Delhi District Court
R/O E83 vs Sh. Alimuddin on 10 February, 2012
IN THE COURT OF CIVIL JUDGE05 (SOUTH), SAKET
COURTS, NEW DELHI
Presided by: Ms. Manika
CS No. 249/10
Unique Case ID No. 02406C0403032010
Smt. Sureshna Devi
D/o Late Sh. Jai Dev Mahajan and
W/o Sh. Narendra Kumar
R/o E83, Anand Niketan,
New Delhi110021. ...PLAINTIFF
VERSUS
Sh. Alimuddin
S/o Sh. Fateh Mohammad
R/o E83, Second Floor, Anand Niketan,
New Delhi110021. ...DEFENDANT
Date of institution : 20.10.2010
Date of reserving : 02.02.2012
Date of pronouncement : 10.02.2012
Civil Suit No. 249/10 Page 1 of 29
JUDGMENT
1. This judgment disposes off the plaintiff's suit for recovery of rent on fixtures and fittings filed with the following prayer:
"...
a). A decree in favour of plaintiff and against the defendant , his servants, employees, successors, attorneys, assignee etc. may kindly be passed, for recovery of Rs. Rs.1,28,000/ ( Rupees one twentyeight thousand only ).the rent on fixtures and fittings , till filing of the present suit and future rent amount till the suit property is vacated handed over, with interest..
b) The defendants may also be directed to pay bank rate interest on the amount payable by the defendant.
c) Any other relief deemed fit and proper may also be granted to the plaintiff, in the interest of justice
d) Cost of the proceedings may be paid to the plaintiff."
FACTS
2. The case of the plaintiff is that she is the owner of all fittings and fixtures in the entire house bearing No. E83, Anand Niketan, New Delhi110021 and is dependent on rental income from the fittings and fixtures on the second floor of the aforesaid house. In July 2009, the second floor of the aforesaid house was lying vacant. The defendant approached the plaintiff's husband through a property dealer to take the second floor of the aforesaid house including all Civil Suit No. 249/10 Page 2 of 29 fittings and fixtures on rent for residential purpose. The plaintiff's husband agreed to let out the entire second floor of the aforesaid house, consisting of two bedrooms, two bathrooms, one drawing/dinning room, kitchen, one store and terrace in the front side, along with all fittings and fixtures therein. An agreement for renting of fittings and fixtures (hereinafter referred to as 'impugned agreement') was executed between the parties to the suit on 08.07.2009 as per which the lease of the fittings and fixtures was for a period of 11 months commencing from 08.07.2009. However, the period of the lease was later on changed to two years with mutual consent. The rent was fixed at Rs.16,000/ per month payable in advance by the 8th day of every English calendar month. The defendant intentionally and willfully violated the terms of the lease by not making payment of rent for fittings and fixtures after February 2010. During the said period as well, the rent payable by the defendant had been adjusted against the security deposit of Rs.56,000/ as the defendant had stated in writing on the lease deed that he would be vacating the tenanted property on or before 31.03.2010. However, till date neither the rent due on fittings and fixtures has been paid nor has the tenanted property been vacated despite repeated requests by the Civil Suit No. 249/10 Page 3 of 29 plaintiff. The plaintiff served a legal notice upon the defendant on 16.08.2010 despite which the defendant has failed to pay the rent for fittings and fixtures from March 2010 onwards. Hence, the plaintiff has filed the present suit.
3. The defendant has contested the suit by filing written statement. He has raised preliminary objections that the suit is not maintainable and deserves dismissal as the plaintiff has suppressed material facts; that the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') for want of cause of action; that the annexure of fittings and fixtures stated to be attached with the agreement was not provided to the defendant and no furniture, fittings and fixtures have been provided in the tenanted property to the defendant till date; that no question for payment of rent arises as the plaintiff has herself made the contract impossible by not abiding by its terms and conditions; and that the suit is not properly valued for the purpose of court fee and jurisdiction.
