Delhi District Court
Smt. Kiran Suneja vs M/S. Equipment Conductors on 31 May, 2007
1
IN THE COURT OF SH. PADAM KANT SAXENA,
ADDITIONAL DISTRICT JUDGE : DELHI
RCA No. 29/2005
In Re:
Suit No. 100/2001 (Old No.)
Suit No. 222/2001 (New No.)
Smt. Kiran Suneja,
W/O Shri R.C. Suneja,
R/O E-34, Saket,
New Delhi- 110 017
Through Shri R.C. Suneja,
duly constituted Attorney ...Appellant/Plaintiff
Vs.
M/s. Equipment Conductors
and Cables Ltd.,
605, Eros Apartments,
56,Nehru Place,
New Delhi ...Respondent/Defendant
JUDGMENT
1. The present appeal filed by the appellant/plaintiff impugns the findings recorded by learned trial Court against her on various issues including issue nos. 1 and 3, vide its judgment dated 4th May, 2005 in Civil Suit No. 222/2001 (New No.) consequent upon which her suit for possession, recovery of rent etc. filed 1 Of 37 2 against the respondent/defendant stood dismissed. The appellant desires that the impugned judgment in respect of the said issues be set aside and her suit for possession, recovery of damages, rent dues as claimed for in the plaint be decreed.
2. The respondent was served through process server on 29.6.2005 and through registered AD post on 20.6.2005 and thereafter repeatedly appeal was adjourned for advancement of arguments. However, on 23.12.2006 while the undersigned was away on training, the respondent filed reply in response to the memorandum of appeal, application/objection Under Order 41 Rules 22 and 33 readwith Section 151 C.P.C., an application under Section 151 C.P.C. seeking dismissal of the appeal and another application under Section 5 of the Limitation Act, 1963 for condonation of delay which had occurred in filing the aforesaid reply and the objections.
3. It is evident that Order 41 C.P.C. does not entitle the respondent to file a reply in respect of the memorandum of appeal as is being sought to be done by it. No such provision had been 2 Of 37 3 pointed out even during the course of arguments. As per Order 41 Rule 22(1) C.P.C. the aforesaid cross-objections could have been filed by the respondent within one month from the date of service on it but the said application/objections came to be filed after 1½ years of service of respondent. Reason given in its aforesaid application for condonation of delay, is change of counsel, In my view this by itself is no reason much less a sufficient one. Therefore the aforesaid viz., reply, objections etc. should be dismissed at the threshhold. However, without going into the technicalities and with a view to do substantial justice, I have considered the said objections as also the reply, on merits.
4. I have heard learned counsel for the parties and have gone through the records carefully.
5. Need for writing an elaborate judgment has arisen because as mentioned in paragraph 15 of the judgment hereinafter, four issues were decided by learned trial Court in favour of the plaintiff and against the defendant while remaining four issues were decided by it in favour of the defendant and against the 3 Of 37 4 plaintiff. Therefore, both parties have challenged the findings returned by learned trial Court against them in the impugned judgment.
6. The appellant/plaintiff in the instant appeal is woman and also a Senior Citizen. Further this appeal is also a continuation of the suit which is more than 6 years old.
7. For the sake of convenience, hereinafter the parties would be referred to by their status which they occupied before learned trial Court .
8. In order to appreciate the controversies involved in the present appeal, some facts need to be narrated for getting the hang of the case and the issues of law raised. For the said purpose, I would briefly refer to the averments of facts made by the parties in the respective pleadings on the basis of which the suit was contested before the learned trial court.
