Delhi District Court
Sh. Harish Chand Narula vs Sh. Parmod S/O Sh. Ram Bhul on 1 September, 2016
In the Court of Ms. Asha Menon, District & Sessions Judge
South East : Saket Court, New Delhi.
In the matter of :
RCA No. 51/14
Sh. Harish Chand Narula
S/o Sh. S.N. Narula
R/o L4 Lajpat NagarII
New Delhi24 .... Appellant
V E R S U S
Sh. Parmod S/o Sh. Ram Bhul
Plot No. 4, Adjacent Q23
Jangpura Extension, New Delhi. ....Respondent
Appeal presented on : 26.04.2014
Arguments concluded on : 08.08.2016
Judgment on : 01.09.2016
JUDGMENT
This order will dispose of the appeal filed by the appellant/plaintiff against the Judgment and Decree dated 11.03.2014 whereby the Ld. Civil Judge partly allowed the civil suit in favour of the plaintiff/appellant.
2. The appellant is the owner and in possession of the suit premises being Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi.
3. The brief facts as alleged in the plaint was that the defendant entered into an oral tenancy with the plaintiff on 05.06.2006 in respect of one room, common open space with bathroom and toilet, for a monthly rent of Rs.5,000/ per month with electricity and water charges being borne by the defendant. The rent was payable on 5 th of RCA No.51/14 Harish Chand Narula V. Parmod Page 1 of 18 each calender month. The defendant was not to alter the premises without permission of the plaintiff and nor was he allowed to sublet or mortgage the property. The plaintiff claimed that the agreement was initially for a period of 11 months from 05.06.2006 to 04.05.2007, which was renewable with mutual consent for another period of 11 months, however, with 10% increase in the rate of rent.
4. According to the plaintiff, after the first renewal, the defendant stopped paying the rent and requested for time to make the payment on ground of hardship. According to the plaintiff, the defendant failed to pay rent for the next 11 months and the plaintiff warned him that he would have to vacate the premises and handover the possession of the room. According to the plaintiff, the defendant and his family members requested the plaintiff to allow them to continue in the premises on 05.05.2009 and also sought time to make payment of rent. The agreement was extended without increasing the rent on month to month basis.
5. On 10.07.2010, when the plaintiff approached the defendant for the rent, the defendant allegedly refused and misbehaved with him. It was also alleged that defendant did not maintain the property properly and also did not permit the plaintiff to inspect and visit the premises from inside. The defendant also allegedly started using the premises for commercial purposes in violation of the agreement. Thus, vide notice dated 30.07.2010, the plaintiff called upon the defendant to pay the arrears of rent and to remove the violation and vacate to which the defendant duly replied admitting the RCA No.51/14 Harish Chand Narula V. Parmod Page 2 of 18 fact of tenancy. Thereafter, the plaintiff was compelled to file suit in September 2010.
6. The defendant in his written statement raised some preliminary objections, particularly, that the Civil Court had no jurisdiction in view of the Delhi Rent Control Act, 1958, as the rent of the premises was only Rs.1,000/. The defendant asserted that the plaintiff was regularly receiving the rent at the rate of Rs.1,000/ per month from the defendant from 2004. The defendant, however, denied that he was reinducted as tenant since 05.06.2006. The site plan has also been challenged. According to the defendant, he has been residing in the suit premises comprising of one room and common latrine and bathroom since the beginning of 2004 and was also paying the electricity and water charges. According to the defendant, the lease rent was received by the plaintiff in the first week of March 2011 at the rate of Rs.1000/ and that the defendant was assured by the plaintiff that he did not intend to evict him.
7. The plaintiff filed the replication in which he asserted that the nature of the premises under the tenancy is beyond the scope of Delhi Rent Control Act, 1958 as the tenanted premises is not pakka construction.
