Delhi District Court
Delhi - 110007 vs Sh. Jagmohan Singh Bagga on 7 December, 2010
IN THE COURT OF SH. ARUN GOEL , CIVIL JUDGE,WEST
TIS HAZARI COURTS, DELHI
SUIT NO: 950/06
Sh. Shiam Narain Sharma
S/o Lt. Sh. Mul Narain Sharma,
R/o 7/8, Singh Sabha Road,
Behind Amba Cinema
Delhi - 110007 ......................Plaintiff
VERSUS
Sh. Jagmohan Singh Bagga,
S/o Sh. Sunder Singh
(I) R/o Right Hand Side
First Floor, 7/8, Singh Sabha Road,
Behind Amba Cinema, Delhi - 110007.
(II) C/O M/s Bagga Garments,
6299, Kohlapur Road,
Delhi 110007. .............Defendant
Suit No. 950/27 Page 1
Date of Institution : 16.01.2002
Arguments heard on : 30.11.2010
Date of decision : 07.12.2010
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT AND
MENSE PROFIT / DAMAGES FOR USE AND OCCUPATION.
JJJJJJJJ :-
BRIEF FACTS OF PRESENT CASE ARE :
1. That Sh. Mul Narain Sharma, father of the plaintiff was the owner of the property no. 7/8, situated at Singh Sabha Road, Delhi. (herein referred as Suit property). It is submitted on behalf of the plaintiff that on 08.12.2001, the father of the plaintiff died and the plaintiff became the owner of the suit property. It is further submitted by the plaintiff that the defendant was inducted as a tenant by the father of the plaintiff vide Rent Agreement dated 25.05.2009 w.e.f. 01.06.2000 at a monthly rent of Rs. 4000/ in respect of the portion being right hand side flat, first floor, as shown red in the site plan at the suit property.
2. It is also stated by the plaintiff that initially tenancy was created for 11 months which expired on the mid night of 31.05.2000 and thereafter the defendant has been holding over the suit property Suit No. 950/27 Page 2 since 01.06.2000. The tenancy for month to month was created. It is further submitted on behalf of the plaintiff that latter on the defendant agreed to increase the rent by Rs. 250/ and has been paying the rent @ of Rs. 4,250/ per month for which rent receipt has been issued by the plaintiff.
3. It is further averred by the plaintiff that defendant had been habitual defaulter in payment of rent and amount of Rs. 1,250/ remains to be paid upto 01.01.2004. It is further stated that the arrears of rent at the rate of Rs. 4,250/ per month from 01.01.2004 to 01.01.2006 amounting to Rs. 1,06,250/ also remains to be paid by the defendant to the plaintiff. It is further stated by the plaintiff that he has served notice upon the defendant on 06.08.2004 terminating his tenancy but there were some calculation mistake in the amount of arrears so again the plaintiff had given the notice to the defendant terminating his tenancy on 22.12.2005 asking him to vacate the suit premises.
4. The plaintiff has filed the present suit for possession of the suit property as well as for recovery of arrears of rent amounting to Rs. 1,54,700/as well as future damages @ Rs. 15,000/.
5. The defendant in his W/S has denied the contentions of the plaintiff. The defendant has stated that the present suit is not maintainable. He has further stated that plaintiff has received the Suit No. 950/27 Page 3 rent up to February, 2006 on behalf of all the LR's of the Lt. Sh. Mul Narain Sharma. It is also stated by the defendant that the suit is without any cause of action.
6. The defendant has further stated that the plaintiff wants to evade his responsibility of repairing the roof of the premises which leaks from the roof on rainy season and even the plaster has been thrown down making the premises inhabitable. The defendant has further denied that the Lt. Sh. Mul Narain Sharma was the owner of the property as he was only landlord. He has further stated that the rent agreement was prepared but the suit premises was not let out to him till January, 2001 and the rate of rent was Rs. 4,250 from the beginning. The defendant has further stated that the plaintiff did not issue him rent receipt regularly and the same were issued in bulk having different inks upon them. The defendant has further stated he has not received alleged notice dated 06.08.2004 or notice dated 22.12.2005. The defendant has further stated that as alleged by the plaintiff that the notice dated 22.12.2005 was served upon the defendant on 26.12.2005, the same is fabricated document as his shop was closed on 26.12.2005. Moreover, it cannot be believed that the said notice can be served upon the defendant on the same date of its posting from the post office in the Hon'ble High Court. The defendant has Suit No. 950/27 Page 4 further stated that the suit of the plaintiff is liable to be dismissed with cost of Rs. 50,000/.
