Delhi District Court
Imran Khan vs Feeroza Begum on 16 September, 2015
IN THE COURT OF Ms. JYOTI KLER, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE SMALL CAUSE COURTCUM GUARDIAN
JUDGE, SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW
DELHI
Suit No: 84/14
Case ID No. 02406C0046832014
IN THE MATTER OF :
Imran Khan
S/o Late Abdul Kalam
R/o D39/1, Batla House,
Jamia Nagar, Okhla,
New Delhi - 110025 .....Plaintiff
VERSUS
1. Feeroza Begum
R/o F14/2, Top Floor,
Nafees Road, Batla House,
Jamia Nagar, Okhla,
New Delhi - 110025
2. Mohd. Jahangir
S/o Mohd. Najiruddin
R/o R238, Joga Bai Extn.,
Jamia Nagar, Okhla,
New Delhi - 110025. .....Defendants
Date of Institution: 24.02.2014
Date of Final Arguments: 16.09.2015
Date of Judgment: 16.09.2015
Decision: Decreed.
CS 84/14 Imran Khan Vs. Feeroza Begum & Anr. 1/6
JUDGMENT
1. This is a Suit for Recovery of Possession and Arrears of Rent. Plaintiff is the owner, defendant No.1 is tenant and defendant No.2 is the landlord. The tenanted premises is House No. D39/1, Batla House, Jamia Nagar, Okhla, New Delhi - 25.
2. It is averred that the plaintiff purchased the tenanted premise from defendant No.2 on 28.03.2013. When the tenanted premise was purchased, defendant No.1 was residing therein as a tenant of defendant No.2 at monthly rent of Rs.5,500/ which was payable on the first week of each month. Defendant No.1 was informed of the sale. On 25.05.2013, plaintiff visited the tenanted premises for collecting the rent. Defendant No.1 did not pay the rent and abused the plaintiff in filthy language. On 10.06.2013 plaintiff sent a legal notice to defendant No.1, terminating her tenancy. However, the defendant No.1 did not vacate the tenanted premises. Hence, plaintiff filed the present Suit.
3. Summons of the Suit were issued to both the defendants. Defendant No.1 was served through ordinary process by way of affixation but she did not appear despite service. Hence she was proceeded exparte vide order dated 02.06.2014. Defendant No.2 was served through ordinary process. He appeared and filed written statement admitting the case of the plaintiff. After few dates, defendant No.2 also stopped appearing and was proceeded exparte vide order CS 84/14 Imran Khan Vs. Feeroza Begum & Anr. 2/6 dated 24.09.2014.
4. Issues were not framed as defendant No.2 did not contest the claim of the plaintiff and no written statement was filed by defendant No.
1.
5. Plaintiff was directed to lead evidence. Plaintiff examined himself as PW3 and two other witnesses namely Sh. Zuber Khan and Sh. Fahim Akhtar, as PW1 and PW2 respectively, by way of affidavit Ex.PW3/1 and additional affidavit Ex.PW3/B, Ex.PW1/1 and Ex.PW2/1 respectively.
6. PW1 and PW2 deposed that the plaintiff had visited the tenanted premises on 25.05.2013 and requested defendant No.1 to pay the rent or vacate the premises but he was abused.
7. Plaintiff, by way of his affidavit Ex.PW3/1, reiterated the contents of the plaint. By way of affidavit Ex.PW3/B, the plaintiff proved certain additional documents which were not relied upon in the earlier evidence affidavit. The following documents were relied upon by plaintiff i.e. PW3 in his evidence affidavits:
i) Ex.PW3/1: Site plan of the suit property.
ii) Ex.PW3/2 (OSR) (Colly): Consisting of GPA
(running into 4 pages), agreement of sell and purchase (running into 5 pages), affidavit (running into 3 pages), Will (running into 2 pages), possession letter and receipt.
iii) Mark PW3/3: Copy of the order dated 12.09.2013 passed by Ld. ACJ, South East, Saket Court, New Delhi.
iv) Ex.PW3/4 (colly): Office copy of the legal notice CS 84/14 Imran Khan Vs. Feeroza Begum & Anr. 3/6 dated 10.06.2013 (running into 3 pages).
v) Mark A: Copy of the postal receipts.
vi) Ex.PW3/5: Certified copy of the judgment dated 11.02.2014 (running into 3 pages).
vii) Ex.PW3/6: Certified copy of the decree sheet.
viii) Ex.PW3/7: Certified copy of the postal receipt.
