Delhi District Court
Munna Khan vs Ram Lal on 24 April, 2018
IN THE COURT OF SH. ANKIT SINGLA, ACJ/ARC/CCJ
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS No. 33/2017
In the matter of:
Munna Khan
S/o Late Sh. Munsir Khan
R/o C41/15, Gali No. 9,
North Ghonda,
Delhi110053 ................. Plaintiff
Versus
Ram Lal
S/o Sh. Sriram
R/o H. No 95, Gali No. 2,
Shiv Vihar, PhaseIV,
Karawal Nagar, Delhi
At also: Shop
situated in C41/18,
Main Jama Masjid Road,
Delhi110053 .............. Defendant
Date of Institution : 24.12.2016
Date of Judgment reserved on : 23.04.2018
Date of Pronouncement : 24.04.2018
Decision : Decreed
SUIT FOR POSSESSION, PERMANENT INUNCTION,
DAMAGES AND MESNE PROFIT
JUDGEMENT
1. Vide this judgment, I shall dispose of suit filed by plaintiff for relief of CS No. 33/17 Munna Khan vs. Ram Lal Page 1 of 22 possession, permanent injunction and damages.
2. Briefly stated the facts as averred in the plaint are as follows: a. The plaintiff is registered and absolute owner of property bearing No. C 41/18, Main Jama Masjid Road, NorthGhonda, Delhi110053 (hereinafter referred as suit premises) b. The plaintiff had let out one private shop No. 6 situated at ground floor in suit premises (hereinafter referred as suit shop) to the defendant @ of Rs. 2000/ per month excluding other charges for a fix period of 11 months w.e.f. 08.10.2010 to 07.09.2011 vide a registered rent agreement dated 08.10.2010 which was duly registered with the office of subregistrarIV, Seelampur, Delhi vide registered document no. 1607, Book No. 1, Volume No. 4276, pages No. 18 to 24.
c. It is submitted that defendant had also deposited a sum of Rs. 50,000/ as security amount and the said amount is refundable without any interest at the time of vacation of suit shop. It is alleged that defendant is not paying the agreed rent of Rs. 2000/ per month since 01.10.2011.
d. It is further alleged that tenancy period has already been expired on 07.09.2011 and the plaintiff has also terminated the tenancy of the defendant through legal notice dated 09.06.2014 but, defendant has failed to vacate the suit shop.
e. It is submitted that earlier plaintiff had filed eviction petitions U/s 14(1)
(a) and U/s 14(1)(e) of DRC Act but, same were dismissed on technical grounds CS No. 33/17 Munna Khan vs. Ram Lal Page 2 of 22 on 25.11.2016.
f. Since, despite lapse of period of tenancy and revocation of tenancy,the defendant has failed to vacate the suit shop, the present suit has been filed by the plaintiff for relief of possession, arrears of rent of Rs.122000/ and permanent injunction.
3. Summons for settlement of issues were sent to the defendant for enabling him to file written statement (hereinafter referred as WS) of his defence. In his WS, the defendant took following preliminary objections: a. The plaint has not been properly verified and suit of plaintiff is hit by provision of Section 41(h)(i) of Specific Relief Act.
b. Plaint has not been properly valued for purpose of court fees c. The suit is barred by DRC Act as it was admitted by plaintiff in para 3 of replication filed in petition no. E33/14 titled as Munna Khan vs Ram Lal, that property in question was constructed in year 1991 and repaired in the year 2009.
d. The suit is based upon forged and fabricated documents e. The plaintiff has not come with clean hands and has concealed material facts from the court that defendant is tenant in private shop no. 6 situated in property bearing no. C41/15, Gali No. 9/10, Main Jama Masjid Road, North Ghonda but plaintiff has malafidely mentioned that defendant is tenant in a shop in property no. C41/18.
