Delhi District Court
Mrs. Promila Prabhakar vs Ms. Priya Sarkar on 19 May, 2012
IN THE COURT OF MUKESH KUMAR GUPTA ADDITIONAL
DISTRICT JUDGE 06 (CENTRAL) TIS HAZARI COURTS : DELHI
Suit No. 200/10/08
UID No. 02401C1162732008
Mrs. Promila Prabhakar,
W/o Mr. Pankaj Prabhakar,
R/o B11, Second Floor,
DDA Staff Quarters,
Opposite Sir Ganga Ram Hospital,
Old Rajinder Nagar, New Delhi.110060 ........Plaintiff.
versus
1. Ms. Priya Sarkar,
W/o Late Mr. Bapi Shankar Sarkar,
2. Baby Priyanshi Sarkar (Minor),
daughter of latre Mr. Bapi Shankar Sarkar,
Through her mother and natural guardian
Mr. Priya Sarkar, Defendant No.1,
3. Master Ravi Shankar Sarkar (Minor),
S/o Late Mr. Bapi Shankar Sarkar,
Trhough his mother and natural guardian
Ms. Priya Sarkar, Defendant No.1,
All defendants resident of Flat No.19,
First Floor, Evergreen Cooperative Group Housing Society,
Limited, Plot No.9, Sector7,
Dwarka, New Delhi110075 .....Defendants
Appearances: Shri Sanjeev Sharma , Shri Harinder Singh Advocates, Ld.
Counsels for plaintiff.
Shri C.S. Chouhan , Shri Vijay Kumar Goel, Advocates,
Ld. Counsels for defendants.
Date of filing of Suit : 03.09.2008
Date of assignment : 04.01.2012
Date on which order reserved : 14.05.2012
Date on which order pronounced : 19.05.2012
Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 1/43
SUIT FOR POSSESSION, PERMANENT INJUNCTION, RECOVERY OF
ARREARS OF RENT, DAMAGES & MAINTENANCE CHARGES AND
FUTURE DAMAGES AND FUTURE MAINTENACNE CHARGES.
JUDGEMENT
1. By way of present judgment, I shall conscientiously adjudicate upon the present suit for Possession in respect of flat bearing Flat No.19, First Floor, Evergreen Cooperative Group Housing Society Limited, Plot No.9, Sector7, Dwarka, New Delhi110075 comprising of one drawing cumdining room, two bed rooms, two toiletcumbath rooms, kitchen and two balconies (hereinafter called the 'suit premises'). The plaintiff has also sought a decree of recovery of arrears of rent of Rs. 76,000/ as principal and Rs.11,040/ as interest alongwith pendentelites and future interest @ 12% per annum from the date of filing of the suit till its realization. The plaintiff has further sought a decree of recovery of arrears of damages of Rs.30,000/ as principal and Rs.450/ as interest alongwith pendentalite and future interest @ 12% per annum. The plaintiff has also sought a decree of recovery of money for arrears of maintenance charges imposed by Residents Welfare Association of the society where the suit premises are situated to the tune of Rs.9,200/ alongwith pendentalite and future interest @ 12% per annum, and a decree of damages for unauthorized user of the suit premises @ Rs. Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 2/43 6,000/ per month from 01.09.2008 till the time the possession of the suit premises is handed over to plaintiff alongwith pendetalite and future interest @ 12% per annum. The plaintiff also finally sought a decree of recovery of money for future maintenance charges imposed by Residents Welfare Association of the society where the suit premises are situated alongwith pendentalite and future interest @ 12% per annum besides a decree of permanent injunction seeking restraint on defendants from creation of a third party interest in the suit premises. The plaintiff has also prayed for costs of the suit.
2. Eschewing prolix reference to the pleadings crystallizing the same, the plaintiff is stated to be the owner of Flat No. 19, First Floor, Evergreen Cooperative Group Housing Society Limited, Plot No.9, Sector7, Dwarka, New Delhi110075 comprising of one drawingcum dining room, two bed rooms, two toiletcumbathrooms, kitchen and two balconies. It is averred in the plaint that one Shri Bapi Shankar Sarkar, husband of the defendant No.1 and father of defendants No.2 and 3 was inducted as tenant in the suit premises at a monthly rent @ of Rs.3,000/ exclusive of electricity, water and other charges imposed by the Residents Welfare Association of the Society where the suit premises is situated. The tenancy was stated to be on a month to month basis starting from Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 3/43 the first day of each calender month and expiring on the last day of the month. It is further the case of the plaintiff that the rent was increased from Rs.3,000/ to Rs.3,500/ w.e.f. January, 2004 and from Rs. 3, 500/ to Rs. 4,000/ per month w.e.f. January 2006 exclusive of electricity, water and other society charges, by oral agreements. A fresh oral agreement/ attornment is stated to have been effected after the death of Shri Bapi Shankar Sarkar, husband of the defendant No.1 and father of defendants No.2 and 3 whereby which the defendant No.1 was inducted as tenant in lieu of Shri Bapi Shankar Sarkar on a monthly rent of Rs.4,000/ on the terms and conditions as existed earlier. It is further the case of the plaintiff that the rent of Rs.20,000/ was paid by the defendant no.1 by way of cheque for the months of April, 2006 to August, 2006 @ Rs.4,000/ on demand by the plaintiff but thereafter the defendants did not pay the rent despite repeated requests as the defendant made excuse of financial difficulty due to death of her husband. It is further the case of the plaintiff that she required the accommodation for use as her landlord in Paschim Vihar asked for the vacation of the house where the plaintiff was residing on rent and for this reason, the plaintiff has requested the defendant to vacate the suit premises for which the defendants did not agree. Ultimately the plaintiff got a legal notice dated 01.03.2008 sent through her advocate thereby terminating the Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 4/43 tenancy on the expiry of the tenancy month of March, 2008 and also demanded the payment of arrears of rent from September, 2006 to March 2008 @ Rs.4,000/ alongwith interest @ 12% per annum and also informed the defendant No.1 by the said legal notice that in case defendant No.1 failed to hand over the vacant and peaceful possession of the suit premises by 01.04.2008, the defendants shall liable to pay the damages for the use and occupation of the suit premises at the rate of Rs.6,000/ per month being the prevalent market rate of rent for similarly situated properties in the nearby locality. The arrears of electricity, water and other charges which was required to be paid by the plaintiff to the RWA society were also demanded. The plaintiff has also mentioned in the notice that in case of failure to comply with the notice, she shall also initiate legal proceedings against her. It is further the case of the plaintiff that the defendant has replied the said legal notice through her advocate vide letter dated 18.03.2008 taking the stand that her husband late Shri Bapi Shankar Sarkar had negotiated with the husband of the plaintiff for purchase of the suit premises for a consideration of Rs.9,00,000/, out of which Rs.5,00,000/ was paid in December, 2002 and the remaining payment of Rs.4,00,000/ was made to the husband of the plaintiff on 24.12.2005. It has further been stated in the reply notice of defendant that after payment of entire consideration of Rs.9,00,000/, the husband Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 5/43 of the defendant No.1 had occupied the suit premises as an owner. The defendant has further taken a stand that the payment of Rs.20,000/ made by her in August 2006 was not towards any rent but was for getting the suit premises as freehold. The plaintiff is also stated to have sent a rejoinder notice dated 09.04.2008 vide registered AD thereby denying the allegations as raised by the defendant No.1 in her reply notice and reiterating the contents of here earlier notice dated 01.03.2008. It has been further alleged by the plaintiff that when the defendants refused to vacate the suit premises despite various requests made to her, the plaintiff was compelled to shift her residence to Old Rajinder Nagar as the landlord of the plaintiff, continued to pressurize her to vacate the Paschim Vihar rented accommodation. The plaintiff is stated to have met the defendant No.1 on 24.08.2008 and on that day, the defendant No.1 has agreed to vacate the suit premises but on the conditions that the plaintiff would not claim the arrears of rent and damages and also demanded a sum of Rs.4,00,000/ in lieu of vacation of suit premises besides threatening that in case the plaintiff file any case against her, she would part with the possession of the suit premises to some goonda element. Hence the present suit.