8. On the basis of these averments, the following issues were framed :
1. Whether the rate of rent of the premises is Rs.5,000/ or Rs. 1,000? OPP
2. Whether the plaintiff is entitled to a decree of possession? OPP RCA No.51/14 Harish Chand Narula V. Parmod Page 3 of 18
3. Whether the plaintiff is entitled to a decree of ejectment? OPP
4. Whether the plaintiff is entitled to arrears of rent? OPP
5. Whether the plaintiff is entitled to mesne profits?
If so, at what rate? OPP
6. Relief, if any.
9. The plaintiff examined himself as PW1 and also examined Sh. Ram Prakash Sharma and Sh. Megh Raj as PW2 and PW3.
10. The defendant examined himself as DW1.
11. On the basis of the evidence and the material brought on the record, the Ld. Civil Judge answered the Issue No.1 against the plaintiff that the rent of the premises was Rs.1,000/ and not Rs.5,000/.
12. Issues No. 2 & 3 were answered against the plaintiff and in favour of the defendant holding that the plaintiff had taken a consistent stand that what was let out was a constructed property for residential purposes. To reach this conclusion, the Ld. Trial Court considered the pleadings and the testimonies of the witnesses examined before it. The Ld. Trial Court held that the relief of possession and ejectment as claimed by the plaintiff could not be granted by the Civil Court in view of the Delhi Rent Control Act, 1958, which was enacted for the protection of tenants. It further held that as the rent had been determined at Rs.1,000/ per month, the Section 50 of RCA No.51/14 Harish Chand Narula V. Parmod Page 4 of 18 the Delhi Rent Control Act, 1958, barred the jurisdiction of the Civil Court.
13. With regard to Issue No. 4, the Ld. Trial Court concluded that the plaintiff was entitled to recover arrears of rent from 05.10.2007 till 05.09.2010 i.e. three years prior to the date of filing of the suit at the rate of Rs.1,000/ per month i.e. a sum of Rs.36,000/. Thus, it answered the Issue No.4 in favour of the plaintiff and against the defendant.
14. The Issue No.5 was, once again, decided against the plaintiff and in favour of the defendant in view of the conclusion drawn that the possession of the defendant was not wrongful as the plaintiff had not been able to prove his entitlement to the relief of recovery of possession.
15. Thus, the suit was disposed of holding that the plaintiff was entitled to the decree of recovery of Rs.36,000/ together with pendente lite interest @10% per annum and future interest @6% per annum from the date of the decree till realization.
16. Aggrieved by this Judgment, the plaintiff Sh. Harish Chand Narula, has preferred this appeal.
17. The grounds taken by the appellant in his appeal are that the Ld. Trial Court had wrongly decided all the issues against him.
18. It is submitted that the Ld. Civil Judge had failed to consider that the rent of the suit premises was Rs.5,000/ and the witnesses of the plaintiff had corroborated themselves.
19. It is also submitted that the Ld. Trial Court had failed to RCA No.51/14 Harish Chand Narula V. Parmod Page 5 of 18 consider the location of the suit property as it was situated at South Delhi in the vicinity of Metro Station, Highway, Jangpura Market, Main Road, Lajpat Nagar railway station. On the contrary, the defendant had not produced any evidence to support his claim.
20. It is further submitted that the Ld. Trial Court failed to consider that the suit property was not covered under the definition of "premises" under section 2(i) of Delhi Rent Control Act, 1958.
21. It is also submitted that the Ld. Trial Court failed to consider the order of the Hon'ble High Court in RFA No.523/2001 titled Harish Chander Narula & Anr. V. Purshotam Lal Gupta, dated 07.03.2011, wherein the Hon'ble High Court has held that a plot with buildup/construction of temporary nature was not "premises" as per the Delhi Rent Control Act, 1958, and hence, the matter did not fall in the domain of the Rent Controller.
22. It is submitted that the Ld. Trial Court wrongly concluded that its jurisdiction was barred under Section 50(1) of the Delhi Rent Control Act, 1958.
23. It is further submitted that the Ld. Trial Court had unjustifiably considered the matter of rent as being Rs.1,250/ per person restricted to four persons, whereas the plaintiff had taken the stand that the rent of the suit premises was Rs.5,000/ per month and it was only a bifurcation of Rs.5,000/ intended to restrict the tenant to keep not more than four persons in a room.
24. It is further submitted that the Ld. Judge had erred by taking an adverse presumption due to nonproduction of income tax RCA No.51/14 Harish Chand Narula V. Parmod Page 6 of 18 records whereas the law laid down in this behalf was that the adverse presumption could be drawn only when there was no other evidence to this behalf.