8. None of the PWs were cross examined, defendants being ex parte, hence, their testimony has gone unrebutted and unchallenged. The oral testimony of plaintiff's witnesses is in consonance with the documents proved on record. Court has no reason to disbelieve their testimony or discredit their worthiness.
9. Defendant No.2 is the landlord and erstwhile owner of the tenanted premise. He has admitted in his written statement that plaintiff is the owner. Defendant No.2 was the owner of the tenanted premise when it was given on rent to defendant No.1. Defendant No.2 has not disputed the ownership of the plaintiff and in fact admitted that property was sold to the plaintiff by him. The property documents have been duly proved and are Ex.PW3/2 (colly).
10. The defendant No.1 did not appear before the Court to contest the claim of the plaintiff regarding nature of her possession over the suit property. As per the testimony of PW3 i.e. the plaintiff, the defendant No.1 is a tenant by virtue of oral tenancy. The tenancy, being oral, is month to month tenancy and can be terminated by way of notice under Section 106 of Transfer of Property Act. Plaintiff has categorically CS 84/14 Imran Khan Vs. Feeroza Begum & Anr. 4/6 deposed that the tenancy was terminated by way of notice dated 10.06.2013. Copy of the notice is placed on record and postal receipts have also been proved. Thus presumption arises that the notice was delivered to the plaintiff. As the tenancy stood validly terminated by way of notice dated 10.06.2013, Defendant No.1 is not entitled to continue in the possession of the suit property and is liable to hand over peaceful and vacant possession to the plaintiff who is the owner.
11. The plaintiff has also categorically deposed that rate of rent is Rs.5,500/ per month which fact was not disputed by defendant No.2 neither countered by defendant No.1. The plaintiff further deposed that the defendant No.1 has not paid the rent since 28.05.2013. Thus, the plaintiff being owner of the property is also entitled to rent of the tenanted premises.
12. The plaintiff did not lead any evidence with respect to mesne profits, however, it is a matter of record that the rent of the property being paid by the defendant No.1 is Rs.5,500/ per month, which is the agreed rent. Thus mesne profit can be assessed on the basis of the rent amount.
13. In view of the aforesaid discussion, I am of the considered opinion that plaintiff has proved his claim on preponderance of probabilities. Therefore, suit is decreed in favour of the plaintiff and against defendant No.1. The defendant No.1 is directed to hand over peaceful and vacant possession of the suit property i.e. House No. CS 84/14 Imran Khan Vs. Feeroza Begum & Anr. 5/6 D39/1, Batla House, Jamia Nagar, Okhla, New Delhi - 25 to the plaintiff forthwith and pay arrears of rent @Rs.5,500/ per month w.e.f. 28.05.2013 till date, and mesne profits w.e.f. 17.09.2015 till handing over of the peaceful and vacant possession @Rs.5,500/ per month. Costs of the Suit is also awarded in favour of the plaintiff and against the defendant No.1.
14. No substantial claim has been made against the defendant No.2 hence, no relief is granted qua defendant No.2.
15. Decree sheet be prepared accordingly.
16. File be consigned to Record Room.
Announced in the open court on 16.09.2015 (JYOTI KLER) ASCJ/JSCC /Gdn.JUDGE SOUTHEAST, SAKET COURTS, NEW DELHI Certified that the judgment contains 6 pages. Each of the page has been signed by me.
(JYOTI KLER) ASCJ/JSCC /Gdn.JUDGE SOUTHEAST, SAKET COURTS, NEW DELHI CS 84/14 Imran Khan Vs. Feeroza Begum & Anr. 6/6