Delhi District Court
Sh. Chand Mal Jain vs Sh. Harish Kapoor (Deceased) on 31 May, 2011
IN THE COURT OF MS. NEHA PALIWAL, DELHI CENTRAL06
TIS HAZARI COURTS, DELHI
SUIT NO. 179/10/96
In the matter of:
Sh. Norat Mal Surana (deceased)
Through LRs:
1. Sh. Chand Mal Jain,
s/o Sh Norat Mal Surana,
r/o 3 /4 Basti Harphool Singh,
Sadar Thana Road, Delhi110006
2. Dr. Suraj Mal Surana,
s/o Sh. Norat Mal Surarna
r/o 3 /4 Basti Harphool Singh,
Sadar Thana Road, Delhi110006 ........ Plaintiffs
Versus
Sh. Harish Kapoor (deceased)
Through LRs
1. Mrs. Neeraj Kapoor,
w/o Late Sh. Harish Kapoor,
r/o 2706, Plot no. 1,
Sadar Thana Road, Delhi.
2. Saurabh Kapoor
S/o Late Sh. Harish Kapoor,
R/o 2706, Plot no. 1,
Suit no. 179/10/96
Noratmal Surana v. Harish Kapoor Page 1 of 30
Sadar Thana Road, Delhi.
3. Chipra,
D/o Late Sh. Harish Kapoor,
R/o 2706, Plot no. 1,
Sadar Thana Road, Delhi. ......Defendants
Date of institution of the suit : 10.05.1996.
Date of reserving judgment/ order : 28.05.2011.
Date of pronouncement : 31.05.2011.
JUDGMENT
1. By way of filing the present suit the Plaintiffs is seeking the relief of recovery of nd possession of and damages for the use and occupation of one flat situated on 2 Floor of Plot no. 1, East of Sadar Thana Road, Delhi (herein after known as the suit property).
2. Briefly as per the plaint the case of the Plaintiffs is as under: The father of the Defendants Late Sh. Jaswant Rai Kapoor was let out the suit property at a monthly rent of Rs. 100/ per month for residential purposes vide rent deed dated 29.10.1972 for a period of 11 months only w.e.f. 01.11.1972. The tenancy month st commenced from 1 day of each English calender month and terminated on the last day of the same month. The tenancy stood determined by efflux of time after expiry of the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 2 of 30 period of 11 months.
3. It is the case of the Plaintiffs that the father of the present Defendants Late Sh. Jaswant Rai Kapoor had not paid rent w.e.f. 01.09.1977 in spite of various requests and reminders and therefore by notice dated 07.07.1980 the tenancy of Sh. Jaswant Rai Kapoor was terminated w.e.f. 31.08.1980 and the arrears of rent were also claimed. The said notice gave the option to Sh. Jaswant Rai Kapoor to terminate the tenancy on such date of the month which he may consider to be the last day of the tenancy month. The said notice was never replied and neither was complied by the father of the Defendants.
4. It is the case of the Plaintiffs that the contractual tenancy of Sh. Jaswant Rai Kapoor came to an end, firstly by efflux of time and secondly, by notice of termination dated 07.07.1980. He however remained in occupation of the suit premises in the capacity of a statutory tenant enjoying the protection provided under Delhi Rent Control Act. He expired more than one year prior to the filing of this suit and at the time of his death the Defendants was the only person residing with the deceased in the suit premises at the relevant time.
5. It is the case of the Plaintiffs that as the Defendants was not financially dependent upon Sh. Jaswant Rai Kapoor at the time of his death, in view of the protection granted Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 3 of 30 to him under Delhi Rent Control Act, he could retain the possession of the suit premises only for a period of one year which period has also since expired but the Defendants has not yet returned the possession of suit premises to Plaintiffs. The possession of the Defendants is therefore unauthorized and he is liable to pay damages at the rate of Rs. 500/ per month which is far below the market rent of the suit premises. It is the case of the Plaintiffs that going by the provisions of the Limitation Act he is only claiming damages for the period of three years preceding the institution of this suit.
6. It is the case of the Plaintiffs that the cause of action for filing the present suit arose on 31.08.1980 when the contractual tenancy came to an end through notice dated 07.07.1980. It also arose on the death of Sh. Jaswant Rai Kapoor and after the expiry of one year after his death.
