Delhi District Court
Shri Jagjit Singh Kalsi vs Shri Kunna Sethi on 9 October, 2020
IN THE COURT OF MS MEDHA ARYA: CIVIL JUDGE: SOUTH
WEST DISTRICT: DWARKA COURT: NEW DELHI
CS SCJ NO. 82/2016 426352/2016
IN THE MATTER OF :
SHRI JAGJIT SINGH KALSI
S/o. Late Shri Chanan Singh Kalsi
R/o. 295, 1st Floor, Phase2,
Mohali (Punjab)160055. ............. Plaintiff
Versus
SHRI KUNNA SETHI
S/o. Shri Balaji Sethi
R/o. RZ73B, Khushi Ram Park,
Om Vihar, P.S. Bindapur,
Uttam Nagar, New Delhi110059. ........... Defendant
Date of filing : 22.03.2016
Date of Institution : 28.03.2016
Date of pronouncing judgment : 09.10.2020.
SUIT FOR POSSESSION & ARREARS OF RENT/MESNE PROFITS
JUDGMENT.
1.The above captioned suit was filed by the plaintiff to seek the relief of possession and recovery of arrears of rent and mesne profits from the defendant. The relief of possession has already been granted to the plaintiff by an order of this Court under Order 12 Rule 6 CPC by way of a part decree, which order has upheld by the Ld. Appellate Court in the Order dt. 26.8.2017. The remaining issues qua recovery of arrears of rent and mesne profits shall be adjudicated vide the instant judgment.
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2. To briefly encapsulate the facts of case, it is the case of the plaintiff that he is owner of the suit property bearing House No. RZ73B, Khushi Ram Park, P.S. Bindapur, Om Vihar, Uttam Nagar, New Delhi110059 which is shown in the site plan annexed with the plaint. It is averred in the plaint that under an oral agreement for tenancy, the plaintiff leased out the a portion of the suit property to the defendant at a monthly rate of rent of Rs. 400/ per month in the year January 2005. Under the oral lease agreement, the defendant was permitted to use only one room on the ground floor without kitchen. It is the case of the plaintiff that the defendant, however, took undue advantage of the absence of the plaintiff, who ordinarily resides in Punjab, and illegally occupied the entire suit property ie the entire portion of the ground floor which comprises of two rooms and also one room on the first floor of the suit property. It is asseverated in the plaint that the defendant had broken the locks of remaining rooms and kitchen situated in the ground floor and the room situated on the first floor and started using the same without the consent and permission of the plaintiff. Upon being objected to on account of his illegal entry to the remaining portions of the suit property, the defendant persuaded the plaintiff to not take any legal action and requested for some time to vacate the suit property. Ultimately, it was mutually agreed between the plaintiff and the defendant that the defendant shall take the entire suit property on rent from the period commencing on 01.04.2010, at a monthly rent of Rs.2400/ per month for the period of two years. It is further the case of the plaintiff that after the expiry of the period of two years, the defendant continued to stay in the property as a tenant, as per mutual agreement between the parties and the rate of rent was enhanced to Rs.3500/ per month starting from 01.04.2013. It is asseverated in the plaint that the parties had agreed that the defendant shall continue to occupy the suit property as a tenant for entire period 01.04.2013 to CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 2 31.3.2014 at a monthly rent of Rs.3500/ and thereafter, the rent will be increased by 10% if the tenancy is renewed. Fresh agreement for tenancy was entered into between the plaintiff and the defendant at the enhanced rate of rent by 10% for the period 01.4.2014 to 31.3.2015 and again for the period 01.4.2015 to 31.3.2016 at a further enhanced rate of rent, increased by 10% per annum. For the duration 01.4.2015 to 31.3.2016, the rate of rent which was agreed between the parties was Rs.4230/ per month. It is the case of the plaintiff that the defendant had paid Rs.400/ per month only for period of 01.4.2010 to 01.4.2012 and at the time of renewal of the tenancy, had agreed to pay Rs.82,800/ towards arrears of rent. The plaint records the averment of the plaintiff that to the effect that as the defendant refused to deposit the full amount of rent at the rate of Rs.4230/ per month and also refused to deposit the arrears of rent on one pretext or the other, the plaintiff terminated the tenancy of the defendant on 31.3.2016. It is averred in the plaint that after the termination of tenancy, the defendant is occupying the suit premises as an illegal occupant and is liable to pay occupation charges/mesne profits at the rate of Rs.5000/ per month w.e.f. 01.4.2014 till the actual physical possession of the suit property is handed over by the defendant to the plaintiff. By way of the present suit, the plaintiff has sought the following reliefs:
