Delhi District Court
Shri Rajender Kumar Gupta vs Sh. Anil Kumar on 24 May, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 1246/2023
CNR No. DLCT010131372023
(Senior Citizen Case)
DLCT010131372023
Shri Rajender Kumar Gupta,
Aged about 74 years
S/o Shri Chhotey Lal Gupta
At 213, Naya Bans,
Khari Baoli,
Delhi-110006.
......Plaintiff.
Vs
Shri Anil Kumar,
S/o Shri Rameshwar Dayal,
At Room on the First floor
of Property Bearing No. 212,
situated at Naya Bans,
Khari Baoli,
Delhi-110006.
Also At:
C/o Shree Annpurna Bhandar,
83, First Floor Gadodia Market,
Khari Baoli, Delhi-110006.
...... Defendant.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 1 of 31
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF
RENT AND MESNE PROFITS.
Date of institution of suit : 16.09.2023
First Date before this court : 26.03.2024
Date of hearing of final argument : 20.05.2024
Date of Judgment : 24.05.2024
Appearance(s): Shri Naresh Gupta, Advocate, Ld. Counsel for plaintiff.
Sh.Vidya Sagar, Advocate Ld. Counsel for the defendant.
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon the suit for possession, recovery of arrears of rent and mesne profits filed by the plaintiff against the defendant. The plaintiff has also prayed for interest @ 15% per annum on the outstanding amount besides costs of the suit.
(B) PLAINTIFF'S CASE
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) He is the owner-landlord of one room on the First floor of property bearing No.212, situated at Naya Bans, Khari Baoli, Delhi 110006 more particularly, shown in red colour in the site plan annexed to the (herein after called the "Suit Property"). It is averred in the plaint that the defendant has approached the plaintiff for taking the suit property on rent for the purpose of storage of goods in the year 2007 and after mutual consent, a Rent Agreement dated 22.10.2007 was executed between the plaintiff and defendant and the tenancy was a month to CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 2 of 31 month commencing from 1st day of each English Calender month and expiring on the last day of the said month. The rent was enhanced and the last paid rent of the suit property was Rs.10,000/- per month.
2.2) It has further been averred in the plaint that the defendant paid the monthly rent of suit property to the plaintiff uptil 31.03.2020 and thereafter, he has failed to pay the same and in view of continuous default in payment of rent, the plaintiff got issued and served a notice of demand dated 13.02.2021 through his counsel Shri Naresh Gupta, Advocate thereby calling upon him to clear the arrears of rents within 15 days from the date of receipt of notice but the defendant did not pay the arrears of rent.
2.3) It is further the case of the plaintiff that when the defendant did not make the payment of rent, the plaintiff was compelled to discontinue his tenancy and terminated the same by serving a quit notice dated 23.02.2022 under Section 106 of Transfer of Property Act, 1882 thereby determining the tenancy and calling upon him to hand over the physical and vacant possession of suit property to the plaintiff within 15 days of the service of notice which expired on 13.03.2022. The defendant has neither paid the arrears of rent nor handed over the possession of suit property to the plaintiff.
2.4) It is further the case of the plaintiff that despite terminating the tenancy, the defendant continued to occupy the suit property which is illegal, unauthorized and as a rank trespasser, therefore, the defendant is also liable to pay mesne profits to the plaintiff for his illegal and unauthorized use and occupation of the suit property at the prevailing market rate of rent @ Rs.25,000/- per month CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 3 of 31 2.5) The plaintiff has claimed cause of action on 13.03.2022 when the 15 days period had expired from service of quit notice on the defendant and when he has failed and neglected to vacate the suit property. The cause of action is further stated to have arisen on each and every month for the relief of arrears of rent and for damages and the same is still claimed to be subsisting and continuing. Hence, the present suit for recovery of possession of the suit property and a decree of recovery of arrears of rents amounting to Rs.1,80,000/- for the period 14.09.2020 to 13.03.2022 calculated @ Rs.10,000/- per month and for damages/mesne profits @ Rs.25,000/- per month w.e.f. 14.02.2020 till the date of actual vacation and handing over of the suit property alongwith 15% annual increase with interest, costs and future damages.
(C) DEFENDANT'S CASE:-
3. On receipt of summons for settlement of issues, the defendant contested the suit by filing a detailed Written Statement thereby taking various preliminary objections:-
3.1) The suit is not maintainable as the plaintiff is guilty of suppression of material facts, the suit filed without any cause of action and falling within the ambit of Delhi Rent Control Act, 1958. It has been contended that the Lease Agreement dated 22.10.2007 as filed by the plaintiff is a forged and fabricated document and the defendant has never executed the same. The defendant has further contended that he was inducted as a tenant by the plaintiff in the month of October, 2007 at a monthly rent of Rs.2,000/-, the tenancy being an oral tenancy. He has denied the fact that the rent of the suit premises is Rs.10,000/- per CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 4 of 31 month and has averred that the last rent of the suit property was Rs.2930/- per month. He has contended that he used to pay the rent in cash but the plaintiff never issued any receipt of the same and whenever the defendant has requested for the same, the plaintiff told the defendant that there is no need of the same. The defendant has taken a stand to have duly paid the rent @ Rs.2,930/- per month uptil January, 2021. It has been contended that the plaintiff, thereafter started illegally demanding the rent @ Rs.10,000/- per month which the defendant refused to pay and succumb to the illegal demand of the plaintiff whereafter which the plaintiff has also stopped accepting the rent of Rs.2,930/- per month. It has been finally averred that since the last paid rent to the plaintiff was Rs.2,930/- per month, the tenancy falls within the protection of Delhi Rent Control Act, 1958.
