Delhi District Court
Surendra Singh Cheema & Anr vs Prabhakar Pokhriyal on 22 March, 2021
IN THE COURT OF MS. ANKITA LAL: JSCCCUMASCJCUMGUARDIAN
JUDGE (SOUTH): SAKET COURTS, NEW DELHI
CS No.451/17
Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal
In the matter of :
1. Sh. Surendra Singh Cheema
S/o Late Veer Singh Cheema
R/o A291, 3rd Floor, Shivalik,
Malviya Nagar, New Delhi 110017
2. Mrs. Sukh Nandan Kaur
W/o Sh. Surendra Singh Chemma
R/o A291, 3rd Floor, Shivalik,
Malviya Nagar, New Delhi 110017
.....Plaintiffs
VERSUS
Sh. Prabhakar Pokhriyal
S/o Sh. C.P.Pokhriyal,
R/o House no. 36A, 3rd Floor,
Cheema House, Begumpur,
Malviya Nagar, New Delhi 110017
...Defendant
Date of institution : 25.04.2017
Reserved for Judgment : 16.03.2021
Date of decision of Judgment : 22.03.2021
CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal
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JUDGMENT
1. The present suit has been filed by the plaintiff seeking possession, recovery of arrears of rent and mesne profits.
BRIEF FACTS:
2. Brief facts as stated in the plaint are that plaintiff no. 1, Sh. Surendra Singh Cheema, is owner of the property no. 36A, Cheema House, Begumpur, Malviya Nagar, New Delhi 110017 and the plaintiff no. 2 Mr. Sukh Nandan Kaur, is landlady of the same to whom the defendant used to pay the rent. It is further stated that defendant was a tenant in respect of the premises consisting of one room, kitchen and a bathroom at 3 rd floor of the suit property @ monthly rent of Rs. 7600/besides electricity, motor and water charges. The defendant used to pay rent in advance by 7th day of each calender month. The tenanted premises is fully shown in red colour in the site plan, and hereinafter referred to as 'suit premises'. It is further averred that the tenancy of the defendant being monthly one starts from 1st day of each English Calender month and ends on the last day of each month. It is further averred that since April 2016, the defendant is creating nuisance and unhealthy atmosphere and problems for the plaintiff as well as for their other tenants residing in other portions of the aforesaid property no. 36A, Cheema House, Begumpur, Malviya Nagar, New Delhi110017.
3. It is further averred that the plaintiffs shifted to their present residence at A291, Top Floor, Shivalik Malviya Nagar, New Delhi 110017 in April , 2016. After the plaintiffs had shifted from the suit premises, unwanted and antisocial elements started coming to the defendant frequently at the suit premises under his tenancy. It is averred that the defendant and his CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 2 of 23 said unwanted and antisocial associates have converted the suit premises into a 'bar room' where the defendant and his said unwanted and anti social associates drink liquor and create highly undesirable scene and also pass ugly remarks against the girl students residing as tenants of the plaintiffs at 4th floor of said suit premises. It is further averred that on complaints being made by the girl student tenants, the plaintiffs requested the defendant a number of times not to allow his unwanted and anti social associates to visit the suit premises and also not to harass and tease the girl student tenants residing in the suit premises.
4. It is further averred that one room adjacent to the suit premises is lying vacant, and the defendant has also been instigating the prospective tenants not to take the said room on rent. The defendant has also been provoking the other tenants of the plaintiffs against the plaintiffs. It is further averred that the plaintiffs requested the defendant in July 2016 and at several other times to vacate the tenanted premises. However, the defendant used to postpone the vacating of the suit premises on one pretext or the other. It is further averred that respectable persons of the locality intervened in the matter at the instance of the plaintiffs and a meeting was held on 06.11.2016, wherein the defendant promised and assured in writing before the said respectable persons and the plaintiff no. 1 Surender Singh Cheema present in the said meeting that he shall vacate the tenanted premises by 15.03.2017.
5. It is further averred that since the day when the said meeting was held, the defendant and his wife have started making absolutely baseless, false and frivolous complaints against the plaintiffs and their daughter to harass and blackmail them and also to create false evidence. The defendant also started threatening the plaintiffs in the name of 'Aam Aadmi' Political Party, of which he is an active member. It is further CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 3 of 23 averred that defendant also stopped making payment of rent after December, 2016, despite being demanded by the plaintiffs. The defendant has also not paid electricity, motor and water charges after November, 2016 despite being asked by the plaintiffs repeatedly.