"a) That a decree of possession in respect of suit property bearing House No. RZ73B, Khushi Ram Park, Police Station Bindapur, Om Vihar, Uttam Nagar, New Delhi110059, may please be passed in favour of the plaintiff and against the defendant; and
b) That the defendant may please be ordered to handover the vacant and peaceful possession of suit property to the plaintiff, and CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 3
c) That a decree for recovery of Rs.2,16,960/ towards the rent may please be passed along with mesne profits @ Rs.5,000/ per month from the date of filing this suit till recovery of possession in favour of plaintiff and against defendant; and
d) That the cost of suit and litigation expenses may also be awarded in favour of the plaintiff and against the defendant; and
e) Any other relief."
3. The defendant duly appeared upon the service of summons. Prelim inary objection with regard to the maintainability of the present suit was taken by the defendant on the ground, inter alia, that the jurisdiction of the Civil Court is barred as the suit property was let out to the defendant for Rs.400/ per month and therefore, only the Rent Control Tribunal as per the Delhi Control Act, 1958 has the jurisdiction to try the present suit. On mer its, the defendant did not deny the landlordtenant relationship between him and the plaintiff, but has averred in the plaint that he was inducted as a ten ant by the plaintiff with respect to the entire suit property and the rate of rent agreed between the parties was Rs.400/ per month. It is averred in the written statement that the defendant was working as a helper in the factory of the plaintiff and in the year 1998, the plaintiff had inducted the defen dant in his suit premises as a tenant so that property of the plaintiff can also be looked after. It is further averred in the written statement that on certain dates such as 30.4.2013, the plaintiff had also issued a receipt against the payment of rent made by the defendant. The defendant has asseverated in the written statement that the amount of rent was deposited by him in the bank account of the plaintiff on certain dates such as 20.06.2013,14.3.2013, 26.8.2013, 24.7.2013 and 24.7.2012, but thereafter the bank account of the landlord was closed and a DD amounting to Rs.800/ was prepared in the CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 4 name of landlord by the defendant on 30.9.2013, which the landlord re fused to accept and instead served a false legal notice dt. 27.7.2013 upon the defendant. It is further the case of the defendant that although he has been regularly paying the rent which was agreed between the parties, the plaintiff has been trying to illegally evict the defendant from the suit premises with help of some anti social elements of the society. The defen dant had filed a suit bearing No. 3/2013 against the plaintiff seeking an in junction that he should not be evicted from the suit property. The said suit was withdrawn by the defendant herein, after the statement of the plaintiff herein was recorded in that suit on 30.1.2014. It is the case of defendant that the plaintiff has alternate accommodation available with him and he has malafidely filed the instant suit seeking eviction of the defendant from the suit premises. The defendant has categorically denied his liability to pay any arrears of rent and has averred that the rent of the suit premises has always remained to be Rs.400/ per month and was never enhanced by any mutual agreement between the parties. The defendant has stated that the rent of the suit premises continues to be Rs.400/ per month. The defendant has further denied every liability to mesne profits to the plaintiff at the rate of Rs.5000/ per month. The defendant has prayed for dismissal of the suit.