CS No. 33/17 Munna Khan vs. Ram Lal Page 3 of 22f. On reply on merits, it is denied that plaintiff is the registered and absolute owner of property bearing no. C41/18, Main Jama Masjid Road, North Ghonda. It is also denied that plaintiff had let out one shop bearing no. 6 in suit premises to the defendant on 08.10.2010 for period of 11 months vide a registered rent agreement dated 08.10.2010. It is also denied that contents of rent agreement were explained to the defendants. It is submitted that plaintiff want to evict the defendant by manipulating the facts. It is submitted that defendant was inducted tenant in property bearing no. C41/15, Main Jama Masjid Road, North Ghonda about 17 years back. It is submitted that at the time of letting out the said tenanted shop, defendant had given refundable security of Rs. 50,000/ to the plaintiff.
g. It is submitted that the rent was settled at the rate Rs. 700/ per month against the receipt and electricity was provided through a submeter in the tenanted shop. About 6 years ago, the rent was enhanced to Rs. 800/ from Rs. 700/. It is submitted that defendant is a good pay master of rent and he pay rent regularly, without any fault but, the plaintiff avoided to issue rent receipts on one pretext or other. It is submitted that last rent paid by the defendant was on 03.10.2011 for month of October, 2011, but, plaintiff despite repeated request failed to accept the rent, therefore defendant started deposited the rent in the court U/s 27 DRC Act. It is submitted that defendant is using the shop peacefully. It is submitted that plaintiff has been in habit of issuing rent receipts collectively for several months.
h. It is alleged that plaintiff attempted to vacate the suit shop forcibly, therefore defendant had to file a civil suit for permanent injunction to restrain the CS No. 33/17 Munna Khan vs. Ram Lal Page 4 of 22 plaintiff from dispossessing the defendant from tenanted shop in his possession i. It is alleged that plaintiff with oblique motive filed false petitions U/s 14(1)(a) and U/s 14(1)(e) of DRC Act and after withdrawing the said petitions in absence of defendant, he filed false petition on the same ground.
k. It is submitted that the agreement dated 08.10.2010 is a forged and fabricated document. It is submitted that true facts are that on 08.10.2010, defendant was taken by plaintiff to the office of Subregistrar on the pretext that plaintiff has to purchase a house and signature and thumb impressions of defendant are required as witness. The defendant signed some written and unwritten papers without knowing the contents of the said papers. The defendant is an illiterate person. The plaintiff knowingly gave wrong particulars of the suit shop by mentioning that tenanted shop is located in property bearing no. C 41/18, Main Jama Masjid Road, North Ghonda, but as a matter of fact the tenanted shop is located in property bearing no. C41/15, Gali No. 9/10, Main Jama Masjid Road, North Ghonda.
l. The factum of expiry of period of tenancy and termination of tenancy of legal period are denied. It is submitted that after dismissal of petitions filed by the plaintiff under DRC Act, the matter was compromised between the parties and plaintiff had admitted the defendant tenant in respect of private shop no. 6 situated in property bearing no. C41/15, Gali no. 9/10, Main Jama Masjid Road, North Ghonda @ monthly rent of Rs. 1000/ per month. It is submitted that rent was also paid by the defendant till 31.12.2016, but plaintiff backed out from compromise.
CS No. 33/17 Munna Khan vs. Ram Lal Page 5 of 224. Replication was filed, wherein plaintiff reiterated the avertments made in the plaint. The plaintiff further stated that in petition no. 33/14 titled as Munna Khan vs Ram Lal defendant had taken plea that provision of DRC Act are not applicable and now he is stating that provision of DRC Act are applicable. It is denied that suit of plaintiff is based upon forged documents.
5. On completion of pleadings, on 08.05.2017 following issues were framed by my Ld. Predecessor : i. Whether the plaintiff is entitled for a decree of possession as prayed for? (OPP) ii. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? (OPP) iii. Whether the plaintiff is entitled for a decree of arrears of rent, as prayed for? (OPP) iv. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD v. Whether the suit is barred as per the proviions of Delhi Rent Control Act? OPD vi. Whether the plaintiff has concealed material facts from this Court disentitling him from claiming the relief? OPD vii. Relief
6. After settlement of issues, the matter was fixed for plaintiff's evidence. Plaintiff examined only himself as a witness. He was examined as PW1. The plaintiff filed evidence by way of affidavit, wherein he reiterated the averment made in the plaint. The plaintiff was cross examined at length. The plaintiff relied upon following documents to support his case.
