Delhi District Court
Sh Anil Khanna vs Sh Puneet Bhatia on 24 September, 2018
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
RCA No. 61107/16
Sh Anil Khanna
S/o Sh J K Khanna
R/o QU-147-B
Pitampura, Delhi
.........Appellant
Versus
Sh Puneet Bhatia
S/o Sh O.P Bhatia
R/o H No. E-78, Sector 1
Rohini, Delhi -85
........ Respondent
Date reserved for Judgment: 04.09.2018
Date of Judgment : 24.09.2018
JUDGMENT
1. Appellant has assailed the judgment and decree dated 20.11.2015 whereby the Ld Trial Court in Civil Suit No.130/2008 (Unique ID no. 02401C-22600-2008) titled as Punit Bhatia Vs Anil Khanna has decreed the suit for ejectment/recovery of possession, RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 1/22 damages/mesne profit and permanent injunction filed by the plaintiff.
2. For the sake of convenience, parties shall be referred by the nomenclature as plaintiff and defendant appearing before Ld Trial Court.
3. The brief facts noted as per plaint are as follows ;
a) It was the case of the plaintiff that he let out a premises bearing no. QU-147-B, Pitampura, Delhi comprising three rooms, drawing room, open tarrace, laterin, bathroom, kitchen out of which one bed room, drawing room covered balcony room, open terrace, latrin, bathroom and kitchen was let out to the defendant.
b) It is further averred that one roof covered by back balcony is in the possession of plaintiff.
c) It has further been averred that a rent agreement dated 19.06.2006 was executed in between the parties for a period of 23 months and the said period has expired on 30.04.2008. The rent was fixed @ Rs 4000/-p.m. The property was let out for residential purpose. The defendant has been very irregular in making the payment of rent. It has further been averred that the defendant on the regular basis would make less payment and would make adjustment in future dates.
RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 2/22
d) It is further averred in the plaint that defendant did not pay the full rent for the month of August,2006 and made a part payment of Rs 2000. The plaintiff further asserts that on the repeated request, the defendant issued a cheque bearing no. 253936 dated 17.09.2006 of Rs 6000 drawn on Corporation Bank which remained unpaid by the banker of defendant with the endorsement of insufficient funds. This amount of Rs 6000 is the rent for the month of September, 2006 and part payment of the month of August, 2006.
e) It is further pleaded that defendant expressed his inability to make the payment and the rent of October to December 2006 remained unpaid. It has been further averred that defendant was remained in arrear upto 28.02.2007 i.e it is liable to pay an amount of Rs 26,000/-.
f) It has further been pleaded that defendant requested the plaintiff to make an adjustment with the security deposit of Rs 20,000/-. It has been further averred that defendant paid an amount of Rs 6000/- on 28.02.2007. It has been further stated that the defendant paid an amount of Rs 4000/- towards the rental of month of March 2007 vide cheque bearing no. 481562. It has been further averred that defendant failed to make the payment of the rent of month of April 2007 and May 2007. It has been further averred that defendant made RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 3/22 a payment of Rs 5000/- in cash and Rs 3000/- by way of cheque which was ultimately cleared on 14.05.2007. The plaintiff further averred that defendant made a payment of Rs 1000/- towards the rent for the month of June and Rs 3000/- by way of cheque. The rent for the month of June was also paid. It has been further averred that the defendant paid the rent of July 2007 of Rs 3000/- vide cheque no. 481572 and the remaining amount of Rs 1000/- by way of cash. The plaintiff further states that the cheque towards the month of July 2007 was got dishonoured. It has been further averred that thereafter, the defendant failed to pay the arrear and the plaintiff was constrained to issue the legal notice dated 19.12.2007 interalia asking the defendant to pay the arrear for the month of July to December 2007 and in the said legal notice the plaintiff asked for damages @ Rs 300 per day. Plaintiff further averred that legal notice was duly replied by defendant wherein the defendant has denied the existence of rent agreement and stated that Rent is Rs 2000/- per month. It has been further averred that tenancy of defendant has come to an end by service of legal notice under Sec 106 of TP Act .
g) The plaintiff has prayed for a decree of ejectment alongwith recovery of Rs 24000/- towards the arrears of rent, mesne profit @ Rs 300/- per day and the relief of permanent injunction was also sought.
RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 4/22 Case of Defendant
4. The defendant filed Written Statement wherein tenancy in respect of the suit property was admitted. The defendant denied the execution of rent agreement and also took the plea that rent agreement is insufficiently stamp and unregistered. The defendant also took the plea that rent of premises is Rs 2000/- p.m. nor Rs 4000/- p.m. as alleged. The defendant also took the plea that plaintiff has failed to issue any receipt to the defendant despite demand. The defendant took up the plea that tenancy was oral and the rent agreement filed by plaintiff is forged and fabricated. The defendant in para no. 10 of the Written Statement took up the plea that if the plaintiff fails to give any receipt then the defendant would be constrained to get the cheque dishonoured. The defendant stoutly denied that any arrears of rent to be paid. The defendant asserted that he paid an amount of Rs 5000/- in cash and Rs 3000/- by way of cheque bearing no. 481571 and same was towards the payment of rent for the period of April to July 2007. The defendant admitted the receipt of legal notice dated 19.12.2007. The other factual averment as made by the plaintiff were denied by the defendant in his Written Statement.
RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 5/22
5. The Ld Trial Court has framed the following issues .
i) Whether the plaintiff is entitled for possession as prayed for ? OPP
ii) Whether the plaintiff is entitled for recovery of Rs 24000/- for the rent w.e.f 01.07.2007 till 31.12.2007? OPP
iii) Whether the plaintiff is entitled for damages / mesne profit as prayed for ? OPP
iv) Whether the plaintiff is entitled for equitable relief of injunction as prayed for ? OPP
v) Relief
6. The Ld Trial Court by its judgment and order dated 20.11.2015 has decreed the suit filed by the plaintiff.
Judgment of Trial Court.
7. The Ld Trial Court has passed its judgment while decreeing the suit on the ground that there was an admission on behalf of defendant that he was the tenant. The ld Trial Court has doubted the version of defendant that the cheque EX PW1/3 is towards the payment of rent for a period of three months and has believed the version of plaintiff that defendant was in default in payment of rent.
8. Secondly, the Ld Trial Court noted that it was an admitted RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 6/22 case that rent receipt was not issued and if the rent receipt are not issued then why defendant kept on making the regular payment.
9. The Ld Trial Court has noted that defendant in his Written Statement did not properly reply to paragraph no. 16 of the plaint wherein it was averred by the plaintiff that defendant only made a payment of Rs 3000 by way of cheque vide 481572 towards the rent of month of July and defendant promised to pay the remaining amount in cash. This cheque bearing No. 481572 (Ex PW-1/5) was dishonoured.
10. The Ld Trial Court has also considered the contradictory stand taken by plaintiff with regard to the mode of payment and noted down the inconsistences made by defendant after comparing both plaint and written statement.
11. The Ld Trial Court has noted that the agreement Ex.PW1/2 was an unregistered agreement but same can be taken into consideration for establishing the rate of rent.
12. I have heard Ld counsel Mr Anil Pruthi Advocate for appellant and Mr Arjun Nanda Advocate for respondent and considered the written submissions filed by the respondent and judgments filed by both the parties.
RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 7/22
13. Ld counsel for appellant in support of his appeal has urged the following grounds in support of his appeal:-
a) First, the document Ex.PW1/2 ie rent agreement can not be looked into evidence as same is unregistered.
b) Secondly, it was argued that the Ld Trial Court has wrongly determined the rent as Rs. 4000/- whereas it should be Rs. 2000/-.
c) Third, ld counsel for appellant has further argued that the signature of appellant in the said agreement was forged and fabricated and no attempts were made to discredit the said fact.
d) Fourth, ld Trial Court has committed an error in relying upon agreement Ex.PW4/DX1 which does not pertain to the appellant and respondent.
e) Fifth, it was further argued that the Ld Trial Court has not applied its judicial mind while passing the impugned order.
14. Ld counsel for respondent has supported the judgment and argued on the reasons as provided in the judgment.
Reasons
15. After perusal of the material on record and also considering the oral and documentary evidence, the following points of RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 8/22 determination can be framed for the adjudication of this appeal i. Whether the rent agreement for a term of more than 23 months can be looked into the evidence ?
ii. Whether the relationship of landlord -tenant can be established in the absence of written agreement ?
iii. What is the rate of rent in the present case ? IV . Whether impugned Judgment is liable to be sustained or not ?
16. I will take up the first point of determination as to what is the effect of unregistered rent agreement having term of more than 11 months. It is the contention of the counsel for the appellant that lease deed of more than eleven months requires registration and in the absence of any registration, same cannot be looked into evidence.
17. In order to meet out this contention of learned Counsel for Appellant, it would be proper to note that as per Section 17 (1)(d) of Registration Act 1908, the document having a lease of more than one year requires registration. Section 49 of The Registration Act requires that no document which is provided under Section 17 of the RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 9/22 Registration Act shall be received in evidence of any transaction affecting such unless it has been registered. The said document even cannot be read in evidence except for the purposes of the cases of a collateral transaction.