6. It is further averred that in view unwanted and antisocial associates of the defendant and his continuous illegal activities, nuisance, misbehavior and misdeeds in the suit premises, the plaintiffs were constrained to install 3 CCTV cameras on the 3rd floor of the suit premises. However, the defendant has covered the said CCTV cameras with curtains for the purpose of concealing his illegal activities, nuisance misbehavior and misdeeds.
7. It is further averred that the plaintiffs terminated the tenancy of the defendants vide legal notice dated 22.03.2017. The said legal notice was duly served upon the defendant. It is further stated that tenancy of the defendant stood terminated by the end of 07.04.2017 and w.e.f 08.04.2017 and the defendant has become unauthorized occupant in respect of the suit premises and has rendered himself liable to pay damages for unauthorized use and occupation of the suit premises @ 12,000/ per month or Rs. 400/ per day which is the prevailing market rate of rent for similar property in the vicinity of the suit premises. Hence, this suit has been filed by the plaintiff.
8. Written statement has been filed on behalf of the defendant. It has been averred on behalf of the defendant that that the present suit is not maintainable and liable to be dismissed as the same is devoid of cause of action and the plaintiff has concealed the material facts and that the rent, if any, is of Rs. 3,000/ only and this Court has no jurisdiction to entertain the present suit and also the plaintiff has not sought the relief, if any, CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 4 of 23 before appropriate forum. It is further stated that the plaintiff has not filed any rent receipt to substantiate that the rent is Rs. 7600/ and therefore, it is a vague averment that rent is Rs. 7600. Thus, the suit deserves to be dismissed on this ground alone.
9. The defendant in his written statement admitted that the defendant is the tenant in the suit property for the last 15 years. It is further admitted that the tenancy of the defendant was oral and the defendant continues to reside in the suit premises as a tenant, alongwith his wife, father and daughter on the instructions of the plaintiff no. 1. It is further alleged that on 09.07.2016, both the plaintiffs with ulterior motive and nefarious design came to the tenanted premises of the plaintiff and gave threats to the plaintiff's family members to vacate the premises. It is further alleged that on 20.11.2016, at about 05.30pm, when the defendant was not present at home, both the plaintiff accompanied by some anti social elements visited the suit property and threatened the wife of the defendant to vacate the property, or otherwise, they will be thrown out of the property. It is further stated that daughter of the plaintiff also came to the premises and threatened the defendant and his family members of implicating them in false cases. In pursuant to their threat, the defendant's wife had made a complaint to the concerned police station and same has been registered vide DD no. 32B. It is also alleged that on 08.11.2016, 12.11.2016 and 13.11.2016, the plaintiffs made threat to the defendant for dire consequences if they do not vacate the property. Further, on 13.11.2016, plaintiff no. 2 trespassed into the premises of the suit property and started throwing away the house hold goods of the plaintiff. Again, on 14.11.2016, plaintiff no. 1 and 2 alongwith some other persons came to the plaintiff's premises and abused and threatened the plaintiff of dire consequence. It is further stated that on 15.11.2016 in the morning time, when the wife of defendant opened the door of the CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 5 of 23 house, she found that there was fire outside her room and immediately PCR was called. It is submitted that the said fire was also created by the plaintiffs in order to harass the defendant. The defendant denied any service of legal notice as alleged by the plaintiff, in their WS.
10. Replication was filed on behalf of the plaintiffs to the written statement filed by the defendant, wherein plaintiff denied all the averments made in the written statement and reiterated the averments made in the plaint.
ISSUES:
11. After completion of pleadings, following issues were framed vide Order dated 13.09.2017.
(i) Whether plaintiff is entitled for decree of possession in respect of the suit property as prayed for? OPP
(ii) Whether plaintiff is entitled for decree of arrears of rent as prayed for? OPP.
(iii) Whether plaintiff is entitled for decree of mesne profit at the rate of Rs. 400/ per day w.e.f 08.04.2017 as prayed for? OPP
(iv) Whether the plaintiff is entitled for cost of the suit and pendente lite and future interest at the rate of 15% per annum as claimed in the suit? OPP.
(v) Whether the suit of the plaintiff is barred under Section 50 of DRC Act? OPD.
(vi) Relief.
12. Thereafter, matter was listed for plaintiff's evidence.
13. Plaintiff in support of his case, examined Sh. Sukh Nandan Kaur as PW1 and relied upon following documents :
(i) Ex. PW1/1: The site plan of the suit property.
CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 6 of 23
(ii) Ex. PW1/2: Letter dated 21.11.2016 sent by the defendant and received by the plaintiffs.
(iii) Ex. PW1/3: Legal notice dated 22.03.2017.
(iv) Ex. PW1/4 and Ex. PW1/5: Postal receipts of the legal notice.
(v) Ex. PW1/6 : Courier receipt of the legal notice.
(vi) Ex. PW1/7 and Ex. PW1/8 : Track Consignments showing service of the DTDC.
(vii) Ex. PW1/9: Track result showing service of legal notice through DTDC.
(viii) Mark A: Photocopy of assurance given in writing by the defendant.
PW1 was recalled for cross examination pursuant to Order of Hon'ble High Court of Delhi dated 04.02.2019 and a detailed cross examination of PW1 was conducted on behalf of the defendant. In the cross examination, PW1 admitted that the suit property was purchased by her father in law and is owned by her husband. She did not know if any documents regarding ownership of the suit property has been filed on record. She admitted that in her affidavit, she had stated herself as the landlady of the suit property and explained the same that since her husband is the owner of the property, thus, in that capacity, she becomes the landlady of the suit property. She admitted that she had not filed any document to establish that she is the landlady of the suit property. She stated that the suit property is approximately 90 sq. yds and consisting of four floors. She stated that they had left the suit property in April, 2016 and that till then,they used to live on the second floor of the suit property, which has now been let out.
14. She further stated that the defendant came in the suit property as a tenant about 12 years back and he was previously residing somewhere in Khirki Village, where he was facing water problem. She denied that the CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 7 of 23 defendant had been residing in the suit property since last about 18 years. She further stated that the defendant was rented out only one room without kitchen initially at the monthly rent of Rs.4000/ excluding water and electricity charges. PW1 also admitted certified copy of the plaint filed in a suit for injunction by the defendant against the plaintiff, which is Ex. PW1/D1. She also admitted that the said suit was decreed under Order 12 Rule 6 CPC, vide certified copy of the decree Ex. PW1/D2.
15. She stated that their tenants Ms. Purnima, Ms. Prachi and her sister alongwith other tenants had informed them about the facts stated in para 6 of her affidavit, which is Ex. PW1/A. She stated that the said girls also informed her that they have filed complaint against the defendant with the police. She stated that her husband had requested the defendant to vacate the suit property in his capacity as landlord and, further, corrected herself stating that he requested the defendant to vacate the suit property in his capacity as the owner of the suit property. She further stated that she did not use to demand rent from the defendant, but he used to pay the rent between 1st and 7th of the calendar month. She further stated that first time the rent was increased after one year of induction of the defendant as tenant and that they used to increase the rent sometimes after two years and sometimes after three years. She further stated that the last rent was increased in the year 2015 and increased amount was Rs. 400/. She further stated that, thereafter, the rent was to be increased in the year 2017. She also stated that when the said rent was increased in the year 2015, the rent was Rs.7200/ per month excluding electricity and water charges and after the enhancement, the rent became Rs.7600/ per month excluding water and electricity charges. She denied that at the time when the defendant was given the premises on rent, the rent was Rs.300/ and that since the year 2016, the defendant has been paying the rent of Rs.3000/ excluding water and electricity charges. She further CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 8 of 23 stated that she has not filed any rent agreement in the present case. She also stated that no legal proceedings were initiated against the defendant prior to serving the notice dated 22.03.2017 upon him. She denied that the rent of the premises was Rs.3000/ and another sum of Rs. 3000/ per month was paid by the defendant towards maintenance charges, which was limited for seven months in view of the kitchen having been constructed in the suit property , shown in mark A in site plan Ex. PW1/1. She admitted that the defendant had been voluntarily depositing the rent of Rs. 3000/ per month since January, 2017 before Rent Controller and stated that she had filed her objection in the said petition and that she had also not withdrawn the said rent. She also stated that there is no witness to the payment of rent of Rs. 7600/ per month. She denied all other suggestions put to her.
16. Plaintiff also examined Arun Kumar as PW2 who deposed that he was into the business of providing rental accommodation to the landlord and the tenants and that he had been doing the said business for last about 10 years. He deposed that he had seen the suit property which consists of one room, kitchen, latrine and bathroom. He also deposed that the prevailing market rate of the rent for similar accommodation in the vicinity of the aforesaid property is between Rs. 12,000/ to Rs. 13,000/ per month , which is prevalent rate since March and April , 2017.