CS No. 33/17 Munna Khan vs. Ram Lal Page 6 of 22 Ex. PW1/1 Copy of surrender deed (OSR)
Ex. PW1/2 Affidavit dated 12.02.1982
Ex. PW1/3 Copy of electricity bill with due date 21.08.2012 in favour of
plaintiff (OSR)
Ex. PW1/4 Original site plan
Ex. PW1/5 Copy of registered rent agreement (OSR)
Ex. PW1/6 Copy of legal notice dated 09.06.2010
Ex. PW1/7 Copy of registered Ad and Speed Post Coupons
7. After examining himself, plaintiff closed his evidence and matter was fixed for Defendant's evidence.
8. Defendant examined himself as witness and he was examined as DW1. This witness reiterated the avertments made in the written statement. The defendant filed evidence by way of affidavit which is Ex. DW1/A and he relied upon following documents to support his case.
i. the photocopy of certified copy of petition alongwith affidavit bearing No. RC87/16 is Ex. DW1/1 (10 pages Colly.) (OSR) it bears the signature of plaintiff at point A on each point and the signature of his Counsel at point C. ii. the photocopy of certified copy of replication filed by the plaintiff in petition No. 33/14 is Ex. DW1/2 (21 pages Colly.) (OSR) iii. the photocopy of certified copy of civil suit for permanent injunction filed by the deponent is Ex. DW1/3 (11 pages Colly.) (OSR) iv. the photocopy of certified copy of WS filed by the plaintiff in the abovesaid suit is Ex. DW1/4 (13 pages Colly.) (OSR) v. the photocopy of certified copy of ordersheet dt. 23.05.2017 is Ex. DW 1/5 CS No. 33/17 Munna Khan vs. Ram Lal Page 7 of 22 (OSR) vi. the photocopy of certified copy of statement of plaintiff and deponent given in the abovesaid is Ex. DW1/6 (OSR) vii. the photocopy of complaint given by the deponent against the plaintiff regarding the forgery of alleged rent agreement committed by the plaintiff given to SHO Bhajanpura on 12.11.2011 with deponent is Ex. DW1/7 (OSR) viii. the photocopy of copy of same complaint given to DCP, NE on dt.
15.11.2011 is Ex. DW1/8 (OSR) ix. the photocopy of rent deposit receipt U/s 27 DRC Act from 01.11.2011 to 31.01.2012 is Ex. DW1/9 (OSR) x. the photocopy of rent deposit receipt U/s 27 DRC Act from 01.02.2012 to 31.01.2013 in DR No. 10/13 is Ex. DW1/10 (OSR) xi. the photocopy of rent receipt issued by the plaintiff to the deponent is Ex. DW1/11 (OSR) (6 rent receipts colly.) it bears the signature of plaintiff at point A on each rent receipts.
9. After closure of defendant's evidence, matter was fixed for final arguments. Counsels for both the parties addressed their arguments in detail. Arguments of both the parties are proposed to be dealt with at the time of issue wise finding in order to avoid the prolixity.
Issue no.v)
v) Whether the suit is barred as per the provisions of Delhi Rent Control CS No. 33/17 Munna Khan vs. Ram Lal Page 8 of 22 Act? OPD
10. This issue is taken first in herrarcy of my issuewise finding, because this issue is legal issue.
11. The onus to prove this issue was upon the defendant. It is contended by defendant that suit is barred by provision of DRC Act as the rate of rent is less than Rs.3500/.