3.2) On merits, all the allegations made in the plaint are denied as incorrect and it has been contended by the defendant that the lease agreement is a forged and fabricated document never executed by him. The defendant has claimed to be inducted as a tenant in th suit property in the month of October, 2007 at a monthly rent of Rs.2,000/-, the tenancy being an oral tenancy. It has been contended that in the eviction petition filed by the plaintiff against another tenant Shri Kushi Ram Arora, the defendant was examined at the behest of the plaintiff and the defendant was threatened by the plaintiff that if he did not testify before the court as per the wish of the plaintiff, the plaintiff would throw him out of the suit property. Because of such undue influence of the plaintiff, defendant was constrained to depose in that petition as per the wishes of the plaintiff. The evidence by way of affidavit of the defendant in the CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 5 of 31 petition was also stated to be prepared by the counsel for the plaintiff and the rent agreement and receipt was fabricated by the plaintiff which the defendant was compelled to produce before the rent court. It has been contended that even these documents were handed over to the defendant just before the proceeding of that petition, the defendant being totally unaware of the contents of the same by that time. He has prayed that the suit of the plaintiff be dismissed with exemplary costs.
4. A detailed replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement. It has further been reiterated that the lease agreement dated 22.10.2007 filed by the plaintiff is the most genuine document and has been relied upon by the defendant himself in the previous judicial proceeding. It has also been contended that rent receipt were issued to the defendant as and when it was demanded by him and this can be proved that the defendant himself has produced a rent receipt in Eviction Petition No.103 of 2014 where the rent receipt was exhibited as Ex.PW6/R3. The plaintiff has responded that since the defendant was irregular in making the payments of rent, he was embarrassed enough to ask for issuance of rent receipt. It has also been reiterated that if defendant had been acting as per wishes of the plaintiff as alleged, there was no need by plaintiff in getting a bailable warrant issued against the defendant. It has also been contended that the defendant produced a rent receipt of the suit premises in the said judicial proceedings which clearly acknowledges the rent to be of Rs.10,000/- per month.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 6 of 31 (D) CRYSTALISING THE DISPUTE :-
5. On the pleadings of the parties and documents placed on record and after perusing the affidavit of admission & denial of the defendant and the following issues were framed for adjudication vide order dated 11.01.2024.
ISSUES.
(i) Whether the suit is barred by the provisions
of Delhi Rent Control Act ?OPD
(ii) Whether the plaintiff is entitled to recover
possession of the suit property from the
defendant ? OPP.
(iii) Whether the plaintiff is entitled to arrears of rent, as claimed ?OPP
(iv) Whether the plaintiff is entitled to damages/ mesne profit against the defendant, if so, at what rate and for what period?OPP
(v) Relief.
(E) EVIDENCE OF PLAINTIFF.
6. Plaintiff, in support of its case, got examined his son PW1 Shri Saurabh Gupta, as his Attorney who was authorised to depose on his behalf vide General Power of attorney dated 07.02.2024.
7. PW1 Shri Saurabh Gupta, reiterated the contents of the plaint on oath in his affidavit Ex.PW1/A. He got exhibited the General Power of Attorney in his favour as Ex.PW1/1, the site plan of the suit property as Ex.PW1/2, Rent Agreement dated 22.10.2007 as Ex.PW1/3 with signature of defendant at points B, B1 and B2. The Copy of Legal CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 7 of 31 Demand Notice dated 13.02.2021 got exhibited on record as Ex.PW1/4, Original Postal Receipts by which the said notice was sent as Ex.PW1/5 to Ex.PW1/8, Original AD Card received back by the plaintiff as PW1/9 and Ex.PW1/10. The quit notice under section 106 of Transfer of Property of Act, 1882 dated 23.02.2022 sent to the defendant terminating the tenancy and vacation of suit property got exhibited as Ex.PW1/11, Original postal receipts of notice as Ex.PW1/12 to Ex.PW1/15, Tracking reports as Ex.PW1/16 to Ex.PW1/19. He has further deposed that the defendant despite service of the said notice failed and neglected to comply with the same. In the said notice, the defendant was also cautioned that in case, he fails to vacate the suit property within the time granted in the said notice he would be liable to pay use and occupation charges which are not less than Rs.25,000/- per month. PW1 has further got exhibited the non-starter certificate dated 27.05.2022 as Ex.PW1/20, Certified copy of the permission granted by the Competent Authority (Slum) in respect of the suit property since it falls within the purview of Slum Areas (Improvement & Clearance ) Act, 1956 vide judgment dated 01.09.2023 as Ex.PW1/21, Copy of Statement dated 12.04.2018 of the defendant recorded in the case before Ld. ARC in E-77807/16 as Ex.PW1/22, His affidavit filed in the aforesaid case as Ex.PW1/23, Copy of Rent Receipt as Ex.PW1/14, Copies of various notices issued to the defendant as Ex.PW1/25(colly), Bailable Warrants issued by Ld. ARC Court to defendant in the aforesaid case as Ex.PW1/26 and copy of application for cancellation of the Bailable Warrants in the aforesaid proceedings moved by the defendant under his signature as Ex.PW1/27. For mesne profits determination, original Agreement dated 11.02.2023 CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 8 of 31 between the plaintiff and one Shri Ajay Kumar Aeron, an earlier tenant got exhibited as Ex.PW1/28. He has further been deposed that the suit is correct and the defendant is liable to vacate the suit property and to pay the arrears of rent, damages and costs.
