Delhi District Court
Vinod Kumar Sharma vs Rajender K. Vaid on 30 November, 2013
IN THE COURT OF SH. RAKESH KUMARIII,
JSCC/ASCJ/GUARDIAN JUDGE, SHAHDARA,
KARKARDOOMA COURTS, DELHI.
Suit no. 269/10
Unique Identification No. 02402C0245132010
Vinod Kumar Sharma
S/o Late Sh. Madan Lal Sharma
R/o H4/5, Krishna Nagar,
Delhi 51 ...........Plaintiff
Versus
Rajender K. Vaid
Secretary of
Bhai Mati Das Cooperative
Group Housing Society Ltd.,
Regd. Office
X/2609, Street No. 7,
Raghubar Pura No. 2,
Gandhi Nagar,
Delhi 31
Administrative office
H4/5, Ground Floor,
Krishna Nagar,
Delhi 51
..........Defendant
Suit no. 269/10 Page no. 1/29
SUIT FOR EJECTION AND RECOVERY OF POSSESSION,
ARREARS OF RENT, DAMAGES, MESNE PROFIT AND FOR
PERMANENT INJUNCTION.
1. Date of institution of Suit : 28.08.2010
2. Judgment reserved on : 16.11.2013
3. Date of Judgment : 30.11.2013
4. Decision : Suit decreed
JUDGMENT:
1. By filing present suit, plaintiff seeking the decree of ejectment and possession, permanent injunction thus restraining defendant's from assigning or parting with the possession of the property bearing no. H4/5, ground floor, Krishna Nagar, Delhi51 which is shown in red colour in the site plan (hereinafter called suit property or property in question) and also decree for recovery of damages mesne profits @ 25,000/ per month w.e.f. 01.07.10 till handing over the possession on the ground that Late Sh. Madan Lal Sharma was the absolute landlord and exclusive owner of the property in question who has expired on 25.07.07. Thereafter, all the legal heirs of Late Madan Lal Sharma executed relinquish deed dated 31.10.07 in favour of the plaintiff which is duly registered as such plaintiff has become landlord absolutely and exclusive owner of the property in question.
Suit no. 269/10 Page no. 2/29
2. It is contended that on 20.11.96, the father of the plaintiff let out four rooms, two kitchens, one latrine and bathroom on the ground floor out of the property in question to the defendant at the time of creation of tenancy and Rs. 20,000/ has been deposited by the defendant to the father of the plaintiff as security and meanwhile some of the portion has been sold out as such the defendant is now in occupation of four rooms, one kitchen and one latrine and bathroom combined on the ground floor out of the property in question which shows in red colour in the site plan.
3. It is also contended several times tenancy have been extended and vide rent / lease agreement dated 21.06.07, the tenancy of the defendant extended for three years i.e. upto 31.05.2010 and the rate of rent @ 8,000/ per month alongwith security amount of Rs. 1,25,000/. It is also contended after the death of the father of the plaintiff, the defendant started paying rent against the valid receipt to the defendant as such rent has been paid upto 31.05.10 only and further the tenancy of the defendant has been terminated by the efflux of time. Despite that property in question has not been handed over by the defendant to the plaintiff even though the tenancy has also been terminated vide legal notice dt. 21/22.05.2010 but property in question has not been handed over resulting into filing the present suit. Lastly contended after receiving Suit no. 269/10 Page no. 3/29 the notice dated 21/22/05.10 the defendant has sent false reply dt. 09.07.10 which was counter replied by the plaintiff vide dated 10.08.10 and prayed for decree in favour of plaintiff and against the defendant as per prayer of plaint.
4. In reply, written statement filed wherein preliminary objection have been taken wherein dismissal of the suit has been prayed on the ground that no cause of action arises in favour of plaintiff, suit is hit by U/o 7 Rule 1 within G CPC, non joinder of necessary party, suit has not been properly valued for the purpose of court fees and jurisdiction and lastly the dismissal has been prayed as the plaintiff has not approached this Court with clean hands and has conceded material facts from the Court alongwith other objections. The father of the plaintiff had four daughters, one son however the one of the daughter of Late Madan Lal had not relinquished the property in question in favour of plaintiff. As such, suit is also liable to be dismissed for misjoinder and non joinder of necessary party.
