Delhi District Court
Smt. Geeta Mishra vs Smt. Har Pyari on 22 December, 2011
1
IN THE COURT OF SH. JAGDISH KUMAR: JSCCcumASCJcumGJ
KARKARDOOMA: DELHI
SUIT NO. 1028/07
Smt. Geeta Mishra
W/o Sh. Om Prakash Mishra
R/o H. No. 283, Jagriti Enclave,
Vikas Marg Extn. Delhi92. ....Plaintiff
Vs.
Smt. Har Pyari
W/o Sh. Harbhajan Singh
R/o. M76, Shyam Park, Extn.,
Uttam Nagar, Nawada,
New Delhi59. .....Defendant
Date of Institution : 17.11.07
Date of Arguments : 22.12.11
Date of Order : 22.12.11
JUDGMENT
Suit no. 1028/07 1/16
2
1 This is suit for recovery of Rs.1,16,000/ on account of damages for use and occupation filed by the plaintiff against the defendant. Brief facts as stated in the plaint are that the plaintiff is owner of property consisting of one room having pukka roof, one room having tin shade roof, one kitchen having tin shade roof, latrine, bathroom on a plot of land measuring 140 sq. yards. bearing municipal no. M77, situated within the area of village Nawada (now known as) Shyam Park, Extn., Uttam Nagar, New Delhi59 (hereinafter called the suit property). The plaintiff has purchased the aforesaid property from Sh. Naubat Ram S/o Sh. Sukh Ram R/o WZ48, Mukhram Park Extn., Tilak Nagar, New Delhi110018 in a total consideration of Rs.1,40,000/ vide registered GPA, Will, agreement to sell, affidavit, possession letter and cash receipt all dated 07.06.04.
2 It is further averred that the defendant is residing along with her family in the adjoining property no. M76, Shyam Park Suit no. 1028/07 1/16 3 Extn., Nawada, Uttam Nagar, New Delhi59. It is submitted that the intention of defendant was malafide and as such in order to grab the property of the plaintiff, the defendant had filed a suit for permanent injunction bearing no. 74/05 which was entrusted to the Court of Sh. Sudesh Kumar, the then Civil Judge, Karkardooma Court, Delhi alleging therein that the defendant is tenant in the entire property of the plaintiff on a monthly rent of Rs.350/ since 01.08.04. In the said suit, the defendant has also filed an application under order 39 R.1& 2 R/W Sec.151 CPC for grant of adinterim injunction alleging therein that the plaintiff along with his associates tried to dispossess the defendant on 14.05.05 and 15.05.05. The defendant was not granted exparte adinterim injunction and the Court was pleased to issue notice to the plaintiff for 02.07.05 and now the case is fixed for 11.10.07. It is submitted that when the defendant did not get exparte injunction in suit no. 74/05, the defendant filed a fresh suit for permanent injunction on 14.06.05 in the Court of Hon. Vacation Judge, Delhi along with Suit no. 1028/07 1/16 4 interim application alleging therein that the plaintiff along with her associates tried to dispossess the defendant from the property in suit on 14.06.05 at about 10.00 a.m. and the said suits are pending the Court of Sh. Sharad Gupta Ld. Civil Judge, Delhi. 3 It is further averred that the said suit no. 74/05 the Ld. Trial Court was pleased to appoint Sh. Gaurav Bakhshi, advocate as Local commissioner to verify as to who is in possession of the suit property. The Local commissioner filed his report in the trial Court on 29.08.05 and after hearing the arguments of both the parties, the trial Court was pleased to dismiss the interim application of the defendant vide order dated 28.01.06. The plaintiff has also moved an interim application which was also dismissed by Ld. Trial Court vide order dated 28.01.06. It is submitted that the defendant had forcibly entered into plaintiff's property by breaking open the locks on 15.05.05 and now the defendant is in possession of property bearing no. M77, Shyam Park, Nawada, Uttam Nagar, Suit no. 1028/07 1/16 5 New Delhi59. It is submitted that the property is mutated in the name of plaintiff and the plaintiff has been paying house tax to MCD.
