Delhi District Court
Ram Nath Kumar & Ors. vs . Meenakshi & Anr. on 7 July, 2015
Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
IN THE COURT OF CIVIL JUDGE02:(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 453/14
1. Sh. Ram Nath Kumar
2. Sh. Brij Lal Kumar (expired)
3. Sh. Om Prakash Kumar
4. Sh. Surinder Kumar
All Sons of Sh. Butta Ram Kumar
R/o C/o House No. 759, Gali No. 7,
Govindpuri, Kalkaji, New Delhi19
Sh. Kewal Krishan Kumar S/o Sh. Butta Ram Kumar
R/o D2/2328, Vasant Kunj,
New Delhi110070 .......Plaintiffs
Versus
1. Smt. Meenakshi W/o Sh. Loka Nath Kabi
2. Sh. Loka Nath Kabi S/o Sh. Shambu Nath Kabi
Both R/o Flat no. J2/73A,
Janta Flats (Double Storey)
Kalkaji, New Delhi110019 ......Defendants
Date of Institution : 27.03.2010
Date of Reserving Judgment : 04.07.2015
Date of Decision : 07.07.2015
Final Decision : Decreed
J U D G M E N T
(on suit for Possession, Recovery of Rs. 36,950/ as arrears of rent, Damages/Mense Profits and Permanent Injunction) CS No. 453/14 Page 1 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
1. This suit was filed by the plaintiffs for Possession, Recovery of Rs. 36,950/ as arrears of rent, Damages/Mense Profits and Permanent Injunction against the defendants.
2. Briefly stated, case of the plaintiffs is that the plaintiffs are the joint owners of the flat bearing no. J2/73A, DDA Janta Flats, Kalkaji, New Delhi110019, (hereinafter called the suit property), in which the defendants were inducted as tenants by the plaintiff no. 1 vide lease agreement dated 27.11.2006 for a period of 11 months commencing from 01.11.2006, for residential purpose. That in terms of the said agreement dated 27.11.2006, the defendants agreed to pay the rent @ Rs. 3,300/ p.m. in advance, on or before 1st day of each English Calender Month excluding water and electricity charges. The parties to the suit further agreed to mutually extend the period of lease for another 11 months. That it was agreed that if the lessee fails to pay the monthly rent to the lessor, than the lease will be terminated/cancelled automatically and lessee have no right/claim for the leased premises. The rate of rent in respect of the tenanted premises was mutually agreed between the parties to be increased from time to time and in the month of December 2009, the defendants agreed to pay the rent @ Rs. 3,800/ p.m. w.e.f. Jan. 2010 to the plaintiffs. That on 28.01.2010 the defendants paid by crediting a sum of Rs. 3,800/ to the plaintiff no. 1 account vide cheque bearing no. 535246, dated 19.01.210. That the defendant fell in arrears of rent as he failed to pay the amount of his two dishonored cheques, amounting to Rs. 7,000/ issued towards payment of rent. Besides this there was short payment of rent amounting to Rs. 4,000/ which the defendants failed to pay despite several requests. For the month of CS No. 453/14 Page 2 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
February, 2010 the defendants have paid only a sum of Rs. 1,650/ as against the rent of Rs. 3,800/ as such there is an arrears of Rs. 2,150/ for the month of February 2010. That the defendants in violation of the terms of the lease agreement have also carried out unauthorized additions and alterations in the tenanted premises without written permission of the plaintiffs thereby causing structural damage to suit premises to the tune of Rs. 20,000/. However, despite repeated requests by the plaintiffs, defendants failed to pay the arrears of rent. The said period of lease expired by efflux of time on 30.09.2007 and defendant's tenancy became monthly, (month to month) terminable by a notice in accordance with the law. The plaintiffs were constrained to issue legal notice dated 23.02.2010 which was sent vide registered A.D./UPC to the defendants but all in vain. Hence, the present suit is filed by the plaintiffs.
3. Upon service of summons of the present suit, defendants appeared and filed their written statement (WS) denying the allegations as contained in the plaint. That the plaintiffs have filed the above noted suit without any cause of action. That the plaintiffs have concealed material facts. That the defendants are purchaser in possession of the suit property as mutually agreed between the parties in view of the mutual agreements. That the defendants have already paid more than 50% of the total consideration amount against the purchase of the suit property to the plaintiff no.1. That the above noted suit also suffers from non joinder of necessary parties. Hence the present suit is liable to be dismissed.