25. It is further submitted that the Ld. Civil Judge ignored the arguments that there is no income, particularly, house property as per income tax returns records and otherwise also, the filing of the income tax returns records was a different aspect of law.
26. It is further submitted that the Ld. Trial Court overlooked the fact that the suit premises consisted of one room, common open space with bathroom and toilet as the room was having space for four persons and accordingly, the rent of the room was Rs.5,000/ per month at the rate of Rs.1,250/ per person. Thus, the appellant has prayed that the Judgment and Order dated 11.03.2014 be set aside.
27. I have carefully perused the record and I have heard the arguments of both the sides. Written arguments have also been filed by both the sides. Written arguments have followed the pleadings.
28. Ld. Counsel for the plaintiff Sh. Harish Chand Narula submitted that the plot had been alloted to him for a fuel depot and he could not construct a permanent structure in the said property. It is further submitted that the adverse presumption was wrongly drawn by the Ld. Trial Court in respect of the income tax returns and the Ld. Trial Court but had overlooked the credible testimonies of PW2 & 3 wrongly.
29. It was further argued that whatever was the volunteered information of the plaintiff during his crossexamination being beyond RCA No.51/14 Harish Chand Narula V. Parmod Page 7 of 18 pleadings, ought not to have been considered by the Ld. Trial Court, to hold that the rent was Rs.1,000/ and not Rs.5,000/. It was further submitted that the nonproduction of income tax returns could not lead to a presumption that the rent was Rs.1,000/ and not Rs.5,000/.
30. Thus, it is submitted that the findings of the Ld. Trial Court were liable to be set aside and the suit be decreed.
31. Ld. Counsel for the respondent argued that the Ld. Trial Court erred in awarding a sum of Rs.36,000/ as arrears of rent for the period of 05.10.2007 till 05.09.2010 along with interest as mentioned hereinabove.
32. The decision of the Ld. Trial Court on the Issue No.4 was based on surmises and conjectures and that the claim of the plaintiff/appellant was not believable as he has stated during cross examination as PW1 that after receiving rent on 04.05.2007, for the first time in April, 2008, the plaintiff had demanded rent from the defendant, which could not be believed. It is further argued that the Ld. Trial Court failed to note that the plaintiff had never issued rent receipts and had placed no evidence to show that rent was due for the relevant period.
33. It is also submitted that PW1, the plaintiff in his entire examinationinchief nowhere stated that he was entitled to recover the arrears of rent from the defendant. The onus of proving the Issue No.4 was on the plaintiff and he had failed to produce any evidence to prove the same and it was thus clear that no rent was due. The respondent therefore submitted that the finding in respect of Issue no.4 should be RCA No.51/14 Harish Chand Narula V. Parmod Page 8 of 18 set aside. However, such submissions cannot be considered as the respondent has not chosen to file any appeal against such findings in respect of Issue No.4.
34. It would be useful to traverse the Judgment issuewise and to determine whether the Judgment of the Ld. Trial Court is liable to be set aside or interfered with. But before doing so, it may be recorded that the respondent has not questioned the status of appellant/plaintiff Sh. Harish Chand Narula as the landlord of the suit premises. Though, in the Written Statement some challenges had been made to the tenure of the tenancy, the fact remains that the defendant has accepted that he had taken one room with common bathroom and laterine at a monthly rent from the plaintiff Sh. Harish Chand Narula. The relationship of tenant and landlord is not disputed and extent of tenancy/premises is also not disputed.
35. The Issue No.1 is related to the rate of rent for the premises. The plaintiff had claimed in the plaint that the rate of rent was Rs.5,000/ per month and the defendant claimed that the rate of rent was Rs.1,000/. The onus was on the parties to establish these rival claims. In order to substantiate himself, the plaintiff examined PW2 Sh. Ram Prakash Sharma and PW3 Sh. Megh Raj. The Ld. Trial Court observed that the PW1/plaintiff had improved his testimony during crossexamination to claim that the rent was Rs.1,250/ per person per month on the basis of number of persons being restricted to four persons per room. The Ld. Trial Court, observed that such a case had not even been set up in the plaint or the replication. The Ld. Court RCA No.51/14 Harish Chand Narula V. Parmod Page 9 of 18 held that this improvement appeared to be an afterthought and did not inspire confidence. The Ld. Trial Court also held that PW2 & PW3 had not withstood the rigours of crossexamination and rejected their testimonies.
