Delhi District Court
Smt. Sheela vs Sh. Rajiv Garg on 5 September, 2011
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. DISTRICT JUDGEII, (NORTHWEST), ROHINI COURTS, DELHI
CS No. 751/10
Smt. Sheela
W/o Late Sh. Bal Kishan Saini
R/o H. NO. 53, Village Lampur,
Narela, Delhi110040. ..........Plaintiff
Versus
Sh. Rajiv Garg
S/o Sh. Trilok Chand
Shop NO. 55, FC4, DSIDC,
Industrial Area, Bhorgarh,
Delhi110004 ........Defendant
Date of Institution the suit : 20.04.2010
Date on which the order was reserved : 01.09.2011
Date of decision : 05.09.2011
JUDGMENT
1. The plaintiff has filed the present suit for possession, recovery and permanent injunction against the defendant.
2. The brief facts, in nut shall, are that the plaintiff is the owner of the shop bearing no. 55, situated at FC4, DSIDC Industrial Area, CS No. 751/10 Page No. 1 of 15 Bhorgarh, Delhi (hereinafter referred to as the suit property). It is further stated that suit property was purchased by her husband, Shri Bal Kishan vide sale document dated 14.09.1998 for a sale consideration of Rs. 90,000/ from Smt. Sarupi Devi and suit property was rented out to the defendant in August 2003 on rent at the rate of Rs. 3500/ per month with the further stipulation that rent of suit property will be enhanced to Rs. 4000/ per month after expiry of two years i.e. in August 2005. It is further stated that defendant has made the payment of the rent of the suit property for the month of August, 2003 and plaintiff requested the defendant number of times to make the payment of arrear of rent but the defendant failed to pay the rent. It is further stated that defendant filed a false and frivolous suit against the son of the plaintiff Mr. Ajay Kumar in August, 2005. It is further submitted that Sh.Ajay Kumar, son of the plaintiff was minor in August 2003 when the defendant alleged to have taken the suit property from Sh. Ajay Kumar. It is further stated that defendant has spoiled the habits of Sh. Ajay Kumar, son of the CS No. 751/10 Page No. 2 of 15 plaintiff and plaintiff served a legal notice dated 15.12.2007 to the defendant thereby terminated the tenancy of the defendant and demanded the entire rent of Rs. 84,000/ for last 24 months @ 3500/ per month i.e. September 2003 to August 2005 and thereafter, an amount of Rs. 1,12,000/ for 28 months @ Rs. 4000/ per month i.e. December 2007. The said notice was duly served to the defendant but defendant had not replied that legal notice and filed a suit bearing no. 802/2008 praying for permanent injunction against the plaintiff. The plaint of said suit was rejected by the Ld. Trial Court U/o 7 rule 11 CPC. It is further stated that plaintiff filed an eviction petition but that petition was dismissed as being not maintainable as the rate of rent was Rs. 4000/ per month which was beyond the scope of D.R.C. Act and liberty was granted to the plaintiff to pursue the legal remedy as per law. It has been further submitted that defendant has deposited the rent for for February and March 2008 @ Rs. 300 per month whereas the admitted rent as per the stand of defendant is Rs. 3000/ per month. It is further CS No. 751/10 Page No. 3 of 15 stated that defendant had threatened the plaintiff that he would neither vacate the shop in question nor pay the rent, otherwise he would sublet the suit property. Hence, the present suit filed.