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4. Plaintiffs filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the application.
5. On the basis of the pleadings of the parties, following issues were framed vide order dated 09.02.2011:
1. Whether the suit of the plaintiff is without any cause of action and is liable to be dismissed? OPD
2. Whether the plaintiff has not come to court with clean hands? OPD
3. Whether the suit of the plaintiff is bad for nonjoinder of necessary parties? OPD
4. Whether the plaintiff is entitled to decree for possession? OPP
5. Whether the plaintiff is entitled to money decree? OPP
6. Whether the plaintiff is entitled to decree of permanent injunction? OPP
7. Whether the plaintiff is entitled to future damages? OPP
8. Relief if any.
6. In order to prove their case, plaintiffs examined plaintiff no.1 as PW7 who tendered his evidence by way of an affidavit Ex.PW7/A. He also relied upon the documents Ex. PW7/1, Ex. PW7/4, Ex. PW7/5, Ex. PW7/7, Ex. PW7/8, Ex. PW7/12 & Ex. PW7/13. Plaintiff no.5 has also got himself examined as PW8 and relied upon documents already exhibited on record by other witnesses. Plaintiffs also examined seven more witnesses who are CS No. 453/14 Page 4 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
official witnesses as PW1 to PW6 & PW9 respectively and thereafter, closed their evidence.
In order to prove his defence, defendants examined themselves as DW1 & DW2 by tendering their evidence by way of an affidavit Ex.DW1/A & Ex.DW2/A respectively. Defendants also relied upon documents Ex.DW1 to Ex.DW1/9, Mark DW1/10, Ex.DW1/11 to Ex.DW1/13 & Ex.DW2/1, Mark DW2/A, Mark DW2/3 & Ex.DW2/4 respectively. Defendants also examined one more witness namely Smt. Kamla Devi as DW3 and thereafter, closed their evidence.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUES NO.1 & 4Whether the suit of the plaintiff is without any cause of action and is liable to be dismissed? OPD & Whether the plaintiff is entitled to decree for possession? OPP
8. Both these issues are taken up together for the purpose of discussion and finding being interconnected. The onus to prove first issue was upon the defendants and fourth was upon the plaintiffs.
Ld. Counsel for defendants argued that plaintiffs have no cause of action against the defendants and hence, the suit is liable to be dismissed. Ld. Counsel raised three fold contentions while arguing the matter. Firstly, that the plaintiffs and the defendants had no landlord and tenant relationship as the defendants are staying in the suit property as purchaser in possession. It is further CS No. 453/14 Page 5 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
argued that the suit property was agreed to be purchased by the defendants for a consideration of Rs.10,00,000/ out of which the defendants have paid more than 50% of amount in installments by way of excess payment of rent as well as separate payment coming out to be Rs.5,13,050/. Secondly, the rent agreed between the parties was below Rs.3500/ and was never agreed as Rs.3800/ as claimed by the plaintiffs. Ld. counsel relied upon mutual agreement Ex.PW7/7 dated 02.03.2007 and 04.01.2008 respectively in pursuant to which the plaintiff no.1 agreed to sell out the suit property to the defendants. Thirdly, that half of the rent per month i.e. Rs.1650/ was charged by the plaintiffs till the period the plaintiffs agreed to got the suit property converted from lease hold to free hold and till finalisation of deal the said amount is also included in the payment made towards the consideration. Arguing further Ld. counsel submitted that after the execution of mutual agreements defendants ceased to be the tenants in the suit property and there existed no more relation as landlord and tenant between the parties. Hence, the plaintiffs have no cause of action against the defendants.