9. The plaint had been instituted by the plaintiff through her husband and constituted attorney Shri R.C. Suneja. In brief, case 4 Of 37 5 of the plaintiff as disclosed by her in the plaint was that she is the owner-landlady of the Flat No.605, measuring 750 Sq. ft. situated on the 6th floor of the building known as "EROS APARTMENTS"
at 56, Nehru Place, New Delhi-110 019, that the aforesaid flat was let out to the defendant in terms of the lease dated 12.1.1979 executed between the plaintiff and the then co-owner Smt. Santosh Suneja wife of late Shri S.M. Suneja on the one hand and the defendant on the other hand, that Smt. Santosh Suneja , however transferred her undivided share in favour of the plaintiff and the plaintiff became the exclusive owner of the aforesaid flat and the defendant attorned to the plaintiff as a tenant and had been paying the rent in respect of the flat to her i.e. plaintiff exclusively, that duration of the lease was for a period of three years commencing from 16.9.1979, that the defendant committed defaults in payment of the rent and after service of the notice of demand, she filed a suit for recovery of arrears of rent against defendant which suit was assigned to the Court of Shri S.N. Dhingra, Ld. A.D. J., Delhi (as his Lordship then was) , that the said suit was decreed in her favour vide order dated 27.8.1997 and the defendant was directed to pay the rent @ Rs.3019.68 with
5 Of 37 6 effect from 1st March, 1995 and the previous arrears of rent were allowed to be paid in four instalments, that contractual increase in rent by 10% of the last rent paid became due w.e.f. 1.3.1999 and the rate of rent was increased to Rs.3,321.64 , that next contractual increase of rent became due w.e.f. 1.3.2001 after expiry of three years of the last increase and the defendant was required to pay the said increased rent @ Rs. 3,653.80 per month excluding water and electricity charges w.e.f. 1.3.2001 which the defendant had neither paid nor tendered, that she got issued a legal notice dated 21.3.2001 and reminded the defendant to pay the increased rent @ Rs.3,653.80 w.e.f. 1.3.2001 which it did not pay, that she also got issued another legal notice dated 12.5.2001 under Section 6-A of Delhi Rent Control Act, 1958 for increase of rent and the enhanced rent became payable @ Rs.3,653.80 on expiry of 30 days from the service of notice i.e. w.e.f. 1st May, 2001 but the rent at the aforesaid increased rate has neither been tendered nor paid by the defendant to the plaintiff for the months of May and June, 2001, that the tenancy of the defendant stood terminated by virtue of the said notice date 12.5.2001 and now the occupation of the flat by the tenant is unauthorised w.e.f.
6 Of 37 7 1.6.2001, that similar type of flat in the same building and also in the vicinity is now-a-days fetching monthly rent not less than Rs.40/- per Sq. ft. and the defendant is therefore, liable to pay the damages/use and occupation charges @ Rs.30,000/- per month from 1st June, 2001, that in addition to the above, the defendant is also liable to pay the maintenance charges payable to the maintenance society which it had failed to pay and hence the suit in question came to be filed for recovery of possession, Rs.30,996.48 on account of rent/damages, mandatory injunction directing defendant to pay maintenance charges and for holding an enquiry Under Order 20 Rule 12 C.P.C. about payment of damages.
10. For short, the aforesaid tenanted flat would be referred to as 'the suit flat' hereinafter.
11. The defendant filed its written statement and resisted the suit in question both on preliminary grounds as well as on merits. According to it, as per lease agreement dated 12.1.1979, two different persons viz. Santosh Sunjea and Kiran Suneja , jointly 7 Of 37 8 entered into lease agreement with it, that both the said persons ought to have joined together as plaintiffs, that the rent of the premises is Rs.3,321.64 per month i.e. below Rs.3500/- and therefore it is a protected tenant under Delhi Rent Control Act, 1958, that there is no valid termination of tenancy under Section 106 of Transfer of Property Act, that the alleged notice under Section 106 of Transfer of Property Act , if sent was waived off by the plaintiff and she accepted the defendant as her lawful tenant and allowed it to continue as tenant in the suit flat by mutual and verbal agreement, that there is no cause of action in favour of the plaintiff and against the defendant, that the alleged notice under Section 6-A of Delhi Rent Control Act, 1958 for increase of rent was never sent to it, that the plaintiff and Smt. Santosh Suneja are the joint owners and therefore the present suit by only one owner is not maintainable. It is also denied by the defendant in its written statement that Shri R.C. Suneja is duly constituted attorney of plaintiff. It is admitted that the suit flat had been let out in pursuance of lease deed dated 12.1.1979 executed between it, on one hand, and Smt. Santosh Suneja and Smt. Kiran Suneja jointly on the other hand. It is also denied that Smt. 8 Of 37 9 Santosh Suneja transferred her share in favour of the plaintiff or that the plaintiff became exclusive owner of the suit flat. According to it, plaintiff had concealed material facts from the Court regarding filing of eviction petition by her against defendant which was dismissed and on appeal against the said dismissal order, learned Rent Control Tribunal while dismissing appeal directed her i.e. plaintiff to pay Rs.2000/- as cost and also directed not to file any eviction petition unless Rs.2000/- was paid. The suit flat is stated to be covered under the Delhi Rent Control Act, 1958 and therefore it is claimed that there cannot be an increase of rent to the extent which would take away the suit flat from the jurisdiction of the said Act, i.e. Delhi Rent Control Act, 1958. It also claims that it has been tendering the rent legally payable to the plaintiff @ Rs.3321.64 which the plaintiff had been accepting. It denies having received any notice of increase of rent w.e.f. 01.05.2001. It is also denied that it is liable to pay damages @ Rs.30,000/- or any other amount per month w.e.f. 1.6.2001 or from any other date and hence has prayed for dismissal of the suit.