3. Defendant file written statement contending, interalia, therein that suit property was rented out to the defendant by Sh. Ajay Kumar, son of the plaintiff at the rent of Rs. 3000/ per month and defendant paying the rent to Sh. Ajay Kumar, owner of the suit property. It is further stated that Sh. Ajay Kumar being the son of Late Sh. Bal Kishan Saini has become the erstwhile owner of the suit property after the demise of his father under Hindu Succession Act. It is further stated that Sh. Ajay Kumar was not a minor when the suit property was rented out in the year 2003 as electricity meter was installed by NDPL in the name of Sh. Ajay Kumar in the year 2003. It is further submitted that plaintiff has alleged that tenancy was created between the defendant and the plaintiff in the year 2003 and defendant has paid the rent of August, 2003. Plaintiff stated that legal notice was duly served to the CS No. 751/10 Page No. 4 of 15 defendant. It is further stated the legal notice as alleged has never been served as per the report of Postman wherein it has been reported that notice has not been delivered and sent back to the plaintiff. It is further submitted that the defendant has deposited an amount of Rs. 6000/ in the name of Sh. Ajay Kumar, his landlord as rent for the month of February and March, 2008. Therefore, plaintiff has filed a false affidavit and she is liable for prosecution. It is further stated that plaintiff had never been a landlady of defendant and there is no question of paying the rent as the defendant is paying the rent to Sh. Ajay Kumar, the landlord.
4. The plaintiff filed replication in which each and every allegations made in the written statement were denied and averments of the plaint are reiterated.
5. From the pleadings of the parties, following issues were framed as under: i. Whether the plaintiff is entitled for a decree of possession as CS No. 751/10 Page No. 5 of 15 prayed for? OPP ii. Whether the plaintiff is entitled for a decree of Rs. 3,04,000/ as arrears of rent as prayed for?OPP iii. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP iv. Whether there is relationship of landlord and tenant between the parties? OPP v. Whether there is any cause of action in favour of the plaintiff?OPD vi. Relief, if any?
6. In order to prove her case, the plaintiff has examined himself as PW1 and tendered her evidence affidavit as Ex. PW1/A. PW1 has testified the general power of Attorney as Ex.PW1/1, Will dated 14.09.1988 as Ex.PW1/2, receipt dated 14.09.1988 as Ex.PW1/3, possession letter as Ex.PW1/4, death certificate of Sh. Bal Kishan as Ex.PW1/5. The copy of school leaving certificate which is exhibited as Ex.PW1/6 in the evidence affidavit is Mark A. Copy of certified copy of CS No. 751/10 Page No. 6 of 15 judgment dated 03.07.09 and judgment dated 27.01.10 are Ex.PW1/8 and Ex.PW1/9. Copy of legal notice dated 15.12.07 as Ex.PW1/7. PW 2, Sh. Rajinder Saini, also tendered her evidence by way of affidavit as Ex. PW2/A. PW3, Sh. Devi Ram, is the management secretary of Swami Vivekanand Modern Senior Secondary School, (recognized) Safiabad Border, Narela Road, Sonipat. PW3 has brought the summoned record i.e. Transfer Certificate file no. 5, SI. No. 036 i.e, the transfer certificate of Master Ajay Saini. The certified copy of the same is exhibited as Ex. PW3/1. Thereafter, plaintiff closed evidence.
7. Defendant led evidence and examined himself as DW1. DW1, Sh. Rajiv Garg, tendered his evidence affidavit as Ex. DW1/X. DW1 has relied upon the document Ex. DW1/1 to Ex. DW1/4 i.e. challan receipt as Ex. DW1/1, receipt of amount of Rs. 1,500/ given to the NDPL for installation of electricity meter bearing no. KN43200146286Y as Ex. DW1/2, electricity bill as Ex. DW1/3 and Ex. DW1/4, in Ex. DW1/X, which was later on deexhibited as DW was not having original CS No. 751/10 Page No. 7 of 15 documents and marked as Mark C to F. The detailed testimonies of these witness shall be discussed in the later part of this judgment.
8. I have gone through the entire material on record and heard the rival submissions of both the Ld. counsel for the parties.