5. On merits, all the contents of the plaint has been denied. It is contended that initial rent was Rs. 400/ per month which was increased to Rs. 8,000/ per month on 21.06.07 and security from Rs. 20,000/ to 1,25,000/ i.e. approximately 625 % higher. In order to have extra spaces for storage of its members record and some portions for the residents of Suit no. 269/10 Page no. 4/29 its secretary defendant Rajender Kumar but unfortunately the plaintiff father has expired on 25.07.07 who has also sold out one kitchen on the ground floor. "It is contended that defendant who is aged about 66 years has no any other alternative to stay alongwith his family members except the property in question and also no other space is available to keep the record of the society members in the property in question which has been taken by the plaintiff in the year 1996 for commercial cum residents purpose." It is also contended that the defendant society spend near about Rs. 10,24,514/ for the maintenance and repairing of the property in question at the request of the parents of plaintiff which was promised to be returned but till date same has not been returned back. It is also contended that the family member of the plaintiff also promised that till allotment of land, defendant can leave or run society office in the property in question. It is further contended that the defendant through reply dated 09.07.2010 of the legal notice by the plaintiff asked the plaintiff to pay Rs. 10,24,514/ and also requested to renew the rent agreement with undertaking to enhance rent @ 10 % subject to execution of new rent agreement with the defendant and time and again the plaintiff has paid several rent on account of water charges etc., repairs which shows the intention of the defendant that he is willing to continue with the tenanted premises till allotment of amount and Suit no. 269/10 Page no. 5/29 constructed flats to the society and its members and denied that tenancy have been terminated by efflux of time. On 30.06.2010, the defendant was required to handover the peacefull possession of the property in question to the plaintiff by 01.07.2010. Lastly, dismissal of the plaint has been prayed.
6. Replication filed wherein the plaintiff has retreated all the contents of the plaint been completion of the pleading, following issues have been framed on 15.07.2011:
1) Whether the suit has not been properly valued for the purpose of court fees & jurisdiction and proper court fees has not paid? (OPD)
2) Whether this court has no pecuniary jurisdiction to try and enterain the present suit? (OPD)
3) Whether the suit is bade for mis joinder /non joinder of necessary of parties? (OPD)
4) Whether the suit is not maintainable in the present form? (OPD)
5) Whether the defendant is a tenant in respect of the suit premises? (OPP)
6) Whether the tenancy of the defendant has been duly terminated? (OPP)
7) Whether the plaintiff is entitled for relief of possession in respect of the suit premises? (OPP)
8) Whether the plaintiff is entitled to permanent injunction as prayed for? (OPP)
9) Whether the plaintiff is entitled to damages and mesne profit? If yes, at what rate and for what period? (OPP)
10)Relief.Suit no. 269/10 Page no. 6/29
7. The plaintiff in support of his case examined himself by way of affidavit which is Ex. PW1/1 as PW1 Sangeeta Sharma by way of affidavit which is Ex. PW2/1 as PW 2 and closed his evidence on 03.04.12. The defendant also examined himself by way of affidavit which is Ex. DW1/A as DW1 and Mr. Ashok Kumar Dutta DW2 by way of affidavit which is Ex. DW2/1 as DW2 and closed his evidence on 19.10.13.
8. Prior to proceed further it is pertinent mention here that in the case titled as Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack sequeria (Dead) II (2012) SLT 753 Through L.Rs. Wherein Hon'ble Supreme Court held:
1. Possession of Property - Principles of law in this regard - No one acquires title to property if he or she was allowed to stay in premises gratuitously - Even by long possession of yeres or decades such person would not acquire any right or interest in said property - Caretaker or agent holds property of principal only on behalf of principal.
2. False claims and false Defences - Serious problem with real estate litigation, predominantly because of ever escalating prices of real estate - This happens because of enormous delay in adjudication of cases in our Courts - If pragmatic approach is adopted, then this Suit no. 269/10 Page no. 7/29 problem can be minimized to a large extent.
3. Due process of Law - Meaning of - No body ought to be condemned unheard - Due process of law means a person in settled possession will not be dispossessed except by due process of law.