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12. The plaintiff also filed a replication in which contents of written statement were denied while those of the plaint were reaffirmed.
13. On the basis of rival pleadings of the parties, following issues were framed by learned trial Court on 5.4.2002:-
ISSUES:
1. Whether suit is liable to be dismissed for non-joinder of necessary parties ? OPD.
2. Whether suit barred under Section 50 of Delhi Rent Control Act, 1958? OPD
3. Whether there is a valid termination of tenancy? OPD
4. Whether the alleged notice under Section 106 of Transfer of Property Act was waived by the plaintiff?
OPD
5. Whether notice under Section 6-A of Delhi Rent Control Act was not served? OPD
6. Whether suit is barred Under Section 53-A of Transfer of Property Act?OPD
7. Whether plaintiff has filed to comply with judgment dated 7.12.1998 in Appeal No.236/1997?OPD 10 Of 37 11
8. Whether the plaintiff is entitled to decree of possession?OPP
9. Whether the plaintiff is entitled to damages, if so, at what rate?OPP
10. Relief.
14. In support of the case of the plaintiff, two witnesses in all were examined while defendant examined only one witness in support of its defence.
15. After appreciation of evidence and hearing arguments, learned trial Court vide the impugned judgment decided issue nos. 1,3, 8 to 10 against the plaintiff and in favour of the defendant. Issue nos. 2,4,5 & 6 were decided in favour of the plaintiff and against the defendant. However, finally it was held that plaintiff was neither entitled to recover possession nor damages and the suit stood dismissed.
16. Learned trial court while deciding issue no.1 mentioned above held that the said Smt. Santosh Suneja continued to be joint owner of the suit flat despite execution of Ex.PW1/DX-1.
11 Of 37 12 Therefore the civil suit was held to be not maintainable on account of her non-impleadment. In this regard reliance was placed on a judgment of Hon'ble Delhi High court reported as Suchitra Pradhan and others Vs. M/s U.P. Twiga Fibreglass Ltd. and others, 2001 V AD (Delhi) 291 , wherein judgment of Hon'ble Gujarat High Court reported as Nanna Lal Girdhari Lal and another Vs. G.J. Motorwala, AIR 1973 Gujrat 131, had also been noticed. In the case of Suchitra Pradhan and others (Supra), admitted fact was that there were six co-owners including four plaintiffs and two defendants each having 1/6th undivided share in the suit property. The plaintiffs who were four in number, issued a notice to quit dated 11.7.1997 consequent upon which suit for possession against defendant no.1, the tenant, came to be filed. The said notice was not sent on behalf of remaining two co- owners who were co-defendants. So in view of these facts relying upon the aforesaid judgment of Hon'ble Gujarat High Court , it was held by Hon'ble Delhi High Court in the case of Suchitra Pradhan and others(Supra) that determination of tenancy had to be by all the co-owners. It was further held that subsequent ratification of the plaintiffs' action in serving notice dated 11th July, 12 Of 37 13 1997 on the tenant, by defendant nos. 2 and 3 in their subsequent affidavits was of no avail. So Hon'ble Delhi High Court in para No.12 of the judgment in the case of Suchitra Pradhan and others (Supra) inter-alia held as follows:
"At any rate, I am in agreement with the said view taken by the Full Bench of Gujarat High Court on the point of determination of tenancy by all the co- owners."
