The contention of the defendant appears to be bald and unsubstantiated. Issues no.5 & 6 have already been decided in favour of the plaintiffs. There is no reason to believe that the suit is not maintainable in its present form. This issue is decided against the defendant and in favour of plaintiffs.
Issue No.1 Whether plaintiff is entitled for decree of possession as prayed? OPP
54. Onus to prove this issue was upon the plaintiffs.
55. The authenticity of the rent agreement Ex.PW1/1 has already been upheld while deciding issue no.5. This rent agreement provides that the tenancy has commenced on 01.3.2000 and is only for 11 months. Clause 10 of the agreement provides that on expiry of this period, the tenant shall vacate the premises and shall handover possession of the property to the landlord, in good condition. Admittedly, possession has not been handed over. The defendant must adhere to the terms of contract and hand over possession of the suit property to the plaintiffs.
Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:21/26 22
56. Even otherwise, the plaintiffs have terminated the tenancy by service of legal notice under Section 106 of Transfer of Property Act. Service of this notice has not been disputed by the defendant. As is evident from the pleadings, it is not disputed between the parties that the property was leased to the defendant for his residence. Such tenancy is deemed to be a month-to-month tenancy terminable with fifteen days' notice, as laid down in Section 106 of Transfer of Property Act, 1882. This position of law is clearly borne out from the decision of Hon'ble High Court of Delhi in the case of Deenar Builders Ltd. v. M/s. Khoday Distilleries Ltd. AIR 2000 Del 147. Section 106 of the Transfer of Property Act reads as under :
"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property".
57. Therefore, not only are the plaintiffs entitled to recovery of possession of suit property by virtue of tenancy period getting expired by efflux of time but also by virtue of tenancy being terminated by service of notice under Section 106 of Transfer of Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:22/26 23 Property Act. Therefore, it is held that plaintiffs are entield to recovery of possession of suit property. This issue is decided in favour of the plaintiffs and against defendant.
Issue No.2 Whether the plaintiff is entitled for the equitable relief of permanent injunction? OPP
58. This issue has already been decided in favour of plaintiffs and against the defendant, by order and decree dated 22.10.2013.
Issue No.3 Whether the plaintiff is entitled for a decree of Rs.1,69,400/- as prayed? OPP
59. Onus to prove this issue was upon the plaintiff. It has already been held hereinabove that the rate of rent at which the suit property was let out to the defendant was Rs.7,700/- per month. It has been testified by PW1 that defendant has not paid this rent with effect from 01.7.2004 despite repeated demands being made by the plaintiffs. It is admitted in the Written Statement that the rent has not been paid. However, it is stated that rent was tendered but was refused to be accepted. Be that as it may, rent has not been paid by the defendant to the plaintiffs after 01.7.2004 except for the amount which had been paid during the pendency of the suit.
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60. It has been deposed by the defendant that he had paid Rs.50,000/- to the father of the plaintiffs as security/advance rent. It has been testified by him during cross-examination that the amount was paid in cash and no receipt was obtained from the father of the plaintiffs are proof of payment.
61. Plaintiffs have contended that no such security/rent amount was taken from the defendant.
62. It is highly improbable that a person would make payment in cash and would not even obtain a receipt. On one hand, the defendant claims to have receipts of payment of rent at the rate of Rs.2,300/- and on the other hand, the defendant does not even have a receipt to prove making payment of Rs.50,000/-.
63. The defendant has failed to attain the standard of preponderance of probability and has not been able to outweigh the denial of the plaintiffs that the said sum of security was paid.
64. Even otherwise, the defendant has not pleaded a set off or filed a counter claim for recovery of Rs.50,000/-. Therefore, it is inconsequential whether the payment of Rs.50,000/- was made or not.
65. As such, the plaintiffs are entitled to recovery of rent at the rate of Rs.7,700/- per month from 01.7.2004. The plaintiffs are Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:24/26 25 claiming arrears of rent till the date of institution of the suit. Arrears of rent calculated at this rate from 01.7.2004 till 30.4.2006 amounts to Rs.1,69,400/-. Plaintiffs have sought recovery of this amount by institution of the present suit. Therefore, the plaintiffs are entitled to recovery of Rs.1,69,400/-, after adjusting the amount which has been paid by the defendant during the pendency of the suit. The issue is accordingly decided.
Issue No.4 Whether the plaintiff is entitled for interest, if so at what rate and for what period? OPP
66. Onus to prove this issue was upon the plaintiffs. The plaintiffs have not led any evidence to show their entitlement to interest at a particular rate. I deem it fit to award pendente lite and future interest to the plaintiffs at the rate of 9% p.a. Issue No.8: Relief
67. In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiffs and against the defendant. The plaintiffs are entitled to recovery of possession of first floor of property bearing no. B-162, Gujranwala Town, Delhi-110009 as shown in red colour in the site plan filed alongwith the plaint. The defendant is directed to hand over the vacant possession of this property to the plaintiffs.
68. A decree for recovery of a sum of Rs.1,69,400/-, after Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09 Page No:25/26 26 adjusting the amount which has been paid by the defendant during the pendency of the suit, as arrears of rent is also passed in favour of plaintiffs and against the defendant. The plaintiffs are also entitled to pendente lite interest on the aforesaid sum at the rate of 9% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 9% per annum from the date of decree till realization.
The plaintiffs are entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared accordingly. File be consigned to Record Room.
(Announced in the open court (SHIRISH AGGARWAL)
on 13.3.2014) CIVIL JUDGE-1
CENTRAL DISTRICT
DELHI
Mukesh Kumar Khurana & Anr. v. Virender Kumar Malhotra Suit No.272/09
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