12. Per contra, it is contended by counsel for plaintiff that although rate of rent is less Rs.3500/, but still the provision of DRC Act are not applicable on the suit shop, because the suit shop was constructed in year 2009 and this question has already been decided by ld. ARC North East, Karkardooma Court vide judgment dated 25.11.2016. It is submitted by counsel for plaintiff that defendant cannot reagitate this issue, because this issue has attained finality.
13. The perusal of certified copy of the judgment of ld. ARC dated 25.11.2016 shows that ld. ARC had held that petition for eviction of defendant is not maintainable as DRC Act is not applicable on the suit shop by virtue of Section 3 (d) of DRC Act.
14. Section 3(d) of DRC Act bars the applicability of DRC Act to any premises constructed on or after the commencement of DRC Act, 1988 for a period of ten years from date of completion of such construction. In the judgment dated 25.11.2016, it was held that since, construction of the tenanted premises i.e suit property was completed in year 2009, for ten years, the petitioner could not have filed the eviction petition against the respondent CS No. 33/17 Munna Khan vs. Ram Lal Page 9 of 22 under DRC Act as provision of DRC Act cannot apply for ten years on the suit shop.
15. Ld. Counsel for defendant contended that although, ld. ARC has already held that provision of DRC Act are not applicable on the suit shop, but still his finding would not operate as resjudicata as the court of ld. ARC is court of limited jurisdiction. He further contended that in the judgment relied upon by plaintiff, it has been categorically held by the ld. ARC that the said judgment is not passed on merits, therefore, as the judgment is not passed on merits, any finding given in the said judgment on any issue would not operate as res judicata.
16. I have considered the rival contentions of both the counsels on the aforesaid aspect and also gone through the case law made available by the parties before this court. After going through the facts of the case and the case law, I am of the opinion that submissions of counsel for the defendant is liable to be rejected.
17. The contention of ld. Counsel for defendant overlooks the provisions inserted into Section 11 of CPC as explanation VIII, which was newly added by CPC Amendment Act 104 of 1976.
18. To deal with the objection of ld. Counsel for defendant that judgment cannot operate as resjudicata as it was delivered by court of Rent Controller, the following explanation is worth reproducing "Explanation VIII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not CS No. 33/17 Munna Khan vs. Ram Lal Page 10 of 22 competent to try such subsequent suit or the suit in which such issue has been subsequently raised. "
19. The Hon'ble Supreme Court in decision titled as Sulochana Amma Vs. Narayan Nayar 1194, AIR 152, 1994 SCC (3) 14 settled the conflict of a period among various high court regarding interpretation of above explanation. The material paragraph are reproduced below for better appreciation.
"6. The words "competent to try such subsequent suit" have been interpreted that it must refer to pecuniary jurisdiction of earlier court to try the subsequent suit at the time when the first suit was brought. Mere competancy to try the issue raised in the subsequent suit is not enough. A decree in the previous suit will not operate as resjudicata unless the Judge by whom it was made, had jurisdiction to try and decide. Unless the Judge by whom it was made, had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised. The interpretation had consistently been adopted before the introduction of explanation VIII. So the earlier decree of the court of a limit jurisdiction would not operate as resjudicata when the same issue is directly and substantially in issue in later suit filed in a court of unlimited jurisdiction, vide P.M.Kavade Vs. A. B. Bokil 6. It had, therefore, become necessary to bring in statute explanation VIII. To cull out its scope and ambit, it must be read alongwth Section 11 to find the purpose it seeks to serve. The Law Commission in its report recommended to remove the anamoly and bring within its fold the conclusiveness of an issue in a former suit decided by any court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like ........ Rent Controller. No doubt main b ody of Section 11 was not amended, yet the expression " court of limited jurisdiction in explanation VIII is wide enough to include a court whose jurisdiction is subject to pecuniary jurisdiction and other cognet expression CS No. 33/17 Munna Khan vs. Ram Lal Page 11 of 22 analogous thereto. Therefore, Section 11 is to be read in combination and harmony with explanation VIII. The result that would flow is that an order or an issue which had reason directly or substantially between parties or their privies and decided finally by competent court or tribunal, though of limited or special jurisdiction, which include pecuniary jurisdiction, will operate as resjudicata in a subsequent suit between the same party of their privies."