4. After the WS of the defendant was taken on record, ld. Predecessor of this court exercised power under Order 12 Rule 6 CPC suo moto and a part decree of possession was granted in favour of the plaintiff on the basis of admission contained in the Written statement by the defendant with re gard to his status as tenant in the suit property. It is further worthwhile to mention herein that the said order of the Ld. Predecessor of this court was impugned by the defendant before the Ld. Appellate court but the said ap peal was ultimately dismissed and the order under Order 12 Rule 6 CPC upheld. Thereafter, the possession of the suit premises was handed over by CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 5 the defendant to the plaintiff. As recorded in the order dt. 13.11.2017, the defendant handed over the keys of the suit premises to the plaintiff before the Ld. Predecessor of this court.
5. On the basis of pleadings, the following issues were framed for the determination by this court:
1) Whether the plaintiff is entitled to a decree of recovery of Rs.2,16,960/ towards the rent from the defendant? ...OPP.
2) Whether the plaintiff is entitled to a decree of recovery of mesne profits at the rate of Rs.5000/ per month from the date of filing of suit till the recovery of said amount from the defendant by the plaintiff?..OPP.
3)Whether the plaintiff is entitled to costs of the suit? OPP.
4) Relief.
6. Thereafter, the matter was fixed for PE.
7. Plaintiff examined himself as PW1. In his evidence in chief, PW1 tendered his evidence by way of affidavit, which is Ex.PW1/A. In the Ex.PW1/A plaintiff has reiterated the contents of the plaint, and the same are not reproduced herein in the interest of brevity. In his testimony, PW1 has also relied upon the following documents:
1. Site Plan Ex.PW1/12. Copy of General Power of Attorney dt. 18.01.1997 Ex.PW1/2(OSR).
3. Copy of agreement to sale dt. 18.1.1997 Ex.PW1/3(OSR).
4. Copy of affidavit Ex.PW1/3A(OSR).
5. Copy of Receipt dt. 18.1.1997 Ex.PW1/4(OSR).
6. Copy of Possession letter Ex.PW1/5(OSR).
7. Copy of Deed of Will Ex.PW1/6(OSR).
8. Copy of electricity bill Mark X(colly) CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 6
9. Legal notice dt. 07.3.2014 Mark A.
10. Copy of Aadhar Card Ex.PW1/8(OSR).
11. Copy of driving licence Ex.PW1/9(OSR).
12. Copy of pass book Ex.PW1/10(OSR).
PW1 was duly crossexamined and discharged.
8. Plaintiff thereafter examined Sh. Gurvinder Singh Kalsi as PW2. In his examination in chief, PW2 tendered his evidence by way of affidavit Ex.PW2/A. PW2 also filed the copy of PAN card for his identity proof. The same is Ex.PW2/B(OSR). In his examination in chief, PW2 deposed that he is brother of the plaintiff and during the relevant time i.e. month of January 2005, he was also running his own business in the vicinity of the suit property and he was aware of the transactions of the plaintiff in inducting the defendant as a tenant in the suit property. PW2 further deposed in his testimony that his brother, who is the plaintiff herein, informed him several times in the year 2009 and 2010 that although he had inducted the defendant as a tenant with respect to only one room on the ground floor of the suit property, the defendant had illegally and without seeking permission of the plaintiff, started using the remaining area of the suit premises also. PW2 has further deposed in his testimony that the plaintiff had asked the defendant to vacate the suit property and thereafter it was mutually agreed between the plaintiff and the defendant that the defendant shall pay the monthly rent of Rs.2400/ per month for the suit property for the next three years and thereafter the rent was mutually agreed between the parties to be enhanced to Rs.3500/ per month for the period 01.04.2013 to 31.3.2014. PW2 has further deposed that the rent of the suit property was increased by the plaintiff by 10% for period 01.4.2014 to 31.3.2015 and further enhanced by 10% for the period 01.4.2015 to 31.3.2016, and the total increased rent was Rs.4230/. PW2 CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 7 has deposed in his testimony that he used to accompany the plaintiff for collecting the rent from the defendant but the defendant refused to pay the rent and started to misuse the property. PW2 has also deposed on oath that his brother i.e. plaintiff has no other sources of income and he has faced trouble by the illegal act of the defendant in not vacating the suit property and continuing live there as an illegal occupant. PW2 was duly cross examined and discharged.