7. On the completion of the pleadings, following issues were framed by Ld. Predecessor:
a) whether the tenancy of the defendant has been properly terminated? OPP.
b) whether the plaintiff is entitled to relief of possession as prayed for? OPP.
c) whether the plaintiff is entitled to decree of recovery of arrears of rent / damages? If yes, at what rate and for what period? OPP.
d) Relief.
8. The plaintiff in order to prove his case has examined 1 witness namely Shiam Narain Sharma as PW1. He has proved his affidavit by way of evidence which is exhibited as Ex. P1. The witness in his examination inchief has proved the original will as Ex. PW1/1, rent agreement dated 25.05.2000 as Ex. PW1/2, site plan as Ex. PW1/3, pass book as Ex. PW1/4, notice to the defendant dated 06.08.2004 as Ex.PW1/5, Postal receipt as Ex. PW1/6, certificate of posting as Ex. PW1/7, returned envelope as Ex. PW1/8, notice dated 22.12.2005 as Ex. PW1/9, postal receipt as Ex. PW1/10, A.D Card as Ex. PW1/11, UPC as Ex. PW1/12 Suit No. 950/27 Page 5 and returned envelope as Ex. PW1/13. The plaintiff has in his cross examination admitted rent receipts issued by him to the defendant as Ex. PW1/D1 to PW1/D21.
9. After plaintiff evidence, defendant was given opportunity for D.E. The defendant examined 1 witness Sh. Jagmohan Singh Bagga as DW1. The witness in his examination inchief has proved the slip in the hand writing of the plaintiff is Ex. DW1/A.
10.Thereafter, vide order dated 08.10.2010, D.E was closed. The matter was listed for final arguments. Arguments were advanced by both the ld. Counsels.
I have heard the Ld. Counsel for both the parties as well as perused the entire record carefully. My issue wise findings is as follows: ISSUE NO. 1 • Whether the tenancy of the defendant has been properly terminated? OPP.
The onus to prove this issue was upon the plaintiff. The plaintiff in order to prove this issue has relied upon the Ex. PW1/5 to PW1/13. Ld. Counsel for the defendant has objected these documents. Ld. Counsel for the defendant has submitted in his objections that these documents are false and fabricated documents thus cannot be relied upon. Nothing has been brought Suit No. 950/27 Page 6 on record to show that these documents are false and fabricated documents. The ld. Counsel has not shown any law as to why these documents cannot be relied upon and are inadmissible in evidence. The objection raised by the Ld. Counsel for the defendant is that the documents are inadmissible is not maintainable. Hence, these documents are admissible in evidence. The ld. Counsel of the defendant has during the arguments admitted the Ex. PW1/3 (site plan).Thus there is no dispute between the parties as to the suit premises. The defendant has the raised the contention that the plaintiff is not his landlord. The contention of the defendant is not tenable as the defendant has clearly admitted in the preliminary objection in the written statement that the plaintiff is receiving the rent on behalf of the others heirs of Sh. Mul Narain Sharma. Law is well settled that one of the co owners can file the suit for the ejectment of the tenant without impleading other co owners. Reliance is also placed on the judgment of the hon'ble supreme Court "India Umbrella Manufacturing Co M/s. v. Bhagabandei Agarwalla"Reported as AIR 2004 SUPREME COURT 1321"
"........... It is well settled that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the co owners. (See Sri Ram Pasricha v. Jagannath and others, (1976) 4 SCC 184 ; Dhannalal v. Kalawatibai and others, (2002) 6 SCC 16.
Suit No. 950/27 Page 7 This principle is based on the doctrine of agency. One coowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the coowners. One of the coowners cannot withdraw his consent midway the suit so as to prejudice the other coowner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the coowners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of coowners to eject the tenant comes to an end by act of parties or by operation of law. AIR 1976 SC 2335 (AIR 2002 sc 2572 :2002 AIRSCW 2873)para 25" para 6 Moreover, the defendant has once attorned to the plaintiff by making the payment of the rent In that case the defendant cannot now challenge the tittle of the plaintiff. The defendant has also put rent receipts EX.PW1/D1 to Ex. PW/D21 in the cross examination. Perusal of these rent receipts reveals that the same are signed by the plaintiff. In such case the defendant has admitted him to be landlord. The plea of the defendant is also barred as per the provision of the section 116 of the Indian Evidence Act. The section provides: "116. Estoppel of tenant and of license of person in possession No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord Suit No. 950/27 Page 8 of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given".