4. On merits, the defendant has not denied the execution of an agreement/lease deed by the parties on 08.07.2009. He has, however, denied that as per the agreement the lease of fittings and fixtures started with effect from 08.07.2009 and was for a period of 11 months Civil Suit No. 249/10 Page 4 of 29 which was later on changed to two years with mutual consent. The defendant has contended that no furniture, fittings and fixtures as per the agreement had been provided by the plaintiff. The defendant has stated that at the time of letting out of the tenanted property, fixtures, i.e. water heater in the bathroom and fans in all rooms, were already installed in the tenanted property, however, the same cannot be included in the category of furniture and fixtures for which the agreement was executed between the parties. He has contended that although no furniture, fittings and fixtures had been provided in the tenanted property, he continued to tender the rent for the same till February 2010 but stopped tendering rent thereafter. He has averred that he purchased his own furniture and got installed fixtures in the tenanted property on his own. The defendant has denied that the rent was fixed at Rs.16,000/ per month and has averred that it was fixed at Rs.12,000/ per month. He has contended that he had already paid a sum of Rs.1,28,000/ in advance to the plaintiff and requested the plaintiff to adjust the same towards the rent of the tenanted property. The defendant has denied service of the legal notice.
5. The plaintiff has filed replication to the written statement of the defendant reiterating the contents of the plaint and contesting the Civil Suit No. 249/10 Page 5 of 29 averments made by the defendant in his written statement. COURT PROCEEDINGS
6. The plaintiff's application under Section 151 of the C.P.C. for direction to the defendant to pay the monthly rent in Court was disposed off vide order dated 27.07.2011. Thereby the defendant was directed to deposit a sum of Rs.16,000/ per month for the period of March 2010 to July 2011 as arrears of rent in the Court by 02.09.2011. Vide the said order, the defendant was further directed to deposit in Court rent at the rate of Rs.16,000/ per month beginning August 2011 till the disposal of the present suit by the 05th day of each calender month.
7. On failure of the defendant to comply with the order dated 27.07.2011 and to show cause as to why his defence should not be struck off, vide order dated 15.09.2011 his defence was struck off. ISSUES
8. Vide order dated 07.07.2011, the following issues were framed: "1) Whether the suit is liable to be rejected for want of cause of action? OPD
2) Whether the plaintiff has suppressed material facts? Civil Suit No. 249/10 Page 6 of 29 OPD
3) Whether the plaintiff is entitled to a decree for recovery of rent on fixtures and fittings as prayed? OPP
4) Whether the plaintiff is entitled to interest? If so, on what amount, at what rate and for what period? OPP
5) Relief."
EVIDENCE
9. In support of her case, the plaintiff examined two witnesses. PW1, the plaintiff herself, deposed in line with the plaint and relied on original agreement for renting of fitting and fixtures dated 08.07.2009 Ex.PW1/A, copy of legal notice dated 16.08.2010 Ex.PW1/B, original UPC receipt Ex.PW1/C, original registered AD receipt Ex.PW1/D and original returned AD card bearing acknowledgment of receipt dated 18.08.2010 Ex.PW1/E. PW2, Sh. J.N. Gupta, a neighbour of the plaintiff, supported the case of the plaintiff in his examinationinchief by way of affidavit Ex.PW2/AA, however, he was not produced for crossexamination.
10. The defendant did not lead any evidence as his defence already stood struck off.
RELIANCE
11. Learned counsel for the plaintiff relied upon the following Civil Suit No. 249/10 Page 7 of 29 judgments:
i) State of Andhra Pradesh v. M/s. Kone Elevators (India) Ltd., AIR 2005 SC 1581;
ii) Suresh Chand v. Kundan (DEAD) by LRs. & Ors., (2001) 10 SCC 221; and
iii) Food Corporation of India & Ors. v. Babulal Agrawal, (2004) 2 SCC 712;
12. Learned counsel for the defendants relied upon the following judgments:
i) M/s. K.B. Saha & Sons Pvt. Ltd. v. M/s. Development Consultant Ltd., AIR 2008 SC (Supp) 850;
ii) Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162;
iii) Ramesh v. Rajpati, AIR 2003 Punjab & Haryana 316;
iv) Avinash Kumar Chauhan v. Vijay Krishna Mishra, AIR 2009 SC 1489;
iv) Delhi Motor Co. & Ors. v. U.A. Basrurkar (dead) by his legal representatives & Ors., AIR 1968 SC 794;
v) M/s. Chemical Sales Agencies v. Smt. Naraini Newar, AIR 2005 Delhi 76;
Civil Suit No. 249/10 Page 8 of 29
vi) Arshad Ali Khan v. State of U.P, AIR 1978 Allahabad 59(1);
vii)B.G. Kumaravelu & Anr. v. K.R. Kanakarathnam Chetty & Ors., AIR 1996 SC 982;
viii)Mohammad Jaffer Ali v. S. Rajeswara Rao & Ors., AIR 1971 Andhra Pradesh 156;
ix) M/s. Sultan Brothers Private Ltd. Bombay v. The Commissioner of Incometax, Bombay, AIR 1960 Bombay 337;
x) Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. & Ors., AIR 2010 SC 3109;
xi) Duncans Industries Ltd. v. State of U.P. & Ors., AIR 2000 SC 355;
xii)J. Kuppanna Chetty, Ambati Ramaya Chety & Co.