8. During a detailed cross-examination, Ld. Counsel for defendant has tried to puncture the testimony of PW1 on the point of competence of the witness, tenancy, rate of rent and other aspects. PW1 during cross- examination, has admitted that the previous instituted case filed by his father against another tenant was being handled by his father on his own and even the present case was also handled by him at initial stage. He has also admitted that his father has not authorized him to represent him in any other case except the present case. He has also admitted that the Rent Agreement Ex.PW1/3 was got prepared by his father and at that time, he accompanied his father. He has also deposed that he and his father maintain the receipt book with respect to the rent receipts issued to the tenant and there is no carbon copy maintained while issuing the rent receipts by them. He has voluntarily deposed that the original Rent Receipt Ex.PW1/24 issued to the defendant was filed by the defendant in another proceedings initiated by his father against another tenant Shri Khushi Ram Arora. He has admitted that he has not filed any other Rent Receipt issued by his father to the defendant. Court has questioned the witness that in what form, they maintain the receipt book of the tenant to which the witness has answered that they used to take signatures of the tenant on the counterfoil of the receipt which they retained and the receipt was handed over to the tenant. He has also produced the CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 9 of 31 counterfoil in the court which he got exhibited as Ex.PW2/D-1 to Ex.PW1/D-4. He has deposed that Ex.PW1/D-1 to D-4 bears the signatures of the defendant Anil Kumar at point "A". The witness has categorically denied the suggestion regarding the signatures of the defendant on the counter foils being forged and fabricated. He has also deposed that the Rent Agreement Ex.PW1/3 was executed at Tis Hazari Courts in the year 2007 and was got notarized also but has denied the suggestion that the Rent Agreement Ex.PW1/3 was not executed in his presence. He has also denied the suggestion that the Agreement Ex.PW1/3 was never attested by the Notary Public. He has also denied the suggestion that he has no personal knowledge about the facts of the case. He has also denied the suggestion that he is not managing his father's business nor looking after his properties. He has also denied the suggestion that the last paid rent by the defendant is not Rs.10,000/- per month or that it was Rs.2,930/-. He has also denied the suggestion that the plaintiff compelled the defendant to depose in favour of plaintiff before the court of Ld. ARC in the case filed by him against the earlier tenant Mr. Khushi Ram Arora and that he was threatened by the plaintiff with consequences of being thrown out from the suit property inn case of refusal. He has also denied the suggestion that Ex.PW1/28 is a forged and fabricated document and the same has been filed by the plaintiff to claim higher rate of rent.
9. No other witness was examined by the plaintiff and the evidence of the plaintiff was closed on 24.02.2024.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 10 of 31 (F) DEFENDANT'S EVIDENCE :-
10. The defendant in its defence examined himself as DW1 and filed his evidence by way of affidavit Ex.DW1/A. He reiterated the contents of the Written Statement on oath. However, he did not exhibit any document during his Evidence. He has reiterated in his deposition that the lease agreement dated 22.10.2007 is a forged and fabricated document and he did not execute the same. He has further deposed that he was inducted as a tenant in the suit property by the plaintiff in the month of October, 2007 at a monthly rent of Rs.2,000 by way of an oral tenancy. He has deposed that the rent of suit property was never Rs.10,000/- per month and the last paid rent was Rs.2,930/- and that he has always been paid the rent in cash and no any rent receipt was issued by the plaintiff. He has also deposed that the present suit is barred by the provisions of Delhi Rent Control Act as the last paid rent to the plaintiff was Rs.2,930/- per month. He has further deposed that the notice dated 23.02.2022 was illegal as the plaintiff was illegally demanding the rent from the defendant @ Rs.10,000/- per month and as such the same is void in terms of provisions of Delhi Rent Control Act and the tenancy of the defendant cannot be terminated in such manner. He has further deposed that he was examined at the behest of the plaintiff in an eviction petition filed by the plaintiff against another tenant Shri Khushi Ram under threat and undue influence on the ground that if he did not depose in that case, the plaintiff would throw him out of the suit property.
11. DW1 was also subjected to a detailed cross-examination by Ld. Counsel for the plaintiff, during which DW1 has admitted that he was in CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 11 of 31 occupation of the suit property since 2007. He has also admitted that his son Shri Rajat Gupta has never paid any rent in respect of the suit property but has admitted that son of plaintiff Shri Shaurab Gupta sent him a WhatsApp messages demanding the rent in respect of the Suit Property. He has stated that he had lastly paid rent in respect of the suit property in the month of January, 2021 and also paid the electricity charges alongwith the rent. He has deposed that the rent was enhanced on two occasions during the period from 2007 to 2021 i.e. in 2015 and again in 2020 and initially agreed rate of rent was Rs.2,000/- per month which was enhanced to Rs. 2,400/- in 2015 and further enhanced to Rs.2,800/-in the year 2020. He has further deposed that in January, 2021, he paid Rs.2,930/- towards rent and electricity charges. He has also admitted that he had approached the landlord after January, 2021 to pay the rent and electricity charges, however, the same was refused as the landlord was demanding rent @ Rs.10,000/- and he has not deposited the rent in court when the plaintiff refused to accept the rent after January, 2021. He has denied the suggestion of execution of Rent Agreement Ex.PW1/3 and the initial rate of Rent as Rs.8,000/-. He has also denied the suggestion that he has paid rent only upto 31.03.2020 and he was in arrears of rent since 01.04.2020. He even denied his signature on the Written Statement filed in the present case on the verification clause while denying signatures on some of the other exhibits.