Thus, the plea raised by the defendant is barred under the above said section. The plaintiff has also relied upon Ex. PW1/1 and PW1/2, which has been objected to by the defendant, as the same has not been relied upon , the objections regarding the same need not be decided.
The plaintiff in order to prove that the tenancy has been validly terminated has relied upon the Ex. PW1/5 which is the termination notice sent by the plaintiff to the defendant for terminating his tenancy. Perusal of the Para 6 of the Ex. PW1/5 clearly reveals that intention of the plaintiff is to terminate the relationship of landlord and tenant between the parties. The said document is dated 06.08.2004. The defendant has denied the receipt of the said document .The plaintiff on the other hand in order to prove the knowledge of notice to defendant has relied upon the Ex. PW1/6 and Ex. PW1/7 which are postal receipts and certificate of posting respectively, Ex. PW1/8 is the returned envelope sent to the shop of the defendant. On the Ex PW1/8 following reports are there: Suit No. 950/27 Page 9
a) 09.08.2004 'locked'
b) 11.08.2004 refused and returned to the sender. The defendant in his cross examination has specifically admitted that the address mentioned on Ex. PW1/5, PW1/7 and PW1/8 bears his correct address. In such cases, the presumption can be easily drawn that the termination notice was received by the defendant. As the UPC has not been received back and has been addressed to the correct address of the defendant in that case it can be presumed that he must have received it. Moreover, the presumption can be also raised from the reports upon the Ex. PW1/8, that as the defendant has refused to take the delivery of the letters he must have known the content of the letter. Reliance is also placed upon the judgment of the hon'ble Delhi High Court, in that case, the Court observed where tenant refuses the receipt of letter, the notice will be deemed to have been served upon him. The court in judgment Prime Industries vs Rafeeq Ahmed reported as , '67 (1997) DLT 121' observed (5) Turning to the question whether notice of demand was served on the tenant or not, it is established on record that notice sent by registered Ad post dated 16th April,1980 Exhibit AW.I/2 was avoided by lhe appellant. Copies of that notice were also sent to appellants No.2 arid 3. They too avoided receipt of the same. As per Postal Authority's remark Suit No. 950/27 Page 10 on the envelope despite repeated visits and informations being given to the addressee they did not make themselves available to receive the notice. Hence the notices were returned as undelivered. The notice of demand was simultaneously sent under Certificate of posting because respondent found that the appellants were intentionally avoiding service. This was done in order to ensure that appellants are served with the notice of demand. The notice sent under Upc was proved on record as Exhibit AW.I/9. However, the name of appellants No.2 and 3's father was wrongly mentioned in the Upc as Mushtaq Ahmed. The real name of their father is Shaukat Ali Khan.
(6) That the question which arises for consideration is whether in view of the registered notices having not been served and on the Upc name of the father of appellants No.2 and 3 was wrongly mentioned would it amount to sufficient service? Whether in such circumstances presumption could be drawn under Section 114 of the Indian Evidence Act? Legally presumption cannot be drawn on the basis of notice sent under UPC. But the correct answer of both these questions depend on the facts of this case. Answer to these questions lie more on facts than law. Notice in this case was sent by registered Ad post as well as by UPC. Since the appellants avoided service of notice by registered post hence the notice was sent under UPC. It is in this background we can say that notice sent by Upc must have been served on the appellant No.