7. Thus the Plaintiffs has prayed that a decree of possession be passed in favour of the Plaintiffs and against the Defendants in respect of the suit property along with a decree for recovery of Rs. 18,000/ together with the pendentelite and future damages at least at the rate of Rs. 500/ per month till the handing over of the possession of the suit premises to the Plaintiffs.
8. Written Statement was filed by the Defendants wherein preliminary objections Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 4 of 30 were taken that this court has no jurisdiction to entertain the present suit as the present suit is barred under section 50 of the Delhi Rent Control Act. It is further his case that the suit is bad for non joinder and mis joinder of necessary parties and is not maintainable and further the suit is not signed, verified and instituted by a duly authorized person and thus is not maintainable in its present form.
9. It is further the case of the Defendants that the Plaintiffs has no cause of action to file the present suit as the rent stood paid to the Plaintiffs till September 1994 by the Defendants on behalf of all the legal heirs of the deceased tenant and a rent receipt no. 112 dated 08.09.1994 for an amount of Rs. 3,810/ covering the rent from April, 1992 to September, 1994 was issued by the Plaintiffs.
10. It is the case of the Defendants that Sh. Jaswant Rai Kapoor has died as a contractual tenant and after his demise the tenancy rights have devolved upon all his legal heirs and all of them have become lawful tenant under the Plaintiffs. The Defendants also takes the objection that the suit of the Plaintiffs is not properly valued for the purpose of court fees and jurisdiction and the Plaintiffs is required to affix the advaloreum court fees on the basis of the market value of the Property which is more than Rs. 5,00,000/.
Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 5 of 30
11. It is further the case of the Defendants that the suit of the Plaintiffs is not maintainable as it is filed for partial tenancy only and the tenancy premises are not correctly mentioned as besides the accommodation mentioned the roof is also forming a part of the property and was in possession of the deceased tenant and after his demise the same is in possession of all his legal heirs.
12. In his reply on merits it is the case of the Defendants that his father was let out the suit property along with the roof and terrace above the same and the same forms the part of the tenancy. The Defendants denies that the tenancy was for the period of 11 months and it had determined by efflux of time. He denied the averment that the rent was not paid w.e.f. 01.09.77 and that the tenancy was expired by notice dated 07.07.1980. It is his case that no notice of any kind was ever served on his father and therefore the tenancy had not come to an end. It is his case that his father Sh. Jaswant Rai Kapoor died on 05.04.1992 as a contractual tenant and after his demise the tenancy rights have devolved upon all his legal heirs.
13. It is further his case that Plaintiffs receives rent from the Defendants on behalf of all LRs after lapse of several months and some time after lapse of several years. It is his case that vide receipt no. 527 dated 26.09.1987 the rent was received by the Plaintiffs for Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 6 of 30 the period from July, 1984 to October 1987 at the rate of Rs. 100/ total amounting to Rs. 4,200/. Vide another receipt no. 81 dated 20.02.1992 for Rs. 4,140/ the Plaintiffs received the rent for the period from April, 1989 to March, 1992 @ Rs. 115/ p.m. Similarly vide receipt no. 112 dated 08.09.1994 for Rs. 3,810/ the Plaintiffs received rent from the Defendants for the period from April, 1992 to September, 1994 @ Rs. 127/ p.m.
14. It is the case of the Defendants that the dispute arose between the parties when the Defendants insisted upon the Plaintiffs to issue the rent receipts in the name of all the legal heirs of the deceased Sh. Jaswant Rai Kapoor but the Plaintiffs demanded a big amount for changing the tenancy rights in the name of the LRs. It is the case of the Defendants that he and other LRs have never refused to pay the rent becoming due from October, 1994 at the agreed rate of Rs. 127/ p.m. and are even today ready to pay the same to the Plaintiffs and it is the Plaintiffs who is not collecting the rent from the LRs of the deceased tenant.
15. It is the case of the Defendants that his father Sh. Jaswant Rai Kapoor till his death remained as a contractual tenant in the premises and after his death the tenancy rights have devolved upon all his legal heirs and the Plaintiffs has been recovering the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 7 of 30 rent from them even after the death of Sh. Jaswant Rai Kapoor and therefore the Defendants and other LRs of the deceased have become tenant under the Plaintiffs on the same terms and conditions.