12. No other witness was examined by the defendant and the evidence of the defendant was closed vide statement dated 18.03.2024.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 12 of 31 (G) ARGUMENTS ADDRESSED:- ARGUMENTS OF PLAINTIFF.
13. Ld. counsel for the plaintiff Shri Naresh Gupta has vehemently argued that the relationship of landlord and tenant between the parties has not been disputed by the defendant nor the extent of tenancy. It has further been argued that even the receipt of quit notice u/s 106 of Transfer of Property Act, 1882 has been admitted by the defendant in his affidavit of Admission/ Denial and even Written Statement. The tenancy being month to month tenancy after efflux of time stipulated in the rent agreement dated 22.10.2007, the plaintiff is entitled to the relief as prayed. Ld. Counsel for plaintiff Shri Gupta has pointed that the only plea raised by the defendant is non-maintainability of present suit is on account of bar laid down in Delhi Rent Control Act, 1958, as the defendant has claimed the rent to be Rs.2,930/- per month which is also sham and can be deciphered to be false on the basis of the evidence which is come on record including the admission of the defendant in another eviction proceedings. Ld. Counsel has finally argued that on expiration of the period provided in quit notice u/s 106 of Transfer of property Act, the defendant has become an unauthorised occupant enjoying the suit property and as such, is liable to be mesne profits at market rate of rent as in vogue alongwith interest on the outstanding amount.
14. He has prayed that not only the suit be decreed with interest and costs but exemplary costs and damages should also be imposed upon the defendant.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 13 of 31 ARGUMENTS OF DEFENDANT:
15. The defendant on their part was granted repeated opportunities for Final Arguments but have failed to bring for any argument either oral or written. So much so, the court has granted opportunity to the defendant to file written submission and also granted liberty to address oral arguments by mentioning the file on any date before the date of final judgment under advance intimation to Ld. Counsel for the plaintiff, but the same was not availed. Be that as it may, the court shall be considering the contention raised by the defendant in the light of evidence adduced by the parties.
(H) ANALYSIS & DETERMINATION:-
16. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record and have given a thoughtful consideration to the same. My issue-wise determination is as under:-
ISSUE No.1. "Whether the suit is barred by the provisions of Delhi Rent Control Act ?OPD"
17. The onus of proving this issue was held upon the defendant who has taken a preliminary objection in his Written Statement that the suit is barred by the provisions of Delhi Rent Control Act, 1958. Though the defendant has not specified as to which specific provision of DRC Act bars the instant suit, however, perusal of the preliminary objections show that the defendant has tried to dispute the rate of rent being Rs.2,930/- which is less than Rs.3500/- as provided for applicability of the Delhi Rent Control Act, 1958 to the tenanted premises and the bar of the jurisdiction of Civil Court for eviction of certain tenants as provided u/s CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 14 of 31 50 of the Act. It would be trite to refer to the relevant provisions of the Act.
Section 50 of the DRC Act, 1958- Jurisdiction of Civil Courts barred in respect of certain matters:-
(1) Save as otherwise expressly provided in this Act, no civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standards rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under that Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any rent court or other authority.
Section 3 of the Act provides: Nothing in this Act shall apply-
(a) .......
(b) .......
(c) to any premises, whether residential or not, whose
monthly rent exceeds three thousand and five hundred rupees; or
(d) ..........
18. A conjoint reading of these two provisions in the light of the statement of objectives and reasons of Delhi Rent Control Act, 1958 shows that there is absolute bar of the jurisdiction of Civil Court where the rent controller under the Act is empowered to decide. As such a Civil Court cannot entertain a suit or proceedings for eviction/ejectment of a tenant from the premises to which the Rent Act applies and to pass an order of recovery of possession of any such premises from the tenant. One such condition as laid down in Section 3(c) of the Act is that if the CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 15 of 31 rate of rent of the premises is equal to or less than Rs.3,500/- per month then the rent controller under the Rent Act, has exclusive power to exclusion of a Civil Court. Hon'ble High Court of Delhi while dealing with the provision as mandatory in Lalit Dutt Verma Vs. Lokesh Jasoria, (2018) 2 RCR (Rent) 676 has gone to the extent of laying down that a Civil Court before passing an order of recovery of possession of any premises from a tenant at a rent less than Rs.3500/- per month is required to satisfy itself that the Rent Act is not applicable thereto, even if no plea in this regard has been taken in pleadings. The Hon'ble Court has further held that the determination of such question is a mixed question of law and fact and required to be ascertained after the parties have led their respective evidence.