3. The defendants contested the suit by filing a detailed written Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 6/43 statement wherein which they have taken various preliminary objections viz. the suit being not maintainable as the plaintiff has not approached the court with clean hands; no cause of action being ever arisen in favour of the plaintiff and against the defendants and the suit being liable to be dismissed u/o VII Rule 11 CPC. The defendants have further claimed that the suit is not maintainable as plaintiff has sought the relief of declaration in respect of an alleged agreement to sell the property in dispute which has been entered into between the plaintiff and Shri Bapi Shanker Sarkar, the deceased husband of the defendant. The suit was also claimed to be barred by limitation on the ground that the agreement to sell which is being challenged by the plaintiff in the guise of the present suit for possession and injunction has been entered into by the deceased in the year 2002. The defendant has further refuted the enhancement of rent till it was last paid for the month of December, 2005. However, it is admitted that the husband of the defendant late Shri Bapi Shankar had taken the suit premises on rent in the month of December, 2001 at a monthly rent of Rs.3,000/ exclusive all other charges like electricity, water and maintenance to the society but has been claimed that Rs.500/ was paid to the plaintiff monthly by Shri Bapi Shanker towards water and maintenance charges. It is further contended in the written statement by the defendants that the husband Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 7/43 of the defendant negotiated with the husband of the plaintiff and conducted a market survey, thereby mutually fixing the price of the flat at Rs.9,00,000/. It has been further averred that as the husband of the defendant did not have the requisite funds to pay the entire consideration in one time, he negotiated with the plaintiff to pay the part payment of Rs.5,00,000/ in December 2002 and the balance payment after three years. It has been further claimed to have been agreed, that till the payment of the balance amount the husband of the defendant shall continue to pay the rent and shall continue to occupy the flat as a tenant. Finally it has been averred that as per the negotiations, the husband of the defendant made the payment of Rs.5,00,000/ in the end of December 2002 and made the payment of the balance amount of Rs.4,00,000/ on 24.12.2005. It is further contended by the defendant that in the month of July 2006 the defendant No.1 again requested the plaintiff to transfer the flat in her name but the plaintiff started avoiding the execution of transfer of documents of the flats on the pretext that the same was not possible without getting the flat first converted to be freehold and thereafter the defendant paid a sum of Rs.37,000/ to the plaintiff out of which a sum of Rs.20,000/ was paid to the plaintiff through cheque in the month of August, 2007. It has been further contended by the defendants that the defendant was shocked to know Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 8/43 that the plaintiff did not even apply for the conversion of the flat and misappropriated the money received by her. On merits, the defendants have denied that the plaintiff is the owner of the suit premises. It has further been denied that rent of the suit premises was ever enhanced to Rs. 4,000/ and stated that the last paid rent of suit premises was Rs. 3,000/. The defendant has denied the cause of action and has prayed for dismissal of the suit with costs.
4. Plaintiff filed replication to the written statement thereby denying the contentions raised by the defendant in the written statement and reiterating the averments made in the plaint.
The plaintiff has reiterated that no agreement to sell of the suit property was ever entered into by the plaintiff with anyone at any time and the plaintiff never received any consideration for the same from anyone and after 31.03.2008, the defendant has become unauthorised occupants of suit premises which it not only liable to vacate but also to pay the mesne profits/damages as prayed for.
5. It is pertinent to point out that the original defendant Priya Sarkar has taken an objection in the written statement regarding the suit being bad for nonjoinder of necessary parties namely her two children Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 9/43 Priyanshi Sarkar and Master Ravi Shankar Sarkar. The plaintiff in order to obviate any probable objections in future has accordingly moved an application u/o 1 Rule 10 read with section 151 CPC for impleading aforesaid two minor children as defendants in the instant suit. The aforesaid application was duly considered and allowed by Ld. Predecessor of this court vide order dated 19.11.2008 and directions were issued for filing the amended plaint incorporating the contention regarding the aforesaid two defendants which was filed in due course of the defendant. It is further pertinent to point out that an application for appointment of guardian adlitem was filed by the plaintiff u/o XXXII rule 5 CPC for appointing defendant No.1 as guardian of defendants No.2 and 3 which was also allowed vide order dated 12.01.2009 of Ld. Predecessor of this court.
6. On the basis of pleadings of the parties and the documents on record, the following issues were framed by Ld Predecessor of this court vide order dated 16.09.2009: ISSUES
1. Whether Shri Bapi Shankar Sarkar, the husband of defendant No.1 and the father of defendants No.2 and 3 was inducted as a tenant in the suit premises in December, 2001 at a Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 10/43 monthly rent of Rs.3,000/ and the rent was later on increased to Rs.
2500/ and again to Rs.4,000/ per month? OPP.
2. Whether after the death of Shri Bapi Shankar Sarkar, defendant No.1 became a tenant in the suit premises and an oral agreement to this effect had been executed between her and the plaintiff in the presence of Shri Amar Singh Hada ?
OPP
3. Whether the defendant No.1 gave a cheque of rs.20,000/ to the plaintiff towards rent for the period April, 2006 to August 2006 or whether the said cheque had been given by defendant No.1 to the plaintiff as a part payment of the total payment of Rs.37,000/ allegedly demanded by the plaintiff as expense towards the process of getting the clearance from the DDA for conversion of the suit premises as freehold? (Onus on parties).