16. It is further denied by the Defendants that he was the only person residing with the deceased tenant in the suit premises at the time of his death. He further denies that he was not financially dependent on his father. It is his case that the LRs are the lawful tenants under the Plaintiffs since their predecessor in interest was a contractual tenant. He further denies payment of damages at the rate of Rs. 500/ p.m.
17. Thus the Defendants has prayed that the suit of the Plaintiffs be dismissed with costs.
18. Replication was filed by the Plaintiffs to the present matter whereby the Plaintiffs has denied the preliminary objections taken by the Defendants and reaffirmed his contentions as raised in the plaint.
19. In the reply to the reply on merits besides denying the contentions of the Defendants it is the case of the Plaintiffs that the payments received after the expiry of one year of the death of Sh. Jaswant Rai Kapoor were never towards the rent and it was never the intention of the Plaintiffs to revoke the termination of tenancy of Sh. Jaswant Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 8 of 30 Rai Kapoor. The amount taken was towards charges for use and occupation and to give it the name of rent is only a misnomer for the payment.
20. It is further his case that only Defendants was in possession of the suit premises at the time of death of Sh. Jaswant Rai Kapoor and thus all other legal heirs are not necessary parties. Thus the Plaintiffs has prayed that his suit be decreed.
21. Issues were framed in this matter vide order dated 04.03.1997 and they read as under:
1. Whether this court has no jurisdiction and the suit is barred u/s 50 of the DRC Act? OPD.
2. Whether the suit is bad for mis joinder and non joinder of necessary parties? OPD.
3. Whether the suit is filed by a duly authorized person? OPP.
4. Whether the amount of Rs. 3,810/ is paid by the Defendants on behalf of all the legal heirs of the Defendants? OPD.
If the same is towards rent, if so its effect?
5. Whether any tenancy right has devolve upon all the legal heirs? OPD.
6. Whether the suit is not properly valued for the purposes of court fee and Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 9 of 30 jurisdiction? OPD.
7. Whether the present suit is filed qua the part of the property if so its effect? OPD.
8. Whether the tenancy of deceased Sh. Jaswant Kapoor stands terminated? OPP.
9. Whether the tenancy after his death has devolved upon only on the Defendants for a limited period of one year? OPP.
10.Whether the Plaintiffs is entitled for the relief of possession? OPP.
11. Whether the Plaintiffs is entitled for the relief of damages at the rate of Rs. 500/ p.m.? OPP.
12.Relief.
22. Thereafter the matter was fixed for Plaintiffs evidence. However the present suit was dismissed in default vide order dated 24.08.1999. Thereafter an application u/o 9 rule 9 was moved by the Plaintiffs which was allowed vide order dated 14.09.2001. Thereafter the matter was again fixed for Plaintiffs evidence. Plaintiffs in support of his case has examined PW1 Sh. Suraj Mal Surana. Another witness PW2 Sh. Chand Mal Surana was partly examined in chief however, as the evidence of the Plaintiffs was closed vide statement made by the Ld. Counsel for the Plaintiffs the part examination in chief of PW2 is not to be read, vide order dated 31.01.2002. Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 10 of 30
23. PW1 in his examination in chief has exhibited the following documents:
1. Ex. PW1/1 - Photocopy of General Power of Attorney dated 28.11.1996 (OSR).
2. Ex. PW1/2 - Rent deed dated 29.10.1972.
3. Ex. PW1/3 - Legal notice dated 30.05.1979.
4. Ex. PW1/4 - AD Card.
5. Ex. PW1/5 - UPC.
6. Ex. PW1/6 - Postal receipt.
7. Ex. PW1/7 - Legal Notice dated 07.07.1980.
8. Ex. PW1/8 - AD Card.
9. Ex. PW1/9 - Postal receipt.
10.Ex. PW1/10 - Site Plan.
24. PW1 in his cross examination was confronted with the rent receipts issued by him in the name of Sh. Jaswant Rai Kapoor:
1. Ex. PW1/D1 - Rent receipt dated 14.05.1982.
2. Ex. PW1/D2 - Rent receipt dated 16.06.1982.
3. Ex. PW1/D3 - Rent receipt dated 21.06.1989.
4. Ex. PW1/D4 - Rent receipt dated 26.09.1987.
5. Ex. PW1/D5 - Rent receipt dated 22.12.1987.
6. Ex. PW1/D6 - Rent receipt dated 21.06.1989.
7. Ex. PW1/D7 - Rent receipt dated 20.02.1992.
8. Ex. PW1/D8 - Rent receipt dated 08.09.1994.
25. Thereafter the matter was fixed for defence evidence however an application u/o 22 rule 3 and u/o 22 rule 4 were filed. The application u/o 22 rule 4 was allowed on the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 11 of 30 same date that is on 8.04.2003 and the application u/o 22 rule 3 was allowed on 03.03.2004.