20. In view of aforesaid observations made by Hon'ble Supreme Court, it is clear that the contention of ld. Counsel for the defendant that the finding of ld. ARC can not operate as resjudicata is totally misfounded.
21. Now, after deciding the question that finding given by ld. ARC on a issue decided finally between the parties would operate as res judicata, the question before this court is whether the question of applicability of DRC Act was directly or substantially in issue in the petition filed by the plaintiff and whether such issue was finally decided.
22 The test to decide whether a matter is directly and substantially in issue, in the earlier proceedings is to see, if it was necessary for that issue to be decided in order for an adjudication upon the principle issue.
23. In every petition under DRC Act, in order to decide the rights of the parties on merit, the first question which a Rent Controller has to decide is whether on the tenanted premises for which eviction petition is filed the provision of DRC Act would apply or not. Thus, in every petition filed under DRC Act, the question of applicability of DRC Act over the tenanted premises is an issue which Rent Controller has to decide before deciding the case on merit. Admittedly, in eviction petitions filed by plaintiff, it has already been decided CS No. 33/17 Munna Khan vs. Ram Lal Page 12 of 22 that tenanted premises was constructed in year 2009 and the provision of DRC Act cannot apply for 10 years from the year of completion and as such, till 2019, the provision of DRC Act would not apply. This order was passed by ld. ARC on the basis of facts averred by both the parties, therefore, it cannot be said that said issue was not decided on merit. These orders passed in eviction petitions were never challenged by defendant, who was respondent in those petitions. On the basis of finding by ld. ARC in aforesaid petitions, the petition filed by the plaintiff were dismissed and consequently defendant was the beneficiary of aforesaid orders. Now, after taking benefit of aforesaid order, it does not lie into mouth of defendant that civil suit for possession of suit property is not maintainable as the provision of DRC Act are applicable on the suit premises. If the arguments put forward by ld. Counsel for defendant is to be accepted, then plaintiff would be neither able to move eviction petition under DRC Act nor he would be able to file a civil suit for eviction and thus, he would be without any remedy. Thus, this court is of the view that issue of applicability of DRC Act cannot be reagitated by the defendant and same has attained finality between the parties.
24. Even otherwise, it has been observed by the court the suit property is situated in Ghonda, Gurjan Banger. The counsel for defendant failed to place any notification under DRC Act to show that area where suit shop is situated has been declared to be under DRC Act. He also failed to bring any notification showing that the area where suit property is situated has been urbanized. As per section 1 of DRC Act, the provision of DRC Act would apply only to such area which has been urbanized and notified under DRC Act. Since, no such notification is produced by the defendant, this court has no hesitation to hold that that defendant has miserably failed to prove that suit is barred by DRC Act. Accordingly, this issue is decided against the defendant CS No. 33/17 Munna Khan vs. Ram Lal Page 13 of 22 and in favour of plaintiff.
Issue no.i) i. Whether the plaintiff is entitled for a decree of possession as prayed for? (OPP) vi. Whether the plaintiff has concealed material facts from this Court disentitling him from claiming the relief? OPD
25. Both these issues are taken together as both involve common question of law and facts.
26. The present suit has been filed by plaintiff in capacity of landlord to evict the defendant, who is his tenant in the suit property. In order to succeed in obtaining a decree of possession, the plaintiff was required to prove following facts.
i) he is landlord and defendant is tenant in respect of the suit property;
ii) the notice under Section 106 of Transfer of Property Act has been duly served upon the defendant.
27. The perusal of WS filed by the defendant shows that it is not denied by him that he is tenant of the plaintiff, however, he has denied that he is tenant in respect of shop in property bearing no. C41/18, Main Jama Masjid Road, North Ghonda, Delhi53. It is the case of defendant that he is tenant in a shop in the property bearing no. C41/15, Main Jama Masjid Road, North Ghonda, Delhi53. It is contended by counsel for defendant that since plaintiff has filed the present suit for wrong property, the suit of plaintiff is liable to be dismissed.
