Delhi District Court
Sh. Harish Chand Narula vs Sh. Lalman Rajbhar on 1 September, 2016
In the Court of Ms. Asha Menon, District & Sessions Judge
South East : Saket Court, New Delhi.
In the matter of :
RCA No. 50/14
Sh. Harish Chand Narula
S/o Sh. S.N. Narula
R/o L4 Lajpat NagarII
New Delhi24 .... Appellant
V E R S U S
Sh. Lalman Rajbhar
S/o Sh. Baratu Rajbhar
R/o Plot No. 4, Adjacent Q23
Jangpura Extension, New Delhi. ....Respondent
Appeal presented on : 26.04.2014
Arguments concluded on : 08.08.2016
Judgment on : 01.09.2016
JUDGMENT
This order will dispose of the appeal filed by the appellant/plaintiff against the Judgment and Decree dated 19.03.2014 whereby the Ld. Civil Judge dismissed the suit of the plaintiff/appellant.
2. The appellant is the owner and in possession of the suit premises being Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi.
3. The brief facts as alleged in the plaint was that the defendant entered into an oral tenancy with the plaintiff on 05.06.2006 in respect of one room, common open space with RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 1 of 18 bathroom and toilet, for a monthly rent of Rs.5,000/ per month with electricity and water charges being borne by the defendant. The rent was payable on 5th of each calender month. The defendant was not to alter the premises without permission of the plaintiff and nor was he allowed to sublet or mortgage the property. The plaintiff claimed that the agreement was initially for a period of 11 months from 05.06.2006 to 04.05.2007, which was renewable with mutual consent for another period of 11 months, however, with 10% increase in the rate of rent.
4. According to the plaintiff, after the first renewal, the defendant stopped paying the rent and requested for time to make the payment on ground of hardship. According to the plaintiff, the defendant failed to pay rent for the next 11 months and the plaintiff warned him that he would have to vacate the premises and handover the possession of the room. According to the plaintiff, the defendant and his family members requested the plaintiff to allow them to continue in the premises on 05.05.2009 and also sought time to make payment of rent. The agreement was extended without increasing the rent on month to month basis.
5. On 10.07.2010, when the plaintiff approached the defendant for the rent, the defendant allegedly refused and misbehaved with him. It was also alleged that defendant did not maintain the property properly and also did not permit the plaintiff to inspect and visit the premises from inside. The defendant also RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 2 of 18 allegedly started using the premises for commercial purposes in violation of the agreement. Thus, vide notice dated 30.07.2010, the plaintiff called upon the defendant to pay the arrears of rent and to remove the violation and vacate to which the defendant duly replied admitting the fact of tenancy. Thereafter, the plaintiff was compelled to file the present suit.
6. The defendant in his written statement raised some preliminary objections, particularly, that the Civil Court had no jurisdiction in view of the Delhi Rent Control Act, 1958, as the rent of the premises was only Rs.1,000/. The defendant asserted that the plaintiff was regularly receiving the rent at the rate of Rs.1,000/ per month from the defendant from 2004. The defendant, however, denied that he was reinducted as tenant since 05.06.2006. The site plan has also been challenged. According to the defendant, he has been residing in the suit premises comprising of one room and common latrine and bathroom since the beginning of 2004 and was also paying the electricity and water charges. According to the defendant, the lease rent was received by the plaintiff in the first week of November 2010 at the rate of Rs.1000/ and that the defendant was assured by the plaintiff that he did not intend to evict him.
7. The plaintiff filed the replication in which he asserted that the nature of the premises under the tenancy is beyond the scope of Delhi Rent Control Act, 1958, as the tenanted premises is not RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 3 of 18 pakka construction.
8. On the basis of these averments, the following issues were framed :
1. Whether the jurisdiction of the present suit lies with this Court or with the Rent Controller with respect to the amount of rent being paid by the defendant to the plaintiff? OPD
2. Whether the defendant has used the premises for commercial purposes in violation of the rent agreement as alleged in para 14 of the plaint? OPP
3. Whether the plaintiff is entitled to a decree of ejectment and possession as prayed for in prayer clause (a) and (b) of the plaint? OPP
4. Whether the plaintiff is entitled to arrears of rent and damages as prayed for in prayer clause (c) and (d) of the plaint? If so, at what rate and for what period? OPP
5. Whether the plaintiff is entitled to any interest? If so, at what rate and for what period?OPP
6. Relief.
9. The plaintiff examined himself as PW1 and also summoned the record of suit no.234/10 Harish Chand Narula V. Nanhu @ Lal Chand to prove site plan Ex.PW1/C. He also filed the certified copies of the testimonies of PWs Megh Singh and Ram RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 4 of 18 Prakash and Nanhu @ Lalchand, recorded in other suits filed by him.