PW2 was cross examined on behalf of defendant, wherein he admitted that the suit property was not rented out by the landlord through him. He also denied that the rate of rent of such property is Rs. 3000/ per month at present. He denied other formal suggestions.
17. Plaintiff examined Sh. Neeraj Kumar as PW3, who was known to the CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 9 of 23 plaintiff as well as to the defendant for last several years. He deposed regarding a meeting held on 06.11.2016 at Begumpur, Gurudwara at the instance of the plaintiff no. 1 regarding the vacation of the suit property by the defendant as the defendant had already promised to vacate the same. He deposed that apart from plaintiff no. 1 and the defendant, around 9 to 10 persons were present in the said meeting. He deposed that the defendant had promised and assured plaintiff no. 1 and the other persons present therein that he shall vacate the tenanted premises by 15.03.2017. He produced document Mark A which recorded the proceedings in the said meeting dated 06.11.2016, whereby defendant had promised to vacate the premises and the said document bears the signatures of PW3 at point A and the signatures of the defendant at point B. PW3 was cross examined on behalf of defendant, wherein he stated that document Mark A was in the possession of plaintiff no. 1, the said document was exhibited as Ex. PW3/D1. He further stated that the undertaking dated 06.11.2016 was written by him. He stated that defendant mentioned in the said undertaking that he will vacate the premises by 15.03.2017, even though, the year was not mentioned in the said undertaking. PW3 denied all other formal suggestions put to him.
18. Thereafter, plaintiff's evidence was closed vide order dated 24.05.2018 and matter was listed for defendant's evidence.
19. Defendant in his support examined himself as DW1 and relied upon certain documents i.e.
(i) Ex. DW1/1 is the copy of certified copy of complaint dated 21.11.2016 vide DD no. 32B.
(ii) Ex. DW1/2 to Ex. DW1/5 are the copy of certified copy of complaint CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 10 of 23 dated 19.11.2016 vide DD no. 22B, complaint dated 13.11.2016 vide DD no 28, complaint dated 29.09.2016 vide DD no. 11B, complaint dated 09.07.2016 vide DD no. 31B.
(iii) Ex. DW1/8 complaint dated 15.11.2016 mentioned in the evidence by way of affidavit Ex. DW1/A is not on record.
(iv) The documents i.e. Ex. DW1/9 (colly) mentioned in the evidence by way of affidavit Ex. DW1/A are not on record.
(v) Ex. DW1/10 (colly) are the Registered Cover alongwith AD card (running into 7 pages).
(vi) Ex. DW1/11 (OSR) is the copy of Challan form for the rent deposited in the court of ARC (south), Delhi dated 31.08.2017 .
20. DW1 was then cross examined on behalf of plaintiff, wherein he was confronted with his affidavit Ex. DW1/A and it was shown that the facts mentioned in the affidavit was not stated in the WS filed by the defendant. DW1 further stated that he had been paying the rent to one Ms. Avnit Kaur @ Ginni, who is the daughter of plaintiff no. 1. He also stated that he has been paying rent to plaintiff no. 2 (PW1) since September, 2016. He stated that he was given the suit property on rent in January 2001. He denied that the monthly rent of the suit property is Rs.7600/ per month excluding electricity, water and other charges. He voluntarily stated that he was paying maintenance, servant and mali charges to the plaintiff since July 2016 till December 2016 and thereafter, the plaintiff stopped demanding the same. He stated that the photographs Ex. DW1/D2 filed by him shows an open space on the third floor of the suit property at point A1. He also admitted the photographs Ex. DW1/D2 showing flower plot placed by the plaintiff. He stated that the name of the mali employed by plaintiff is Nand Kishore, but stated that he can not bring said Nand Kishore as a witness in the present case. He further CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 11 of 23 admitted that he had not placed on record any receipt regarding the payment of maintenance, servant and mali charges. He admitted that he is the tenant in the suit property. He denied that false and baseless complaint was made by his wife vide DD entry no. 32B given to the police. He stated that no action has been taken by the police on the said alleged complaint and voluntarily stated that he had filed complaint under section 156 (3) Cr. P.C, but no FIR has been registered. He denied all other suggestions put to him.