28. In considered opinion of this court, even if contention of ld. Counsel for CS No. 33/17 Munna Khan vs. Ram Lal Page 14 of 22 defendant that plaintiff has mentioned wrong property number is to be considered as true, then also, the suit of plaintiff cannot be rejected.
29. It is settled law that where the parties have well identified and understood the description of the property which is the subject matter of the suit and had gone to the trial with the clear understanding, no prejudice can be said to have been caused because of an error in the number of property. It is also equally settled that where the property in dispute is clearly marked in the plaint sketch and the defendant had clearly understood the description and identity of property, the defendant cannot be heard to contend that as the number of property is not given or the number of property given is wrong, suit is liable to be dismissed on this ground.
30. In the present case, it is not denied by the defendant that he is tenant of plaintiff in respect of a shop. It is also not the case of defendant that he is tenant of plaintiff in respect of more than one shop. From the WS filed by defendant, it is clear that there is no dispute regarding the identity of the suit shop except its number. From the WS it is clear that defendant has completely understood for which shop, the plaintiff has filed the present suit. During crossexamination also, the defendant admitted that shop shown in red colour in site plan filed by plaintiff as private shop no.6 belong to him. As per plaintiff also, the said shop is the suit shop. The defendant did not dispute the correctness of the site plan filed by the plaintiff nor defendant proved any site plan challenging the site plan filed by the plaintiff. Since, neither any site plan has been filed by the defendant to challenge the site plan filed by the plaintiff nor during his own crossexamination defendant denied the correctness of the site plan filed by the plaintiff, this court is of the view that there is no dispute regarding the identity of the suit shop. As there is no dispute regarding the CS No. 33/17 Munna Khan vs. Ram Lal Page 15 of 22 identity of the suit shop, merely different version regarding the number of the suit shop cannot be a ground to dismiss the suit of the plaintiff, if he is otherwise entitle to get a decree of possession. There is no averment in the WS that defendant has not understood that regarding which shop plaintiff has filed the present suit. Even during arguments, ld. Counsel merely contended that suit is liable to be rejected, because, of incorrect of number. He never stated that there was confusion to the defendant regarding the shop for which plaintiff has filed suit. Accordingly, even if contention of ld. Counsel for defendant that plaintiff has mentioned wrong number of the suit shop is considered as true, then also, same cannot be a ground to dismiss the suit.
31. Since, the contention of counsel for defendant regarding number of property is not important factor to decide the outcome of this issue, no purpose is going to be served to give finding as to what is the correct number of the suit shop. Even otherwise, it is admitted case suit shop is located in an unauthorized colony and no municipality alloted numbers are produced on record from which any correct finding can be given.
32 Ld. Counsel for defendant further argued that plaintiff has also concealed that defendant is tenant of plaintiff for more than 17 years. It is submitted that as plaintiff has concealed the aforesaid material fact, the suit of plaintiff should be dismissed. In considered opinion of this court, the length of tenancy is not a material fact to decide whether the tenancy has been duly terminated under Section 106 of Transfer of Property Act. While deciding issue no.1, it has already been held that provision of DRC Act are not applicable. Once provision of DRC Act are not applicable, the relationship between the parties would be governed by Transfer of Property Act and as per Transfer of Property Act, a month to month tenancy can be terminated by serving a legal CS No. 33/17 Munna Khan vs. Ram Lal Page 16 of 22 notice of termination upon the defendant.