4. Pleadings - Court must ensure that pleadings of case must contain sufficient particulars - In dealing with civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide fate of case.
5. Pleadings - Foundation of litigation - In pleadings, only necessary and relevant material must be included and unnecessary and irrelevant material must be excluded.
6. Civil Procedure Code, 1908 - Section 30 - Power to order discovery and the like - Truth is the foundation of justice - Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.
9. It is ruled out in the judgment titled as S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1, wherein it has been held that: "court of law are meant for imparting justice between parties. One who comes to court must come with the clean hands. A person whose case is based on false suit has no right to approach the court. He can be summarily thrown out at any stage of litigation and further held that a Suit no. 269/10 Page no. 8/29 fraud is an act of deliberate deception with design of securing something by taking unfair advantage of another. It is deception to gain by another' loss. It is cheating intending to get an advantage. A litigant who approached the court is bound to produce all the documents executed by him which are relevant to the litigation. However, he withheld a false documents in order to gain advantage over the other side then he would be guilty of playing fraud on the court as well as on the opposite party." Meghmala Vs.G. Narasimha Reddy (2010) 8 SCC 383, wherein it has been held that "Suppression of a material fact/ document amounts to fraud on court." Mayar (H.K.) Ltd. Vs. Owner & Parties & Parties, Vessel M.V. Fortune Express (2006) 3 SCC 100, wherein it has been held that "As held in S.J.S. Business Enterprises Case, (2004) 7 SCC 166, suppression of material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of need of the deter a litigant from abusing the process of court by deceiving it."
Further, It is ruled out in the judgment titled V. Chandrasekaran and Another Vs. Administrative Officer and Others (2013) 2 SCC (Civ) 136, wherein it has been held that: "Equity - Relief - Entitlement to - Prerequisites for - Held, a person is
- Person who seeks equity must do equity - A person cannot be enriched by causing injuries to others - Pleadings must be clear, consistent and devoid of falsehood - Persons approaching courts with tainted hands not entitled for any relief, interim or final - Maxims - Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem - Constitution of India - Arts. 136, 226, 32 and 142
- Equitable relief - Entitlement to."
In Cauvery Coffee Traders Vs. Hornor Resources (International) Co. Ltd. this Court considered a large number of judgments on the issue of estoppal and held as under :
"A party cannot be permitted to 'blow hot and cold', 'fast and loose' or 'approbate and reprobate'. Where one knowingly Suit no. 269/10 Page no. 9/29 accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. ......The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a court of equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide Ramjas Foundation Vs. Union of India, Noorduddin Vs. K.L. Anand and Ramniklal N. Bhutta Vs. State of Maharashtra.) The judicial process cannot become an instrument of oppression or abuse, or a means in process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/ or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.
In Dalip Singh Vs. State of U.P. this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate Suit no. 269/10 Page no. 10/29 to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. The truth should be the guiding star in the entire judicial process.
"Every trial is a voyage of discovery in which truth is the quest". An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide Ritesh Tewari Vs. State of U.P and Amar Singh Vs. Union of India).
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira this Court taking note of its earlier judgment in Ramrameshwari Devi Vs. Nirmala Devi held : (Maria Margarida case, SCC p. 393, para 81) "81. False claims and defences are really serious problems with real estate litigation, predominantly because of everescalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent."
The court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon false pleadings and forged or fabricated documents in the records furnished by them to the court. It is also not out of place to mention here that it was ruled out in Raj Rani Sharma v. Gayatri Kukrekja & Ors, 166(2010) DLT 92 (DB) that -
"Necessary and proper partyDistinction between Necessary party is one, Suit no. 269/10 Page no. 11/29 without whom no order can be made effectively - Proper party is one, in whose absence an effective order can be made but whose presence is necessary for complete and final decision on question involved in suit proceedings."