4. Whether the husband of the plaintiff negotiated with late Shri Bapi Shankar Sarkar to sell the suit premises to him for a consideration of Rs.9 lacs, if so whether late Shri Bapi Shankar Sarkar paid Rs.5 Lac in the year December, 2002 and made the payment of Rs.4 Lac on 24.122005 in the presence of the plaintiff and defendant No.1? If so, whether defendants have been staying in the suit premises as owners thereof?OPD Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 11/43
5.If issue No.4 is roved in negative, whether the last aid rent of the suit premises was Rs.3,000/ exclusive of water and maintenance charges ? If so, whether suit is barred under the provisions of the Delhi Rent Control Act? OPD.
6. Relief.
7. In order to prove her case, plaintiff got examined herself as PW1 and filed her evidence by way of affidavit as Ex.PW1/A, thereby reiterating the contents of the plaint in on oath. She further got exhibited the documents in support of her case viz. the original allotment letter dated 17.12.2000 in the name of plaintiff as Ex.PW1/1, the original agreement dated 17.12.2000 entered between the plaintiff and Evergreen Cooperative Group Housing Society as Ex.PW1/2, copy of Pass Book of joint saving bank account of the plaintiff with her husband as Ex.PW 1/3, copy of legal notice dated 01.03.2008 sent to defendant No.1 as Ex.PW1/4, Original postal receipt dated 01.03.2008 as Ex.PW1/5, Original letter dated 15.04.2008 issued by Department of Posts, New Delhi for proof of delivery of notice got exhibited on record as Ex.PW1/6, The UPC dated 01.03.2008 through which the legal notice was also sent to defendant No.1 as Ex.PW1/7, the Reply dated 18.03.2008 to the legal notice sent by defendant No.1 got exhibited as Ex.PW1/8, Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 12/43 while the rejoinder dated 09.04.2008 given by the advocate of the plaintiff to the reply of defendant got exhibited as Ex.PW1/9. Original postal receipt dated 09.04.2008 has be4en exhibited as Ex.PW1/10 and original AD Cards as Ex.PW1/11 and Ex.PW1/12 and the letter dated 02.08.2008 issued by the Society to pay the outstanding dues towards the maintenance got exhibited on record As Ex.PW1/13.
The witness (PW1) was crossexamined in detail by the Ld. Counsel for the defendant. During the crossexamination, PW1 has denied to have executed any agreement with the husband of defendant No.1 in respect of sale of the suit premises.
8. In addition to herself, the plaintiff got examined her husband as PW2 who filed his deposition by way of affidavit Ex.PW2/A. PW2 deposed on similar lines as that of PW1 supported the case of plaintiff by stating that he had no dealing with late Shri Bapi Shankar Sarkar, the husband of the defendant No.1 and neither he nor his wife has ever received the alleged consideration amount of Rs.9,00,000/ from the husband of the defendant No.1.
The witness was also crossexamined at length by Ld. Counsel Ms. Meenakshji Jain, for the defendants on the point of his relationship with the husband of defendant No.1 to which he denied by saying that he had no friendship with the deceased Shri Bapi Shankar Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 13/43 Sarkar. He has also denied that he had any intention to sell the suit premises to the husband of defendant No.1. He had also showed his ignorance with respect to the market price of the suit property in December 2002, or December 2006 and at the present.
9. Further to support her case, plaintiff also got examined one Shri Amar Singh Hada, the President of Evergreen Cooperative Group Housing Society Limited, Plot No.9, Sector7, Dwarka, New Delhi as PW3 who has filed his evidence by way of affidavit Ex.PW3/A and he has stated that he got the suit premises let out by the plaintiff to the husband of defendant No. 1 by arranging a meeting between them. He also deposed on the point of rate of rent by stating that the rent of the property similar to the suit premises in the year 2006, 2007, 2008 and 2009 were between Rs.4,000 Rs.4,500/, Rs.5,000Rs.5500/, Rs.6,000 - Rs. 6500/ and Rs.9,000 - Rs.9,500/ respectively.
The witness was also crossexamined at length by the Ld. Counsel for the defendant Ms. Meenakshi Jain. PW3 has admitted that the rent was paid by the defendant No.1 to the plaintiff uptil August 2006. The witness has also deposed that the market value of the suit property in the year 2006 was between Rs.16,00,000/ to Rs.16,50,000/.
No other witness was examined by the plaintiff and the Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 14/43 evidence of the plaintiff was closed on 05.12.2011.
10. Defendants on their part got examined defendant No.1 as DW1. The witness filed his affidavit by way of evidence on record Ex.DW1/A. The witness has deposed on the contents of written statement on oath and has stated that her husband late Shri Bapi Shankar Sarkar had taken the suit premises on rent in the month of December, 2001 at a monthly rent of Rs.3,000/ excluding all other charges. The witness further deposed that after negotiation with the husband of plaintiff, her husband purchased the suit premises for a total sale consideration of Rs.9,00,000/ out of Rs.5,00,000/ was paid in the month of December,2002 and the balance consideration amount was paid on 24.12.2005 and as such all the outstanding amount stand cleared. The witness has deposed that defendant also paid a sum of Rs.37,000/ to the plaintiff for conversion of suit premises, out of which a sum of Rs. 20,000/ was paid to the plaintiff by cheque. The witness has prayed for dismissal of the suit.
The witness was crossexamined at length by Ld. Counsel Shri Sharma and various questions were asked during the crossexamination which shall be discussed in the forthcoming paragraphs. However, witness during crossexamination has admitted Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 15/43 that he has not been residing in the suit property since October, 2010 and that he has not paid any rent except for a payment of Rs.20,000/ made in August 2006 . The witness has also voluntarily stated that an additional amount of Rs.17,000/ was also paid in cash. The witness has stated that the suit property was taken on rent with the help of Mr. Handa and the rent used to be collected either by Mr. Handa and one Mr. Gopal. To a specific question, the witness has shown his ignorance regarding the ownership of suit premises whether the same is in the name of plaintiff herein and/or in the name of her husband Shri Pankaj Prabhakar. To a specific question as to whether any written agreement to sell has been executed between the plaintiff and her husband Shri Bapi Shankar Sarkar. The witness has stated that no such written agreement was executed . The witness had admitted that neither she had executed any agreement to sell or even have the receipt of payment of sale consideration of Rs.9,00,000/. The witness has denied the suggestion regarding the enhance of rent or even receipt of notice. The witness has admitted that electricity, water and maintenance charges have been paid directly to the authority concerned. The witness has somewhere stated contrary to her stand taken in the pleadings and has stated that rent of Rs.3,000/ was exclusive of Rs.200/ as maintenance.
No other witness was examined by the defendants and Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 16/43 vide order dated 28.02.2011, the defendant's evidence was closed.