19. In the instant case, the defendant has specifically pleaded that the last paid rent was Rs.2,930/- per month and not Rs.10,000/- per month as claimed by the plaintiff. Though the onus of proving the aforesaid is held upon the defendant who has not filed any documentary evidence to this effect nor has brought any independent witness to prove the aforesaid, the court shall be examined the issue on the basis of the evidence as adduced before the court. DW1 in his deposition by way of affidavit before the court Ex.DW1/A has only made a statement to this effect on the pretext that at the time of commencement of tenancy in the month of October, 2007, the monthly rent of the suit property was Rs.2,000/- which he used to pay in cash and against which no receipt was ever issued. DW1 during deposition has deposed that the rent was enhanced on two occasions, one in 2015 and again 2020, initially to Rs.2,400/- and then to Rs.2,800/- but CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 16 of 31 has failed to specify as to when the same was increased to Rs.2,930/- and at what percentage increase. Contrary to this, when defendant was confronted with his earlier statement given before the court of Ld. ARC on 12.04.2018 in E-77807/16 titled Rajinder Kumar Gupta Vs. Khushi Ram Arora (another tenant of plaintiff herein), he has categorically admitted his tenancy in respect of suit property and has also himself produced the rent agreement dated 22.10.2007 Ex.PW1/3 (incorrectly printed as 12.10.2007) executed between him and the plaintiff in respect of suit property. He has gone on to produce even the rent receipts before the Ld. ARC Court which got exhibited on record before the rent controller as Ex.PW6/R-3 (exhibited herein as Ex.PW1/24). The aforesaid receipt clearly shows the rate of rent to be Rs.10,000/- per month and the payment being made for Rs.30,000/- as a rent of 3 months for the period 08.01.2017 to 08.04.2017. This was corroborated by the rent receipt produced by PW1 during his cross-examination on 24.02.2024 which got exhibited on record as Ex.PW1/D-1 to D-4 which clearly shows the rate of rent is to be Rs.10,000/- p.m. The aforesaid receipt also clearly bears the signature of the defendant at the place of 'tenant'. The defendant has even admitted the existence of the aforesaid statement recorded before Ld. Rent Controller and the rent receipt in his affidavit of Admission and Denial of documents. Though, the defendant has tried to take a stand that the aforesaid statement was given before Ld. ARC was at the behest of the plaintiff or rather under coercion or threat of dispossession, however, when tested on the yardstick of evidence adduced before the court, the same does not inspire confidence. It may be seen that the defendant has taken a defence that his affidavit of CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 17 of 31 evidence was prepared and produced before Ld. ARC Court by Ld. Counsel for plaintiff of his own volition and the rent agreement and rent receipts were handed over to him for the first time by the plaintiff before the Ld. ARC Court only. However, even the aforesaid is not correct in as much as the defendant herein was not a produced witness' of the plaintiff but was a 'summoned witness' against whom, the processes were issued by Ld. ARC Court for appearance which got exhibited on record as Ex.PW1/25 (colly) and on his non-appearance, even a Bailable Warrant Ex.PW1/26 was issued by Ld. ARC Court for which he has moved a cancellation application taking a ground of unprecedented heavy traffic on way while coming to the court on date fixed. Admittedly, if the defendant was acting under the influence or coercion of the plaintiff, the Bailable Warrant could not have been issued. The defendant though has tried to deny his signatures on his Warrant Cancellation Application Ex.PW1/27 and the supporting affidavit but has completely forgotten that he has admitted the application in his affidavit of admission denial of documents and has not denied the Bailable Warrants by mentioning the same to be a matter of record. Thus, if the evidence of parties is critically analyzed, the defendant has utterly failed to prove on record that the rate of rent or the last paid rent of the suit property was Rs.2,930/-p.m. At the same time, the plaintiff has not only taken an consistent stand but has also proved the same by way of the rent agreement dated 22.10.2007 Ex.PW1/3 and the rent receipts Ex.PW1/24 and Ex.PW1/D-1 to D-4, that the tenancy commenced with a monthly rent of Rs.8,000/- and the last paid rent was Rs.10,000/- per month. Thus, taken on the yardstick of preponderance of probabilities, this court CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 18 of 31 holds that while the defendant has failed to discharge the onus conferred upon it, the plaintiff has duly rebutted the same by his oral and documentary evidence. Accordingly, it is further held that the rent of the suit property was much in excess of Rs.3500/- p.m. and the present suit is not barred by the protection under the Delhi Rent Control Act, 1958.
20. The issue is, accordingly decided against the defendant and in favour of plaintiff.
ISSUE NO. 2: "Whether the plaintiff is entitled to recover possession of the suit property from the defendant ? OPP ".
21. The onus of proving this issue was held upon the plaintiff who has claimed to be the owner-landlord of the suit property. Since this issue pertains to possession of the suit property, the same is pivotal to the lis between the parties. As per the case of the plaintiff, the suit property was let out to the defendant for commercial purpose in October, 2007 vide an unregistered Rent Agreement dated 22.10.2007 at a monthly rent of Rs.8,000/- which was enhanced to Rs.10,000/- which the defendant stopped paying after 31st March, 2020 compelling the plaintiff to initially issue a legal demand notice for arrears of rent and thereafter, a termination (quit) notice u/s 106 of Transfer of Property Act, 1882 which the defendant has failed to comply.
22. Under the legal matrix, a suit for possession of a leased property can be filed u/s 7 of the Specific Relief Act,1963 in the manner as provided under the Code of Civil Procedure 1908. The provisons CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 19 of 31 regarding leases of immovable property has been laid down in section 105 of the Transfer of Property Act, 1882 and any lease which creates transfer of an interest in the demise property by way of creation of a right in favour of lessee in rem for a period of more than one year is required to be a registered document. If a lease is of a term less than one year or is based upon an unregistered document or continued by way of mere continuation of an existing lease deed after expiry of its period, the tenancy becomes a month to month tenancy which can be terminated by the lessor by serving a quit notice u/s 106 of TP Act, 1882. The law in this regard, has been laid down in a catena of judgments and need no reproduction herein. Reliance placed on AIR 2012 SC 3325 Mangal Amusement Park Pvt. Ltd. Vs. State of Madhya Pradesh, 2008 (2) SCC 728 Nopany investments Pvt. Ltd. Vs. Santokh Singh.