9. No other witnesses were examined by the plaintiff and PE was closed on 08.05.2019.
10. The matter was thereafter fixed for DE. The defendant examined himself as the sole witness of his case in the capacity of DW1. In his examination in chief, DW1 tendered his evidence affidavit bearing Ex.DW1/A. In his evidence affidavit Ex.DW1/A, the witness has deposed on lines similar to the pleadings contained in the written statement and therefore, the testimony is not being reproduced herein. In his testimony, DW1 also relied upon the following documents:
1. Copy of medical documents Ex.DW1/1(a) to Ex.DW1/1(h) (Colly) (OSR)
2. Copy of rent deposit receipt dt. 26.8.2013 Ex. DW1/2(OSR).
3. Copy of rent deposit receipts dt. 26.6.2013, 24.7.2012 and 24.7.2013 Ex.DW1/3 (colly) (OSR).
4. Copy of DD Mark B.
5. Bank deposit receipts dt. 14.3.2013 Mark C
6. Office copy of legal notice dt. 27.7.2013 and reply dt. 22.12.2013 Mark D(colly)
7. Copy of police complaint dt. 1.10.2013 Ex.DW1/5(OSR).
8. Copy of police complaint dt. 23.12.2013 Mark E.
9. Certified copy of statement and order dt. 30.1.2014 Ex.DW1/6.
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10. Office copy of legal notice dt. 7.3.2014 and repy dt. 17.3.2014 Mark F(colly).
DW1 was duly cross examined and discharged.
11. DE was closed thereafter and the matter was fixed for final arguments.
12. Ld. Counsel for plaintiff argued that the defendant has been in arrears of rent since 2005 itself, and he adverted to the calculation mentioned in the evidence affidavit of PW1 i.e. para no.13 and para 14 of Ex.PW1/A. Ld counsel for the plaintiff argued that the defendant has admitted the receipt of two legal noticessent in the year 2013 and in the year 2014 respectively, and in both the legal notices the plaintiff has sought the payment of mesne profits at the rate of Rs 5000/ per month, and even if the plaintiff has not been able to prove his case for arrears of rent, the plaintiff should be held entitled to mesne profits at the rate of Rs 5000/ per month from the year 2014, when the tenancy of the defendant was terminated by the plaintiff. Upon being asked however, about the exact amount which was paid by the defendant to the plaintiff before the institution of the above captioned suit, ld. Counsel for the plaintiff was unable to assist this court. Ld. Counsel for plaintiff failed to answer the repeated query of this court with regard to calculation of arrears of rent elaborated in the affidavit Ex.PW1/A.
13. Per contra, it was argued by Ld counsel for the defendant that the plaintiff has not been able to establish that the rent of the suit property was ever enhanced by him. Ld Counsel for the defendant adverted to the cross examination of the plaintiff as PW1 and argued that PW1 has admitted that the rent of the suit property was Rs. 400 per month. Ld counsel also adverted to the testimony of PW2 in his cross examination, as well as the testimony of DW1, and argued that the defendant was inducted CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 9 in the suit property by the brother of the plaintiff (PW2 herein) and the defendant had been paying rent to the brother of the plaintiff before he was asked to attorn his tenancy in favour of the plaintiff. Ld Counsel for defendant also argued that a sum of Rs 19,800/ is due from the plaintiff to the defendant, and should be adjusted in the claim of arrears of rent.
14. Heard. Perused. Considered.
15. ISSUE NO.1.
Whether the plaintiff is entitled to a decree of recovery of Rs.2,16,960/ towards the rent from the defendant? ...OPP.
(i) The onus to prove this issue placed upon the plaintiff. At the cost of reiteration, the plaintiff was unable to explain fully the exact amount which is outstanding liability of the defendant towards the plaintiff against the claim of arrears of rent. Even in the entire pleadings, and the evidence affidavit, the plaintiff has failed to clearly explain the total amount which has been received by the plaintiff from the defendant.