11. I have heard Ld Counsels for parties and have gone through the material available on record including the pleading and evidence both documentary & oral. I have also given a thoughtful consideration to the same. My issue wise finding are as follows:
ISSUE No. 4 : Whether the husband of the plaintiff negotiated with late Shri Bapi Shankar Sarkar to sell the suit premises to him for a consideration of Rs.9 lacs, if so whether late Shri Bapi Shankar Sarkar paid Rs.5 Lac in the year December, 2002 and made the payment of Rs.4 Lax on 24.122005 in the presence of the plaintiff and defendant No.1? If so, whether defendants have been staying in the suit premises as owners thereof?OPD
12. The onus of proving this issue was held upon the defendant who has taken a stand in the written statement filed on record that after her husband Sh. Bapi Shankar Sarkar has become the tenant in the suit property, a friendship has developed between her husband and the husband of the plaintiff herein and the husband of the plaintiff has shown his inclination to sell the suit property for a total consideration of Rs. 9,00,000/ which was agreed to between the husband of the plaintiff and defendant no. 1, after the market survey being conducted by them in respect of the similarly situated properties in an around the area. The defendant no. 1 has further taken a stand that pursuant to the mutually fixed price of Rs. 9,00,000/ as agreed, a sum of Rs. 5,00,000/ was paid by her husband in December 2002 with the balance amount of Rs.4,00,000/ to be paid in 3 years which was also paid on 24.12.2005. It is a stand of Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 17/43 the defendants that these payments were made in her presence and it was also a mutually agreed that after the payment of balance amount, the defendant and his family can occupy the suit property as owners and accordingly no rent was either payable or paid after December 2005. In this regard, the deposition of DW1 has been made on oath in affidavit Ex. DW1/A where she has reiterated the stand taken by her in the written statement about the agreement and the payments being made. However, during cross examination, the witness DW1 has herself admitted that she do not have any receipt about the payment of such sale consideration. The witness has further admitted during cross examination that she is not in possession of any agreement to sell being executed between the plaintiff or the husband of the defendant. The witness has tried to take a plea that the documents were taken over by CBI. However, neither any pleadings to this effect exist nor seizure memo of the same showing such document were seized has been brought on record. The defendants have failed to summon any witness from CBI in this regard. It may be seen that the stand regarding the agreement to sell being missing or seized for the first time has been taken by the defendant during her cross examination which appears to have been an afterthought taken by the defendant for the purpose of answering the question during cross examination. This can further be seen from the fact that the witness has Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 18/43 herself stated that no notice for execution of sale deed was ever given by the defendant no. 1 or her late husband Sh. Bapi Shankar Sarkar. It is highly unbelievable that a person who is making a payment to the tune of Rs. 9,00,000/ in respect of a property in which he or she is residing shall make the same without any agreement to sell or even without a written receipt. It may be further seen that the witness has even tried to shifts stands from time to time in respect of payment of Rs.9,00,000/ as in the pleadings the stand has been taken that after the payment of Rs. 9,00,000/, no rent was payable. However, during the cross examination, she is admitted that after the payment of Rs.20,000/, she has not made any payments towards the rent. Interestingly, if the reply to the legal notice of the plaintiff sent by the counsel for defendant no. 1 Promila Prabhakar dated 18.03.2008 (Ex. PW1/8) is carefully seen, there has been admission of two aspects, one regarding tenancy of the suit premises being created by the plaintiff in favour of Sh. Bapi Shankar Sarkar at monthly rent of Rs.3000/ in December 2001 and secondly that the rent was exclusive of electricity and maintenance charges of the society, a stand which was refuted by the defendant during her testimony on record when she says that a rent of Rs. 3000/ was inclusive of the maintenance charges of the society. Secondly, in so far as the stand regarding the payment of Rs.9,00,000/ in two installments of Rs. 5,00,000/ in Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 19/43 December 2002 and Rs.4,00,000/ on 24/12/2005 is concerned, the stand taken by the defendant in Ex. PW1/8 is that these payments were made in presence of Ms. Promila Prabhakar, Ms. Priya Sarkar and a common friend. The defendant surreptitiously concealed the name of common friend nor any such friend has been brought to the witness box for reason undisclosed to the court. .
13. In contradistinction to this, the stand of the defendant regarding agreement to sell in respect of the suit property for a sum of Rs. 9,00,000/ taken for the first time in the reply to the legal notice dated 18.03.2008 Ex. PW1/8, has been duly refuted by the plaintiff's witnesses PW1 Promila Prabhakar and PW2 Pankaj Prabhakar in their examination in chief Ex.PW1/A and Ex.PW2/A respectively. PW2 in her testimony before the court on oath has duly refuted of having receipt of Rs. 5,00,000/ in December 2002 or Rs.4,00,000/ on 24.12.2005. He has flatly refused having entered into any agreement to sell of the suit property with late Sh. Bapi Shankar Sarkar, husband of defendant no. 1 and father of defendants no. 2 and 3 and the testimony of the aforesaid two witnesses have remained unchallenged during the entire cross examination of these two witnesses. Even the suggestions in this regard of the payment of Rs.5,00,000/ and Rs.4,00,000/ for sale of the suit Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 20/43 property or conducting a joint survey with Sh. Bapi Shankar Sarkar has been duly refuted by PW2. Thus, on the basis of the aforesaid discussion and shifting and weighing the testimonies of PWs and DWs, in respect of this issue, this court is of the considered opinion that the defendant has failed to show on record that the husband of plaintiff has ever agreed to sell the suit premises for payment of Rs.9,00,000/ or the same was ever received by the plaintiff in two installments of Rs. 5,00,000/ in December 2002 and Rs.4,00,000/ on 24.12.2005. Consequently, the defendants have further failed to prove that they have ever stayed in the suit premises in the capacity of owners. This issue is accordingly decided against the defendants and in favour of the plaintiff.
ISSUE No. 1 & 5 : (1) Whether Shri Bapi Shankar Sarkar, the husband of defendant No.1 and the father of defendants No.2 and 3 was inducted as a tenant in the suit premises in December, 2001 at a monthly rent of Rs.3,000/ and the rent was later on increased to Rs.2500/ and again to Rs.4,000/ per month? OPP. (2)If issue No.4 is roved in negative, whether the last aid rent of the suit premises was Rs.3,000/ exclusive of water and maintenance charges ? If so, whether suit is barred under the provisions of the Delhi Rent Control Act? OPD.