v. Collector of Anantapur & Ors., AIR 1965 Andhra Pradesh 457; and
xiii)Official Liquidator v. Sri Krishan Deo & Ors., AIR 1959 Allahabad 247.
Civil Suit No. 249/10 Page 9 of 29 FINDINGS
13. The record has been carefully perused. The respective submissions of Sh. Rahul Sharma, Advocate, learned counsel for the plaintiff, and Sh. Prasoon Kumar, Advocate, learned counsel for the defendant, have been considered.
14. The issuewise findings are as under: Issue No.1: Whether the suit is liable to be rejected for want of cause of action?
15. The onus of proof qua this issue was on the defendant.
16. The defendant has raised objection in this regard in paragraphs 2 and 6 of the preliminary objections in his written statement. In paragraph 6 as aforesaid, he has stated that no cause of action arose as no furniture and fixtures had even been provided to the defendant by the plaintiff at any point of time and that the plaintiff procrastinated the matter on one pretext or the other. The contention that no fittings, fixtures and furniture had been provided to the defendant by the plaintiff is essentially the defence of the defendant and can, therefore, not be looked into for the purpose of adjudication of this issue Civil Suit No. 249/10 Page 10 of 29 inasmuch as for the purpose of Order VII Rule 11 of the C.P.C. only the averments in the plaint and the documents filed therewith can be looked into.
17. During the course of final arguments, learned counsel for the defendant submitted that the plaint does not disclose a cause of action as in the plaint there are no details of the fittings and fixtures allegedly leased out by the plaintiff and even the impugned agreement does not contain any annexure. In the considered opinion of this Court, merely because the plaint does not detail the fittings and fixtures allegedly let out by the plaintiff to the defendant, it cannot be said that the plaint does not disclose a cause of action. The same may be a factor affecting grant or denial of the relief to the defendant but does not lead the Court to conclude that there was no cause of action.
18. 'Cause of action' constitutes the bundle of facts that form the basis for instituting a suit. It refers to the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself.
19. Perusal of the plaint reveals that the plaintiff has alleged that she entered into an agreement with the defendant to lease out all the Civil Suit No. 249/10 Page 11 of 29 fittings and fixtures in the tenanted premises; that the defendant failed to pay rent regularly; and that the defendant did not pay rent from March 2010 onwards. The plaintiff has also annexed with the plaint the impugned agreement dated 08.07.2009. In the opinion of this Court, the plaint does disclose a cause of action.
20. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue No.2: Whether the plaintiff has suppressed material facts?
21. The onus of proof qua this issue too was on the defendant. The defence of the defendant having been struck off, he did not lead any evidence to prove that the plaintiff has suppressed material facts. Thus, the defendant has failed to prove that the plaintiff has suppressed material facts.
22. In view thereof, this issue is also decided in favour of the plaintiff and against the defendant.
Issue No.3: Whether the plaintiff is entitled to a decree for recovery of rent on fixtures and fittings as prayed?
23. With respect to this issue, the onus of proof was on the plaintiff. Civil Suit No. 249/10 Page 12 of 29
24. To prove the averments in the plaint, the plaintiff examined herself as PW1. In her affidavit Ex.PW1/AA, PW1 deposed in line with the plaint. The plaintiff had also examined one of her neighbours, Sh. J.N. Gupta, as PW2, however, he was not produced for crossexamination. Thus, the testimony of PW2 cannot be read in evidence.