My issue wise findings are as under: Issue No. 1 and 4 :
9. These issues are taken together as the same are connected interse and overlay each other. The onus to prove this issues was on the plaintiff and in order to prove her case plaintiff appeared as PW1 and reiterated the averments made in the plaint. This witness has deposed that after the death of her husband, Sh. Bal Kishan Saini, she has become the joint owner in possession of the suit property along with her son, Sh. Ajay Kumar. This witness has further deposed that suit property was rented out to the defendant in the year 2003 @ Rs. 3500/ per month and defendant has paid the rent only for one month. This CS No. 751/10 Page No. 8 of 15 witness has further testified that her son, sh. Ajay Kumar was born on 26.06.1987 as per school transfer certificate which is mark 'A' (Ex. PW1/6 in affidavit Ex. PW1/A). So at the time of creation of tenancy in question Sh. Ajay Kumar was a minor. This witness has further deposed that she has knowledge that her son Sh. Ajay Kumar has not taken any rent from the defendant. The tenancy stated to be oral between the parties. PW2 has deposed that he was carrying on a business in the suit property w.e.f year 2000. This witness has further deposed that suit property was not rented out by son of the plaintiff to the defendant. This witness has further testified that defendant had not paid any rent after August 2003. PW3, Sh. Devi Ram has brought the summoned record and testified that as per transfer certificate date of birth of Sh. Ajay Kumar is 26.06.1987..
Defendant/DW1 has deposed that he has no rent receipt in respect of the suit property and further denied the suggestion that he has not paid the rent but he has reiterated that he always paid the rent CS No. 751/10 Page No. 9 of 15 to Sh. Ajay Kumar. This witness has further deposed that he tried to pay the rent but Sh. Ajay Kumar, Son of the plaintiff had denied to receive the same and defendant had filed the petition for deposition of rent for two months. The sole controversy involved in the present case is whether there was a tenancy between the plaintiff and defendant or the said tenancy is between Sh. Ajay Kumar, son of the plaintiff and defendant.
10. To prove her case, plaintiff has led evidence to the fact that she has become the joint owner of the suit property in terms of the sale documents executed in favour of her husband, after his demise. There was oral tenancy between the parties and to substantiate this oral agreement of tenancy. PW1 has deposed that suit property was rented out to the defendant @ Rs. 3000/ per month which was later on enhanced to Rs. 4000/ per month after two year. Plaintiff had tried to prove on record that there was oral tenancy and this oral tenancy has been sought to be substantiated by the testimony of PW1. PW1 has CS No. 751/10 Page No. 10 of 15 also placed on record the transfer certificate (Ex. PW3/1) wherein the date of birth of Sh. Ajay Kumar has been detailed as 26.06.1987. PW2 has deposed that oral tenancy between the plaintiff and defendant was created in his presence. As such the plaintiff has initially proved on record that there was oral tenancy between the plaintiff and defendant and the onus was shifted on the defendant to prove that there was oral tenancy between the son of the plaintiff, Sh. Ajay Kumar and defendant.
11. In order to prove this onus, the defendant has placed on record the certain documents which was marked as Mark C to F which are challna receipt and bills issued by NDPL etc but even, these documents are not exhibited as the defendant was not in possession of the original of these documents. It is the case of the defendant that he has got the suit property on rent from Sh. Ajay Kumar and deposited the rent in the Ld. Trial Court under DR No. 268/08 wherein Sh. Ajay Kumar, son of the plaintiff has admitted himself to be the landlord of the defendant. But neither the pleadings of the above said petition has been placed on CS No. 751/10 Page No. 11 of 15 record nor the concerned record has been summoned from the Ld. Trial Court nor the defendant has placed on record any finding recorded by the Ld. Trial Court whereby it can be inferred that there is admitted tenancy between Sh. Ajay Kumar, son of the plaintiff and defendant.