9. On the other hand, Ld. Counsel for plaintiffs argued that the mutual agreement relied upon by the defendants has been found to be false and fabricated as the same does not bear the signatures of the plaintiff no.1. It is further argued that the stamp paper on which the mutual agreement is alleged has also been found to be invalid as the license of the stamp vendor from whom the same has been purchased by the defendants have been revoked. It is further argued that there is no proof of cash payment of Rs.2,50,000/ and Rs.2,00,000/ produced on record by the CS No. 453/14 Page 6 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
defendants alleged to have been paid to the plaintiffs. It is further argued that not even a single suggestion qua the existence of mutual agreement has been put by the defendants to the plaintiff's witnesses No. 7 and 8 while cross examining them. On the contrary lease agreement Ex.PW7/4 has been admitted by the defendants. It is further argued that the rent paid by the defendants in the month of January 2010 is of Rs.3800/ which proves the rent being above Rs.3500/. It is further argued that the service of legal notice terminating the tenancy dated 23.02.2010 Ex.PW8/6 has been duly replied by the defendants proving the service of statutory notice. Hence, all the necessary essential ingredients have been proved by the plaintiffs for recovery of possession.
10. Let us see the evidence one by one that have been led by both the parties in order to prove their respective pleadings. Lease agreement Ex.PW7/4 executed between plaintiff no.1 and defendant no. 2 is not disputed. Rather the same proves the relationship between the plaintiffs and the defendants as that of landlords and tenants. The contention of the defendants is that in March 2007 by virtue of mutual agreement they became the purchaser in possession of the suit property is completely vanished by the fact that the signatures of PW1 upon the same has been found to be forged in a FSL report in separate criminal proceedings. Same is admitted by the defendants. Secondly, the stamp paper on which the mutual agreement is executed has been purchased from Sang Priya Stamp agent whose license was revoked on 30.07.2009 and the stamp papers purchased after 31.03.2005 from the same are invalid. Same has been proved by the document Ex.PW1/14. Most importantly, the claim of the CS No. 453/14 Page 7 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
defendants gets falsified by their own documents Ex.DW1/P1 and Ex.DW1/P2 i.e. the complaint written to the police where they have admitted to be the tenants of the plaintiffs and further they have admitted the rent at the rate of Rs.3800/ per month whichever from January 2010. No where in the said documents the mutual agreements have been mentioned. These documents infact strengthens the plea of the plaintiffs and contradicts the stand of defendants. More over, generally there is no agreement to sell executed pertaining to the property which does not show the date of execution of sale deed or at least a particular date by when the entire remaining payment has to be made. Nothing that sort of has been mentioned in the mutual agreement which altogether raise the doubt about the execution of any such mutual agreement in this case. Even no suggestions qua the mutual agreement has been put to the witnesses PW7 & PW8 in their cross examination.
11. I further agree to the point of argument put forth by Ld. Counsel for plaintiff that the defendants have not placed a single document in the form of receipt etc. to show that they have made the payment of Rs.4,50,000/ to the plaintiffs whereas for the smaller amount of Rs.3500/ or Rs.3800/ they have been issuing the account payee cheque in favour of the plaintiffs. The bank statement of accounts of the plaintiff and defendant exhibited on record Ex.PW2/1 and Ex.PW1/1 proves the same. Admittedly, till date the defendants have not sought specific performance of the mutual agreement alleged to have entered between the parties. In view of the evidence led and the admission of the defendants, it is proved on record that defendants are staying in the suit property as tenants of the plaintiffs and not as purchaser in possession.
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Hence, the landlordtenant relationship stands established.
Defendants have admitted the rate of rent to Rs.3800/ whichever from January 2010 in Ex.DW1/P1 so it does not need to be proved by the plaintiffs anymore. Service of statutory legal notice dated 23.02.2010 terminating the tenancy upon the defendants have also been admitted by the defendants so the same also stands proved. The three essential aspects needs to be proved for recovery of possession by the plaintiffs have been duly proved and complied with. On the other hand, defendants have failed to discharge their onus by leading any cogent evidence on record. Hence, in view of the evidence led both these issue stands decided in favour of the plaintiffs and against the defendants.
ISSUE NO.2 Whether the plaintiff has not come to court with clean hands? OPD
12. The onus to prove this issue was upon the defendants. Here also Ld. Counsel for the defendants argued that plaintiffs have not come before the Court with clean hands as the material facts have been concealed pertaining to the mutual agreement etc. Here I would again refer to the finding given in the previous issues and it has been found that the plaintiffs have not concealed any fact from the court rather defendants have tried to mislead the court by concocting inconsistent plea of defence. Hence, in view of the evidence this issue also stands decided in favour of the plaintiffs and against the defendants.