Re: Plaintiff's right to sue
25. It was urged by the learned counsel for the defendant that no right to sue had accrued in favour of the plaintiff as while in the plaint she has averred that she is owner of the fittings and fixtures installed in the property, in her crossexamination PW1 stated that she did not know whether the fixtures and furniture were owned by her or not. The said contention is devoid of merit as in order to sue for recovery of rent, a person need not be owner of the property alleged to have been let out. The averment that plaintiff is the landlady in respect of the property let out is sufficient to vest in her the right to sue. Thus, it cannot be said that there was no right to sue in favour of the plaintiff.
Re: Nonjoinder of necessary party
26. Relying on Mumbai International Airport Pvt. Ltd. v. Regency Civil Suit No. 249/10 Page 13 of 29 Convention Centre and Hotels Pvt. Ltd. & Ors., AIR 2010 SC 3109, learned counsel for the defendant also argued that the suit was bad for nonjoinder of necessary party. The said contention also does not find favour with this Court as the plaintiff's case being that she was landlady/lessor in respect of the fittings and fixtures and the defendant was her tenant/lessee, no other person was a necessary party to the present suit.
Re: Admissibility in evidence of the agreement Ex.PW1/A
27. The plaintiff's case primarily rests on the impugned agreement for renting of fittings and fixtures dated 08.07.2009 Ex.PW1/A. Learned counsel for the defendant, however, argued that fittings and fixtures are immovable property and, therefore, the impugned agreement, which creates a lease for two years, being an unregistered document could not be relied upon than for collateral purpose. In support, he relied upon Mohammad Jaffer Ali v. S. Rajeswara Rao & Ors. (supra), M/s Sultan Brothers Private Ltd. v. The Commissioner of Incometax (supra), B.G. Kumaravelu & Anr. v. K.R. Kanakarathnam Chetty & Ors. (supra), M/s Chemical Sales Agencies v. Smt. Naraini Newar (supra), M/s K.B. Saha and Sons Civil Suit No. 249/10 Page 14 of 29 Pvt. Ltd. v. M/s Development Consultant Ltd. (supra), Avinash Kumar Chauhan v. Vijay Krishna Mishra (supra) and Delhi Motor Co. & Ors. v. U.A. Basrurkar (dead) by his legal representatives & Ors. (supra). Learned counsel for the plaintiff, on the other hand, urged that fittings and fixtures cannot be termed as immovable property.
28. Section 3(26) of the General Clauses Act, 1897 defines 'immovable property' as, "immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". Further, Section 2(6) of the Registration Act, 1908 defines 'immovable property' as, ""immovable property" includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass". The Transfer of Property Act, 1882 provides no definition of immovable property beyond excluding standing timber, growing crops and grass. Since the definition in the Transfer of Property Act is negative and not exhaustive, Section 3(26) General Clauses Act applies except to the Civil Suit No. 249/10 Page 15 of 29 extent to which it is modified by the Transfer of Property Act.
29. Section 3 of the Transfer of Property Act defines the phrase 'attached to the earth' as under:
"(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;"
30. Clause (c) of the definition of 'attached to the earth', therefore, requires that for a thing to be covered within the said phrase, it must be (i) attached to a thing imbedded in the earth; and (ii) attached to the thing so imbedded for the permanent beneficial enjoyment of the said imbedded thing.
31. In the instant case, the fittings and fixtures forming the subject matter of the lease have not been enlisted either in the impugned agreement Ex.PW1/A or in the plaint. Admittedly, the Annexure A containing list of fittings and fixtures referred to in the agreement Ex.PW1/A has not been filed on record. However, in her crossexamination, the plaintiff/PW1 stated, "It is correct that at the time of renting out the premises, two geyser in two bathroom, one Civil Suit No. 249/10 Page 16 of 29 geyser in the kitchen, five fans and tube light were installed in the rented premises bearing no. E83, 2nd floor, Anand Niketan, New Delhi. Besides the same, decorative lights, two exhaust fans and chandlier were also fixed.". Thus, though not exhaustive, an illustrative list of the fittings and fixtures has been provided in the crossexamination of PW1 upon questions asked in that regard on behalf of the defendant.