Further, Hon'ble Supreme Court of India in case titled C.Beepuathuma Vs. Velasari Shankaranarayana Kodamabolithaya, AIR 1965 SC 241, it has been held that "Practice and procedureDoctrine of electionEstopel Approbate and reprobate - Impermissibility - Imposition of exemplary costs for - Held, litigant cannot change and choose its stand to suit to his convenience - In present case, respondent having elected to give up plea of irrevocability of licence and taking advantage on that basis, held, cannot be permitted to disown his stand by raising same plea again - It is amply demonstrated that respondent has blown hot and cold by taking inconsistent stands, and has therefore prolonged several proceedings for more that a decade - It did not pursue its proceedings honestly in different fora and its conduct is far from satisfactory - By taking such pleas, respondent has succeeded in enjoying possession of premises concerned for 10 years beyond expiry of its licence - Hence exemplary costs of Rs.5 lakhs awarded against respondent - Maxims - Qui approbat non reprobat - Approbate and reprobate - Civil Procedure Code, 1908 - Or. 6 R. 7 and Ss. 5A & 35Art, 136 - Costs - Penal/ Exemplary costs."
It is well settled law in judgment titled Piara Singh & Sons Vs. Gurudwara Baba Jorawar Singh 2007 (6) AD (Delhi) 197 wherein it has been held that the oral evidence vise versa documentary evidence Suit no. 269/10 Page no. 12/29 proved and it is held that :
Evidence Act, 1872 - Section 91 - Secondary evidence - Admissibility of, objection in respect of, when can be raised
- Once the certified copy of the original document is produced as secondary evidence without any objection and marked as exhibit, no objection regarding admissibility of such evidence can be entertained afterwards. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082 relied on.
Held : Crucial test about the admissibility of document is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for twin reasons : firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court ion the mode of proof sought to be adopted going against the party tendering evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence, Such practice and procedure is fair to both the parties.
Evidence Act, 1872 - Section 91 - Secondary evidence - Objection as to admissibility of certified copy, delay in raising, effect - Failure to raise a prompt and timely Suit no. 269/10 Page no. 13/29 objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. Evidence Act, 1872 - Section 59, 60 & 61 - Oral evidence visavis documentary evidence - Preference, scope - It is rudimentary principle of jurisprudence that the documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that men may tell lies but the documents cannot.
Limitation Act, 1963 - Article 65 - Adverse possession -
Determination of, admission of appellant himself as a tenant in MCD and DESU, effect - Recovery suit - Purchase of property in question by one 'P' vide sale deed dated 06.06.1958 - After death of 'P', property mutated in the name of respondents herein - Unauthorized occupation of plot by appellant, challenged by filing a suit - appellant took the plea of adverse possession and raised an objection as to admissibility of certified copy of sale deed filed by respondent without proving loss of original lease deed -
Since no such objection ever raised by appellant at th time of making of document, now it is not open for him to raise - So far the plea of adverse possession is concerned, appellant changing his stances - For obtaining electricity connection from 'DESU' appellant filed an affidavit in 1979 wherein he Suit no. 269/10 Page no. 14/29 himself clearly, specifically and unequivocally stated that he was a tenant of a portion of the suit property - MCD reports in the years 1975 and 1982 also shows appellant as a tenant
- Hence, plea of adverse possession unsustainable - So far the objection regarding location of plot concerned, appellant has failed to show that he is living in a different plot than the plot mentioned in the Sale Deed - Appeal has merits, hence dismissed - Adverse possession - Determination of - Admission of appellant himself as a tenant in MCD and DESU, effect - Civil Procedure Code, 1908 - Order 20 rule 12 - Evidence Act, 1872 - Sections 91 & 90 - Secondary evidence - Objection as to admissibility of certified copy delay in raising, effect.
It is also well settled law in judgment titled Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani 2012 (4) CLJ 83 Del., wherein it has been held that :
(A) Code of Civil Procedure, 19080 XII Rule 6Judgment on admissions Admission of appellant about relationship of landlord and tenant between parties, tenancy on registered lease and expiry of term and, nonrenewal thereof, as well as payment of rent in respect of suit property suit decreed - In appeal, appellant has misused processes of law by raising false defence - Appeal dismissed with costs of Rs. 2,00,000/.