26. Defendants in support of his case has examined three witnesses, DW1 Smt. Neeraj Kapoor, DW2, Sh. Ram Kumar Maggon and DW3, Sh. Harish Chopra.
27. DW1 in her affidavit has exhibited the affidavit filed by her husband Sh. Harish Kapoor before his death as Ex.D1. She in her affidavit has again relied upon rent receipts which were earlier Exhibited as PW1/D4, PW1/D7, PW1/D8. She has also exhibited the death certificate of her father in law as DW1/1.
28. Issue wise findings in the present case are as under: Issue no. 1 : Whether this court has no jurisdiction and the suit is barred u/s 50 of the DRC Act? OPD.
29. The onus to prove this issue was on the Defendants. However, before dwelling into this issue it is necessary to discuss the Law of the Land as laid down in Delhi Rent Control Act.
30. Section 50 of the Delhi Rent Control Act reads as under: Section 50 : Jurisdiction of Civil Courts barred in respect of certain matters Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 12 of 30
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 standard 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 this 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 civil court or other authority.
31. As per section 50(1) of the Act the jurisdiction of the civil courts is barred with respect to proceedings relating to eviction of any tenant which the Rent Controller is empowered by or under this Act to decide.
Section 2(l) of the Delhi Rent Control Act defines the Tenant as under: "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes i. a subtenant;
ii. any person continuing in possession after the termination of his tenancy; and iii. in the event of the death of the person continuing in possession after the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 13 of 30 termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's
a) spouse;
b) son or daughter, or, where there are both son and daughter, both of them,
c) parents,
d) daughterinlaw, being the widow of his predeceased son, as had been
ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include: A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re opened under the proviso to section 3 of the Delhi Rent Control Act (Amendment) Act, 1976 (18 of 1976);
B) any person to whom a license, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted.
Explanation I : The order of succession in the event of the death of the person Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 14 of 30 continuing in possession after the termination of his tenancy shall be as follows:
a) firstly, his surviving spouse;
b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and
d) fourthly, the daughter in law, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.
Explanation II : If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 15 of 30 on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue the possession after the termination of the tenancy shall become extinguished. Explanation III: for the removal of doubts, it is hereby declared that
a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be;
b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall no, on the death of such successor, devolve on any of his heirs;
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32. Section 2(l) of the Act defines who would be falling under the category of a tenant falling under the purview of Delhi Rent Control Act.
Section 2(l)(iii) deals with the case of the legal representatives of the persons who were continuing in possession after the termination of their contractual tenancy by the landlord. Explanation I gives the order of succession in the event of death of the person and explanation II states that if the person acquires tenancy rights by succession was not financially dependent on the deceased person on the date of his death, the successor will acquire the right of tenancy for a period of one year only and on the expiry of that period or his death which ever is earlier his right to continue in possession after the termination of tenancy will become extinguished. Explanation III(a) of section 2(l) makes it clear that once the right of the successor falling under one category (as specified in explanation I) are extinguished then the right to continue in possession will not pass to any other successor specified in the lower category or categories.
33. Ld. Counsel for the Defendants has relied upon the judgments of the Hon'ble Supreme Court of India in Damadi Lal and others v. Parashram and others AIR 1976 Supreme Court 2229 and in Gian Devi Anand v. Jeevan Kumar AIR 1985 Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 17 of 30 Supreme Court 796. In these cases the concept of statutory tenancy and contractual tenancy was explained. It was held that the concept of statutory tenant is imported into the jurisprudence of this country and is derived from English Rent Acts and the expression denotes a tenant whose contractual tenancy has been determined but who is continuing in possession of the premises by virtue of the protection against eviction afforded to him by the rent control legislation. The statutory tenant is placed on the same footing as contractual tenant so far as the Rent Act is concerned as the Act does not make any distinction between the contractual tenant and statutory tenant. Thus a tenant even after the determination of his tenancy continuous to have and state or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant will step into the position of the deceased tenant.