32. Certainly, the fittings and fixtures, including fans, geysers, tubelights, decorative lights, exhaust fans and chandlier are things attached to the building. As per clause (b) of the above definition, a building is a thing imbedded in the earth. What requires examination is whether the fittings and fixtures are attached to the building for the permanent beneficial enjoyment of the building.
33. In Triveni Engineering & Industries Ltd. v. CCE, (2000) 7 SCC 29, it was held that whether an article is permanently fastened to anything attached to the earth requires determination of both intention as well as the factum of fastening to anything attached to the earth and this has to be ascertained from the facts and circumstances of each case.
Civil Suit No. 249/10 Page 17 of 29
34. The two tests for determining whether a thing is attached to something imbedded in the earth for the permanent beneficial enjoyment of such latter thing would be (1) the degree or mode of annexation and (2) the object of annexation. As regards degree and mode of annexation, although chandlier and decorative lights may be ornamental articles only, fittings and fixtures such as fans, geysers, exhaust fans and tubelights etc. are things which form part of the house/building and have no separate existence. As regards object or intention behind annexation, as stated in the recital and clause 1 of the agreement Ex.PW1/A itself, the said agreement was executed simultaneously on 08.07.2009 with the agreement for lease of the property being second floor of the house bearing No. E83, Anand Niketan, New Delhi. While examining the document Ex.PW1/A, the intention and purport of the same has to be taken into consideration rather than the heading or nomenclature given to the document. Paragraph 2 of the plaint reads, "That last year in July, 2009, the second floor of the above said house was laying vacant. The defendant approached the husband of the plaintiff, through a property dealer expressing his desired to take second floor of the house including all fittings and fixtures, on rent for residential purpose, for self and his Civil Suit No. 249/10 Page 18 of 29 small family. As the accommodation was laying vacant, which is also a source of income in this old aged couple , the husband of the plaintiff agreed to let out the entire second floor of house consisting two bed rooms , two bath rooms, one drawing/dinning room, kitchen, one store and terrace in the front side ,along with all fittings and fixtures of suit property of house No. E83, Anand Niketan, New Delhi." (emphasis supplied). Clause 1 of the agreement Ex.PW1/A reads, "The agreement for the renting of fittings, fixtures & furniture will run concurrently and terminate simultaneously with the lease Deed executed on 8th day of July 2009 for the Premises with the owner Mr. Narender kumar including any extension thereof.". A bare perusal of the agreement Ex.PW1/A as well as paragraph 2 of the plaint indicates that the fittings and fixtures referred to therein were fixed and connected with enjoyment and use of the immovable property. It appears to be a case of bifurcation of rent by the plaintiff and her husband for tax purposes. Be that as it may, the dominant intention of the parties in executing the agreement Ex.PW1/A and the agreement between the plaintiff's husband and the defendant was to let out the property (second floor of the aforesaid house) to the defendant and it cannot be said that the dominant intention was to let out the fittings Civil Suit No. 249/10 Page 19 of 29 and fixtures and the building playing a subsidiary role only. Reliance is placed on the decisions in B.G. Kumaravelu & Anr. v. K.R. Kanakarathnam Chetty & Ors. (supra) and Mohammad Jaffer Ali v. S. Rajeswara Rao & Ors. (supra). It is not, and cannot be, the case of the plaintiff that the agreement Ex.PW1/A could be enforced and continued separately from the agreement for lease of the property between the plaintiff's husband and the defendant or that the two agreements were not interrelated. The two agreements were executed together and cannot be read in isolation. Thus, the fittings and fixtures in the instant case fall within the four corners of clause (c) of the meaning of the phrase 'attached to the earth' appearing in Section 3 of the Transfer of Property Act. The same are accordingly 'immovable property' within the meaning of the expression as defined under Section 3(26) of the General Clauses Act.
35. In taking the aforesaid view, this Court is supported by the decision of the Hon'ble High Court of Delhi in Parsons Brinckerhoff v. Manoj Gulshan & Ors., CS(OS) No. 1560/2001 dated 09.01.2009. Need is not felt to discuss the decisions cited on behalf of the defendant in this regard. The decision in Suresh Chand v. Kundan (DEAD) by LRs. & Ors. (supra), cited on behalf of the plaintiff, does Civil Suit No. 249/10 Page 20 of 29 not aid her case.