36. Reference was also made to the fact that though the plaintiff as PW1 had admitted to be an income tax assessee and mentioning in his returns that he was receiving Rs.5,000/ per month towards rent. Be as he had failed to place on record the income tax returns an adverse inference had to be drawn. The Ld. Counsel for the plaintiff questioned this conclusion on the ground that filing or non filing of income tax returns records could lead to no conclusion on the rate of rent as nonfiling could only be a violation of some other law and nothing more.
37. Be that as it may, even if the court ignored the reasoning of the Ld. Trial Court that the income tax returns record had not been produced willfully, there is sufficient material which justified the Ld. Trial Court in concluding that the rent was not Rs.5,000/ per month but was something else. The Ld. Trial Court was justified in drawing such a conclusion on the basis of preponderance of probabilities. The Ld. Trial Court was required to weigh the evidence that was brought on record by the plaintiff and that brought on record by the defendant to conclude what was more credible. It has done so after extensive discussions of the evidence on record.
38. The plaintiff as PW1 claimed in his affidavit Ex. PW1/F that the rent was Rs.5,000/ per month. In his crossexamination by the RCA No.51/14 Harish Chand Narula V. Parmod Page 10 of 18 defendant, he reiterated the same rate but, he further volunteered that "the premises given on rent is a room which can accommodate four persons and the rent was fixed at the rate of Rs.1,250/ per person per month."
39. It is a spacious argument of the Ld. Counsel for the plaintiff/appellant that since this statement was beyond pleadings, the court should have ignored the same. Crossexamination is intended to test the veracity of a witness and the truthfulness of his statement. The defendant has succeeded in shaking the claim of the plaintiff/appellant that the rent was Rs.5,000/. The admission of the plaintiff/appellant on oath has to be read in evidence and the Ld. Trial Court has rightly considered the same to reject the claim of the plaintiff/appellant that the rate of rent was Rs.5,000/ per month.
40. The defendant has filed his affidavit as Ex.DW1/A in which he has stated that the rent was payable at the rate of Rs.1,000/ per month. He was crossexamined by the plaintiff through counsel. He reiterated that the rent was Rs.1,000/ per month and not Rs.1,250/ per person per month. He denied that three others, namely, Gaurav, Kanshi and Rajesh were living with him. In other words, the Ld. Trial Court rightly rejected this claim of the plaintiff/appellant that the rent totalled Rs.5,000/ because the room accommodated four persons and the rent was Rs.1,250/ per person. The plaintiff/appellant has not been able to prove others were staying in the room with the respondent. Significantly, they have not been made parties to the suit. Significantly also, the defendant/respondent as DW1 has stated during his cross RCA No.51/14 Harish Chand Narula V. Parmod Page 11 of 18 examination by the plaintiff/appellant that the room was big enough for one person to sleep and keep his belongings. In other words, four people could not be accommodated in the room for charges to be Rs.1,250/ per person.
41. Thus, there is no error in the impugned Judgment with regard to the conclusion in respect of Issue No.1 decided in favour of the defendant/appellant and against the plaintiff/appellant that the rent was Rs.1,000/ per month and not Rs.5,000/.
42. The Ld. Trial Court has also rightly concluded that the defendant was not paying rent since 05.05.2007. In the cross examination of the plaintiff, in answer to a suggestion made by the defendant, he has answered that "it is correct" that "I have not received rent after 04.05.2007." In other words, his crossexamination reaffirms that the rent had not been paid after 04.05.2007 and was due w.e.f. 05.05.2007 as claimed by the plaintiff/appellant. The defendant has claimed that he had paid the rent in cash and sent the last rent through money order. But at the same time, he also stated that the plaintiff/appellant had never come to the premises, for demanding rent. Then it was for the defendant/respondent to have explained how he had paid rent in cash. Since he has failed to do so, the only conclusion to be drawn is that no rent was paid. Therefore, these submissions of the Ld. Counsel for the respondent have to be rejected even on merits.