33. It is stated by plaintiff that a notice was send by him terminating the tenancy of defendant. It is disputed in written statement by defendant that plaintiff had sent a notice of termination of tenancy. Since, service of legal notice terminating the tenancy was denied, the onus was upon the plaintiff to prove the same. In order to prove the same, the plaintiff has filed the certified copy of the said notice, and copy of registered AD and speed post. The plaintiff in his oral testimony reiterated that he had sent a legal notice terminating the tenancy of defendant. The aforesaid documents and evidence of plaintiff was not denied by defendant by way of crossexamination of plaintiff. No suggestion was given to the plaintiff that no such notice was served upon defendant whereby his tenancy was terminated. Since, the factum of service of notice is not denied during crossexamination, same is deemed to be admitted. Even otherwise, it is settled law that service of summons for settlement of issue of suit for possession is sufficient notice of the intention of the landlord to terminate the tenancy. Since, defendant has been served with the summons of the present suit, it does not lie into mouth of defendant to say that notice under Section 106 T. P Act has not been served upon him, therefore, suit should be dismissed. Since, plaintiff has succeeded in proving both the essentials i.e landlord and tenant relationship and service of notice under Section 106 T. P Act, plaintiff is entitled for decree of possession of the suit shop in possession of defendant. Accordingly, both these issues are decided in favour of plaintiff and against the defendant.
Issue no.ii ii. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? (OPP) CS No. 33/17 Munna Khan vs. Ram Lal Page 17 of 22
34. It is not denied that defendant is mere a tenant and his tenancy has been terminated, and as such he is bound to vacate the suit shop. Since, defendant has no interest in the suit shop, he is bound not to create any third party interest in the same, therefore, for this reason only plaintiff is entitled for relief of permanent injunction. Accordingly, defendant is restrained from creating any third party interest in the suit property. Hence, this issue is decided against the defendant and in favour of plaintiff.
iii. Whether the plaintiff is entitled for a decree of arrears of rent, as prayed for? (OPP)
35. The onus to prove this issue is upon the plaintiff. As per plaintiff defendant is in arrears of rent from 01.10.2011. During course of arguments, ld. counsel for plaintiff submitted that he is praying for legally recoverable rent only i.e rent of last three years before date of filing of the suit. Defendant has denied that he is in arrears of rent. As per defendant, he had lastly paid rent to plaintiff on 03.10.2011 in advance for month of October, 2011 and from November, 2011 onwards, he is depositing rent in the court @ Rs.800/ per month.
36. As per plaintiff, the rate of rent is Rs.2000/ whereas, as per the defendant, the rate of rent is Rs.800/ per month. Since, defendant has denied that rate of rent is Rs.2000/, the onus to prove that rate of rent is Rs.2000/ is upon the plaintiff and onus to prove that rate of rent is Rs.800/ is upon the defendant.
37. In order to prove his version, the plaintiff has relied upon Ex. PW1/5 i.e CS No. 33/17 Munna Khan vs. Ram Lal Page 18 of 22 rent agreement between him and defendant. Ld. Counsel for plaintiff contended that even though tenancy was old, but the suit shop was in dilapidated condition and it was mutually agreed plaintiff would reconstruct the suit shop after shop was surrendered by defendant and fresh tenancy has started between the parties vide registered rent agreement dated 08.10.2010.
38. The Ex. PW1/5 is a registered rent agreement between plaintiff and defendant. This rent agreement shows that monthly rent is Rs.2000/ per month. The defendant during his cross examination admitted that this rent agreement bears his signature. As per defendant, plaintiff played fraud upon him and took his signature on making false pretext that his signature are taken in capacity of a witness. Since, it is admitted by defendant that Ex. PW1/5 bears his signature, the onus shifted upon the him to prove that plaintiff played fraud upon him in taking his signature. However, the defendant has failed to lead any independent evidence to prove the same. The defendant failed to examine the Registrar before whom the Ex. PW1/5 was registered. As per Ex. PW1/5, Naeem Khan and Sharafat Hussain, are attesting witnesses. The defendant could have summoned them to cross examine them to bring some contradiction in their testimony, but he failed to take any steps to summon these witnesses. There is no evidence placed on record by defendant to prove that plaintiff played fraud upon him. The perusal of WS shows that it is averred by the defendant that his signature and photographs were obtained on some written and unwritten papers. Since, it was averred by defendant that he had signed on some unwritten papers, the onus was upon him to prove the circumstances in which he signed unwritten papers. It is highly unbelievable that anyone would sign and put his thumb impressions on unwritten papers. Ld. Counsel for defendant failed to explain as to why such highly unbelievable version of defendant be believed. No steps have been taken by the defendant to CS No. 33/17 Munna Khan vs. Ram Lal Page 19 of 22 get the Ex PW1/5 as cancelled. Since, nothing has been brought on record by the defendant to show that on Ex. PW1/5 his signature were taken by playing fraud, the story put forth by him is rejected.