36. As per the plaintiff, as also stated in the agreement Ex.PW1/A, the said agreement was for a period of 2 years. The agreement Ex.PW1/A is, however, unregistered. Therefore, in view of Section 107 of the Transfer of Property Act, 1882 and Sections 17 and 49 of the Registration Act, 1908, the agreement Ex.PW1/A cannot be relied upon and referred to except for collateral purposes.
37. In M/s K.B. Saha and Sons Pvt. Ltd. v. M/s Development Consultant Ltd. (supra), relied upon by the learned counsel for the defendant, after considering various decisions of the Hon'ble Supreme Court, in paragraph 21 it was observed as under:
"From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, Civil Suit No. 249/10 Page 21 of 29 a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
38. Since the agreement Ex.PW1/A purporting to create a lease is inadmissible in evidence for want of registration, none of its terms, including the one which provides the rate of rent, can be admitted in evidence. Further, it cannot be said that the defendant's liability towards payment of rent is a collateral purpose for which the agreement Ex.PW1/A can be admitted in evidence since liability for payment of rent arises directly from the agreement in question and not collaterally. Thus, for want of registration, the agreement Ex.PW1/A cannot be read in evidence for the purpose of the present suit.
39. Further, perusal of the agreement Ex.PW1/A reveals that while the same is executed on 08.07.2009, the stamp paper on which the first page of the said agreement appears was purchased on 09.07.2009. Thus, the authenticity of the said agreement is questionable. Civil Suit No. 249/10 Page 22 of 29
Re: Admissions in written statement
40. However, learned counsel for the plaintiff had argued that even if the agreement Ex.PW1/A is not looked into, the plaintiff is still entitled to recover rent as prayed inasmuch as, in his written statement, the defendant has admitted having paid rent for certain months. Per contra, learned counsel for the defendant urged that since the defence of the defendant stands struck off, the written statement filed by the defendant cannot be read at all. In support of his contention, he relied on the provisions of Order XI Rule 21 of the C.P.C. and the decision in Ramesh v. Rajpati (supra).
41. Section 17 of the Indian Evidence Act, 1872 defines the term 'admission' as, "An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Thus, a statement made by a party in his pleadings may be an admission.
42. The defence of the defendant was struck off vide order dated 15.09.2011 on account of his failure to comply with the order dated 27.07.2011. If an admission made in the written statement were not to Civil Suit No. 249/10 Page 23 of 29 be read against the defendant merely on the ground that his defence stands struck off, it would amount to allowing the defendant the benefit of his own wrong i.e., in the instant case, his failure to comply with an order of the Court. If such an interpretation was to be accepted, a defendant having made serious admissions in his written statement would prefer to disregard the orders of the Court or otherwise have his defence struck off rather than face a decree against himself on the basis of admissions made by him in his written statement. The same cannot be the spirit of the law of striking off the defence of a defendant. The only effect of striking off of the defence ought to be that the defence as disclosed in the written statement would be ignored in totality.
43. The reliance placed on Order XI Rule 21 of the C.P.C. is misplaced as firstly, the defence of the defendant in the instant case had not been struck off under the said provision and secondly, even if an analogy was to be drawn to the said provision, it merely states that the defendant shall be liable "to be placed in the same position as if he had not defended" rather than that his written statement ought to be wholly ignored even if it contained admissions. In Ramesh v. Rajpati (supra), cited on behalf of the defendant, the Court did not consider a Civil Suit No. 249/10 Page 24 of 29 case where the written statement contained admissions or the question whether such admissions could be looked into. Thus, the said decision is not applicable to the facts of the present case.
44. In the considered opinion of this Court, therefore, admissions made by the defendant, even if the same are made in the written statement in a case where his defence has been struck off, can be used against him.