18. It has further been argued that as per section 49 of Indian Registration Act, no effect or an effective transfer can be assumed if the document is not registered under the provision of Indian Registration Act. In support of his reliance, Ld Counsel for Appellant has relied upon K.B Shah & Sons Pvt Ltd Vs. M/s. Development Consultant Ltd Civil appeal no. 5659-5660/2002.
19. I have considered the judgment in case K.B Shah & Sons Pvt Ltd (Supra) and is in entire agreement with the submission advanced by the ld counsel for appellant. The relevant paragraph of the said judgment is quoted below:-
21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 10/22 evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
20. This view has been relied upon by subsequent judgment of Hon'ble Supreme Court of India and our own Delhi High Court in Bharat Lal Maurya Vs Godrej & Boyce 208(2014) DLT 680 wherein Hon'ble Delhi High Court considered the ratio of K.B Saha (Supra) and in paragraph 14 of the judgement it was held that a RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 11/22 collateral transaction refers to that transaction which is not affected by registered transaction and some examples of collateral transactions were provided such as relationship of parties and the purpose of letting, rate of rent etc.
21. Therefore, in view of the ratio of the K.B Saha (Supra) and Bharat Maurya (Supra) the document Ex.PW1/2 can not be read in evidence however for the purposes of considering collateral purpose even an unregistered document can certainly be looked into.
22. The defendant took the plea that rent agreement Ex.PW1/2 filed by the plaintiff was forged and fabricated. The plaintiff/respondent has even filed an expert to prove the said signature of defendant/appellant but however same was not proved by plaintiff by not examining the said witness. Although cursory look at the signature of defendant as appearing in Ex PW-1/2 with signature on written statement and other document such as evidence by way of affidavit and even cheques would make it clear that it was signature of defendant. Ld. Trial Court has only considered this document only for the purpose of determining the rate of rent. First, even if it held that signature as are appearing in Ex PW-1/2 are that of appellant, even same would not provide any benefit to the plaintiff and if it is held that signature on Ex PW-1/2 are not that of defendant/appellant then it would not provide any benefit to the defendant/appellant as the RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 12/22 present case can be determined without considering the effect of PW- 1/2 even for the collateral purpose. Even otherwise, rent agreement Ex PW-1/2 as relied by the plaintiff could at the most benefit him only for the purpose of determining the rate as other covenant of this deed cannot be looked into because of embargo of Section 49 of Registration Act and if plaintiff solely relies upon the rate of rent for the collateral purpose, then determination of this document becomes important but in the present case the plaintiff has relied upon other evidence for the determination of rent of suit property.
23. Second point of determination is whether in the absence of any rent agreement, the relationship of landlord and tenant can be assumed and whether the plaintiff/respondent is entitled to seek ejectment of the tenant. It is the specific case of the plaintiff as elaborated in plaint that he is the landlord of the premises and has demanded the rent from the respondent/defendant. The plaint also mention about the amount of rent to be paid by appellant/defendant to the respondent/plaintiff and various default committed by the defendant. The defendant in paragraph no.2 of his Written statement has admitted the tenancy in between the plaintiff and defendant. The defendant in paragraph no.3 of the WS has stated that the tenancy was oral and furthermore he is liable to pay only Rs. 2000/- as rent to the plaintiff. In paragraph no.8 of the WS the defendant has admitted the tenanted premises was leased to him and he is making regular RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 13/22 payment.
24. The composite reading of the WS filed by the defendant would leave no room of doubt that the relation in between plaintiff and defendant is that of landlord-tenant and this tenancy can easily be deduced both in pleadings and in the evidence of both plaintiff and defendant. Section 58 of Indian Evidence Act provides that once the facts are admitted then same need not to be proved. In view of the categorical admission, it is held that there is a landlord and tenant relationship between the plaintiff and defendant. If an oral tenancy has been created in between the parties then same has to be construed in terms of prevailing rent law or if the rent exceeds a particular threshold value then tenancy has to be construed in terms of section 106 and 107 of Transfer of Property Act.
25. Third point of determination is the quantum of rent, if the rate of rent as mentioned in Ex.PW1/2 is not considered. The plaintiff/ respondent has taken stand in his plaint that rate of rent as Rs.4000/- per month and has examined himself as PW-1 and examined three other witnesses to support his case that rent was Rs. 4000/- per month.