39. From Ex. PW1/5 it is clear that rate of rent between the parties is Rs.2000/ per month. Accordingly, as plaintiff is able to prove Ex. PW1/5 its contents shall be read in favour of plaintiff.
40. Since, plaintiff is able to prove that rate of rent is Rs.2000/, the onus shifted upon the defendant to prove that rate of rent is Rs.800/. In order to prove the same, the defendant has relied upon certain rent receipt, however, plaintiff denied that these rent receipts are bearing his signature or issued by him.
41. The perusal of record shows that defendant failed to bring on record any evidence to show that these rent receipts are either bearing signature of plaintiff or were issued by him. Accordingly, these rent receipt remained unproved and hence, cannot be read into evidence. No other evidence is placed on record by the defendant to controvert Ex. PW1/5 or independently prove that rate of rent is Rs.800/. Accordingly, the rate of rent as mentioned in Ex. PW1/5 is held to be rate of rent between the parties. Thus, this court is of the view that rate of rent of the suit shop is Rs.2000/ per month.
42. Now after deciding the rate of rent, the next question for determination for what period plaintiff is entitle to the arrears of rent. As per defendant has not paid the rent from September, 2011. Per contra, it contended by defendant that he is depositing rent @ Rs.800/ per month in the ARC Court. The defendant has placed on record the photocopy of the rent CS No. 33/17 Munna Khan vs. Ram Lal Page 20 of 22 deposited under DRC Act. However, as it is admitted case that rent is deposited @ Rs.800/, the plaintiff is entitled to recover differential rent from the defendant. Accordingly, the defendant is directed to pay the differential rent @ Rs.1200/ per month for three years before the date of filing of the present suit. The plaintiff is also entitled to withdraw the rent deposited by defendant under Section 27 DRC Act.
43. Since, plaintiff has admitted that defendant had given security of Rs.50000/, defendant is entitle to deduct the same security from the plaintiff. With aforesaid observation, this issue is decreed in favour of plaintiff.
Issue no. iv) iv. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD
44. The onus to prove this issue was upon the defendant. As per the defendant, plaintiff has not paid any court fees for relief of arrears of rent. As per counsel for defendant, plaintiff has prayed arrears of rent to the tune of Rs.1,22,000/, but has not filed any court fees for the same. It is submitted that plaintiff ought to have filed the court fee as per Court Fee Act for Rs.1,22,000/. The perusal of plaint shows that plaintiff has not paid any court fees for arrears of rent. The plaintiff ought to have paid the court fee on Rs.1,22,000/ as per the Court Fees Act. Accordingly, it is held that suit is not properly valued for the purpose of court fees. Accordingly, this issue is decided in favour of defendant.
Relief
45. With aforesaid observation on issues, the suit of plaintiff is decreed.
CS No. 33/17 Munna Khan vs. Ram Lal Page 21 of 22Decree sheet be prepared accordingly subject to payment of deficient court fees. Parties to bear their own cost. File be consigned to record room.
Announced in the open court on 24th April, 2018 (ANKIT SINGLA) ACJ/ARC/CCJ NORTH EAST, KKD, DELHI Digitally signed by ANKIT SINGLA ANKIT Location: North-
East,Karkardooma, SINGLA Delhi
Date: 2018.04.25
16:35:14 +0530
CS No. 33/17 Munna Khan vs. Ram Lal Page 22 of 22