(ii) From the perusal of the record, it is revealed that the plaintiff seeks Rs.2,16,960/ as arrears of rent from the defendant till the period ending from 31.3.2016. Out of the said amount, Rs.82,800 is claimed by the plaintiff as the balance amount due from the defendant to the plaintiff towards arrears of rent for the period 2010 to 2013 (at time erroneuously mentioned as 2012). The claim for this period is barred by limitation as the instant suit has been filed on 22.3.2016 and the plaintiff could not have claimed arrears for a period more than three years ending on 21.3.2016.
The claim of arrears of rent has to be restricted to what is within the period of limitation.
CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 10 (iii) Further, an amount of Rs.37,200/ has been claimed by the plaintiff
as arrears of rent for the period 01.4.2013 to 31.3.2014. It is the case of the plaintiff that he had enhanced the rent of the defendant, as per the mutual agreement between the parties, from Rs.400/ to Rs. 2400/ for the period 2010 to 2013 and further to Rs.3500/ for the period 2013 to 2014 . This version of the plaintiff has been denied by the defendant in his pleadings, and the defendant has averred that the rate of rent was never enhanced and he continued paying rent at the rate of Rs. 400/ per month to the plainiff. Now, it is not the case of the plaintiff that he unilaterally enhanced the rent, and as the defendant refused to pay the rent at the enhanced rate, his tenancy was terminated. Rather the case of the plaintiff is that as per a mutual agreement between the parties, the rate of rent was enhanced at various stages. The burden of proving that the rate of rent was enhanced by the plaintiff as per a mutual agreement is placed upon the plaintiff as per Section 101 and 103 of the Indian Evidence Act, 1872. Firstly, the plaintiff had to prove on record why the rent was enhanced by him from Rs 400/ per month to Rs 2400/ per month directly, ie by six times. The case of the plaintiff is that the rent was enanced by him first from Rs 400 to Rs 2400 as the defendant, who was permitted to use only one room of the suit premises, illegally usurped the other portions of the suit propery too. It is the case of the Plaintiff that the defendant was inducted as a tenant with respect to one room in the suit property, but broke open the locks of the plaintiff and illegally occupied the remaining portions of the suit property also. Thereafter, as averred in the plaint, the rent was increased by the plaintiff from Rs 400/ per month, which was the rent qua one room to Rs 2400/ per month, for the entire property. In support of these averments however, the plaintiff has not been able to place on record any documentary evidence. In fact, PW1 has admitted in his cross examination that he never filed any police complaint with regard to the incidence of CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 11 breaking open of locks by the defendant. The defendant, on the other hand, has maintained that the rate of rent for the entire suit property was Rs 400/ per month.DW1 has remained consistent in his testimony in this regard. On a scale of balance of probabilities, the plaintiff has failed to prove that the defendant illegally broke open the locks of the other portions of the suit property, leading to the sixfold increase in rent. Further, PW1 has admitted in his cross examination that there is no documentary proof available with the plaintiff with regard to the enhancement of rent. No other cogent evidence has been placed on record by the plaintiff to prove that the rate of rent was so enhanced. Even the legal notice Mark A relied upon by the plaintiff is insufficient to prove his case. In the said legal notice, plaintiff has called upon the defendant to pay arrears of rent, calculated by deducting the payment made by the defendant at the rate of Rs 400 per month from the amount of the enhanced rent, at the rate of Rs. 82,800/. It seems unnatural that the plaintiff allowed the defendant to live in the suit property and continued to accept rent at the rate of Rs 400/ per month until 2014, when the legal notice Mark A was served by him upon the defendant. Further, ld counsel for the plaintiff adverted to a previous legal notice served by the plaintiff to the defendant in his arguments. The said legal notice dated 27.07.2013, Mark D, was relied upon by the defendant, but not admitted by the plaintiff during evidence. A reference is made to this legal notice, since it was adverted to by Ld counsel for the plaintiff in his arguments, and as PW1 has deposed in his examination in chief that such a notice was served by him upon the defendant. Perusal of the notice reveals that the plaintiff had sought rent at the rate of RS 3300/ per month for the period 01.04.2013 to 30.09.2013. Subsequent legal notice Mark A records the claim of the plaintiff for rent, for the same duration, at the rate of Rs 3500 per month. There are material contradictions between the two legal notices interse, and in the averments contained in the plaint.