26. The plaintiff who has been examined as PW-1 deposed that rate of rent is Rs. 4000/- and the defendant used to default on a regular basis. The plaintiff has provided the default history of the defendant RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 14/22 with great clarity in evidence by way of affidavit in line with his plaint. A perusal of the cross examination of PW-1 would reveal that that statement of plaintiff to the effect that rate of rent as Rs 4000/- was not much disputed and his deposition qua the rate of rent was not shattered. While perusing the testimony of PW-1, witness has clearly deposed in paragraph No. 15 that rent of Rs 4000 was paid for the month of March, 2007. This part of the testimony remained unchallenged and therefore need to admitted. Not a single question or suggestion was given to this witness that rent was not Rs 4000/- as claimed by PW-1 except the suggestion that it was an oral tenancy at the rate of Rs. 2000/- per month, nothing much has been brought into the record to discredit the testimony of plaintiff/PW-1 in this regard.
27. The plaintiff assertion in his plaint and evidence by way affidavit in Ex PW-1/A to the effect that defendant/respondent was in arrear has not been dented at all. Thus the story of defendant that rent is Rs. 2000/- per month does not inspire confidence. I must further note that defendant has cross examined the plaintiff only on the aspect that rent agreement Ex.PW1/2 was not signed by the defendant. Thus, PW-1 has clearly establish the rate of rent in his testimony.
28. The plaintiff has also examined his father ie Sh Om Parkash Bhatia (PW-2) who deposed that he is the owner of the property and has placed on record previous chain of document showing himself to RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 15/22 be the owner. This witness has denied the suggestion of the defendant that rent was Rs. 2000/- per month and even vol. It was Rs. 4000/- per month. This witness has vol. Rent was Rs. 15-16000/- and the assertion of this witness that defendant was in arrear of rent as elaborated in Examination in chief paragraph no.11 was not challenged at all and once the part of the statement has not been challenged then same can always be admitted. Thus, this witness has fully supported the factum of rent as Rs. 4000/- as deposed by the PW-1 in his evidence even if it is assumed that it was an oral tenancy.
29. In this regard, the Ld Trial Court has noted the contradictory stand taken of the defendant. The Ld Trial Court has noted that defendant did not deny the dishonour of cheque Ex.PW1/4 and Ex.PW1/5. The version of the plaintiff that the cheque was towards the payment of rent for the month of August and September 2006 was believed and I see no reason to defer with the said finding as recorded by the Ld Trial Court. The Ld Trial Court has also considered that in paragraph no. 16 of the plaint that cheques given to plaintiff were dishonoured but defendant had made bald denial of the same.
30. The Ld Trial Court has considered the factum of arrears of rent and came to the conclusion that the rent is Rs. 4000/- per month. The plaintiff both in his deposition and plaint has provided the complete sequence as to how the rent of Rs 4000 was calculated and RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 16/22 even the plaintiff has given the complete reasons and justification. The defendant made a blatant attempt to show that rent is Rs 2000 which from version of plaintiff is not possible. It appears that defendant has fallen in his own trap as right from the inception of his tenancy he was trying to create some kind of justification by showing that rate of rent as Rs 3000 but when the defendant realised that it was not possible then he introduced the story of Rs 2000 per month as rent of premise. The finding with regard of rate of rent does not call for any interference.
31. Ld counsel for appellant has drawn my attention to the testimony of PW-4 Shyam Sunder to the effect that a false witness has been brought by the plaintiff to make out the case that the premises was rent out to the defendant. A careful perusal of his testimony vide PW-4 would reveal that witness has deposed to the effect that property was let out to one Anil Khanna S/o Sh T.C Khanna and stated that he has filed the the photocopy of the same. This document as filed by PW-4 is photocopy of the rent agreement in respect of the same premises which was let out in the year 2004. However in the cross- examination witness, this witness has stated that this agreement PW- 4/DX1 was signed by the plaintiff and defendant. Although it was not the case of any of the party that Defendant was in the premises in the year 2004 and thus said testimony of PW-4 cannot be considered by this court because of this reason. PW-4, Shyam Sunder has only RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 17/22 deposed with regard to the prevailing rent in the year as he was not able to correctly tell as to who was the person to whom the property was let out and thus his testimony does not help the plaintiff in the present and in my opinion, the Ld. Trial Court should not have placed reliance on the testimony of PW-4.