23. For the purpose of recovery of possession in case of Leased/tenanted premises, the plaintiff is required to prove the following facts:
(i) Relationship of landlord and tenant between the parties,
(ii) The tenant should not have a protection under Delhi Rent Control Act,1958, one of the condition being, the rent of the premises including maintenance charges, if any, should be more than Rs.3,500/- per month.
(iii) Service of quit notice u/s 106 of the Transfer of Property Act, 1882 and failure of the defendant to comply with the same on expiration of the period prescribed or 15 days from the date of service of such notice.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 20 of 31
24. In the instant case, the relationship of landlord and tenant between the plaintiff and the defendant is not in dispute, the defendant in its Written Statement, Affidavit of Admission and Denial of documents and its testimony as DW1 has duly admitted not only the relationship but also the extent of tenancy. Though the defendant has tried to dispute the existence of rent agreement dated 22.10.2007 Ex.PW1/3 and taken a defence that the tenancy created in October, 2007 was an oral tenancy. However, as already discussed by the court in the above mentioned paragraphs, the defendant has not only duly admitted but also produced Ex.PW1/3 in a judicial proceedings before the Ld. ARC Court in his statement dated 22.04.2018 Ex.PW1/22. The plaintiff on its part has duly proved the aforesaid document by way of a clear testimony of PW1 and the documents duly proved on record including the rent receipts Ex.PW1/24 and Ex.PW1/D-1 to D-4.
25. Adverting to the rate of rent, as already determined by the court during determination of issue No.1, the defendant has utterly failed to show that it has any protection of Delhi Rent Control Act, 1958 by claiming the rent to be Rs. 2,930/- per month. At the same time, the plaintiff has clearly shown by way of oral as well as documentary evidence that the rent of the suit property was initially Rs.8,000/- which was enhanced to Rs.10,000/- which was the last paid rent by the defendant.
26. In so far as the service of quit notice u/s 106 of TP Act, dated 23.02.2022 is concerned, the plaintiff has duly proved the same by way CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 21 of 31 of testimony of its witness PW1 Saurabh Gupta, the notice was duly proved on record as Ex.PW1/11 sent through postal receipts Ex.PW1/12 to Ex.PW1/15. The delivery report of the quit notice has also been duly proved on record as Ex.PW1/16 to Ex.PW1/19. The testimony of PW1 in this regard, is not only clear and cogent but has remained unbreached during cross-examination. It may also be pertinent to point out that the defendant has also admitted the receipt of quit notice u/s 106 of TP Act Ex.PW1/11 in his written statement as also in his affidavit of admission and denial of documents, though he has claimed that the same was illegal as the tenancy could not have been terminated by issuance of such quit notice. Since the plaintiff was illegally demanding rent at staggering high rate of Rs.10,000/- per month which the defendant has refused to pay.
27. The tenancy was, thus terminated by the plaintiff by way of quit notice dated 23.02.2022 Ex.PW1/11 which stipulates the termination of tenancy on expiry of 15 days from the receipt of the notice. The tenancy of the defendant accordingly stands terminated w.e.f. 14.03.2022. Accordingly, once the service of Legal Notice is effected upon the defendant, the defendant was either required to reply to the allegations made thereby refuting the contentions of legal notice or comply with the same and once he remained silent by ignoring to reply, law presumes that he had nothing to deny and an adverse presumption can also be drawn against him. Reliance placed on 1980 RLR (Note) 44 titled Kalu Ram Vs. Sita Ram and as such on determination on tenancy, the tenant/defendant was required to vacate the suit property and hand over CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 22 of 31 the vacant & peaceful possession to the landlord-plaintiff which he has failed to do so.
28. In view of the aforesaid discussion and taken on the yardstick of preponderance of probability, the plaintiff has succintly in proving the issue in his favour and against the defendant. Plaintiff shall be entitled to a decree of possession in respect of one room at first floor of suit property bearing No. 212, situated at Naya Bans, Khari Baoli, Delhi- 110006.
29. This issue is, accordingly decided in favour of the plaintiff and against the defendant.
ISSUES NO.3:"Whether the plaintiff is entitled to arrears of rent, as claimed ?OPP"
30. The onus of proving issue No.3 was held upon the plaintiff who is required to discharge the same by proving his entitlement of arrears of rent. Ex.PW1/3 which is the Rent Agreement dated 22.10.2007 between the parties in respect of the suit property mentions the rate of rent to be Rs.8,000/- excluding electricity charges for a period of 11 months commencing from 22.10.2007 to 21.09.2008 and contains a stipulation for extension for a further period of 11 months at mutual understanding of both the parties. The tenancy was extended from time to time and the last paid rent of the suit property is Rs.10,000/- . As per deposition of PW1 the same was enhanced in the year 2020 which the defendant is stated to have paid uptil 31.03.2020 whereafter which he refused leading to issuance of a demand notice dated 13.02.2021 Ex.PW1/4 and later a CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 23 of 31 quit notice dated 23.02.2022 u/s 106 of Transfer of Property Act Ex.PW1/11 thereby terminating the tenancy of the defendant.