(B) Transfer of property Act, 1882 - Section 106 (3) Notice terminating Suit no. 269/10 Page no. 15/29 tenancy - By amendment of 2002, by subsection (3), raising of technical defences as to validity of 15 days notice to terminate monthly tenancy have been done away - Suit for possession would not be dismissed on ground of invalidity of notice terminating tenancy. (C) Transfer of Property Act, 1882 - Section 106 Notice - Suit for possession cannot be dismissed on ground of invalidity of notice - Tenant is only entitled to reasonable time to vacate premises. (D) Transfer of Property Act, 1882 - Section 106Notice - Termination of tenancy - After service of notice, tenant can only be permitted to continue in possession of tenanted premises on payment of market rent.
(E) Transfer of Property Act, 1882 - Section 107 Lease Tenant at sufferance - is one who wrongfully continues in possession after expiry of term of lease - Tenancy at sufferance does not create relationship of landlord and tenant.
(F) Transfer of Property Act, 1882 - Sections 108(g), 111 (a) -
Termination of lease - Mere acceptance of rent by landlord from tenant in possession after determination of lease either by efflux of time or by notice to quit, would not create tenancy so as to confer on erstwhile tenant status of tenant.
(G) Transfer of Property Act, 1882 - Section 111(g) (2) - Lease - Immovable Property - Forfeiture of - Once a lease stands forfeited by operation of law, person in occupation of premises cannot take benefit of legal tenancy Provisions of Section 111 (g) are based on pubic policy and principle of estoppel.
(H) Evidence Act, 1872 - Section 116 Estoppel of tenant - Tenant in possession cannot deny relationship of landlord and tenant - objections raised by tenant cannot be looked into.
(I) Evidence Act, 1872 - Section 165, Court questions - Power of Court to put questions to witnesses or party, intended to elicit truth and to do justice.
(J) General Clauses Act, 1897 - Section 27 Evidence Act, 1872 - Section 116 - Service of notice - Notice to quit under Section 106 of Transfer of Property Act, prepaid postage, sent at correct address, by Suit no. 269/10 Page no. 16/29 registered post - Former raises presumption of law, whereas latter raised presumption of fact.
(K) General Clauses Act, 1897 - section 27service by post Meaning of.
(L) Code of Civil Procedure, 1908 - Section 35 A - Compensatory Costs Frivolous Litigation - False claims and defences - Litigants who come to court not with clean hands consuming court's time for a wrong case are not entitled to any relief, interim or final - Courts have to ensure that there is no incentive or motive for uncalled for litigation - Tendency of false litigation to to drag other party is to be curbed by imposing penal costs.
Now turning to the issues ISSUE No. 1 & 2
10. The onus to discharge these issues had been casted upon the defendant. These issues were framed on the basis preliminary objection taken in the written statement but no evidence in support of contention has been led by the defendant to substantiate or establish that how the suit of the plaintiff has not been properly valued for the purpose of Court fees and jurisdiction as well as how this Court has no pecuniary jurisdiction for try the suit. On contrary, the defendant admitted himself that execution of lease agreement Ex.DW1/13 to Ex.DW1/16. Moreover, the service of termination of legal notice dated 21/22.05.10 Ex.PW1/E has not been disputed, hence I am of the view that the defendant has completely failed to discharge the onus. Accordingly, both these issues Suit no. 269/10 Page no. 17/29 are decided in favour of plaintiff and against the defendant. Issue Nos. 3 & 4
11. Since both issues are interconnected, hence, they are taken together. Onus to discharge of the issues has been casted upon the defendant. DW1 has been examined by way of affidavit which is Ex.DW1/A wherein he reproduced all the contents of written statement and he remained firm during crossexamination qua the fact which is deposed in affidavit itself. On the other hand, plaintiff has examined himself by way of affidavit which is Ex.PW1/1 and he reproduced the contents of the plaint and he also remained firm during his cross examination. On the basis of these testimonies, it is contended by the defendants that the present suit is liable to be dismissed for non rejoinder/misjoinder of the necessary party in as much as clause 3 of the documents Ex.PW1/18 wherein it has been mentioned society as a tenant and in continuous used in of clause 4, 5 and 6. As per clause 6, the tenancy is commercial and not residential. In clause 21 exhibited documents Ex.DW1/13 to Ex.DW1/19 the society has been shown as a tenant and despite that the present suit has been filed against defendant alone who is none but secretary of the society.