10. The defendant examined himself as DW1.
11. On the basis of the evidence and the material brought on the record, the Ld. Civil Judge answered the Issue No.1 against the plaintiff and in favour of defendant that the rent was Rs.1,000/ per month and the jurisdiction of the civil court was barred and the same lay with the Rent Controller.
12. Issue No. 2 was answered against the defendant and in favour of the plaintiff holding that the plaintiff has not been able to prove that the defendant was carrying on commercial activities from the property in question.
13. Issue No. 3 was answered against the plaintiff and in favour of the defendant holding that since the Court had already concluded that the rent payable was Rs.1,000/ per month, therefore, the relief of ejectment or possession cannot be granted by a Civil Court as the same was barred under Section 50 of Delhi Rent Control Act, 1958, which placed a bar on the jurisdiction of the Civil Court.
14. With regard to Issue No. 4&5, the Ld. Trial Court concluded that once the jurisdiction of the Civil Court was barred as per Section 50 of the Delhi Rent Control Act, 1958, the question of arrears of rent as well as mense profits/damages also could not be decided by the Civil Court.
RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 5 of 1815. Thus, the suit was dismissed.
16. Aggrieved by this Judgment, the appellant/plaintiff preferred this appeal. The grounds taken by the appellant in his appeal are that the Ld. Trial Court had wrongly decided all the issues against him.
17. It is submitted that the Ld. Civil Judge had failed to consider that the rent of the suit premises was Rs.5,000/ and the witnesses of the plaintiff had corroborated themselves, whereas no credible evidence in this regard had been produced by the defendant/respondent.
18. It is also submitted that the Ld. Trial Court had failed to consider the location of the suit property as it was situated at South Delhi in the vicinity of Metro Station, Highway, Jangpura Market, Main Road, Lajpat Nagar railway station. On the contrary, the defendant had not produced any evidence to support his claim. It is submitted that the Ld. Trial Court wrongly concluded that its jurisdiction was barred under Section 50(1) of the Delhi Rent Control Act, 1958.
19. It is further submitted that the Ld. Trial Court failed to consider that the suit property was not covered under the definition of "premises"under section 2(i) of Delhi Rent Control Act, 1958. It is also submitted that the Ld. Trial Court failed to consider the order of the Hon'ble High Court in RFA No.523/2001 titled Harish Chander Narula & Anr. V. Purshotam Lal Gupta, dated 07.03.2011, RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 6 of 18 wherein the Hon'ble High Court has held that a plot with buildup/construction of temporary nature was not "premises" as per the Delhi Rent Control Act, 1958 and hence, the matter did not fall in the domain of the Rent Controller.
20. It is further submitted that the Ld. Trial Court had unjustifiably considered the matter of rent as being Rs.1,250/ per person restricted to four persons, whereas the plaintiff had taken the stand that the rent of the suit premises was Rs.5,000/ per month and it was only a bifurcation of Rs.5,000/ intended to restrict the tenant to keep not more than four persons in a room.
21. It is further submitted that the Ld. Judge had erred by taking an adverse presumption due to nonproduction of income tax records whereas the law laid down in this behalf was that the adverse presumption could be drawn only when there was no other evidence to this behalf.
22. It is further submitted that the Ld. Civil Judge ignored the arguments that there is no income, particularly, house property as per income tax returns records and otherwise also, the filing of the income tax returns records was a different aspect of law.
23. It is further submitted that the Ld. Trial Court overlooked the fact that the suit premises consisted of one room, common open space with bathroom and toilet as the room was having space for four persons and accordingly, the rent of the room was Rs.5,000/ per month at the rate of Rs.1,250/ per person. Thus, RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 7 of 18 the appellant has prayed that the Judgment and Order dated 19.03.2014 be set aside.
24. I have carefully perused the record and I have heard the arguments of both the sides. Written arguments have also been filed by both the sides. Written arguments have followed the pleadings.
25. Ld. Counsel for the appellant submitted that the plot had been alloted to him a fuel depot and he could not construct a permanent structure in the said property. It is further submitted that the adverse presumption was wrongly drawn by the Ld. Trial Court in respect of the income tax returns.