31. Now there are two aspects, one is the rate of rent which the plaintiff has claimed to be initial Rs.8,000/- per month enhanced to Rs.10,000/- in the year 2020, the defendant on the other hand, has claimed it to be Rs. 2,000/- initially and enhanced to Rs.2,930/- which is the alleged last paid rent by the defendant. The second aspect is the period of arrears of rent. While the plaintiff has claimed it to be outstanding since 01.04.2020, the defendant has claimed the same to be paid uptil January, 2021. While PW1 in his deposition and by way of his documentary evidence, more particularly, the rent receipt Ex.PW1/22 and Ex.PW1/D1 to D-4 as also the admission of the defendant before the Ld. ARC Court Ex.PW1/22 has shown the same to be Rs.10,000/- per month, the defendant has failed to produce any documentary evidence or even any independent witness to show that the same was ever paid at the rate of Rs.2,000/- initially and at the subsequently enhanced rate of Rs.2,400/-, Rs. 2,800/- or Rs.2,930/-. It is settled preposition of law that a documentary evidence in respect of the fact, if proved cogently is to be preferred over the oral testimony of a witness unless there are clinching evidence and reasons to disbelieve the document. Even otherwise, the issue of rate of rent has already determined by the court at the determination of issue No.1. This being so, when the yardstick of preponderance of probability is applied, the rate of rent is established at Rs.10,000/- per month.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 24 of 31
32. Adverting to the period of arrears of rent as already discussed, it is the plaintiff claim of arrear since 01.04.2020 versus the defendant's claim the same is paid uptil January, 2021. Again while the testimony of PW1 in this regard is clear and categoric, the defendant has failed to show as to how the same was paid @ Rs.2930/-, whether the same was paid in presence of someone or on which specific dates, the same was paid so as to refute the claim of the plaintiff.
33. Trite to mention that on refusal of the defendant to pay the outstanding rent, the plaintiff has issued a demand notice dated 13.02.2021 Ex.PW1/4 and later a quit notice dated 23.02.2022 Ex.PW1/11. The receipt of the aforesaid two notices has been duly admitted by the defendant in his affidavit of Admission & Denial of documents as also the deposition of defendant as DW1 but with the claim that the notice issued were illegal. In another words, the defendant has nowhere refuted the service of both the notices upon him. The notices Ex.PW1/4 and Ex.PW1/11 clearly mentions not only the rate of rent but also the period for which the rent is paid as also the date for which the defendant is stated to be in arrears of rent. The defendant has admittedly failed to respond to the notices thereby refuting the rate of rent or the period of arrears and as such an adverse inference is liable to be drawn against him. Reliance placed on Kalu Ram Vs. Sita Ram (supra) Naryan Garg Sugar Pvt. Ltd. (supra).
34. Adverting to the liability of the defendant, as already discussed in the preceding paragraphs that the defendant has failed to pay the CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 25 of 31 rent/occupation charges from the month of April, 2020 @ Rs.10,000/- per month uptil 13.03.2022. However, the plaintiff has claimed the arrears of rent w.e.f. 14.09.2020 uptil 13.03.2022 the date fixed for termination of tenancy in quit notice Ex.PW1/11. Accordingly, the plaintiff is awarded the arrears of rents w.e.f. 14.09.2020 to 13.03.2022 @ Rs.10,000/- total amounting to Rs.1,80,000/- against the defendant.
This issue is decided in favour of plaintiff against the defendant.
ISSUE NO.5: "Whether the plaintiff is entitled to damages/mesne profit against the defendant, if so, at what rate and for what period?OPP"
35. The onus of proving this issue was held upon the plaintiff who has claimed a sum of Rs.25,000/- per month on account of damages/mesne profits w.e.f. 14.03.2022 i.e. the date of termination of tenancy of the defendant, till the date of actual possession and handing over of the suit property to him alongwith 15% annual increase.
36. Damages or 'mesne profits' are those profits which the defendant is required to pay w.e.f. 14.03.2022 when the tenancy of the defendant was terminated as per stipulation in the quit notice dated 23.02.2022 Ex.PW1/11. The entitlement of landlord to claim mesne profits from a tenant who is in illegal possession of the premises, after the tenancy is terminated or for wrongful enjoyment of the property is governed by Section 2 (12) of Code of Civil Procedure 1908 (CPC) and shall mean those profits which the person in wrongful possession of such property has actually received or might with ordinary diligence have received therefrom. It includes interest on such profits but exclude profits due to CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 26 of 31 improvement made by a person in wrongful possession. The aforesaid provision has been duly interpreted in various judgment of Hon'ble superior court or in our own Hon'ble High court in case of landlord and tenant dispute to be the amount which the premises can fetch if let out on rent during the period of its illegal occupation by the tenant. Right from Fateh Chand Vs. Balkishan Das AIR 1963 SC 1405, Maula Bux Vs. Union of India, (1969) 2 SCC 554, Dilip Kumar Bhargava Vs. Urmila Devi & Ors. in RFA No. 129/2011, the courts have dealt with the aforesaid issues of damages in the light of Section 74 of Indian Contract Act.
37. A decree for mesne profits as per Order XX Rule 12 of CPC can and should have been made after an inquiry where as per settled law the court is required to consider various factors including the nature and location of property, the rate of rent prevailing in the market and other relevant factors. This has to be ascertained by considering the rents/possession of adjoining properties which as per settled law is to be proved by the plaintiff. Further, the law in this regard is no more res- integra, where the plaintiff has failed to do so and the court is well within its right to take judicial note of the relevant factors in award of mesne profits to the landlord. Hon'ble Delhi High Court in the case of S. Kumar Vs. G.R. Kathpalia, 1999 RLR 114 has considered such factors and granted a annual increase of 15% per annum applying the provision of section 114 and 57 of the Evidence Act, 1872. Our own Hon'ble High court in Anjani Devi Vs. VST Indust. 1990 (50) DRJ 807 and 1984 RLR 241 Indrawati Kapoor Vs. Union of India. has further CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 27 of 31 succinctly held that in the absence of the landlord giving sufficient evidence for market rent, the same can even be considered at double the contractual rent.