14. The onus of proving issue no. 1 has been on the plaintiff while that of issue no. 5 is on the defendant. However, since the issues are directly related to each other, these issues are taken up in view of the common evidence led by the parties. These two issues relates to the question of tenancy and the amount of monthly rent and further the fact whether the monthly rent remained to be Rs.3000/ so as to bring the suit Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 21/43 outside the purview of the Transfer of the property Act, and to bring it within the statutory bar created under section 50 of Delhi Rent Control Act., 1954. In this regard, it may seen that there has been absolutely no denial and is rather clear admission of the defendant that Sh. Bapi Shankar Sarkar, husband of defendant no. 1 and father of defendant no. 2 and 3 was inducted in the suit premises in December 2001 at monthly rent of Rs.3000/. As per the stand taken by the plaintiff Sh. Bapi Shankar Sarkar was inducted as a tenant of the suit premises at the instance of Sh. Amar Singh Hada, President of Society in December 2001 and continued to pay the rent at the aforesaid rate up till June 2004 when the rent was enhanced to Rs. 3500/ which was finally enhanced to Rs.4000/ in January 2006. While on the other hand, the defendant has taken a stand that the rent of the suit premises remained Rs.3000/ uptil the month of December 2005 and was never enhanced and as such the suit is barred by provisions of Delhi Rent Control Act. The testimony of the witnesses of both the plaintiff and the defendant in this regard also requires a careful scrutiny. It may be seen that first and foremost, stand taken by the defendant in respect of the entire lis between the parties can be seen from the reply to the quit notice Ex.PW1/8 which is a legal notice sent by the counsel for defendant no. 1 Sh. Kanwal Nain Singh to the notice of counsel for plaintiff Sh. Sanjeev Sharma, where the stand regarding the Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 22/43 creation of tenancy and the rent have paid up till December 2005 at the same rate has been taken. While the defendant in her testimony before the court as DW1 has taken a stand that the rent was inclusive of maintenance charges. The counsel for the defendant Sh. Kanwal Nain Singh has taken a stand that plaintiff used to charge an additional sum of Rs.500/ towards water and maintenance charges. The same are admittedly contrary to the stands of defendant No.1 since the amount of the maintenance charges has been stated to be Rs.200/ by DW1 in her deposition to the court, while the document Ex. PW1/8 mentioned the same to be Rs. 500/ and includes water charges. No such separation of charges have been shown by the defendant by any document on record. In any case, it is a judicially noticeable fact that water charges are not separately charged in a Cooperative Group Housing Society.
Then coming to the testimony of the witnesses in respect of the increase of rent to Rs. 3,500/ in June 2004 and then to Rs. 4000/ in January 2006. In so far as, the rent of Rs. 3000/ being enhanced to Rs.3,500/ is concerned, the testimony of PW1 to PW3 is clear and categorical. This has further been supported by the pass book of the plaintiff Ex. PW1/3 which shows the entries of Rs.3500/ each on 23.08.2005, 22.09.2005, 23.11.2005 and 07.01.2006 being made by clearance through cheques. There has been no refutation to the aforesaid Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 23/43 amount and entries of Rs.3500/ being made. On the contrary the defendant in her deposition has duly admitted that the husband of the defendant use to pay the rent sometimes by way of cheques either to Amar Singh Hada , the president of the society or one person named Sh. Gopal. The testimony of PW1 and PW3 in respect of the enhancement remained unrebutted and undented in all through the deposition of PW1, PW2 and PW3 during cross examination. Though there has been no payment or corresponding entry of Rs.4000/ being shown in the pass book Ex.PW1/3. However, even to that extent the oral testimony of PWs are very clear which have not been duly dented or broken during the entire cross examination. In any case, the payment of Rs. 20,000/ being made by defendant no. 1 is an issue which shall be considered by the court while considering issue no. 3, when the court shall consider as to whether the same was in respect of the payment being made towards rent for the period April 2006 to August 2006 or was apart of the total Rs. 37,000/ allegedly demanded by the plaintiff towards conversion of the suit property into a free hold property. Thus on the basis of aforesaid discussion and findings of the court, this court is of the considered opinion that the plaintiff has been able to show on record that the husband of the defendant no. 1 Sh. Bapi Shankar Sarkar was admitted as a tenant in the suit property at a monthly rent of Rs.3000/ which was Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 24/43 later enhanced to Rs.3500/ and Rs. 4000/ in January 2004 and January 2006 respectively. Having determined the aforesaid and issue no. 4 discussed above, the court is of the considered opinion that the plaintiff has been able to prove at least to the extent of preponderance of probabilities that the rent of the suit premises got enhanced from time to time and was lastly Rs.4000/ pm and the suit as such is clearly outside the purview of statutory bar contained under section 50 of the DRC Act. Accordingly, issue no. 1 is decided in favour of the plaintiff and against the defendant while issue no. 5 is decided against the defendant and in favour of the plaintiff.
ISSUE No. 3 : Whether the defendant No.1 gave a cheque of rs.20,000/ to the plaintiff towards rent for the period April, 2006 to August 2006 or whether the said cheque had been given by defendant No.1 to the plaintiff as a part payment of the total payment of Rs.37,000/ allegedly demanded by the plaintiff as expense towards the process of getting the clearance from the DDA for conversion of the suit premises as freehold? (Onus on parties).
15. The onus to prove this issue was held on the parties, who have taken their respective stands in their pleadings before the court. While the stand of the plaintiff is that the husband of defendant no. 1 Sh. Bapi Shankar Sarkar was inducted as a tenant in the suit property in December 2001 at monthly rent of Rs.3000/excluding the electricity, water and society maintenance charges which was later enhanced from time to time and was paid uptil the death of Sh. Bapi Shankar Sarkar in March 2006, whereafter, which the wife of deceased Sh. Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 25/43 Bapi Shankar Sarkar was attorned as a tenant in the suit property at a monthly rent of Rs.4000/ pm, which she did not pay uptil August 2006, which has later resulted into issuance of a quit notice under section 106 of T.P. Act., and the filing of instant suit for possession, mesne profits and recovery of rent. The stand taken by the defendants is that late Sh. Bapi Shankar Sarkar, husband of defendant No.1 and father of defendants No. 2 and 3 has developed close friendly relations with the husband of plaintiff herein and has agreed to buy the suit property for a total consideration of Rs.9,00,000/ which was also paid and accordingly the defendant no. 1 has become owner of the suit premises. The payment of Rs.20,000/ has been taken to be a rent for the period of 5 months from April 2006 to August 2006 @ Rs.4000/pm, according to the plaintiff but the same has been taken as a part payment of total payment of Rs. 37,000/ stated to have been paid by the defendant no. 1 towards clearance from DDA for conversion of the suit property into a free hold property. In this regard, as already discussed by the court while discussing issue no.1, 4 and 5, it has become clear that the defendant has utterly failed to prove its stand that the property was agreed to be sold for a sum of Rs.9,00,000/ and was purchased by her husband Sh. Bapi Shankar Sarkar. From the husband of the plaintiff after payment of the total consideration of Rs. 9,00,000/ in two instalments of Rs. 5,00,000/ in Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 26/43 December 2002 and Rs.4,00,000/ on 24.12.2005. The defendants have additionally taken a stand that the cheque payment of Rs.20,000/ was actually made towards part payment of Rs. 37,000/ as discussed above. Even in this regard, it may be seen that though DW1 in her deposition has stated to have made the aforesaid payment however, it is not understandable to the court as to why the payment if at all made for the purpose of conversion to free hold shall be made partly in cash an partly in cheque. It is not the case of the defendant herein that a sum of Rs. 20,000/ was to be deposited before DDA and rest of the payment was to be used as processing charges for the service for conversion of the suit premises into free hold. Rather, the entry made in 29.08.2006 in the pass book of the husband of the plaintiff Ex. PW1/3 shows the same to be Rs. 20,000/ paid by cheque in the name of plaintiff. Accordingly, if the testimony of DW1 is shifted and weighed qua the testimony of PW1 and PW2 in respect of the aforesaid payment and in view of the discussion made by the court in the earlier issues, the court see no reason to believe that the payment of Rs.20,000/ was made by the defendant towards part payment of conversion charges of Rs.37000/ and the same appears to be only a plea taken by the defendant in reply to the quit notice . Be that as it may, the court is of the considered opinion that the defendant has utterly failed to prove that the payment of Rs. 20,000/ was towards part Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 27/43 payment of conversion charges and on the contrary, plaintiff has been able to show that the payment was made towards payment of rent uptil August 2006 @ Rs.4000/ pm for the period April 2006 to August 2006. This issue is decided accordingly.