26. It was further argued that whatever was the volunteered information of the plaintiff during his crossexamination, being beyond pleadings, ought not to have been considered by the Ld. Trial Court to hold that the rent was Rs.1,000/ and not Rs.5,000/. It was further submitted that the nonproduction of income tax returns could not lead to a presumption that the rent was Rs.1,000/ and not Rs.5,000/.
27. Thus, it is submitted that the findings of the Ld. Trial Court were liable to be set aside and suit be decreed.
28. It would be useful to traverse the Judgment issuewise and to determine whether the Judgment of the Ld. Trial Court is liable to be set aside or interfered with. But before doing so, it may be recorded that the respondent has not questioned the status of appellant as the landlord of the suit premises. Though, in the RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 8 of 18 Written Statement some challenges had been made to the tenure of the tenancy, the fact remains that the defendant has accepted that he had taken one room with common bathroom and laterine at a monthly rent from the plaintiff. The relationship of tenant and landlord is not disputed and extent of tenancy/premises is also not disputed, nor is it disputed that tenancy was month to month.
29. The plaintiff had claimed in the plaint that the rate of rent was Rs.5,000/ per month and the defendant claimed that the rate of rent was Rs.1,000/. The onus was on the plaintiff to establish his claim. In order to substantiate him, the plaintiff has examined himself as PW1. The plaintiff as PW1 claimed in his affidavit Ex. PW1/H that the rent was Rs.5,000/ per month. In his crossexamination by the defendant, he reiterated the same rate but, he further deposed that the premises given on rent was a room which had the capacity to accommodate four persons and the rent was fixed at the rate of Rs.1,250/ per person per month.
30. It is a spacious argument of the Ld. Counsel for the plaintiff/appellant that since this statement was beyond pleadings, the court should have ignored the same. Crossexamination is intended to test the veracity of a witness and the truthfulness of his statement. The defendant has succeeded in shaking the claim of the plaintiff/appellant that the rent was Rs.5,000/. The admission of the plaintiff/appellant on oath has to be read in evidence and the Ld. Trial Court has rightly considered the same to reject the claim of the RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 9 of 18 plaintiff/appellant that the rate of rent was Rs.5,000/ per month.
31. The defendant has filed his affidavit as Ex.DW1/A in which he has stated that he had been regularly paying the rent at the rate of Rs.1,000/ per month. He was crossexamined by the plaintiff through counsel. In his crossexamination, he stated that he had been residing in the suit premises since 2004 without any written or oral tenancy agreement. He denied the suggestion that the total monthly rental was Rs.5,000/ per month or that the rent of the suit was levied per head at the rate of Rs.1,250/ per person. He stated that he was living without his family in the premises except when his daughter was under treatment. He rejected the suggestion that the rent had been fixed at Rs.5,000/ per month in view of the use of the open courtyard.
32. Reference was also made to the fact that though the plaintiff as PW1 had admitted to be an income tax assessee and mentioning in his returns that he was receiving Rs.5,000/ per month towards rent. But as he had failed to place on record the income tax returns an adverse inference had to be drawn. The Ld. Counsel for the plaintiff questioned this conclusion on the ground that filing or nonfiling of income tax returns records could lead to no conclusion on the rate of rent as nonfiling could only be a violation of some other law and nothing more.
33. Be that as it may, even if the court ignored the reasoning of the Ld. Trial Court that the income tax returns record RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 10 of 18 had not been produced willfully, there is sufficient material which justified the Ld. Trial Court in concluding that the rent was not Rs.5,000/ per month but was something else. The Ld. Trial Court was justified in drawing such a conclusion on the basis of preponderance of probabilities. The Ld. Trial Court was required to weigh the evidence that was brought on record by the plaintiff and that brought on record by the defendant to conclude what was more credible. It has done so after extensive discussions of the evidence on record.
34. In other words, the Ld. Trial Court rightly rejected this claim of the plaintiff/appellant that the rent totalled Rs.5,000/ because the room accommodated four persons and the rent was Rs.1,250/ per person. Had different people stayed together in that one room, such a claim was plausible. However, it is clear from the testimony of DW1 that the premises was taken on rent by him from the plaintiff/appellant and the question of per head determination of rent does not appear credible.
35. The Ld. Trial Court also referred to the plea raised by the Ld. Counsel for the plaintiff/appellant that the rate of rent alone would not oust the jurisdiction of the civil court as the property in question did not fall in the definition of premises under the Delhi Rent Control Act, 1958.