21. DW1 also stated that he and the other tenants were giving rent to the daughter of the plaintiff Ms. Avneet Kaur till 2014, but admitted that he does not have any documentary proof to show that the rent was paid by him to said Avneet Kaur. He also admitted that he does not have any documentary proof to show that he had paid Rs. 3000/ per month as maintenance charges as claimed by him. He also stated that he did not remember how much he used to pay to the plaintiffs on account of electricity consumption, but he used to pay Rs. 400/ to Rs. 450/ minimum till the year 2015. He further stated that he had given a cheque of Rs. 6000/ to the servant of the plaintiff, namely Ramjas, for the month of January 2017 and for the month of April 2017, he had sent a cheque of Rs. 3000/ by courier to the plaintiff. He stated that these cheques were never encashed by the plaintiff and no receipts were also issued against the said cheques. DW1 was confronted with Ex. PW3/D1, which was the undertaking dated 06.11.2016 and he vaguely replied that he was not sure of his signature on the document, but the date on the document was written by him. He also stated that he had seen document Ex. PW3/D1 for the first time during the cross examination of PW3. He admitted that he had not filed any police complaint regarding the execution of the document Ex. PW3D/1. He stated that he had paid Rs. 7600/ to the plaintiff in the month of December 2016, which included charges for CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 12 of 23 maintenance, gardening and motor. He also admitted that in the same month, he had given another cheque of Rs. 2000/ to the plaintiff, which he voluntarily stated was towards the water and gardening charges for November 2016. DW1 also admitted his address mentioned at point A in document Ex. PW1/3, which is a legal notice sent by the plaintiff to him. DW1 denied all other suggestions put to him.
22. Defendant also examined Sh. Badal Khan as DW2, who exhibited his evidence by way of affidavit Ex. DW2/A. He was cross examined on behalf of plaintiff, wherein he produced his aadhar card, wherein his name was mentioned as 'Nafis Ahmed S/o Sh. Anish Ahmed' and the copy of the aadhar card is Ex. DW2/P1 (OSR). He admitted that he had mentioned his name as 'Badal Khan' in his evidentiary affidavit. He stated that his nick name is 'Badal Khan'. He further stated that he did not deem it necessary to reflect his correct name or official name in the judicial proceedings. He also stated that he does not have any document to show that his name is 'Badal Khan'. He further stated that he is the General Secretary of Building Nirman Mazdoor Union and also disclosed about his official address at 268, F9, Hauz Rani, Kumhar Basti, New Delhi. He admitted that he has not mentioned his residential address in his evidentiary affidavit. He admitted that he knows about the present case as a dispute between landlord and tenant, where Prabhakar Pokhriyal is the tenant. He further deposed that he had visited PSMalviya Nagar on the relevant date at 06.00pm to inquire about his pending complaint. However, he could not produce the DD entry of the said complaint and also could not disclose the IO of the said complaint. He further stated that he did not know if any complaint was made by the defendant against the plaintiff on 09.07.2016 for drinking of alcohol in the premises. He did not know if any complaint is given by the defendant and his wife on 21.11.2016 in the police station. He further stated that he is not deposing CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 13 of 23 at the instance of the defendant and that he had received a whatsapp message from the defendant regarding the present matter. Thereafter, he made inquiries on his own regarding the date of hearing in the present matter before this Court. He stated that he had not seen any document executed between the plaintiff and the defendant mentioning the rent of Rs. 3,000/. He also stated that he did not see the location of the suit property and he never visited the same. He also stated that on 21.11.2016 only, he came to know that the defendant is residing in the vicinity of Malviya Nagar. He denied all other suggestions put to him.
23. It is observed that neither DW2 appears to be a credible witness in view of the fact that he even tried to conceal his real name from the Court, nor his testimony appears to be of any relevance as he has neither ever visited the suit premises, nor witnessed any transaction between the plaintiffs and the defendant. His entire testimony is vague and unreliable and does not inspire any confidence. Thus, DW2 is discarded as a sound or credible witness.
24. Defendant also examined Mohd. Samiuddin as DW3, who proved his evidence by way of affidavit as Ex. DW3/A. He was cross examined on behalf of the plaintiff, where he proved his visiting card showing him as the Property Dealer which is Ex. DW3/P1. He stated that he had visited the suit property about 45 years ago. He had also contacted the owner of the suit property telephonically to inquire about 'to let' board on the suit property. He stated that he had initially shown the suit property to the proposed tenant, but later on, the deal became direct between the tenant and owner. He stated that the amount of rent for one room on the third floor was verbally informed by him to the tenant as Rs. 2200/, but the said deal was not finalized in his presence. He further stated that he does not have any other rent agreement or document to show that rental for CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 14 of 23 the said room in the vicinity is Rs. 2200/. He denied that the rent of one room alongwith latrine and bathroom is Rs. 6,000/ to Rs. 7,000/. He denied all other suggestions put to him.