32. Despite the fact that the testimony of PW-4 is not taken into consideration. The evidence of PW-3 Mr Suraj Prakash Bhatia falsifies the case of defendant PW-3 when he has deposed that " rate of rent of the flat was settled as Rs. 4000/- per month which was rent of the lower side due to reason the flat was a family property and defendant was known to me ". This witness has deposed that the flat could have fetched a rent of Rs. 6000/- or more in 2006 and of Rs. 9000/- in the month of January 2008. The witness was cross examined. He has deposed that rent agreement Ex.PW1/2 was prepared in his presence. The testimony of this witness to the effect that rent of the premises was settled for Rs. 4000/- was not much disputed except the suggestion that rent was Rs. 2000/- when the property was let out to the defendant. PW-3 not only deposed but has given complete backdrop as to how plaintiff and defendant came to contact with each other. The circumstances surrounding the letting out of the premises were explained by him in great detail. His testimony is natural and it explains the quantum of rent as to how defendant was inducted into the premises.
RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 18/22
33. A combined reading of the testimony of PW-1, PW-2 and PW3 would reveal that rate of rent as agreed in between the parties was Rs 4000/- per month not Rs. 2000/- per month as sought to be established by the defendant.
34. Since the rate of rent is more than Rs.3500/- then obviously provision of Delhi Rent Control Act would not apply to this tenanted premises. The tenancy has to be considered as month to month tenancy. Section 106 of Transfer of Property Act would show that lease deed would be on month to month basis and could be terminable on 15 days notice. The plaintiff has relied and exhibited legal notice dated 19.12.2007 vide Ex.PW1/7 which was duly replied by the defendant/appellant only taking an objection that rate of rent is Rs 2000/- per month and it was an oral tenancy and in reply legal notice vide Exhibit PW-1/8, defendant did not deny that plaintiff was not the landlord. The receipt and reply of this legal notice terminating the tenancy of defendant stands established for the purposes of section 107 of Transfer of Property Act. The defendant has not denied the receipt of this legal notice and even otherwise the service of summon alongh alongwith notice would satisfy the requirement of section 107 of TP Act. (Vide Nopany Investment vs Santokh Singh 2008(2)SCC 728 & Jeevan Diesel And Diesel Electricals vs Jasbir Chadha (HUF) & Ors RFA No. 179/2011dated 25.3.2011. ) RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 19/22
35. In his deposition as DW-1, defendant took a stand as to what has been stated in his reply notice exhibit and written statement wherein the relationship of landlord and tenant was admitted but the defendant in his Evidence by way of Affidavit Ex.DW1/A in paragraph 8 of his affidavit denied the title of plaintiff by saying that father of plaintiff is the owner of property and as such he does not have the locus to file the suit whereas as per his own pleading, it has been admitted by him that he was inducted as tenant by the plaintiff. This stand is in total conflict with Section 116 of Indian Evidence Act which provides that no landlord during the subsistence of tenancy can deny the title of his landlord.
36. The defendant has also lead the evidence of his bother in law Mr C L Bhatia i.e.DW-2 To show that rate of rent is Rs 2000 per month. A perusal of his testimony would show that same has been tailored made to suit the case of defendant. This witness has not even provided any date when the oral agreement and rent of Rs 2000 was agreed . This witness in cross examination stated that rent of Rs 2000 was on the higher side, the said fact cannot be believed on the face of as it cannot be believed that in the area like Pitampura, suit property could be rented for Rs 2000 in the year 2006.
37. Lastly, in the present case, since the defendant has denied RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 20/22 the title of his landlord and there is an attempt on the part of defendant to wriggle of PW-1/2 fails and thus in terms of Naeem Ahmed Vs Yashpal Malhotra (deceased) R.F.A. No. 74/2002 where a tenant has repudiated the title of his landlord, a civil court would have jurisdiction to determine the question of ejectment. The present was suit for ejectment and recovery of damages.
38. Hence, the finding of the Ld Trial Court suffers from no error and is confirmed.
39. Thus the plaintiff has successfully established the landlord- tenant relationship, quantum of rent and receipt of legal and then the Court would be bound under the law to pass a decree of ejectment.
40. Since the rate of rent has been determined so the plaintiff was entitled for the arrears of rent and the damages as adjudicated by the Ld Trial Court in issue no.3 does not call for any interference.
41. The amount deposited by defendant/appellant vide order dated 07.05.2016 be released to the plaintiff/respondent after the expiration of statutory period of second appeal subject to any order passed by Hon'ble High Court
42. The appeal lacks merit and is thus dismissed.
RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 21/22
43. Copy of this order be sent to the ld Trial Court with ld Trial Court record.
Appeal file be consigned to record room as per law.
Announced in the Open Court on 24.09.2018.
(Hasan Anzar) Additional District Judge-06 West District, THC RCA No. 61107/16 Sh Anil Khanna vs Sh Puneet Bhatia Page no. 22/22