4 It is further submitted that the defendant had forcibly entered in the suit property by breaking open the locks, after filing the aforesaid suit i.e. 74/05 in the month of May, 2005 and now wrongly alleging that she is tenant in the suit property. It is submitted that the defendant is neither tenant nor has any right, title or interest in the suit property and the status of the defendant in the suit property is of a trespasser and as such liable to be evicted. It is submitted that the aforesaid property is now in the possession of the defendant and the same can be easily let out on a monthly rent of Rs.4,000/ and as such the defendant is liable to pay damages for use and occupation @ Rs.4,000/ per month from the date she occupied the aforesaid property forcibly. It is submitted that a sum of Rs.1,16,000/ as arrears of damages for use and occupation for Suit no. 1028/07 1/16 6 the period from 15.05.05 to 14.10.07 is due to the plaintiff. it is submitted that the plaintiff has sent a legal notice dated 29.10.07 to the defendants but the defendant has not paid any amount despite service of the legal notice. Hence, the present suit is filed by the plaintiff.
5 After service defendant appeared and filed WS. In WS defendant took preliminary objection that the suit is not maintainable as the plaintiff is neither the owner nor the landlord of the defendant. It is submitted that the premises in question was let out by Sh. Om Parkash Mishra to the defendant at monthly rent of Rs.350/ on 01.08.04. It is submitted that the suit is not maintainable as the suit has not been filed by landlord Om Parkash Mishra. It is submitted that the landlord Om Parkash Mishra was not issuing any rent receipts of the rent paid.
While replying on merits the defendant denied almost all Suit no. 1028/07 1/16 7 the allegations leveled against her in the plaint by the plaintiff. However it is submitted that neither the plaintiff nor Om Parkash Mishra is the owner of the property in question. It is submitted that the present suit is filed only to harass the defendant. It is submitted that Sh. Naubat Ram has not obtained the permission from authority concerned to sell the property and as such he has no right to sell the property. It is submitted that the defendant is residing in property no. M77, Shyam Park Extension, Nawada, Uttam Nagar, New Delhi. It is submitted that the defendant never entered forcibly into the plaintiff's property, after breaking open the locks. It is submitted that the property is not mutated in the name of the plaintiff in MCD record. It is submitted that the premises is in possession of the defendant but the property can not be easily let out at a monthly rent of Rs.4,000/. It is submitted that the defendant is not liable to pay damages @ Rs.4,000/ per month to the plaintiff. it is submitted that the plaintiff has no right to recover a sum of Rs.1,16,000/ as arrears of damages for the use and Suit no. 1028/07 1/16 8 occupation for the period from 15.05.05 to 14.10.07. The receiving of legal notice is also denied. On the aforesaid grounds the defendant sought dismissal of the present suit. 6 Replication to the WS of defendant filed by the plaintiff in which plaintiff has denied the averments of defendant as stated in the WS and reiterated and reaffirmed the contents of his plaint. 7 After completion of pleadings following issues were framed on 06.05.08:
1. Whether the plaintiff has no locus standi to file the instant suit? OPD.
2. Whether the plaintiff is entitled to decree for a sum of Rs.1,16,000/ as claimed? OPP.
3. Relief.
8 The plaintiff has examined herself as PW1, Sh. Om Suit no. 1028/07 1/16 9 Parkash Mishra as PW2, Sh. Naubat Ram as PW3, Sh. Shri Ram, Head Clerk from House Tax Department MCD as DW4, Sh. Ram Kumar, UDC from House Tax Department as PW5. Though affidavit of DW1 Har Piyari filed, however, despite several opportunities she has not come for crossexamination, so evidence of defendant was closed vide order dated 17.12.11.
9 I have heard the Ld. Counsel for parties and give my thoughtful consideration to the submissions made by them. I also perused the record. My issue wise findings is as under: ISSUE NO. 1 & 2 Both the issues are taken up together being interconnected. The onus to prove issue no. 1 is on defendant. While the onus to prove issue no. 2 is on plaintiff. Suit no. 1028/07 1/16 10
The facts which are admitted needs not to be discussed. The description of the suit property is admitted. The possession of the defendant is also admitted on the suit property.
The case of the plaintiff is that defendant is trespasser in the suit property. While the defence of the defendant is that she is tenant in the suit property inducted by Om Parkash, husband of the plaintiff and plaintiff has no locus to file the present suit.