34. It is argued by the Ld. Counsel for the Defendants that in the present matter the Defendants is not a statutory tenant but a contractual tenant as the valid notice of termination of tenancy is not there and therefore the Defendants has never become a statutory tenant and thus the provisions of section 2(l) Explanation II would not apply to Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 18 of 30 the present Defendants.
35. It is in turn argued by the Ld. Counsel for the Plaintiffs in the course of arguments that after the death of Sh. Jaswant Rai Kapoor who was the owner of the suit premises the mother of the Defendants was surviving however inadvertently it was thought by the Plaintiffs that the mother has predeceased the father and therefore the Plaintiffs has filed the present suit against the son of the Defendants. It is argued by the Ld. Counsel for the Plaintiffs that as the mother has also expired on 16.02.1996 and this fact has come by way of the affidavit of DW1 therefore the status of the Defendants who was the son of Sh. Jaswant Rai Kapoor and therefore falling under the second category of explanation I has became to be of a unauthorized occupants by virtue of explanation III(a). It is further argued by the Ld. Counsel for the Plaintiffs in the alternative that even if we consider the son to have inherited the statutory tenancy it has come in the cross examination of DW1 that her husband was financially independent and was not dependent upon his father at the time of his death and therefore by virtue of explanation II after the expiry of one year after the death of Sh. Jaswant Rai Kapoor his status has become to be that of an unauthorized occupant.
36. It is necessary to first determine that whether Sh. Jaswant Rai Kapoor died in the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 19 of 30 capacity of a statutory tenant or a contractual tenant. The Plaintiffs in support of his case that he was a statutory tenant and thus falling within the purview of section 2(l) is relying upon Ex. PW1/7 in his plaint which is the legal notice dated 07.07.1980. PW1 in his examination in chief is saying that Ex. PW1/7 was sent on the instructions of his father. PW1 is deposing in the capacity of the General Power of Attorney holder of the Plaintiffs.
37. Ld. Counsel for the Defendants has drawn the attention of the court to the judgment of Hon'ble Supreme Court of India in Man Kaur (dead) by LRs v. Hartar Singh Sangha VII (2010) SLT 144 wherein the Apex Court relying upon its previous judgment in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. VII (2004) SLT 441 has held that an attorney holder who has signed the plaint and instituted the suit but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. If the attorney holder has done any act or handled any transactions, in pursuance of the Power of Attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the Attorney holder alone has personal knowledge of such acts and transactions and not the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 20 of 30 principal the attorney holder shall be examined if those acts and transactions have to be proved. The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or the transactions or dealings of the principal of which the principal alone has personal knowledge.
38. In the present case in hand two legal notices were exhibited by the Plaintiffs Ex. PW1/3 and Ex. PW1/7 however in the plaint the Plaintiffs has relied upon Ex. PW1/7 and has stated that the contractual tenancy of the Defendants had come to an end through notice dated 07.07.1980 which is PW1/7. In the examination in chief it is stated by the PW1 in the capacity of the power of attorney holder that the said notice was sent on the instructions of his father.
39. In view of the law laid down in Man Kaur (dead) by LRs v. Hartar Singh Sangha VII (2010) SLT 144 as the notice was sent on the instruction of the father of PW1 that is the Plaintiffs it was the Plaintiffs who was required under law to depose in this regard as this transaction was within his personal knowledge alone and the attorney holder had no personal knowledge about the same. In view of the same as the Plaintiffs has not examined himself nor ha examined the lawyer through whom the legal notice Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 21 of 30 PW1/7 was sent thus the Plaintiffs is unable to prove the sending of the legal notice dated 07.07.1980 to Shri Jaswant Rai Kapoor and therefore the tenancy of Sh. Jaswant Rai Kapoor had remained to be of contractual nature and has not been converted into a statutory tenancy so as to fall within the ambit of section 2(l) (ii) and (iii) of the Delhi Rent Control Act. And therefore the explanation II of section 2(l) would not apply to the present case in hand and this suit would be barred under the provisions of section 50 of the Delhi Rent Control Act and therefore this court has no jurisdiction to deal with the present suit.