25. Thereafter, DE was closed and the matter was fixed for final arguments.
26. I have heard both the counsels for the parties and have carefully perused the records.
FINDINGS OF THE COURT:
27. Issue no. 1:
(i) Whether plaintiff is entitled for decree of possession in respect of the suit property as prayed for? OPP The burden of proving the said issue was upon the plaintiff. For the purpose of proving the issue, the plaintiff was required to show that he is the owner of the suit property and the same has been wrongly or illegally occupied by the defendant. The plaintiffs had stated in the plaint that plaintiff no. 1 Surendra Singh Cheema is the owner of the property bearing no. 36A, Cheema House, Begumpur, Malviya Nagar, New Delhi 110017 and the plaintiff no. 2 Mr. Sukh Nandan Kaur, is landlady of the same being the wife of plaintiff no. 1. This fact has not been disputed by the defendant and it is an admitted fact that he is a tenant of the suit property for last about 15 years. Further, it is also an undisputed fact that the tenancy was an oral one and no rent agreement was executed. Hence, the tenancy is to be considered on month to month basis. It is further an undisputed fact that the defendant was given one room , kitchen and bath room on the third floor of the suit property. It is alleged by the plaintiff that in April , 2016, the defendant started creating nuisance and an unhealthy atmosphere in the suit property, which was CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 15 of 23 also complained by the other tenants in the said property. It is also alleged by the plaintiff that the defendant and his unwanted and anti social elements used to pass ugly remarks on the girls residing as tenant on fourth floor of the suit property, to which both the plaintiffs had objected and requested the defendant to mend his behaviour and conduct, but the defendant did not pay any heed to the said request. Thereafter, the plaintiff had requested the defendant in July, 2016 to vacate the tenanted premises. But the defendant kept on postponing the vacation of the premises on one pretext or the other. Subsequently, a meeting of plaintiffs and the defendant and certain respectable persons of the locality was called on 06.11.2016, wherein, the defendant agreed to vacate the premises by 15.03.2017. The undertaking given by the defendant in this respect is Mark A. The said documents has been produced by PW1 and was further proved in the testimony of PW3, who was also one of the person present at the meeting dated 06.11.2016. PW3 was questioned on the said document in his cross examination as well and the document Mark A was, thereafter, exhibited as Ex. PW3/D1. PW3 even proved his own signature as well as the signature of the defendant on the said document Ex. PW3/D1. The defendant failed to rebut the testimony of PW3 and failed to disprove the document Ex. PW3/D1. Even in the cross examination of defendant as DW1, he was questioned about his signature on the said document, to which, he vaguely replied that he was not sure that his signature are there on the document, but he admitted that the date has been mentioned on the document in his hand writing. Also, the plaintiff had sent a legal notice to the defendant dated 22.03.2017 which is Ex. PW1/3 and which has also remained unrebutted. In fact, in the cross examination of the DW1/defendant, he admitted that the address mentioned at point A on the legal notice Ex. PW1/3 as correct, which raises a presumption that the notice has been delivered to the defendant on his address . The vague denial of receipt of the legal CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 16 of 23 notice by the defendant is of no relevance.
28. Hence, in view of the said admitted facts of the plaintiff and the defendant regarding plaintiff being landlord and the owner of the suit property, the tenancy given to the defendant being an oral and, thus, on month to month basis and the fact that the plaintiff raised objection to the unhealthy and anti social conduct of the defendant residing as tenant and thereby, asking him to vacate the suit premises not only orally but also through legal notice dated 22.03.2017 and, the fact of vacating the premises was also undertaken by the defendant vide document Ex. PW3/D1, this Court is of the view that the plaintiff has proved issue no. 1 and he is entitled to the decree of possession in his favour.
29. Issue no. 2.
(ii) Whether plaintiff is entitled for decree of arrears of rent as prayed for? OPP.