ISSUE NO.3 Whether the suit of the plaintiff is bad for nonjoinder of necessary parties? OPD CS No. 453/14 Page 9 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
13. The onus to prove this issue was upon the defendants. Ld. Counsel for the defendants while addressing the arguments submitted that he does not impress upon this issue anymore as the official from the DDA has been examined as witness. It is further submitted that this issue be deleted. In view of the submissions made, this issue stands deleted.
ISSUE NO.5 Whether the plaintiff is entitled to money decree? OPP
14. The onus to prove this issue was upon the plaintiffs. Admittedly, two cheques of Rs.3500/ each issued by the defendants in favour of the plaintiffs got dishonored. Defendants have merely stated making payment of the same in cash but again they have not produced on record a single receipt to prove the same. No contrary evidence have been led by the defendants to disprove the testimony of the plaintiff's witnesses qua their claim pertaining to arrears of rent.
Amount of Rs.2150/ claimed as arrear of the rent pertaining to February 2010 is also proved on record as the defendants have admitted that they have only paid Rs.1650/ whereas the rent was Rs.3800 per month. Similarly, the arrears of rent for the month of March 2010 is also admitted by the defendants in their WS para no.4 which says that the rent was sent by way of money order but the same was refused by the plaintiffs. Hence, the amount of Rs.5950/ has also been proved to be due on the part of the defendants payable towards the plaintiffs.
Plaintiffs have also claimed the damages to the tune of Rs.20,000/ occurred on account of illegal alteration in the structure of the suit property. There have been categorical CS No. 453/14 Page 10 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
deposition by the PW7 and PW8 to this effect but not even a single suggestion denying the same has been put by the defendants to the witnesses while cross examining them. Bare averments in the WS without leading any cogent evidence does not disproves the same. Hence, the plaintiffs have proved the damages. In view of the evidence led, this issue also stands decided in favour of the plaintiffs and against the defendants.
ISSUE NO.6 Whether the plaintiff is entitled to decree of permanent injunction? OPP
15. The onus to prove this issue was upon the plaintiffs. It has already been proved on record that the defendant's claim is false and the plaintiffs have genuine apprehension that the defendants may create third party interest in the suit property which is actually owned by the plaintiffs. Complaint filed by the plaintiffs with the police have also been duly proved on record. Hence, in view of the evidence led this issue also stands decided in favour of the plaintiffs and against the defendants.
ISSUE NO.7 Whether the plaintiff is entitled to future damages? OPP
16. The onus to prove this issue was upon the plaintiffs. Ld. Counsel for plaintiffs argued that damages @ Rs.10,000/ per month be granted to the plaintiffs for the illegal and unauthorized occupation of the suit property by the defendants after termination of tenancy. Although, plaintiffs have not led any evidence on this account. However, considering the general scenario prevailing in the Delhi State the amount of rent increases CS No. 453/14 Page 11 of 12 Ram Nath Kumar & Ors. Vs. Meenakshi & Anr.
year by year and after considering the average this Court is of the view that Rs.6000/ as damages per month will be just and appropriate visavis portion of the suit property that the defendants can be asked to pay the plaintiff . Accordingly this issue stands decided in favour of the plaintiffs and against the defendants.
Relief:
17. As a consequence to my findings on the above mentioned issues, suit of the plaintiffs is hereby decreed. Defendants are directed to handover the vacant and physical possession of suit property i.e. flat bearing no. J2/73A, DDA Janta Flats, Kalkaji, New Delhi110019 immediately. Plaintiffs are also entitled to recover the amount of Rs.36,950/ (arrears of rent Rs. 11000/ + Rs.2150/ + Rs.3800/ & Rs.20,000/ towards structural damages). Plaintiffs are also entitled to mense profits/future damages @Rs.6000/ per month from the date of termination of tenancy whichever from 01.04.2010 till vacation of the suit premises. Cost is also awarded to the plaintiffs. Decree sheet be prepared after depositing of deficient court fee if any within 15 days.
18. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 07.07.2015 CJ02 (South)/Saket Courts
New Delhi/07.07.2015
CS No. 453/14 Page 12 of 12