40. Thus this issue is decided in favour of the Defendant and against the Plaintiffs. Issue no. 2: Whether the suit is bad for mis joinder and non joinder of necessary parties? OPD.
41. The onus to prove this issue was on the Defendants.
42. It is the case of the Defendants that besides him his brother and his mother were also living in the suit property. It is deposed by DW1 in her affidavit that the mother of the Defendants had expired on 16.02.1996 and therefore she has expired prior to the filing of the present suit. The another brother Sh. Ashok Kapoor was never examined as Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 22 of 30 the witness by the Defendants and the Defendants in the affidavit of DW1 is also stating that he has shifted from the tenanted premises in the year 1997 though he retains the symbolic possession however, nothing tangible has been brought on record by the Defendants to show the symbolic possession of Defendants no. 2 in the suit premises.
43. In view of the same as the Defendants have failed to discharge their onus with respect to this issue thus this issue is decided in favour of the Plaintiffs and against the Defendants.
Issue no. 3: Whether the suit is filed by a duly authorized person? OPP.
44. The onus to prove this issue was on the Plaintiffs.
45. It is the case of PW1, Sh. Suraj Mal Surana that he was duly authorized by his father to institute the present suit on his behalf. He has exhibited the photocopy of the General Power of Attorney (OSR) and is saying that because of this Power of Attorney he was duly authorized to institute, sign and verify the present suit in the court. However, this General Power of Attorney exhibited by the Plaintiffs is dated 28.11.1996. Though photocopy of another General Power of Attorney dated 04.04.1996 is there in the court record however neither that General Power of Attorney was ever exhibited nor Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 23 of 30 the Plaintiffs in his evidence has relied upon that General Power of Attorney and nor has the original of that General Power of Attorney is ever produced in the court record. Further more there is no specific averment in the plaint besides the mere mentioning in the memo of parties that the suit is filed by the Plaintiffs through its attorney holder.
46. The present suit is also verified by Sh. Suraj Mal Surana and not by the Plaintiffs and is also signed by him. The Plaintiffs has no where signed or verified the present plaint.
47. It is argued by the Ld. Counsel for the Defendants that no where in the Plaint a single averment is there that the present suit is filed, signed, verified and instituted through the Power of Attorney Holder. It is argued that only at the stage of evidence the plea of Power of Attorney is taken by the Plaintiffs and on the date of filing the present suit the alleged attorney holder has no power to sign, verify or file the present suit.
48. Ld. Counsel for the Plaintiffs has relied upon the provisions of order 3 rule 2 which shows that the recognized agents are the persons holding the power of attorney.
49. The present suit was filed by the Plaintiffs on 10.05.1996. The Power of Attorney exhibited by the Plaintiffs PW1/1 is dated 28.11.1996. This General Power of Attorney which is exhibited in the evidence is executed and registered on a later date later to the Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 24 of 30 filing of the present suit and it is not containing any provision so as to ratify the previous acts done by the attorney holder prior to its execution. The present was filed on 09.05.1996 and the GPA is of 28.11.1996 and thus at the date of filing of the suit the person who has signed, verified and instituted the suit was not a attorney holder of the Plaintiffs and thus had no authority to file the present suit.
50. Order 6 rule 14 states that every pleading shall be signed by the party and his pleader (if any). Provided that where a party pleading is by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
51. In the present case in hand the Plaintiffs is unable to prove that PW1 was duly authorized by the Plaintiffs at the time of the institution of the present suit to file and institute and sign the present suit.
52. In the present case the Plaintiffs has never entered into the witness box so as to prove the GPA which was filed along with the plaint dated 04.04.1996 nor the original of that GPA ever been produced nor has that GPA ever been exhibited by the Plaintiffs.
53. In view of the above said findings the present suit is not filed by a duly authorized Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 25 of 30 person.
54. Thus this issue is decided in favour of the Defendants and against the Plaintiffs. Issue no. 4: Whether the amount of Rs. 3,810/ is paid by the Defendants on behalf of all the legal heirs of the Defendants? OPD.
If the same is towards rent, if so its effect?
55. The onus to prove this issue was on the Defendants. PW1 in his cross examination is admitting the issuance of receipt Ex. PW1/D8 dated 08.09.1994 in the name of Sh. Jaswant Rai Kapoor . It is the case of the Plaintiffs that this receipt was issued in the name of Sh. Jaswant Rai Kapoor and therefore the charges were taken from the legal heirs as charges of use and occupation and not as rent as the issuance of receipt in the name of Sh. Jaswant Rai Kapoor shows the intention of the Plaintiffs not to treat the legal heirs as the tenants.