ISSUE No. 2: Whether after the death of Shri Bapi Shankar Sarkar, defendant No.1 became a tenant in the suit premises and an oral agreement to this effect had been executed between her and the plaintiff in the presence of Shri Amar Singh Hada ? OPP
16. The onus of proving this issue was held upon the plaintiff who has stated that after the death of original tenant Shri Bapi Shankar Sarkar who has expired in March 2006 an oral agreement with the defendant no.1 has taken place in respect of suit premises whereafter which the defendant No.1 has attorned herself as a tenant in place of her husband. The said meeting is stated to have been called by Shri Amar Singh Handa, the earlier president of the society at the request of defendant No.1 and the plaintiff has her husband Shri Pankaj Prabhakar was stated to be present. It is further stated that other terms and conditions of the tenancy being month to month @ Rs.4,000/ has also made in respect of suit premises. It has further been agreed that the rent was payable by 7th day of each English calender month, in advance. The aforesaid fact has been denied by the defendants in the written statement filed on record. The defendants have specifically denied that any oral agreement taken place between defendant No.1 and the Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 28/43 plaintiff, in the presence of husband of the plaintiff and Shri Amar Singh Handa. However, there is no specific denial of terms and conditons raised by the plaintiff in the plaint. In this regard, the deposition of PW1, plaintiff PW2 Shri Pankaj Prabhakar and PW3 Shri Amar Singh Handa is clear and categoric who has referred in their examination in chief regarding the charge of rent of Rs.4,000/ , exclusive of water, electricity and society maintenance charges and the rent to be payable by 7 th of each English clander month in advance. All these witnesses have deposed on similar lines except to the fact that the witness has improved their version regarding tenancy being created for the purpose of 11 months. However, it is not in dispute that no written agreement to this effect was ever executed. It is a settled preposition of law laid down in Transfer of Property Act, 1882 and later on judgment reported in AIR 1994 Allahabad 221 titled Punjab National Bank Vs. Ganga Narain Kapur that in absence of a written lease deed for a period exceeding one year or the like, if the same has been entered orally or by some deed which is not a registered one, the creation of tenancy between the lessor and the lessee shall be a month to month tenancy and in those cases presumption about duration of the lease under section 106 of Transfer of Property Act, shall apply and to that extent even if the improvement in the deposition of witnesses is considered, the same are held to be of no Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 29/43 legal consequences. The testimonies of PW1 and PW2 has remained unchallanged on this aspect and and no specific questions have been asked during the course of crossexamination of aforesaid two witnesses. Even during crossexamination of PW3 witness Shri Amar Singh Hada has categorically stated that after the death of Shri Bapi Shankar Sarkar, defendant No.1 has prayed herself for extension of tenancy period in respect of suit premises and a meeting was called by him at the behest of defendant No.1 by calling the plaintiff and her husband Pankaj Prabhakar for the purpose of extension of tenancy period. Even the suggestion given to the witness in this regard by Ld. Counsel for the defendants during crossexamination has been specifically answered to be incorrect. On the other hand, the deposition of DW1 in this regard in her testimony before the court has been completely silent except a suggestion given during the crossexamination regarding attornment in respect of suit premises and accepting the request regarding month to month to defer the payment of rent on account of her weak financial position which the witness has answered the same as wrong. If the testimonies of witnesses are weighed on the yardstick of preponderance of probability the court comes to the conclusion that the plaintiff has been able to show on record that there has been attornment in favour of defendant No.1 after the death of Shri Bapi Shankar Sarkar in respect of the suit premises. This Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 30/43 issue is accordingly decided in favour of plaintiff and against the defendant.
ISSUE NO.6: Relief.
17. Having determined the issues No.1 to 5, the court has now reached the instant issue of relief to the plaintiff. Though ideally the issue regarding the entitlement of plaintiff should have been separately framed but in the absence of specific issue to the entitlement of plaintiff, the court can always consider the same while considering the relief to which the the plaintiff is entitled to . It may be seen that the plaintiff in his prayer clause has broadly prayed for five reliefs namely the possession in respect of the suit property, recovery of arrears of rent to the tune of Rs.76,000/ + interest thereupon, the recovery in respect of arrears of maintenance charges, recovery of damages and mesne profits @ Rs. 6,000/ per month with interest, and a permanent injunction against the defendants not to create third party interest in the suit premises. In this regard, it may be seen that plaintiff has claimed to be the owner of the suit property as described earlier, having let out the same to the deceased husband of defendant No.1 and father of defendants No.2 and 3 in December, 2001 at monthly rent of Rs.3,000/ which was later on enhanced to Rs.3500/ and Rs.4,000/. On the death of the original tenant Shri Bapi Shankar Sarkar, the tenancy is stated to have been Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 31/43 attorned in favour of defendant No.1 at the monthly rent of Rs.4,000/ to be paid in advance by 7th of each English Calender month. The tenancy was oral and was not governed by any written or registered lease agreement and accordingly was stated to be 'month to month' tenancy, terminable by the plaintiff by serving a quit notice u/s 106 of Transfer of Property Act. The notice dated 01.03.2008 was served thereby calling upon the defendant to hand over the vacant and peaceful possession of the suit premises by 31.03.2008. Thereafter the plaintiff has claimed damages/mesne profits @ Rs.6,000/ per month from 01.04.2008 uptil 31.08.2008 and thereafter from 01.09.2008 till the peaceful and vacant possession of suit premises is handed over to the plaintiff or is being obtained by process of law.