1. Notice sent under Upc to appellant No.1 was at correct address of the firm, therefore, the Courts below drew the conclusion that notice sent Suit No. 950/27 Page 11 under Upc had been served on the tenant. So far as sending of copies of notice to the appellants No.2 and 3 under certificate of posting that was only as an abundant precaution. Appellant being legal entity, service on it was a proper service on the tenant. However, appellants No.2 and 3 being partners notice was endorsed to them. Service or no service on them in the facts of this case was not material. Hence wrong mentioning of their father's name had no material bearing on the merits of this case. Notice sent to the firm i.e. the tenant of the premises in question had in fact been correctly sent. It was not received back, therefore, can be said to have been served on the appellant/tenant. The address given on the Certificate of Posting Exhibit AW.1/9 of the firm i.e. appellant No.1 was the correct address. The posting of this notice at the address had been duly proved. The service of notice under the Upc in these circumstances when registered notice sent was avoided by the tenant had rightly been held to be properly served on the tenant. Though strictly speaking presumption under Section 114 of the Indian Evidence Act as such cannot be drawn on the basis of notice sent under Upc but in the facts of this case as the appellant/tenant avoided service of notice by registered post inspite of information having been given by the postman hence notice sent under certificate of posting at correct address to the tenant and the same having not been received back, therefore, in the peculiar facts it can be said that appellant/ tenant was served with notice of demand who inspite of service neither paid nor tendered the arrears of rent. It would not be correct on the part of Bawa Shiv Charan Singh to contend that notice of demand had not been Suit No. 950/27 Page 12 served on the tenant or that the Tribunal wrongly concluded that the notice of demand was served. Since the notice was sent by registered post as well as under Upc to the tenant, therefore, to my mind, the Courts below were not wrong in arriving at a conclusion that notice of demand was served. Hence there was sufficient compliance of the provisions of law. Reliance by Bawa Shiv Charan Singh on the decision of Supreme Court in the case of Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil & ors. is of no help to him. In that case notice was only sent under Certificate of Posting and not under registered cover. It was in this backdrop the Apex Court observed that no presumption under Section 114 of the Indian Evidence Act can be drawn. The facts of that case are distinguishable. In the case in hand notice to the tenant was sent by registered Ad cover as well as under
Upc, hence in the facts of this case the conclusion arrived at by the Courts below docs not require reconsideration." Para 6 The Ld counsel for defendant has further stated the rent upto Feb 2006 has been paid so even if it assumed that the notice dated 06.08.2004 has been served it stood waived due to receipt of the rent amount after the termination of the notice. To prove this contention the Ld. Counsel has relied upon Ex DW1/A, which according to the defendant is the rent receipt, showing the payment of rent from October, 2004 to January, 2005.Admittedly, this document has not been put to the plaintiff in the cross examination.
Suit No. 950/27 Page 13 The said document was allowed by the Ld. Predecessor, at late stage of trail. The defendant has admitted that this document does not bear signature of any person. In such case, no reliance can be placed on this document. Moreover, this document is not dated and is a simple paper not rent receipt. Admittedly, the defendant has not put this document to the plaintiff during the cross examination.
Perusal of the rent receipts Ex. PW1/D1 to PW1/D21 clearly reveals that these are proper rent receipts. As the defendant has in the past able to get the proper rent receipts from the defendant then why a simple chit on white paper and which also does not bear the signature of the plaintiff has been taken by him instead of the proper rent receipts. Thus, it does not inspire confidence. Even for the sake of argument, if it is admitted that rent was received by the plaintiff even after the service of termination notice even that will not help the defendant as it is well settled that receipt of rent after the service of the notice does not amount to waiver of the notice unless the said receipt of rent is with the intention to continue the tenancy. Reliance is placed on the judgment of Hon'ble Delhi high court reported as "INMACS LTD v/s PREMA SINHA & ORS in 153 (2008) DLT 311 (DB)" where in the court observed: " Dealing with the issue whether accepting rent after serving upon the tenant a notice to quote amounts to a waiver under Section 113 of the Suit No. 950/27 Page 14 Transfer of Property Act, in the decision reported as 2006 (4) SCC 205, Sarup Singh Gupta Vs. S Jagdish, their Lordships of Supreme Court held: "6 ... A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111, Clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere factthat rent has been tendered and accepted, cannot be determinative. 7 A somewhat similar situation arose in the case reported in Shanti Prasad Devi vs Shankar Mahto 2005 (5) SCC 543. That was a case where the landlord accepted rent even on expiry of the period of lease. A submission was urged on behalf of the tenant in that case that Section 116, Transfer of Property Act was attracted and there was a deemed renewal, of the lease. Negativing the contention, thisCourt observed that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the premise even, after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. Their RFA No.341/2007 page No.16 of 27 Lordships noticed the conditions incorporated in the agreement itself, which provided for renewal of the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease. 8 In the Suit No. 950/27 Page 15 instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on 261979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise." Para 26 Suit No. 950/27 Page 16 Thus, for the above stated discussion, it is clear that the tenancy of the defendant stood validly terminated. This issue is decided in favour of the plaintiff.
ISSUE NO. 2 Whether the plaintiff is entitled to relief of possession as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. As stated by my finding upon the issue no 1 the relationship of tenant and landlord has been established between the parties. The receipt of notice upon the defendant is also established. It is also admitted by the parties that the rate of rent is more than Rs. 3500/. In which case, all the necessary ingredients for relief of the recovery of possession that is:
a) existence of landlord tenant relationship,
b) the termination of the tenancy,
c) rate of rent to be more than Rs. 3500/ has been established by the plaintiff .Thus the plaintiff has proved that he is entitled to the recovery of possession. Hence, this issue is decided in favour of the plaintiff ISSUE NO. 3 whether the plaintiff is entitled to decree of recovery of arrears of rent / damages? If yes, at what rate and for what period? OPP.