12. On the other hand, it is contended that the contention of the defendant is not maintainable in as much as all agreement entered Suit no. 269/10 Page no. 18/29 with the defendant being secretary of the society as revealed from lease deeds/documents Ex.DW1/13 to Ex.DW1/19 As such, it cannot be said that the present suit is not maintainable for nonrejoinder of necessary party.
13. In view of the judgment "Raj Rani Sharma v. Gayatri Kukrekja & Ors, 166(2010) DLT 92 (DB)", I am of the considered view that company, society and any firm, they cannot run themselves and there must be a person like Director, Secretary and President and partner/agent. In the present case not only present suit but also the legal notice of termination of tenancy Ex.PW1/E, though the tenancy has also been terminated by efflux of time as after the termination of last tenancy the Ex.DW1/13 sent to the defendant so it is established that firstly tenancy has not been extended, the tenancy of the defendant which has been further terminated through legal notice dated 21/22.05.10 Ex.PW1/E and replied by the defendant not as a individual capacity but being the secretary of the society which was further counter replied by plaintiff through notice dated 10.08.10 and during cross examination/arguments the defendant himself admitted that after receiving legal notice dated 21/22.05.10 he has intimated the fact of termination of tenancy to the higher officers of the society. So objections qua nonjoinder and misjoinder of the necessary party Suit no. 269/10 Page no. 19/29 appears to be concocted false claim and false defence which is further corroborated with the fact that defendant has not handed over the property in question despite termination of tenancy not only by efflux of time but also vide legal notice dated 21/22.05.10 Ex.PW1/E. Moreover bare perusal of WS it is revealed "that he/defendant does not want to leave the premises as per averment i.e. It is contended that defendant who is aged about 66 years has no any other alternative to stay alongwith his family members except the property in question and also no other space is available to keep the record of the society members in the property in question which has been taken by the plaintiff in the year 1996 for commercial cum residents purpose and also requested to renew the lease agreement with undertaking to enhance rent @ 10% to the present plaintiff as reply dated 09.07.2010 Ex.DW1/22 sent and addressed to plaintiff. So it is established that first of all the property in question was being used by the defendant alone with his family and got installed electricity and telephone connection even running his business as per document in Ex./MarkDX1 to DX3, DW1/P1, DW1/9 and DW1/10 without intimation to society or permission.
14. Further, since in the present case relationship between Suit no. 269/10 Page no. 20/29 father of plaintiff and defendant as landlord and tenant has been admitted and last rent paid Rs. 8,000/ per month w.e.f. 21.06.07 and lastly execution of lease agreement Ex.DW1/13 and termination of lease agreement through legal notice dated 21/22.05.10 which replied thereto. So I am of the considered view that defendant has completely failed to discharge the onus. Subsequently keeping in view the fact that the other witnesses in support of their contention i.e. DW2 has also been examined but cleverly and deliberately did not place constitution of the society and only at the stage of final arguments it has not been placed during course of query made that who is responsible for day to day affairs of the society, then Ld. Counsel for the defendant argued and contended that decision has been taken in the resolution passed in the meeting of the society but I do not agree with contention of the defendant simply the reason that the defendant himself admitted that after receiving of termination of tenancy notice dated 21/22.05.10 intimation has been given society despite that society or defendant has not file any application u/o 1 Rule 10 CPC and surprisingly in the present case reply dated 09.07.2010 Ex.DW1/22 and WS filed by the defendant being A.R. and Secretary of the society even in the crossexamination DW1 has admitted this aspect and so in view of judgments captioned above, the defendant has completely failed to discharge these onus as such suit Suit no. 269/10 Page no. 21/29 cannot be said not maintainable on ground of nonjoinder and in present foam. Hence, both these issues are decided against the defendant and in favour of plaintiff.
ISSUE NO. 5 & 6
15. The onus has been casted upon the plaintiff and defendant has been admitted the execution of lease agreement dated 21.06.07 which is Ex.PW1/13 and service of legal notice 21/22.05.10 and also admitted that he has sent reply Ex.DW1/22 to legal notice Ex.PW1/E.