45. In paragraph 4 of the preliminary objections in his written statement, the defendant has admitted, "That the agreement was executed between the parties at the time of execution of Rent Agreement between the Husband of the plaintiff and the defendant.". In paragraph 6 of the preliminary objections in his written statement, the defendant has admitted, "... The fixtures which were already installed at the time of premises taken on rent, were the water heater in the bathroom and fans in all rooms. ..." In paragraph 5 of the preliminary objections in his written statement, the defendant has stated, "That the answering defendant started to pay rent of fittings and fixtures which were not delivered to the defendant till date ... and from Feb 2010, as the fittings and fixtures were not provided to the answering defendant, the defendant stopped to tender the rent for it to Civil Suit No. 249/10 Page 25 of 29 the plaintiff. ... It is pertinent to mention that the answering defendant was tendering advance rent to the plaintiff and all the time he had paid the regular rents to the plaintiff and her husband. ...". In paragraph 4 of the reply on merits in his written statement, defendant has stated, "It is submitted that the fitting and fixtures charges was given by the answering defendant even without the delivery of the fixtures.". Further, while, in paragraph 4 of the reply on merits in his written statement, the defendant has denied that the monthly rent was fixed at Rs.16,000/ and has stated that "the rent of the premises was fixed at Rs. 12,000 per month", in paragraph 5 of the reply on merits, the defendant has admitted, "... It is submitted that ... the answering defendant stopped paying rent of furniture and fixture @ 16,000/ per Month from February 2010 onwards ...".
46. From the aforesaid, it is clear that though it was the defendant's defence that fittings and fixtures had not been provided to him by the plaintiff and that he has been using his own, which defence cannot be looked into, he has clearly admitted:
i) that an agreement in respect of letting out of fittings and fixtures had been entered into between the plaintiff and himself;
ii) that some fixtures, such as water heater and fans, were already Civil Suit No. 249/10 Page 26 of 29 installed in the property at the time the same was taken on rent;
iii) that he had paid rent/fittings and fixtures charges initially;
iv) that he had paid rent at the rate of Rs.16,000/ per month; and
v) that he stopped paying the rent to the plaintiff from February 2010 onwards.
47. Thus, on the basis of the aforesaid admissions, the plaintiff is entitled to recover rent/charges for use of the fittings and fixtures in the second floor of the aforesaid house at the rate of Rs.16,000/ per month with effect from March 2010 from the defendant.
48. As regards future rent till vacation of the property by the defendant, it is not the plaintiff's case that any proceedings for seeking vacation of the property have been filed against the defendant and the plaintiff has not sought to recover possession qua the fittings and fixtures. The cause of action in respect of the rent/charges for use of fittings and fixtures after the date of this judgment is yet to arise. Therefore, the said relief cannot be granted.
49. This issue is decided accordingly.
Issue No.4: Whether the plaintiff is entitled to interest? If so, on Civil Suit No. 249/10 Page 27 of 29 what amount, at what rate and for what period?
50. The onus of proof qua this issue was on the plaintiff.
51. In the opinion of this Court, it would be sufficient to meet the ends of justice, if interest at the rate of 06% per annum is allowed on the rent/charges for use of fittings and fixtures granted in favour of the plaintiff till realisation of the said rent/charges for use.
52. This issue is decided accordingly.
Issue No.5: Relief.
53. In view of the findings on issue No.3, a decree for recovery of rent/charges for use of fittings and fixtures in the second floor of the house bearing No. E83, Anand Niketan, New Delhi110021 at the rate of Rs.16,000/ (Rupees Sixteen Thousand only) per month with effect from March 2010 till date is passed in favour of the plaintiff and against the defendant.
54. In view of the findings on issue No.4, interest at the rate of 06% per annum on the rent/charges for use of fittings and fixtures awarded in favour of the plaintiff till realisation of the said rent/charges for use is also granted in favour of the plaintiff and against the defendant. Civil Suit No. 249/10 Page 28 of 29
55. The plaintiff is not entitled to any other relief.
56. Parties are left to bear their own costs.
57. Decree sheet be prepared accordingly. Decree in respect of rent/charges for use of fittings and fixutres for the period after the filling of the suit, i.e. with effect from 21.10.2010, shall be executable only after payment of the requisite court fee thereon.
58. File be consigned to record room.
Announced in open Court on 10.02.2012.
(MANIKA) Civil Judge05 (South), New Delhi 10.02.2012 Civil Suit No. 249/10 Page 29 of 29