18. In additional to the aforesaid, an interest on the pending amount and the relief of permanent injunction has also been prayed. Now here, first and foremost creation and termination of lease agreements of a lease agreements is governed by section 105 to 111 of the Transfer of Property Act. While section 105 of Transfer of Property Act provides that lease deed is to be a transfer of rights in respect of an immovable property to a lessee to enjoy a such property for a certain time, express or implied or in perpetuity. Section 106 and 107 of the Act, Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 32/43 mandate that lease of a immovable property for year to year or for any terms exceeding one year or reserving an yearly rent is required to be compulsorily registered. In the absence of a registered document to this effect, the tenancy become a month to month tenancy terminable on issuance of a termination notice u/s 106 of the Act, In AIR 1994 Allahabad 221 ( supra) . It has been held "that there can be no lease for a fixed term for a period more than a year or the like, if the same has been entered into orally or by some deed which is not registered one and in those cases the presumption about the duration of lease u/s 106 of Transfer of Property Act, shall apply and as such the tenancy between the parties become a month to month tenancy validly terminable by issuance of termination notice u/s 106 of the Act.
In Mussa Kutti Vs Rangachariar, 8, MLT 238 it has been held that the relationship between the parties to a lease agreement whether for a fixed period or a month to month tenancy is governed by the necessary condition of payment of rent, the breach of which entitles the landlord to reenter the property and the same also operate as forfeiture of the lease.
19. In the instant case, it may be seen that the plaintiff has clearly, categorically shown by way of her deposition and deposition of her witness that she is not only the landlord of the suit premises but is also an owner thereof. The allotment letter dated 17.12.2000 issued by Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 33/43 ECGHS Limited in favour of plaintiff vide Ex.PW1/1 coupled with the agreement Ex.PW1/2 executed by the society in her favour shows that she is the original allottee of the suit premises in question. Parties to the suit have not disputed or have rather admitted their relationship and that there has been no written lease deed in existence between them or even with the original tenant Shri Bapi Shankar Sarkar making the tenancy to be a month to month tenancy in terms of section 106 of the Transfer of Property Act. Though the defendant has tried to take defence that suit property was occupied by original tenant Shri Bapi Singh Sarkar and after his demise by her in the capacity of an owner after December, 2005, when a sale consideration of Rs.9,00,000/ was paid by the deceased Shri Bapi Shankar Sarkar to the plaintiff and her husband but the same has not been proved even to the extent of preponderance of probability as can be seen from the determination of the court while discussing issues no.4 and 5. Having said so and having also determined that there has been attornment in favour of defendant No.1 herein after the death of original tenant Shri Bapi Shankar Sarkar, the relationship between the plaintiff and defendant No.1 is established to be that of a landlord and tenant and the tenancy has been proved month to month tenancy with the monthly rent of Rs.4,000/ payable in advance by 7th of each English Calender month and paid uptill August, 2008. The plaintiff Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 34/43 has duly shown by way of both oral and documentary evidence proved on record to the extent of preponderance of probability that a quit notice u/s 106 dated 01.03.2008 Ex.PW1/4 sent vide registered AD post Ex.PW1/5, UPC Ex.PW1/7 has been duly served upon the defendant No.1 on 04.03.2008 (as culled out from the certificate of the postal department ExPW1/6). Even otherwise, it is now settled prepositions of law laid down in catena of judgment, more recently of our own Hon'ble High Court in RCA No. 179/2011 titled M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr. delivered on 25.03.2011 that even if a stand of nonserving of quit notice has been taken by the defendant by, mere filing of a suit for possession/ eviction was itself presumed to be a termination notice on delivery of summons of the suit. The Hon'ble High Court while relying upon the pronouncement of law laid down by Hon'ble Apex Court in 2008 (2) SCC 728 titled Nopany Investment Pvt. Ltd. Vs. Santokh Singh (HUF) has held that tenancy stood terminated under general law on filing a suit for eviction and even if assumed serving of notice was not effected upon the appellant, the tenancy would be terminated on filing of subject suit against the defendants. The aforesaid pronouncement of law has further been upheld by Hon'ble Apex Court in SLP Civil No. 15740/2011 titled M/s Jiwan Diesels & Electricals Limited Vs. M/s Jasbir Singh Chadha (HUF) delivered on Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 35/43 07.07.2011.
20. In any case the fact that the defendant has replied to the quit notice through his counsel on 18.03.2008 (Ex.PW1/8) clearly shows that quit notice was duly served upon the defendants. Having determination the aforesaid and in the back drop of the discussion regarding defence of the defendants as discussed in determination of issues, the court is of the considered opinion that the plaintiff has been able to show her entitlement to the relief of possession of the suit premises against the defendants at least to the extent of preponderance of probabilities.
21. Then coming to the question of arrears of rent, the plaintiff has claimed an amount of Rs.76,000/ being an arrear for a period of 19 months from September 2006 uptill 31.03.2008 @ Rs.4,000/ per month which was the last paid rent by the defendant No.1 herein. The question regarding rate of rent has already been discussed and proved to be Rs. 4,000/ per month. Even DW1 during her crossexamination admitted that she has not been paid the rent in respect of suit property after the alleged payment of Rs.20,000/ by way of cheque and Rs.17,000/ in cash in August 2006 and as such on the basis of the testimony of witness and the documents on record, the court is of the considered opinion that plaintiff has been able to show that the rent of the suit premises has not Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 36/43 been paid since September 2006. Plaintiff is accordingly entitled to recovery of Rs.76,000/ towards the arrears of rent.
22. Then switching over to the question regarding damages/mesne profits for the period of unauthorized occupation of the defendant after valid termination of tenancy. The plaintiff has claimed damages @ Rs.6,000/ for the period 01.04.2008 uptil 31.08.2008 and mesne profits at the same rate w.e.f. 01.09.2008 till the time the actual physical possession of the suit premises is delivered to the plaintiff. Section 2(12) of the Code of Civil Procedure provides as to what are mesne profits and stipulates that mesne profits in respect of a property means those profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received together with interest on such profits but such profits shall not include the profits made due to improvement by the person in wrongful possession. Order XX Rule 12 of CPC further provides for the judgment and decree which a court may pass in a suit for possession and mesne profits and stipulates that the court may in a suit for recovery of possession of immovable property and for rent or mesne profit may pass a decree for possession, arrears of rent and for mesne profits either directly or by holding an enquiry under Clause "C" of such Rule. In this Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 37/43 regard, the pivotal which is to be determined in the instant case is the day on which the occupation of the defendant in respect of the suit property has become wrongful or unauthorized.