43. The Ld. Trial Court decided Issues no.2,3&5 against the plaintiff/appellant on the ground that the Delhi Rent Control Act, 1958 was applicable and the jurisdiction was barred. The Ld. Trial Court RCA No.51/14 Harish Chand Narula V. Parmod Page 12 of 18 has discussed in detail that not only was the rent below Rs.3,500/ per month, but the premises let out was a permanent, constructed room. On an assessment of the evidence on record, this conclusion of the Ld. Trial Court cannot be sustained. It is well settled now that premises which are temporary in nature do not get the protection of the Delhi Rent Control Act, 1958, as they are not "building" or "part of a building" within the definition of Section 2(i) of the Delhi Rent Control Act, 1958. The rent alone will not oust jurisdiction. It is necessary to determine the nature of the premises let out by the plaintiff/appellant to the defendant/respondent.
44. The plaintiff/appellant relied upon the decision of the Hon'ble High Court of Delhi in RFA No.523/2001 titled Harish Chander Narula & Anr. V. Sh. Purshotam Lal Gupta decided on 07.03.2011, to contend that the land with temporary structure was not premises within the meaning of the Delhi Rent Control Act, 1958, as the tin shed did not fall within the expression of premises and it was a temporary structure that had been let out. There is force in this contention as borne out from the record.
45. The Ld. Trial Court went by the use of the words "room" by the plaintiff/appellant in his affidavit and in the legal notice Ex. CW1/E and in the description of the suit property in the plaint as being a room while ignoring the admission made by the defendant. The Ld. Trial Court while doing so felt justified to do so on the ground that the legal notice sent by the plaintiff to the defendant did not describe the suit property to be temporary in nature and nor had the plaintiff RCA No.51/14 Harish Chand Narula V. Parmod Page 13 of 18 described the premises as a temporary structure. It concluded that the plaintiff had rather consistently taken the stand that at "room" had been let out.
46. The Ld. Trial Court, also went by the use of the word "constructed property as per the map/site plan" used by the plaintiff in the plaint. But, temporary construction is also construction and the use of these words will not convert the temporary structure into a permanent structure to hold that the plaintiff had let out a permanent structure to the defendant when his own admission is that he was living in a room with a tin sheet and blue tarpoline roof. The inference drawn by the Ld. Trial Court on the basis of the use of the word "room" is unjustified when the defendant's own photographs establish the premises to be a temporary structure.
47. The Ld. Trial Court erred in rejecting even the admissions of the defendant/respondent and dismissing the fact that the structure was resting, admittedly, on the boundary wall. No permanent room can be constructed without foundation, and here, the admitted photographs show clearly the temporary nature of the structures that have been described as "room" by the parties. The Ld. Trial Court could not have ignored the evidence to draw inferences when proof existed to help a finding being returned without such inferences.
48. The Ld. Trial Court had also observed that the plea of the premises being temporary structure was raised for the first time in the replication after the plea that the suit was barred under the Delhi Rent Control Act, 1958, was taken by the defendant which indicated that the RCA No.51/14 Harish Chand Narula V. Parmod Page 14 of 18 same was an afterthought and was directed at filling up the lacuna in the case of the plaintiff. Such a view is completely misplaced. The purpose of the replication is to meet the pleas raised by the defendant in the Written Statement and the court having once allowed the plaintiff to file the replication, cannot chose to ignore it merely because it is filed after the written statement. The plaintiff could not have taken the stand that his suit was barred by the Delhi Rent Control Act, 1958 or that the Rent Control Act was inapplicable to the premises and it is the defence of the defendant that the suit was barred under the rent laws. Therefore, rejection of the plea taken by the plaintiff/appellant on this ground cannot be sustained.
49. The defendant in his crossexamination as DW1 has admitted that " the portion of the suit premises where I am living has a tin roof. The roof of the other three rooms is also made of tin." He also admitted that the doors were temporary. He also stated that the tin sheet has been placed on the boundary wall. He admitted that he was residing in the property as it was constructed and the room was big enough for one person to sleep and keep his belongings.