To prove that plaintiff is entitled for recovery of damages the plaintiff has placed on record document Ex.PW1/B, a registered GPA, document Ex.PW1/C a registered Will, the agreement to sell Ex.PW1/D, Affidavit Ex.PW1/E, possession letter Ex.PW1/F as well as receipt Ex.PW1/G. These documents have been executed by one Naubat Ram in favour of plaintiff Smt. Geeta Mishra. Vide these documents Naubat Ram has transfered the rights in suit property in the name of plaintiff. Naubat Ram has also been Suit no. 1028/07 1/16 11 examined as PW3 and he has admitted the execution of abovesaid documents in favour of the plaintiff. The plaintiff is also paying house tax which has been proved by PW4 a employee of House Taxt Department, MCD and the PW4 has also confirmed the document Ex.PW1/G the house tax deposit. All these evidence shows that plaintiff is prima facie having rights in the suit property being entitled through documents i.e. Ex.PW1/B, a registered GPA, document Ex.PW1/C a registered Will, the agreement to sell Ex.PW1/D, Affidavit Ex.PW1/E, possession letter Ex.PW1/F as well as receipt Ex.PW1/G. The emphasis can be laid on judgment tilted as J. S. Mehra Vs. Kusum Lata, 2004 AD (Delhi) 473. On the other hand, the defendant had put suggestions to the witness Naubat Ram that he has not any right to transfer the suit property in the name of plaintiff. The suggestion has also been put to the witness Naubat Ram that suit property belongs to DDA/Delhi Govt. But the defendant has failed to brought on record any document which shows that suit property belongs to DDA or Delhi Govt. Suit no. 1028/07 1/16 12 Even from the perusal of WS the defendant has admitted that the husband of the plaintiff Om Parkash Mishra has rented out the suit premises to the defendant. But no document or other evidence has been brought on record by the defendant which shows that defendant was inducted as tenant by Sh. Om Parkash, husband of the plaintiff. Even defendant has not produced any defence evidence to prove the positive assertion made in the WS in her favour. And during the crossexamination of PW1 plaintiff, the defendant has put suggestion to the witness that defendant is tenant of the plaintiff. It does not lies in the mouth of defendant that simultaneously she will claim herself as tenant under the plaintiff as well as the tenant under husband of the plaintiff. The defendant has asserted in the WS the rate of rent @ Rs.350/. While suggestion has been put to the witness PW1 that rate of rent is Rs. 1,000/ since 01.08.04. The defence taken by the defendant is sham. The defendant has failed to prove that he was inducted as tenant either by the plaintiff or husband of the plaintiff namely Om Suit no. 1028/07 1/16 13 Parkash Mishra. On the other hand the plaintiff PW1 as well as PW3 Om Parkash has deposed in their examination in chief filed through affidavit that the defendant has entered into the suit property by breaking open the locks on 15.05.05. Even no suggestions have been put to the witnesses that defendant has entered into the suit premises forcibly. The inference of the evidence on record is that the defendant is nothing but a trespasser over the suit property. No notice is required to be given to the trespasser to evict the suit property. Even filing of the suit in itself is a notice to quit as held by Hon. Supreme Court in case tilted as M/s Nopany Investment P. Ltd., Vs. Santokh Singh (HUF), 2008 (1) RCR (Civil) 270.
The PW1 and PW2 has deposed in their examination in chief through affidavit that plaintiff is entitled to damages @ Rs. 4,000/ per month from 15.05.05 being in occupation of suit property without any permission. The witnesses also deposed that Suit no. 1028/07 1/16 14 a sum of Rs.1,16,000/ is due till 14.10.07. The plaintiff has also proved on record the legal notice Ex.PW1/H, the postal receipt Ex.PW1/J, UPC receipt Ex.PW1/A and AD card Ex.PW1/F. The defendant has not put any suggestion to the witnesses that plaintiff is not entitled for damages as claimed @ Rs.4,000/ per month from 15.05.05 to 14.10.07. It means that the defendant has admitted the case of the plaintiff. The Hon. High Court of Calcutta in case titled Traders Syndicate Vs. UOI AIR 1983 Calcutta 337 in which it is observed that :
"Whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in crossexamination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the crossexamination is being made comes to give and lead evidence by producing Suit no. 1028/07 1/16 15 witness. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when crossexamining that he must put to each of his opponent's witness in turn, so much of his own case as concerns that particular witness or in which that witness has any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety."
The judgment tilted as Kalu Ram Vs. Sita Ram, 1980, RLR (Note) 44. In which Hon. High Court has observed "if plaintiff before filing the suit make serious assertion in a notice to defendant then defendant must not remained silent by ignoring to reply. If he does so then adverse inference may be raised against him."