23. As already discussed in the preceding paragraphs that the tenancy of the defendant was admittedly terminated on service of quit notice u/s 106 of the Transfer of Property Act, stipulating end of tenancy w.e.f. 31.03.2008 and as such the day for reckoning in this case shall be 01.04.2008. The deposition of PW1 in this regard has remained proved as discussed above and the defendants have utterly failed to show anything contrary there to by way of cogent evidence on record that their tenancy was not terminable or terminated w.e.f. 01.04.2008. The Hon'ble Apex Court has held in AIR 1977 SCC 2270 titled Shyam Charan Vs Sheoji Bhai that once a tenant become unauthorized occupant after termination of tenancy, a decree of damages and/or mesne profit can be passed against him. The contention of the plaintiff in this regard is that once the defendant has become an unauthorized occupant w.e.f. 01.10.2008, he is bound to pay the market rent from the date of termination of the lease which the plaintiff is entitled to receive. In AIR th Addl District Judge , it 2000 Allahabad 249 titled Sushil Sharma Vs 13 has been held that where the tenancy is governed by the provisions of Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 38/43 Transfer of Property Act, the damages can be awarded to the lessor at market rate. In 1993 RLR 563 titled Bakshi Sachdev Vs Concord International our own High Court has clearly held that damages and mesne profits for occupation of the premises after termination of tenancy can be awarded at a rate higher than the agreed rate of rent. The aforesaid proposition of law has also been held by the Hon'ble Apex Court in AIR 1987 SC 808 titled Union of India Vs Wing Commander R.R. Hingorani.
24. The plaintiff has claimed damages/mesne profits @ Rs. 6,000/ per month. However, no independent witness/evidence has been brought on record by the plaintiff to show that the rent of the similar premises situated in the same area used and occupied by a tenant is Rs.6,000/ per month. However, oral testimony of plaintiff's witness in this regard is clear and categoric and the same has not been dented by way of any cogent evidence by the defendants. On the contrary, the defendants have failed to actually controvert the quantum of these damages and has primarily confined herself to the question of suit property being subjected to an agreement to sell for consideration of Rs.9,00,000/ which remain not proved in accordance with law. Accordingly, on the basis of the aforesaid discussion and oral and Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 39/43 documentary evidence, the court is of the considered opinion that the plaintiff has not been successfully shown his entitlement to the mesne profits/damages Rs.6,000/ per month as claimed for the period 01.04.2008 to 31.08.2008 from 01.09.2008 uptil the day on which the plaintiff comes into possession of suit premises.
25. Then coming to the question of permanent injunction which the plaintiff has claimed against the defendants from creation of third party interest in the suit property or handing over or parting with the possession of the suit premises in favour of a third person. In this regard, having discussed the relationship between the parties, the entitlement of the relief of possession in favour of the plaintiff, and on the basis of clear and cogent testimony of PW1 which could not be broken of crossexamination of defendants, the relief of permanent injunction ipso fact flows from the aforesaid and as such the plaintiff has also been able to show her entitlement to the relief of permanent injunction as prayed for.
26. Now coming to the point of entitlement of the arrears of maintenance charges which the plaintiff has claimed to be Rs.9200/ alongwith interest. This aspect by and large has remained disputed. Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 40/43 Since the defendant has claimed to have paid the same to the society directly from time to time and has even filed payment receipts in this regard on record, however, these receipts have not proved by the defendants in accordance with law either by oral or documentary evidence. Even otherwise a careful perusal of these receipts show that they pertain to different period of 2006, 2007 that the last receipt of August, 2008 while on the other hand, the deposition of PW1 vide letter dated 02.08.2008 Ex.PW1/13 shows the outstanding amount of Rs.8,800/ towards maintenance charges, the plaintiff being the owner and landlord of suit property shall be entitled to a sum of Rs.8800/ on this count against the defendants.
27. Finally coming to the question of interest, though the plaintiff has claimed interest @ Rs.12% per annum and has also led evidence to this effect. However, in view of section 34 of CPC and settled law under the Interest Act and in the interest of justice, the plaintiff is granted interest @ 9% per annum on the aforesaid outstanding amount pendenlites and future from the date of filing of suit till its actual realisation.
28. In view of the aforesaid discussions and findings of the Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 41/43 Court on the aforesaid issues, this court is of the considered opinion that the plaintiff has been able to successfully prove its case at least to the extent of preponderance of probabilities. The plaintiff succeeds and is accordingly entitled to the following reliefs against the defendants:
(I) A decree of possession in respect of the suit premises bearing Flat No. 19, First Floor, Evergreen Cooperative Group Housing Society Limited, Plot No.9, Sector7, Dwarka, New Delhi110075 comprising of one drawingcumdining room, two bed rooms, two toiletcumbath rooms, kitchen and two balconies.
(II) A decree of permanent injunction against defendant No.1, her agents, servants employees or any person acting on her behalf from parting with/handing over the possession to any third party or creating third party interest in the suit premises.
(III)A decree of arrears of rent of Rs.76,000/ as principal and interest @ 9% per annum from the date of filing of the suit till its Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 42/43 realization.
(IV) A decree of a sum of Rs.8,800/ as arrears of maintenance charges imposed by Residents Welfare Association of the Society where the suit premises are situated .
(V) A decree of the damages/mesne profits @ Rs.6,000/ per month w.e.f 01.04.2008 till the time the possession of the suit premises is actually handed over to the defendant.
The aforesaid shall however be subject to payment of the requisite deficient court fees by the plaintiff within 30 days from the date of this order .
29. In the specific facts and circumstances of this case, plaintiff shall also be entitled to costs of the suit. Decree Sheet be drawn accordingly on payment of deficient court fees. File be consigned to record room after due completion.
(MUKESH KUMAR GUPTA)
DATED 19.05.2012 ADJ06/CENTRAL/DELHI
ANNOUNCED IN THE OPEN COURT .
(PK)
Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 43/43
CS No. 200/10/08
Promila Prabhakar Vs. Priya Sarkar & ors.
19.05.2012
Present : None.
Vide a separate judgment announced in the court
today, the suit of the plaintiff is decreed with costs. Let the deficient court fee be filed by the plaintiff within 30 days from today . Decree Sheet be drawn accordingly. File be consigned to Record Room after due completion.
(MUKESH KUMAR GUPTA) ADJ06/CENTRAL/DELHI 19.05.2012 (pk) Suit No.200/10/08 Promila Prabhakar Vs. Priya Sarkar & ors. 44/43