12. From the above discussion, I am of the opinion that defendant has failed to prove that there is oral tenancy between the son of the plaintiff, Sh. Ajay Kumar and defendant whereas plaintiff had proved on record that there was oral tenancy between the plaintiff and defendant and this fact has been fortified by the deposition of PW2 as he testified that oral tenancy has been created between the plaintiff and defendant during his presence. The plaintiff has further proved on record that Sh. Ajay Kumar, her son was minor at the time of creation of tenancy between the plaintiff and defendant. So, even if, for the sake of arguments, it is presumed that there was oral tenancy between the plaintiff's son Sh. Ajay Kumar and defendant, the son of the plaintiff, Sh. Ajay Kumar at that time is not competent to enter into any lease CS No. 751/10 Page No. 12 of 15 agreement with the defendant as the contract entered into by a minor is void in terms of the Section 11 of Indian Contract Act. So the plaintiff has been successful in proving the fact that there is a relationship of tenant and landlord between the defendant and plaintiff and plaintiff is entitled for decree of possession in respect of the suit property. Therefore, Issue no. 1 and 4 are decided in favour of the plaintiff and against the defendant.
Issue no. 2:
13. So far as the issue no. 2 is concerned, the onus to prove this issue was on the plaintiff. Plaintiff has led no documentary evidence to prove that there is arrears of rent in respect of the suit property payable by the defendant. Plaintiff stated that rent has not been paid by the defendant after August, 2003 but she kept on waiting for issuing a legal notice in this regard and said legal notice was issued in the year 2007. PW2 has admitted in his cross that it was told by him by the plaintiff that defendant has not paid the rent after August 2003 and this information CS No. 751/10 Page No. 13 of 15 has been derived by him from the plaintiff. Plaintiff has also led no evidence to prove that there is no arrear of rent in respect of the suit property before filing of the suit. But the stand of plaintiff that defendant is paying rent @ Rs. 4000/, the deposition of PW is also support the fact that rent is at the rate of Rs. 4000/. It was orally agreed that defendant will pay the rent @ Rs. 4000/ per month after two year, so this issue is party allowed in favour of the plaintiff and plaintiff is hereby entitled for recovery of rent @ Rs. 4000/ per month from the date of filing of the suit till its realization.
Issue No. 3:
14. The onus to prove this issue was on the plaintiff. In view of the issue no. 1 and 2, the plaintiff is held entitled for possession of the suit property and defendant has led no evidence to prove contrary that plaintiff is not entitled for permanent injunction. Therefore, this issue is decided in favour of the plaintiff and decree of permanent injunction is passed in favour of the plaintiff and against the defendant. CS No. 751/10 Page No. 14 of 15
Issue no. 5:
15. The onus to prove this issue was on the defendant but defendant has led no evidence as to how no cause of action has accrued in favour of the plaintiff whereas plaintiff has proved on record that there is oral tenancy between the plaintiff and defendant. So this issue is decided in favour of the plaintiff and against the defendant.
Relief :
16. From the above discussion and in view of my issue wise findings, present suit is hereby decreed in favour of the plaintiff and the plaintiff is hereby entitled for recovery of rent @ Rs. 4000/ per month from the date of filing of the suit till its realization and plaintiff is also held entitled for the decree of permanent injunction in respect of the suit property with cost. Reader is directed to prepare decree sheet accordingly. File be consigned to record room.
Announced in the Open Court (VIJAY KUMAR DAHIYA) On this 05.09.2011 ADJII : ROHINI : DELHI CS No. 751/10 Page No. 15 of 15 CS No. 751/10 05.09.2011 Present: Ld. counsel for the parties.
Vide separate judgment, present suit is decreed in favour of the plaintiff and the plaintiff is hereby entitled for recovery of rent @ Rs. 4000/ per month from the date of filing of the suit till its realization and plaintiff is also held entitled for the decree of permanent injunction in respect of the suit property with cost. Reader is directed to prepare decree sheet accordingly. File be consigned to record room.
(VIJAY KUMAR DAHIYA) ADJII(NW):ROHINI:DELHI.
05.09.2011 CS No. 751/10 Page No. 16 of 15