The onus of proving the said issue was also upon the plaintiff. The plaintiff in his plaint has stated that the suit property was given to the defendant on monthly rent of Rs. 7600/, besides electricity, motor and water charges. In the testimony of PW1, she had stated that the rent for the month of November, 2016 was paid by the defendant vide cheque no. 256966 dated 21.11.2016 for a sum of Rs. 7925/ and the defendant also paid advance rent for the month of December, 2016 vide cheque no. 256967 dated 07.12.2016 for a sum of Rs. 7600/. The said cheques were sent by the defendant vide his letter dated 21.11.2016, which is Ex. PW1/2. The defendant confronted PW1 on the amount of said monthly rent and during her cross examination, PW1 had stated that when defendant was first inducted as tenant about 12 years back, the monthly rent for the room rented out to the defendant was Rs. 4,000/ CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 17 of 23 excluding water and electricity charges. Thereafter, they used to increase the rent of the suit property sometimes after two years or sometime after three years. PW1 further stated in her cross examination that the last rent was increased in the year 2015, and the enhancement was of Rs. 400/. Thereafter, the rent was to be increased in the year 2017. She further stated that before the said enhancement, the rent of the property was Rs.7200/ per month, excluding electricity and water charges, and after the enhancement, the rent to be charged was Rs. 7600/ excluding electricity, water and other charges. It is noteworthy that the said statements were made by PW1 during her cross examination upon specific questions being put to her in this respect by the counsel for the defendant.
30. The defendant instead raised the defence that the monthly rent was Rs. 3000/ per month, excluding water and electricity charges and, thereby, he challenged the maintainability of the suit as well under section 50 of DRC Act (issue no. 5). PW1 had specifically denied the suggestions regarding the rent being Rs. 3000/ per month. On the contrary, the defendant as DW1 in his evidence by way of affidavit stated that the rent was Rs. 3000/ per month only for last 15 years, since he has been residing in the suit property, and the same is also including maintenance charges. DW1 stated in his affidavit that a maintenance charge of Rs. 3000/ per month was demanded by the plaintiff from 2017 as a kitchen and a bathroom was renovated. The defendant also stated in his affidavit that he used to pay Rs. 300/ per month for water charges and Rs. 300/ per month towards servant, electricity charges at Rs. 8.50 per unit, gardener charges as Rs. 300/ per month and motor charges as Rs. 300/ per month. In fact, no such charges have been mentioned by the defendant in his written statement. It is clear that the defendant has tried to build his defence on false averments and as an after thought. CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 18 of 23
31. Further, the defendant stated that he had been depositing Rs. 3000/ per month in Ld. DRC Court. However, the same can not be taken as a valid argument to prove that the rent of the premises was Rs. 3,000/ per month as alleged by the defendant. More so, it is also stated in the testimony of PW1 that the plaintiff has filed their objections in the DRC Court and they have also not withdrawn the amount being deposited by the defendant. The defendant also failed to bring any documentary evidence on record to prove that the monthly rent was Rs. 3000/ per month or that he was paying Rs. 3000/ additionally towards the maintenance charges from September 2016 onwards (it appears that the defendant has wrongly mentioned September 2017 in his affidavit, when the suit itself has been filed in April 2017). The defendant had admitted in his cross examination that he had paid Rs. 6,000/ as rent for the month of January 2017 by way of cheque, which was sent to the plaintiffs, and stated that plaintiffs never encashed the said cheque. The defendant failed to show any receipt of the said cheque or even failed to produce the said cheque in support of his statement.
32. Further, defendant had admitted in his cross examination that he had paid Rs. 7600/ as rent to the plaintiff in the month of December, 2016 and, additionally, he had also given a cheque of Rs. 2000/ to the plaintiffs in the same month i.e. December, 2016. This fact also corroborates the letter dated 21.11.2016, which is Ex. PW1/2, whereby, defendant himself had stated that he sent two cheques for the month of September and October, 2016 bearing no. 256961 dated 07.09.2016 and cheque bearing no. 256962 dated 07.10.2016 for a sum of Rs. 9675 and Rs. 8660, respectively, which were also cleared by the plaintiffs. The said cheques are admitted by the defendant himself that they were for the month of September and October 2016. In addition, in the same letter, CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 19 of 23 the defendant enclosed two cheques, one for the month of November, 2016 bearing no 256966 dated 21.11.2016 for a sum of Rs. 7925 and another cheque towards advance rent for the month of December, 2016 bearing no. 256967 dated 07.12.2016 for a sum of Rs. 7600/. The said letter has remain unrebutted and has duly corroborated the testimony of PW1, whereby the plaintiffs have stated that monthly rent of the premises was Rs. 7600/ per month from the year 2015. The defendant had failed to lead any cogent defence either to rebut the amount of said rent or to produce any evidence to the fact that the amount of rent was Rs. 3000/ per month and not Rs. 7600/ per month as claimed by the plaintiff. Thus, it has been sufficiently proved on record by the plaintiff, that the rent of the suit premises was Rs. 7600/ per month from the year 2015 till the time of filing of the present suit.