Ld. counsel for defendant argued that the plaintiff is not the owner of the suit property rather Mr. Jai Singh was the owner of the suit property. This was not the defence of the defendant. Arguments beyond pleadings. Even otherwise the defendant can not take the defence that plaintiff is not entitled for relief since once she has admitted during crossexamination by putting a suggestion Suit no. 1028/07 1/16 16 that property was let out to her by the plaintiff.
The issues no. 1 and 2 are decided in favour of plaintiff and against the defendant as plaintiff is having locus to file the present suit. She is also entitled for damages @ Rs.4,000/ per month from 15.05.05 till 14.10.07 as claimed.
RELIEF In view of the discussions above I am of the view that the plaintiff is entitled damages @ Rs.4,000/ per month from 15.05.05 till 14.10.07 as claimed. Suit is decreed with cost.
File be consigned to Record Room.
(Announced in open Court (JAGDISH KUMAR)
today i.e 22.12.11) JSCC/ASCJ/GJ(East)
KKD COURT
Suit no. 1028/07 1/16
17
Suit No. 1028/07
22.12.11
Present: Counsel for plaintiff.
Counsel for defendant.
Counsel for applicant.
An application has been moved on behalf of applicant Joginder S/o Late Sh. Jai Singh R/o 243, Gali Kandhan Kishan, Fatehpuri, Chandni Chowk, through counsel Sh. Vidhya Bhushan U/O.1 R.10 CPC. I have gone through the application carefully. From the bare perusal of the application and document filed along with application, such as Notice issued by the applicant to the defendant Har Piyari and reply to the notice replied by the defendant Har Piyari to the applicant Joginder, it reveals that the application has been moved with active collusion with defendant. At the outset, the defendant Har Piyari had not mentioned anywhere in her pleading through WS that the suit property was let out by Om Parkash, husband of the plaintiff, in the presence of Jai Suit no. 1028/07 1/16 18 Singh the late father of the applicant. There are also other long litigations between the defendant and plaintiff. The applicant Joginder Singh wants to be impleaded as necessary party in the present suit on the basis of Will executed by his late father in his favour dated 10.08.09. As per order 1 R.10 CPC a party can be impleaded only as necessary party, if his presence is necessary for the proper adjudication of the dispute involved in the suit. The dispute in the present suit is that plaintiff is claiming possession being owner while the defendant is denying the relief sought by the plaintiff by asserting that Geeta Mishra, plaintiff is not entitled for the relief as the suit property was let out to her by the husband of the plaintiff. The suit is at the final stage. So, I am of the view that presence of applicant is not necessary to adjudicate the dispute involved in the present suit.
The applicant has independent legal course to establish his rights. Even from the perusal of the file it reveals that the Suit no. 1028/07 1/16 19 defendant has tried to delay the proceedings of the case on one pretext or other. The evidence of the defendant was closed for not producing witness, but on application the opportunity was again given to the defendant. Then again defendant failed to produce the witness and DE was closed. Today the matter was listed for final arguments and the present application in hand has been moved by applicant which clearly shows that same has been moved in connivance with the defendant. The connivance reveals from the fact that the applicant has not inspected the present file which is pending for adjudication since 2007. The possibility is that the same has been brought to the notice of applicant by the defendant. Application dismissed.
Counsel for defendant seeks adjournment for final arguments and submitted that he has applied for certified copies of the testimonies of the witnesses and same has not been received so far. He further submitted that if he gets copy today itself he is Suit no. 1028/07 1/16 20 ready to argue the matter finally. Let the file be sent back to Ahlmad to ensure to get supplied the copies of the testimonies of the witnesses to the defendant through CA.
Be awaited for 2.00 p.m. for arguments.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/22.12.11
At 2.00 p.m.
Present: Counsel for plaintiff.
Counsel for defendant.
Counsel for defendant submitted that he has received the copies of the testimonies and needs some time to go through the testimonies and again seeks pass over for arguments.
Be awaited for arguments.
(Jagdish Kumar)
JSCC/ASCJ/GJ(East)
KKD COURTS/22.12.11
Suit no. 1028/07 1/16
21
Present: Counsel for plaintiff.
Counsel for defendant.
Arguments heard. Vide separate judgment dictated and announced in open Court the suit of the plaintiff is decreed for damages @ Rs.4,000/ per month from 15.05.05 till 14.10.07 as claimed. Suit is decreed with cost.
File be consigned to Record Room.
(Jagdish Kumar) JSCC/ASCJ/GJ(East) KKD COURTS/22.12.11 Suit no. 1028/07 1/16