36. Issue No. 1 was decided by the Ld. Trial Court on the basis of this conclusion that since the rent was Rs.1,000/ per month, RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 11 of 18 the Delhi Rent Control Act, 1958, was applicable to the premises. The Ld. Trial Court has also determined the applicability of the Delhi Rent Control Act, 1958, on the nature of the premises. The Ld. Trial Court, after detailed assessment of the evidence, concluded that what had been let out was not a temporary structure. Therefore, it held that the Delhi Rent Control Act, 1958, was applicable and under Section 5 of the Act, its jurisdiction was barred.
37. The Ld. Trial Court has observed that the plaintiff had taken this stand of the premises being a temporary structure, for the first time in para no.2 of his affidavit. The Ld. Trial Court preferred to discard this evidence on the ground that no party could travel beyond their pleadings, to set up an inconsistent case. Thus, the Ld. Trial Court decided Issue No.1 in favour of the defendant that the rent was Rs.1,000/ and the jurisdiction was of the Rent Controller and not the civil jurisdiction.
38. The Ld. Trial court erred in reaching this conclusion. Premises as defined under the Act have to be let out if the Delhi Rent Control Act, 1958, is to be applicable. It is well settled now that premises which are temporary in nature do not get the protection of the Delhi Rent Control Act, 1958 as they are not "building" or "part of a building" within the definition of Section 2(i) of the Delhi Rent Control Act, 1958.
39. The plaintiff/appellant relied upon the decision of the Hon'ble High Court of Delhi in RFA No.523/2001 titled Harish RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 12 of 18 Chander Narula & Anr. V. Sh. Purshotam Lal Gupta decided on 07.03.2011, to contend that the land with temporary structure was not premises within the meaning of the Delhi Rent Control Act, 1958, as the tin shed did not fall within the expression of premises. There is no reason to take a different view.
40. The view taken by the Ld. Trial Court that the claim of temporary structure was a belated stand taken by the plaintiff/appellant in his affidavit is completely misplaced. The purpose of the trial is to permit parties to meet the pleas raised by the opposite side. It was in the Written Statement that the defendant questioned the jurisdiction of the court. The plaintiff could have described the suit property as a temporary structure in his plaint, but he is not estopped from disproving the defence of the defendant that the suit was barred under the rent laws, and to bring on record a fact that is actually not in controversy between the parties to the lis. It is noteworthy that this para no.2 of the affidavit was not questioned by the defendant in crossexamination, because there is no doubt about what was taken on rent. Therefore, rejection of the plea taken by the plaintiff/appellant on this ground cannot be sustained.
41. The defendant in his crossexamination as DW1 has admitted that "out of the four rooms, I am living in one room. In other three rooms, Nanhu, Manish and Pramod are living. The DW1 further admitted that "construction is not pakka but kacha and temporary." He also stated that "the tarpaulin room in my possession is 7x8feet."
RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 13 of 1842. The defendant was shown five photographs Ex.PW1/B (Colly). He identified the premises in the photographs. He has not questioned the authenticity of the photographs. The entire structure in these photographs is clearly temporary with tarpauline and tin sheet for roof. The defendant has also admitted four other photographs marked A to D and these photographs also depict the temporary nature of the premises that has been let out to the defendant by the plaintiff.
43. In the result, it is clear that the Ld. Trial Court has wrongly concluded that the tenancy was governed by Delhi Rent Control Act, 1958, and that therefore, the Ld. Trial Court had no jurisdiction. The Issue No.1 has been wrongly decided by the Ld. Trial Court and the findings in respect of Issue No.1 are liable to be set aside. The Issue No. 1 is answered accordingly that the rent for the premises is Rs.1,000/ per month. However, in view of the nature of the premises let out being temporary, the Delhi Rent Control Act, 1958, is inapplicable to the premises and the civil court has jurisdiction to decide the case.
44. With regard to Issue No.2, the Ld. Trial Court was right in concluding that the plaintiff has failed to prove that the premises are being used for commercial purpose by the tenant in violation of the terms of the agreement. There is no written rent agreement. Nevertheless, what is more important is that the admission of the defendant that he was a plumber can by no stretch of imagination, RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 14 of 18 lead to a conclusion that the premises are being used for commercial purpose.