56. However, in view of the findings in issue no. 1 as it has been held that the contractual tenancy of Sh. Jaswant Rai Kapoor has never come to an end therefore as contractual tenancies are heritable the tenancy had devolved upon all the legal heirs of Late Sh. Jaswant Rai Kapoor and thus this receipt would be deemed to be a rent receipt Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 26 of 30 issued by the Plaintiffs in lieu of rent taken from the legal heirs of the deceased tenant as the legal heirs have also stepped into the shoes of the tenant.
57. This issue is decided accordingly.
Issue no. 5: Whether any tenancy right has devolve upon all the legal heirs? OPD.
58. In view of the findings in issue no. 1 and issue no. 4 this issue is also decided in favour of the Defendants and against the Plaintiffs and it is held that the tenancy rights have devolved upon all the legal heirs.
59. This issue is decided accordingly.
Issue no. 6: Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.
60. The onus to prove this issue was on the Defendants.
61. It is the case of the Defendants that the Plaintiffs is liable to pay advaloreum court fees in this matter on the basis of the market value of the property. However, as it has been held in the above issues that the Defendants are the tenants and even if the Defendants were not the tenants and were the legal heirs of the deceased tenant then also the suit of the Plaintiffs is properly valued for the purpose of court fees and jurisdiction Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 27 of 30 as as per the Court Fees Act the landlord in order to bring a suit for eviction against his tenant or against the persons deriving their rights from the tenant has to pay court fees on the basis of twelve months rent of the suit property which has been done by the Plaintiffs in this matter.
62. Thus the present suit is properly valued for the purpose of court fees and jurisdiction and therefore this issue is decided in favour of the Plaintiffs and against the Defendants.
Issue no. 7: Whether the present suit is filed qua the part of the property if so its effect? OPD.
63. The onus to prove this issue was on the Defendants however, the Defendants has failed to show any evidence on record in order to prove that the terrace also forms a part of the tenanted premises. As the Defendants have failed to discharge their onus and as the Defendants in the testimony of DW1 have admitted the correctness of the site plan filed by the Plaintiffs it cannot be said that this suit is filed qua the part of the property.
64. Thus this issue is decided in favour of the Plaintiffs and against the Defendants. Issue no. 8, 9, 10 and 11 : Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 28 of 30 Issue no. 8: Whether the tenancy of deceased Sh. Jaswant Kapoor stands terminated? OPP.
Issue no. 9: Whether the tenancy after his death has devolved upon only on the Defendants for a limited period of one year? OPP.
Issue no. 10: Whether the Plaintiffs is entitled for the relief of possession? OPP. Issue no. 11: Whether the Plaintiffs is entitled for the relief of damages at the rate of Rs. 500/ p.m.? OPP.
65. The onus to prove all these issues was on the Plaintiffs.
66. However, in view of findings in issue no. 1, 4 and 5 it is held that the tenancy of deceased Sh. Jaswant Rai Kapoor never got terminated by way of legal notice and therefore it could not have devolved upon the Defendants for a limited period of one year. As the present suit is barred under section 50 of the Delhi Rent Control Act the Plaintiffs is not entitled to the relief of possession and damages as prayed by him from this court.
67. These issues are decided accordingly.
Issue no. 12 : Relief: Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 29 of 30
68. In view of the findings in the above issues the suit of the Plaintiffs is barred in view of the provisions of section 50 of the Delhi Rent Control Act and is not filed by a duly authorized person and therefore is not maintainable and thus the Plaintiffs is not entitled to any relief from this court.
69. Thus the suit of the Plaintiffs is dismissed.
70. In view of the facts of the present case the parties are directed to bear their own costs.
71. Decree Sheet be prepared accordingly.
72. File be consigned to record room.
Announced in open court on this 31st day of May, 2011.
(Neha Paliwal) Civil Judge6 Delhi/31.05.2011 Certified that this judgment contains 30 (Thirty) pages and each page bears my signature.
(Neha Paliwal) Civil Judge6 Delhi/31.05.2011 Suit no. 179/10/96 Noratmal Surana v. Harish Kapoor Page 30 of 30