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It was further argued by ld. Counsel for plaintiff that the defendant has paid Rs.2400/ per month, in the year 2013 to the plaintiff and this is evidence of the fact that the defendant had paid the enhanced rent to the plaintiff. This argument of the plaintiff is not sustainable in view of the clear admission of PW1 in his cross examination dated 08.05.2019 to the effect that the defendant has never paid the enhanced rent to the plaintiff. Perusal of testimony of PW2 reveals that it is contradictory to testimony of PW1 at certain places, in as much as PW2 admits that he had inducted the defendant as a tenant in the suit premises and had also received rent by him till 2008. With regard to nonpayment of rent by defendant to plainiff, PW2 has deposed in his testimony that he used to go with the plainiff to collect rent. This testimony is in the teeth of PW2's deposition during crossexamination that he had shifted to Ludhiana, Punjab in 2008. Further, in his crossexamination, PW2 has admitted that he is deposing at the behest of the plainiff and the rent between the plainiff and defendant was not enhanced in his presence. Evidence of PW2 is hearsay evidence, and liable to be disregarded. From the aforesaid circumstances, a clear conclusion can be drawn that the plaintiff has miserably failed to establish on record that the rent was enhanced by him, in agreement with the defendant. It is established, that the rate of rent continued to be Rs 400/ per month for the entire period. Now for this period i.e. 01.4.2013 to 31.3.2014, the plaintiff has demanded the arrears of rent of Rs.37,200/. This figure is calculated at the rate of Rs.3100/ per month for a period of 12 months. As it is the case of the plaintiff that the rent which was mutually agreed between the parties for this period Rs.3500/, but the plaintiff has demanded arrears at the rate of Rs.3100/ per month, and admission to the effect that the defendant has paid rent of Rs.400/ per month for this entire duration can be deduced. As this court has already arrived at the finding that the rate of rent for the suit premises for this CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 13 duration continued to be Rs.400/ per month, and it has been admitted by the plaintiff that rent at this rate has been paid by the defendant to the plaintiff, the defendant is not liable to pay any arrears of rent to the plaintiff for this duration i.e. 01.4.2013 to 31.3.2014.
(iv) For the period 1.4.2014 to 31.3.2015, it is the case of the plaintiff that the rent was increased mutually to Rs.3850/. As has been held above, the enhancement of the rate of rent to Rs.3850/ for this period was also not proved by the plaintiff. It is the case of the plaintiff, though not specifically pleaded, that the defendant did not pay any rent for this duration. This case of the plaintiff is deduced from the fact that for the first period of 01.4.2014 to 31.3.2015 the plaintiff has claimed Rs.46,200/ as arrears of rent, which is rent calculated at the rate of Rs.3850/ per month. Similarly, the case of the plaintiff with regard to his claim of rent for the period 01.4.2015 to 31.3.2016, as deduced from his claim of Rs.50,760/ (calculated at the rate of Rs.4230/ per month for duration of 12 months) is that the defendant has not paid any rent to the plaintiff for this period as well. While the defendant has volunteered in his cross examination as DW1 that he has been regularly paying the rent to the plaintiff at the rate of Rs.400/ per month, the defendant has been unable to adduce any evidence to this effect. Certain bank receipts being Ex.DW1/2 and Ex.DW1/3 have been relied upon by the defendant but the said documents have not been proved by the defendant as per the rules of evidence. Even otherwise, instead of supporting the case of the defendant that he has been paying rent at the rate of Rs.400/ regularly to the plaintiff, these receipts clearly show that the defendant has not paid any rent for the period 01.4.2014 to 31.3.2015. Perusal of Ex.DW1/3 reveals that the last payment of rent, even as per the best case of the defendant, was made by him to the plaintiff on 24.7.2013. Therefore, it is established from the record that the defendant CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 14 did not pay any rent to the plaintiff for the period 01.4.2014 to 31.3.2015, or for the period 01.4.2015 to 31.3.2016.