45. The plaintiff has not been able to establish that the defendant was keeping tempos and transport vehicles in the premises. Oral allegations with nothing to support them are not sufficient to discharge the onus of proof. The Ld. Trial Court has rightly decided Issue No.2 against the plaintiff and in favour of the defendant. The findings in respect of Issue No.2 call for no interference.
46. Having concluded that the Civil Court had jurisdiction in the matter, the question then to be determined is whether the plaintiff has successfully established that he is entitled to possession of the suit premises and to arrears of rent. The Ld. Trial court held that once it had come to the conclusion that it had no jurisdiction, as it was barred under Section 50 of the Delhi Rent Control Act, 1958, it could not decide whether the plaintiff was entitled to the relief of ejectment or possession or to even recovery of arrears of rent. However, as has been held, hereinabove, the conclusion of the Ld. Trial Court that it had no jurisdiction is erroneous. That conclusion has been set aside. Therefore, these issues have to be decided as per the evidence on the record.
47. Under the Transfer of Property Act, 1882, a lease is determined either by efflux of time or by express or implied surrender or on the happening of certain events or on the expiration RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 15 of 18 of a notice to determine the lease or to quit the property leased, duly given by the landlord to the tenant or visaversa. This is provided under Section 111 of the Transfer of Property Act, 1882.
48. Under Section 106 of the Transfer of Property Act, a lease of immovable property not being for agriculture or manufacturing purpose, shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice. Under Section 106(2) of the Transfer of Property Act, the period mentioned in sub section (1) shall commence from the date of receipt of the notice.
49. Admittedly, in the present case, a notice was issued by the plaintiff which is Ex.CW1/E which was replied to by the defendant on 03.08.2010. The fact of having replied the legal notice is admitted by the defendant in his affidavit Ex.DW1/A. The notice is dated 30.07.2010 and the reply is dated 03.08.2010. The notice Ex.CW1/E clearly calls upon the defendant to vacate the suit premises and handover the physical possession of the same to the plaintiff within 15 days along with payment of Rs.2,14,500/.
50. The requirements of Section 106 Transfer of Property Act are fully met in this case.
51. Thus, the plaintiff is entitled to seek the ejectment of his tenant, the defendant and obtain the vacant possession from the defendant. Issue No.3 has to be answered in favour of the plaintiff and against the defendant to the effect that the plaintiff/appellant is RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 16 of 18 entitled to the vacant possession of the leased property at Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, and to a decree of ejectment against the defendant in respect of the same premises. This issue is accordingly answered in his favour.
52. The Issue No. 4 related to the arrears of rent and damages.
53. The defendant had claimed to have paid uptodate rent. But, the mode and occasion of such payments have not been proved. It appears from the testimony of PW1, both his affidavit as well as crossexamination that he received the rent on 04.05.2007. He has been visiting the property infrequently. After 2007, he had visited the property in April 2008 and thereafter, in January 2010 and then on 10.07.2010 when he alleges that the defendant misbehaved with him. Thus, the bald claim of the defendant that he had made payment till May 2007 is not believable. He has therefore failed to establish his claim of uptodate payment of rent and the absence of arrears w.e.f. 05.05.2007.
54. With regard to Issue No. 4, it must be held that plaintiff was entitled to recover arrears of rent w.e.f. 05.10.2007 till 05.09.2010 i.e. for three years prior to the date of filing of the suit at the rate of Rs.1,000/ per month i.e. a sum of Rs.36,000/ only. However, as no evidence has been led in respect of mesne profits, none can be awarded. The issue is answered accordingly.
55. With regard to Issue No. 5, the appellant/plaintiff is not RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 17 of 18 entitled to any interest in the absence of any evidence placed on record. The issue cannot be answered except against the plaintiff.
56. In the light of the foregoing discussions, the appeal is allowed. The impugned Judgment and decree dated 19.03.2014 is set aside. Suit is decreed for recovery of sum of Rs.36,000/ towards rent for the period w.e.f. 05.10.2007 to 05.09.2010. A decree of possession and ejectment in respect of Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, is also passed in favour of the appellant/plaintiff and against the defendant/respondent.
57. Decree sheet be prepared accordingly.
58. Trial Court Record be returned along with copy of this order.
59. File be consigned to Record Room.
Announced (Asha Menon) District & Sessions Judge SouthEast, Saket Courts New Delhi 01.09.2016 (s) RCA No.50/14 Harish Chand Narula V. Lalman Rajbhar Page 18 of 18