38. Applying the aforesaid proposition of law to the facts of the case, it may be seen that the plaintiff has claimed mesne profits @ Rs.25,000/- p.m. in the plaint as well as in the legal notice Ex.PW1/11. The testimony of witnesses which has come on record Ex.PW1/A also specifies the aforesaid sum of Rs.25,000/- per month w.e.f. 14.03.2022. In this regard, for the purpose of proving the rent of adjoining property, the plaintiff has brought on record the Rent Agreement dated 13.02.2023 Ex.PW1/28 which is a room given by the plaintiff to another tenant Shri Ajay Kumar Aeran @ Rs.25,000/- per month. Incidentally, this room is at the same location and situated opposite to the suit property as can be seen in the site plan Ex.PW1/2. As per the deposition of PW1 Shri Saurabh Gupta, this is the same property which was vacated by the earlier tenant Shri Khushi Ram Arora in the eviction proceedings and where the defendant incidentally has given his testimony Ex.PW1/22. However, it may be seen that during cross-examination, PW1 has admitted that the document Ex.PW1/28 was not executed in his presence, though he knows the tenant Shri Ajay Kumar Arean after the creation of the tenancy. Admittedly, the aforesaid Shri Ajay Kumar Aeron has not entered the witness box nor the other executant Rajinder Kumar Gupta. The document being an unregistered document cannot be treated at par with a public document and as such no sufficient weightage can be given to Ex.PW1/28, more so, when a suggestion to this effect CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 28 of 31 was given by the defendant during cross-examination of PW1, that the same is a forged and fabricated document filed by the plaintiff to claim a higher rate of rent. As already discussed, a decree for mesne profits as per Order XX Rule 12 of CPC can and should have been made after an inquiry which as per settled law is to be led by plaintiff by various factors including examining the rents/possession charges of adjoining properties. No such succinct evidence has been duly proved by the plaintiff leading to determination of such amount as may be just and reasonable. Ld. Counsel for plaintiff has relied upon a judgment of Hon'ble High Court in AIR 1996 Delhi 32 titled Vinod Khanna Vs. Bakshi Sachdev praying that a judicial note may be taken by awarding an amount which is just and reasonable in respect of the suit property. Taking into account that the suit property is situated in front of main road in the hub of old/central, Delhi where the rates of commercial properties are on a steady rise and the suit property has been used for commercial purpose and was let out @ Rs.8,000/- initially and Rs.10,000/- at the subsequent stage and the judgment of Hon'ble High Court discussed earlier in Vinod Khanna (supra) and Anjali Devi (supra), the court is of the considered opinion that mesne profits at the rate of Rs.20,000/- per month shall be just and reasonable. Accordingly, the plaintiff is entitled to the mesne profits of Rs.20,000/- w.e.f. 14.03.2022 till the vacant possession of the suit property. The issue is, accordingly decided in favour of plaintiff against the defendant.
CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 29 of 31 (I) CONCLUSION:- ISSUE No.6: Relief.
39. In view of aforesaid discussion & findings of the court on issues, this court is of the considered view that the plaintiff has successfully proved his case on the yardstick of proof of preponderance of probabilities. Since the plaintiff has succeeded in proving its entitlement to arrears of rent and mesne profits, he shall also be entitled to a reasonable rate of interest in terms of dictum of the Hon'ble Supreme Court laid down in catena of judgment, one such being 2005 (12) SCC 298 Indian Oil Corporation Vs. Saroj Baweja. Accordingly, plaintiffs shall be entitled to following reliefs.
(a) "A decree of possession in favour of the plaintiff and against the defendant in respect of suit property being one room on the First floor of Property bearing No. 212, situated at Naya Bans, Khari Baoli, Delhi-
110006 more particularly as shown in red in the site plan (Ex.PW1/2) filed alongwith the plaint.
(b) the plaintiff shall also be entitled to a recovery of arrears of rent for the period 14.09.2020 to 13.03.2022 @ Rs.10,000/- per month amounting to Rs.1,80,000/-
(c) the plaintiff shall further be entitled to recovery of damages/mesne profits @ Rs.20,000 w.e.f.
14.03.2022 till the date of handing over the vacant possession of the suit property. The plaintiff shall however be entitled to the aforesaid reliefs subject to payment of appropriate Court Fee within a period of 30 days from the date of judgment.
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(d) An interest @ 9% per annum on the aforesaid amount pendentlite and future from the date of filing of suit till the date of its actual realisation.
40. In the specific facts and circumstances of the case, the plaintiff shall also be entitled to the costs of the suit throughout.
41. Decree sheet be drawn accordingly.
42. File be consigned to record room after due completion.
ANNOUNCED IN THE OPEN COURT .
DATED 24.05.2024 (MUKESH KUMAR GUPTA) DISTRICT JUDGE (COMMERCIAL COURT)-07 CENTRAL/DELHI CS (Comm.) No.1246/2023 Shri Rajinder Kumar Gupta. Vs. Shri Anil Kumar Page no. 31 of 31