16. Further, a bare perusal of constitution of the society which has been filed only after the directions and query made with respect to the fact that who is responsible for day to day affairs of the society and admittedly defendnat has been authorized by resolution passed in the society in the month of November 2010 then I do not understand under which capacity and how he has sent reply dated 09.07.2010 Ex.DW1/22 to the legal notice dated 21/22.05.10 Ex.PW1/E. After taking into consideration facts and circumstances and the evidence led by the parties, I am of the view that in view of the admission of service of legal notice dated 21/22.05.10 Ex.PW1/E and reply Ex.DW1/22 and counter reply Ex.DW1/23 and also in view of the admission that not only earlier lease agreement Ex.DW1/16, Ex.DW1/15, Ex.DW1/14 and last lease agreement has been extended and executed on 21.06.07 which is Suit no. 269/10 Page no. 22/29 Ex.PW1/13 by the defendant only and in view of Judgment titled as Sky Land International Pvt. Ltd. Vs. Kavita P. Lalwani 2012 (4) CLJ 83 Del, plaintiff has successfully establish that despite termination of lease deed Ex.PW1/13 by efflux of time as well as through legal notice terminated Ex.DW1/13, the defendant has not vacated the property in question and hold possession illegally and unauthorizedly specially in keeping in view the facts that after receiving legal noice Ex.PW1/E he has informed the society as admitted, even otherwise lease deed/agreement has not been extended after expiry of last lease agreement Ex.PW1/13, defendant further admitted in his written statement that he made request to the plaintiff in his reply dated 09.07.2010 to extend or renew the lease agreement with undertaking to enhance rent @ 10% and also admitted that the premises are being used for residential of defendant family, however the defendant has also been running business as per document Ex.DW1/22, because the request to stay in the property in question were made till the allotments of land which were allegedly allowed and very cleverly and deliberately contested the suit on the false and frivolous ground in the garb that the society is the tenant and retained or hold the possession of the property in question. Further, since the tenancy has been terminated, hence neither defendant nor the society under the law can hold the possession of the Suit no. 269/10 Page no. 23/29 property in question and it is admitted by the defendant all lease agreements Ex.PW1/13 to Ex.PW1/19 has been extended by the defendant being Secretary and not only the legal notice Ex.PW1/E but also present suit has been contended by filing written statement by the defendant sent/filed being the Secretary of the society and till today the defendant has been holding the post of Secretary as such I hold that he is responsible for day to day affairs of the society and he under obligation is supposed to intimate the service of termination of lease through legal notice Ex.PW1/E upon him, if not intimated earlier but failed, reason best to my understanding from the averment made in It is contended that defendant who is aged about 66 years has no any other alternative to stay alongwith his family members except the property in question and also no other space is available to keep the record of the society members in the property in question which has been taken by the plaintiff in the year 1996 for commercial cum residents purpose." It is also contended that the defendant society spend near about Rs. 10,24,514/ for the maintenance and repairing of the property in question at the request of the parents of plaintiff which was promised to be returned but till date same has not been returned back. It is also contended that the family member of the plaintiff also promised that till allotment of land, defendant can leave or run society office in the Suit no. 269/10 Page no. 24/29 property in question. It is further contended that the defendant through reply dated 09.07.2010 of the legal notice by the plaintiff asked the plaintiff to pay Rs. 10,24,514/ and also requested to renew the rent agreement with undertaking to enhance rent @ 10 % subject to execution of new rent agreement with the defendant and so it is established the society has not holding his office exclusively in the property in question and the entire premises is being used by the defendant alone. Hence, I am of the considered view that the plaintiff has successfully established that the defendant is a tenant and despite termination of tenancy by efflux of time as well as through legal notice Ex.PW1/E, defendant hold the possession illegally and unauthorizedly without any right, hence both these issues are decided in favour of the plaintiff and against the defendant in view of discussion and judgments captioned above. ISSUE NO. 7, 8 & 9
17. Since all three issues are interconnected, hence, taken together. The onus to discharge these issues are casted upon the plaintiff. As already mentioned that Hon'ble Supreme Court while passing judgment in case titled as "Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack De Sequeria (Dead Through L.Rs." observed
18. "Possession of Property - Principles of law in this regard - No one acquires title to property if he or she was allowed to stay in Suit no. 269/10 Page no. 25/29 premises gratuitously - Even by long possession of years or decades such person would not acquire any right or interest in said property - Caretaker or agent holds property of principal only on behalf of principal."