(v) The plaintiff has been unable to prove, at the cost of reiteration, that the defendant ever agreed to the mutual increase in the rate of rent. The argument of ld. Counsel for plaintiff that presuming that the plaintiff has not been able to prove that the rate of rent was mutually agreed to be enhanced between the parties, the plaintiff should be held entitled to rent at the rate of Rs.5000/ per month, as the plaintiff had terminated the tenancy of the defendant in 2014 vide legal notice Mark A cannot be accepted. This argument is not borne out from the record, and the case set out by the plaintiff in the plaint is that after the service of the legal notice, he had permitted the defendant to live in the suit property after the parties had agreed to enhance the rent. The mutal agreement qua enhancement of rent has not been proved by the plaintiff. Further, it is well settled that the rate of rent is a matter of contract between the parties and as such, such an important term of the contract of tenancy between the parties could not have been unilaterally altered by the plaintiff. The inescapable conclusion that is arrived at, therefore, is that the rent for the suit premises continued to be Rs.400/ per month and the defendant continued in the arrears of rent for the period 01.4.2014 to 31.3.2016. Accordingly, the plaintiff is held entitled to the relief of recovery of arrears of rent for the duration 01.4.2014 to 31.3.2016 at the rate of Rs.400/ per month. Further, as per Section 34 CPC, the plaintiff is also held entitled to pendentelite and fu ture interest on the said amount @ 6% per annum. This issue is disposed of accordingly.
16. ISSUE NO.2 Whether the plaintiff is entitled to a decree of recovery of mesne profits at the rate of Rs.5000/ per month from the date of filing of suit till the recovery of said amount from the defendant by the plaintiff?..OPP.
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The onus to prove this issue was placed upon the plaintiff. The plaintiff has prayed for a decree of recovery of mesne profits at the rate of Rs.5000/per month from the date of filing of the suit till the date of actual recovery of the possession of the suit property. The plaintiff has averred in the plaint that the property is capable of fetching rent of Rs. 5000/ per month, and therefore, the plaintiff sought mesne profits from the defendant at the said rate. In the evidence affidavit however, the plaintiff has failed to unambiguously aver that the suit property is capable of fetching rent at the rate of Rs.5000/ per month. Further, the plaintiff has not led any independent evidence to show that the suit property is capable of fetching rent at the said rate. The plaintiff has not been able to adduce any evidence on record to the effect that other properties in the vicinity of the suit property and of similar nature to the suit property in terms of the construction as well as the area are fetching a rent of Rs.5000/per month. Merely the demand of arrears of rent in legal notice, even though the said legal notice was not replied to, does not establish that the suit property was capable of fetching rent at the rate of Rs.3000/ per month. While this court take judicial notice of the fact that since the suit property was leased out to the defendant in the year 1998 at the rate of Rs.400/ per month, the rent of the suit property would have increased manifolf till date, however, the court cannot take judicial notice of exact rate of rent which the suit property is capable of fetching. As the plaintiff has not led any evidence in the affirmative to prove that the suit property is capable of fetching rent at the rate of Rs.5000/ per month, the defendant also could not avail of the opportunity to show in rebuttal that the suit property is in fact not liable to fetch a rent at the rate which has been demanded by the plaintiff. In the opinion of this court, the plaintiff has failed miserably to prove that the suit property is capable of fetching rent at the rate so demanded. At this juncture this court places reliance upon the judgment of the Hon'ble High CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 16 Court of Delhi titled National Radio And Electronic Co. vs. Motion Pictures Association 122 (2005) DLT 629 wherein it has been held as follows "34. Judicial notice is taken of only such facts of which there can be only one view. In the light of the aforesaid position in law, there can be no manner of doubt that so far as the increase of rent is concerned, judicial notice can be taken of a fact that over a certain period rents generally have arisen. However, so far as quantification of the rate at winch the increase has actually taken place, a finding can be arrived at only on the basis of legal evidence and material establishing the actual rates at which properties have been material establishing the actual rates at which properties have been let over the period and comparison of such properties with the property which is subject matter of the lis. Rents may vary based on location of properties, nature of construction, period of construction, purpose/user for which the premises are let, variation between demand for tenanted premises and availability of premises and even factors relating to the position of the economy. Therefore, while a learned trial Judge may be justified in taking judicial notice of the fact that rents have risen over a certain period of time in the area in question, it would be incumbent upon a person laying a claim of entitlement to mesne profits to prove the same by cogent and reliable evidence in accordance with law.