50. The defendant has placed on record the photographs as Ex.DW1/1A to Ex.DW1/1E. The entire structure in these photographs clearly are temporary with tarpoline and tin sheet for roof and wall. He admitted that the point 'B' in Ex.DW1/D was on the boundary wall. It is also noteworthy, that the defendant/respondent has not questioned the plaintiff/appellant on the description of the premises as temporary structure as deposed to by him in his affidavit Ex.PW1/F. RCA No.51/14 Harish Chand Narula V. Parmod Page 15 of 18
51. In the result, it is clear that the Ld. Trial Court has wrongly concluded that the tenancy was governed by Delhi Rent Control Act, 1958 and that therefore, the Ld. Trial Court could not pass a decree of possession or decree of ejectment.
52. Having concluded that the Civil Court had jurisdiction in the matter, the question then to be determined is whether the plaintiff has successfully established that he is entitled to possession of the suit premises.
53. It is well settled law that temporary structure cannot be called 'premises' and would not be covered under the Delhi Rent Control Act, 1958.
54. Reference was made by the plaintiff/appellant to the decision of the Hon'ble High Court of Delhi in Surinder Kumar Jhamb V. Om Prakash Shokeen 82 (1999) DLT 569, Ajit Singh V. Ram Saroop Devi (1994) 55 DLT 759 as also the judgment of the Delhi High Court in RFA No.523/2001 entitled Harish Chander Narula & Anr. V. Sh. Purshotam Lal Gupta. There is no reason to adopt a different view.
55. Under the Transfer of Property Act, 1882, a lease is determined either by efflux of time or by express or implied surrender or on the happening of certain events or on the expiration of a notice to determine the lease or to quit the property leased, duly given by the landlord to the tenant or visaversa. This is provided under Section 111 of the Transfer of Property Act, 1882.
56. Under Section 106 of the Transfer of Property Act, a lease RCA No.51/14 Harish Chand Narula V. Parmod Page 16 of 18 of immovable property not being for agriculture or manufacturing purpose, shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice. Under Section 106(2) of the Transfer of Property Act, the period mentioned in sub section (1) shall commence from the date of receipt of the notice.
57. Admittedly, in the present case, a notice was issued by the plaintiff which is Ex.CW1/E which was replied to by the defendant on 03.08.2010. The fact of having replied the legal notice is admitted by the defendant in his affidavit Ex.DW1/A. The notice is dated 30.07.2010 and the reply is dated 03.08.2010. The notice Ex.CW1/E clearly calls upon the defendant to vacate the suit premises and handover the physical possession of the same to the plaintiff within 15 days along with payment of Rs.2,14,500/.
58. The requirements of Section 106 Transfer of Property Act are fully met in this case.
59. Thus, the plaintiff is entitled to seek the ejectment of his tenant, the defendant and obtain the vacant possession from the defendant. Thus, Issues No.2&3 have to be answered in favour of the plaintiff and against the defendant to the effect that the plaintiff/appellant is entitled to the vacant possession of the leased property at Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, and to a decree of ejectment against the defendant in respect of the same premises. These issues are accordingly answered in his favour.
RCA No.51/14 Harish Chand Narula V. Parmod Page 17 of 1860. With regard to Issue No. 5, it must be held that there is no evidence that has come on record regarding the rate at which the mesne profits have been claimed or are to be awarded. In the absence of any proof, the plaintiff having failed to discharge the onus, the issue cannot be answered except against the plaintiff.
61. In the light of the foregoing discussions, the appeal is allowed in part, inasmuch as the findings of the Ld. Trial Court in respect of Issues No. 1,4&5 are upheld with respect to the rate of rent being Rs.1,000/ per month and the period of arrears being w.e.f. 05.10.2007 to 05.09.2010 and in respect of the mesne profits which have not been granted, whereas the findings in respect of issues No. 2&3 are set aside. The suit is decreed for possession and ejectment in respect of Plot No. 4, adjacent to Q23, Jang Pura Extension, New Delhi, along with recovery of arrears of rent, in favour of the plaintiff/appellant and against the defendant/respondent.
62. Decree sheet be prepared accordingly.
63. Trial Court Record be returned along with copy of this order.
64. File be consigned to Record Room.
Announced (Asha Menon) District & Sessions Judge SouthEast, Saket Courts New Delhi 01.09.2016 (s) RCA No.51/14 Harish Chand Narula V. Parmod Page 18 of 18