19. False claims and false Defences - Serious problem with real estate litigation, predominantly because of ever escalating princes of real estate - This happens because of enormous delay in adjudication of cases in our Courts - If pragmatic approach is adopted, then this problem can be minimized to a large extent.
Pleadings - Court must ensure that pleadings of case must contain sufficient particulars - In dealing with civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide fate of case.
20. From the pleadings of the defendant i.e. written statement wherein it is contended that it is contended that defendant who is aged about 66 years has no any other alternative to stay alongwith his family members except the property in question and also no other space is available to keep the record of the society members in the property in question which has been taken by the plaintiff in the year 1996 for commercial cum residents purpose. It is also contended that Suit no. 269/10 Page no. 26/29 the defendant society spend near about Rs. 10,24,514/ for the maintenance and repairing of the property in question at the request of the parents of plaintiff which was promised to be returned but till date same has not been returned back. It is also contended that the family member of the plaintiff also promised that till allotment of land, defendant can leave or run society office in the property in question. It is further contended that the defendant through reply dated 09.07.2010 of the legal notice by the plaintiff asked the plaintiff to pay Rs. 10,24,514/ and also requested to renew the rent agreement with undertaking to enhance rent @ 10 % subject to execution of new rent agreement with the defendant, so it is established that the defendant does not wish to hand over possession of property in question despite termination of lease agreement dated 21.06.07 by efflux of time as well as despite service of legal notice Ex.PW1/E for his personal use and interest hence the defendant cannot be permitted to contest the suit with any defence because admittedly defendant is in possession being the Secretary of society and once lease has been terminated by the efflux of time i.e. Ex.PW1/19 and through legal notice Ex.PW1/E than how his stay in the property in question can be justified in the eyes of law and in this regard reliance can be placed upon judgment titled as Cauvery Coffee Traders Vs. Hornor Resources (International) Co. Ltd. "A party cannot be Suit no. 269/10 Page no. 27/29 permitted to blow hot and cold fast and loose or appropriate approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.
The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had".
21. Now turning to the pleadings and evidence led by the parties. Defendant on the one side contended that he is not a necessary party and suit has been filed without making society who is reported to be a necessary party because the premises in question, was allegedly let out to society as such society is a tenant not himself/he but simultaneously or contrary, in his affidavit filed for the purpose of obtaining electricity, water and telephone connection. He has represented himself that defendant is the tenant in the property in question as it is established that connection are not in the name of society but in the name of defendant as per documents Ex.DX3, Ex.DX4, Ex.DX1 and Ex.DW1/7 to Suit no. 269/10 Page no. 28/29 Ex.DW1/9. Hence, all these issues are decided in favour of plaintiff and against the defendant in view of the judgment C.Beepuathuma Vs. Velasari Shankaranarayana Kodamabolithaya, AIR 1965 SC 241, Relief :
22. In view of the findings given on issues, the plaintiff is entitled for possession of property in question, a decree of arrears of rent of Rs. 8,000/ per month w.e.f. 01.06.2010 to till realization along with interest @ 6% p.a., since there is no as such document or evidence has been placed in respect to the damages/mesne profit @ 25,000/ per month hence I am of the considered view that he is not entitled for any damages as such, accordingly, suit of the plaintiff is decreed thus defendant is directed to hand over physical possession of the property in question shown in red colour in the site plan, Ex. PW1/2 and pay arrear of rent. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. Original documents, if any, on record be returned to the concerned person against receipt after obtaining the certified copies. Thereafter, file be consigned to record room.
Announced in the open (RAKESH KUMARIII)
Court on 30.11.2013 JSCC/ASCJ/GJ (Shahdara)
(Judgment contains 29 pages.) Karkardooma Courts, Delhi.
Suit no. 269/10 Page no. 29/29