33. Hence, since there is no other evidence to the fact that the defendant had paid any rent @ Rs. 7600/ per month after December, 2016, the issue no. 2 is decided in favour of the plaintiff, whereby the plaintiff is entitled to a decree of arrears of rent w.e.f. 01.01.2017 till 07.04.2017 @ Rs. 7600/ per month.
34. Issue no. 3.
(iii) Whether plaintiff is entitled for decree of mesne profit at the rate of Rs. 400/ per day w.e.f 08.04.2017 as prayed for? OPP The onus of proving of the said issue was upon the plaintiff. As observed in the previous paragraphs and also since, the defendant has not placed any record to show that he has vacated the suit property as of date and even at the time of his examination as DW1, the defendant had stated his address as that of the suit property, he is in illegal and wrongful occupation of the suit property. Therefore, this issue is also decided in favour of the plaintiff and plaintiff is entitled to a decree of mesne CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 20 of 23 profit in his favour. The plaintiff has produced PW2, who deposed that the market rate of rent in the vicinity of the suit premises is Rs. 12,000/ to Rs. 13,000/ per month, since, March and April, 2017. However, no documentary evidence of this fact was brought on record. As there is no conclusive evidence on record to show the current market value of the rent in the properties similarly situated as that of the suit property and considering that the monthly rent of the suit property proved on record is as Rs. 7600/ per month for the year 2017, the mesne profit shall be calculated at the rate of Rs. 8000/ per month w.e.f 08.04.20217. The plaintiff is also entitled to claim interest thereupon @ 6% per annum w.e.f. 08.04.2017 till its realization.
35. Issue no. 4
(iv) Whether the plaintiff is entitled for cost of the suit and pendente lite and future interest at the rate of 15% per annum as claimed in the suit? OPP.
In view of the preceding paragraphs, as the plaintiff has been able to prove his case beyond reasonable doubts and the defendant is in illegal occupation of the premises even as of date, plaintiff is entitled to the cost of the suit. Further, keeping in mind the interest of justice and the reasonableness of the interest claimed on the arrears of rent, it is decided that the plaintiff is entitled to claim interest on the arrears of rent @ 10% p.a. from the date of its accrual until the realization of the said arrears of rent.
36. Issue no. 5
(v) Whether the suit of the plaintiff is barred under Section 50 of DRC Act? OPD.
CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 21 of 23 The onus of proving the said issue was upon the defendant. As is clearly evident from the observations made in the preceding paragraphs and especially from the discussion under issue no (ii) above, the defendant has drastically failed to bring any evidence on record to show that the rent of the suit premises was Rs. 3000/ per month. From the admitted facts of the defendant as are evident from Ex. PW1/2 i.e. letter dated 21.11.2016, it has been established on record that the rent of the suit premises last claimed by the plaintiffs in the year 20162017 was Rs. 7600/ per month. Hence, this issue is decided against the defendant and, in the opinion of the court, there is no bar on the present suit under section 50 of DRC Act.
37. RELIEF:
In view of the findings on the issues framed, suit of the plaintiff is decreed in favour of plaintiff and against the defendant in the following terms:.
(i) Decree of possession in favour of plaintiff with respect to suit premises consisting one room, kitchen and a bathroom at 3 rd floor of property bearing no. 36A, Cheema House, Begumpur, Malviya Nagar, New Delhi, as shown in red colour in the site plan attached by the plaintiff.
(ii) Decree of arrears of rent for the period w.e.f. 01.01.2017 to 07.04.2017 @ Rs. 7600/ per month, amounting to Rs. 22,800/. Plaintiff is also entitled to interest on the said arrears @ 10% p,a, from the date of its accrual until the realization of the said arrears of rent.
(iii) Decree of mense profit @ Rs. 8000/ per month w.e.f. 08.04.2017 till the date of vacation of premises by the defendant and handing over the CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 22 of 23 possession of the same to the plaintiff by the defendant. Plaintiff is entitled for interest @ 6% on the mesne profits from the date of its accrual until its realization.
(iv) Cost of the suit is also awarded in favour of the plaintiff.
38. Decree sheet be prepared accordingly.
39. File be consigned to Record Room, after due compliance.
ANNOUNCED IN THE OPEN COURT ON 22.03.2021 (ANKITA LAL) ASCJCUMJSCCCUM GJ (SOUTH) SAKET COURTS: NEW DELHI 22.03.2021 CS No.451/17 Surendra Singh Cheema & Anr Vs Prabhakar Pokhriyal Page 23 of 23