As has been noticed in the judicial pronouncements noticed hereinabove, the evidence may include documentary evidence relating tenancies of properties in the are which can be summoned form the office of the Sub Registrar or by examination of property dealers, oral testimony of the parties to the litigation and persons in the trade of real estate, other property owners.
CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 17
35. The defendant/ tenant is entitled to know not only the landlord's claim but also the extent to which the same stands established. The defendant has a legal right to an opportunity to prove the contrary."
However, taking judicial notice of the fact that the rent of the suit property would have gone up, in view of fact that the rent of all other properties in Delhi have gone up since the year 1998, this court deems it fit to award the mesne profits at the rate of Rs.3000/ per month to the plain tiff. Arrears of rent uptil 31.3.2016 have already been awarded to the plain tiff in terms of the findings qua issue no.1 above. Accordingly, the plaintiff is awarded mesne profits at the rate of Rs.3000/ per month from 01.4.2016 till the date when the possession of the suit property was handed over by the defendant to the plaintiff in Court i.e 13.11.2017. Further, as per Sec tion 34 CPC, the plaintiff is also held entitled to pendentelite and future interest on the said amount @ 6% per annum. This issue is decided accord ingly.
17. ISSUE NO.3.
Whether the plaintiff is entitled to costs of the suit? OPP.
This onus to prove this issue is placed upon the plaintiff. Record reveals that the defendant had illegally occupied the suit property despite termination of his tenancy and has also been arrears of rent since 01.4.2014. This circumstance entitles the plaintiff to the costs of the present suit, filed for the relief of recovery of possession and recovery of arrears of rent and mesne profits. This issue is decided in favour of the plaintiff and against the defendant accordingly.
18. RELIEF:
CS No. 82/2016 426352/16 Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi Judgement dt. 09.10.2020 Page no. 18 (I) In view of the aforesaid discussion, the plaintiff is held entitled to a decree of recovery of arrears of rent at the rate of Rs.400/ per month for the period 01.4.2014 to 31.3.2016 alongwith pendentelite and future inter est @ 6% per annum.
(II) The plaintiff is also held entitled to a decree of recovery of mesne profits at the rate of Rs.3000/ per month from 01.04.2016 till 13.11.2017 alongwith pendentelite and future interest on the said amount @ 6% per annum.
(III) Costs of the suit are also awarded in favour of the plaintiff.
19. Decree sheet be prepared accordingly, upon payment of deficient court fee, if any.
20. File be consigned to Record Room after compliance with due for malities.
ANNOUNCED IN THE OPEN COURT Digitally signed
ON 09.10.2020
MEDHA by MEDHA ARYA
ARYA Date: 2020.10.09
16:26:34 +0530
(MEDHA ARYA)
CIVIL JUDGE(SW)/DWARKA COURTS
NEW DELHI
CS No. 82/2016 426352/16
Sh. Jagjit Singh Kalsi vs. Sh. Kunna Sethi
Judgement dt. 09.10.2020 Page no. 19