Suit No. 950/27 Page 17 The onus to prove this issue was upon the plaintiff. The plaintiff in order to prove his case has relied upon the Ex. PW1/4 to show that no amount has been received by him since 01.01.2004. However, the said exhibit has been objected by the defendant on the ground that it is photocopy. Admittedly, the said document is the photocopy and no permission has been sought by the plaintiff for leading evidence. Hence, the Ex. PW1/4 has not been proved, according to law.
Admittedly, in this case, neither the both parties have tendered the statement of accounts showing either the payment of rent or receipt of rent. Moreover, in the present case, perusal of the pleadings reveals that the payment of rent was made generally through cash and the rent receipts were issued by the plaintiff in bulk. In such case, as there is dispute between the parties, whether the rent has been paid from 01.01.2004 and no evidence has been led on either side to show either the payment of rent or nonpayment of rent. It is well settled that the plaintiff has to prove his case. In that case, the plaintiff has not proved that rent has not been received by him since 01.01.2004.
Admittedly, as per my findings upon the issue no. 1, it has been established that notice dated 06.08.2004 has been received by the defendant and his tenancy stood terminated. In such case, it can be safely assumed that no rent has been paid by him since Suit No. 950/27 Page 18 September, 2004 and if any rent have been paid by him the same should be against due receipt. The rate of rent is admitted between the parties to be @ 4,250/ per month. Thus, the plaintiff is entitled to recovery of arrears of rent @ 4,250/ per month from September, 2004 till 31.01.2006.
The plaintiff has further claimed damages from the tenant @ 15,000/ per month from February, 2006 till the recovery of possession of the suit premises. The plaintiff has not brought on any evidence for the determination of rate of damages besides his statement that the rate of damages should be Rs. 15,000/ per month. In such case, as no reliable evidence is led on behalf of the plaintiff, the court deems fit to follow the principal laid down in the Section 23 (1)A of The Land Acquisition Act, 1894 for determining the rate of damages/ mense profit. This Section states that:
"In additional to the market value of the land, as above provided, the court shall in every award an amount calculated at the rate of twelve per centum per annum on such marketvalue for the period commencing on and from the date of the publication of the notification under Section 4, sub section(1), in respect of such land to the date of the award of the Collector of the date of taking possession of the land, whichever is earlier."
Suit No. 950/27 Page 19 This section provides that amount of compensation is to be increased @12% after one year. Admittedly, in the present case, the rate of rent is Rs. 4250/ per month. Hence, the plaintiff is entitled to the recovery of arrears of rent from 01.09.2004 to 31.01.2006 @ 4250/ per month and further damages / mense profit are determined according to the following table: S.No Period Amount per month 1 01.02.2006 to 31.01.2007 Rs. 4750/.
2 01.02.2007 to 31.01.2008 Rs. 5300/ 3 01.02.2008 to 31.01.2009 Rs. 5900/ 4 01.02.2009 to 31.01.2010 Rs. 6600/ 01.02.2010 till recovery of Rs. 7350/ 5 possession Hence, this issue is decided in favour of the plaintiff. RELIEF.
In view of my finding of issue no. 1, 2 & 3, the suit of the plaintiff is decreed. He is entitled to the possession of the property no. 7/8, situated at Singh Sabha Road, Delhi more specifically shown red in the site plan Ex. PW1/3. The defendant is directed to handpver vacant possession of the property no. 7/8, situated at Singh Sabha Road, Delhi more specifically shown red in the site plan Ex. PW1/3 within one month of this order. The plaintiff is also Suit No. 950/27 Page 20 entitled to the recovery of arrears of rent @ 4250/ from 01.09.2004 to 31.01.2005. The plaintiff is also entitled for the damages /mense profit according to the above mentioned table in the issue no. 3. As admitted there is security amount of Rs. 40,000/ paid by the defendant, which has been admitted by the plaintiff. The defendant is entitled to the refund of said security amount. The said security amount be deducted from the arrears of rent and damages and the rest amount as above stated be paid by the defendant to the plaintiff.
File be consigned to record room after making necessary compliance.
Announced in the Open Court (ARUN GOEL)
on 7 December, 2010
th
CIVIL JUDGE WEST
All Pages Signed DELHI
Suit No. 950/27 Page 21