17. Therefore the law laid down in the case of Suchitra Pradhan and others (Supra) is that in case there are admitted joint owners, then tenancy of the tenant should be terminated by all of them. There is no quarrel with the said proposition of law. But the question is, is the said judgment applicable to the facts and circumstances of the present case or not.
18. At this stage a reference may be made to a judgment of Hon'ble Supreme Court reported as Sri Ram Pasricha Vs. Jagannath and others, AIR 1976 Supreme Court 233. In that 13 Of 37 14 case in para 15 of the report it was held by the Apex Court as follows:-
"..........Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such."
19. Even Hon'ble Delhi High Court in the case of Kanwal Kishore Manchanda Vs. S.D. Technical Services Pvt. Ltd. 2005 IV AD. Delhi 541 in paragraph 79 of the report has held as follows:-
"In a matter pertaining to ejectment of a tenant in Delhi where ( i ) the relationship of landlord and tenant is admitted; (ii ) the tenancy being validly terminated is admitted, and (iii) that the rent was more than Rs.3,500/- per month is admitted, plaintiff would be entitled to judgment under Order 12 Rule 6 C.P.C.( See Laxmikant Srikant HUF Vs. M.N. Dastoor 1978; 71 14 Of 37 15 DLT 564: K.Kishore and Construction HUF Vs. Allabhabad Bank (1978) 71 DLT 581 )."
20. Now in the present case what do we find. Admittedly the tenancy of the defendant commenced in the year 1979 and it was inducted as a tenant by the plaintiff and the other lessor Smt. Santosh Suneja. Ld. Trial Court in para 27 of the impugned judgment rightly held that since the said lease deed was unregistered, no terms thereof can be looked into.
21. It is an admitted case of the parties that in support of her case plaintiff did not enter the witness box before learned trial court and therefore could not be cross-examined. However, in support of the case of the plaintiff , apart from PW.2 Shri Surender Singh, plaintiff's attorney and her husband Shri R.C. Suneja examined himself as PW.1. He also proved the attorney as Ex.PW/1. During the course of arguments Ld. defence counsel had vehemently argued that the said attorney could not depose in place of and instead of the principal viz. the plaintiff for acts done by her in respect of which she alone had personal knowledge.
15 Of 37 16 Therefore, according to him deposition of PW.1 Shri R.C. Suneja, has no sanctity in the eyes of law. In this regard reliance has been placed on a judgment of Hon'ble Supreme Court reported as Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and others (2005) 2 Supreme Court Cases 217 . The other limb of argument of learned defence counsel is that since admittedly plaintiff did not enter the witness box before learned trial court , in view of the judgment of the Apex court reported as Vidhyadhar Vs. Manikrao and another III (1999) SLT 70 an adverse inference should have been drawn against her. Consequently, it is claimed that dismissal of the civil suit by Ld. trial court is in accordance with law.
22. I have perused affidavit Ex.P.1 which was filed by PW.1 Shri R.C. Suneja before Ld. Trial Court by way of examination- in-chief and in paragraph 1 thereof he has categorically deposed that he is conversant with the facts of the present case as he had been dealing with the same on behalf of his wife, the present plaintiff. Even the verification clause of the said affidavit shows that the contents of said affidavit were true and correct to 16 Of 37 17 deponent's personal knowledge.
23. The relevant power of attorney Ex.PW1/1 is duly notarised. Genuineness and authenticity of this document was not challenged during the course of cross-examination of PW.1 Shri R.C. Suneja. In the entire cross-examination, no suggestion was put to the said witness to the effect that he had no personal knowledge about the facts of the present case. On the contrary his deposition contained in paragraph 1 of Ex.P.1 to the effect that he is conversant with the facts of the case since he had been dealing with it on behalf of the plaintiff, was also not challenged in the cross-examination and therefore is deemed to have been admitted as correct. Further perusal of judicial record reveals that after passing of the judgment Ex.PW1/2, the defendant issued its letter dated 1.9.1997 Ex.PW1/3 wherein it had been categorically mentioned that in the said case, the present plaintiff was represented through her legal attorney Shri R.C. Suneja. Perusal of the cross-examination of PW.1 Shri R.C. Suneja clearly reveals that it is he who had admittedly received rent upto Dec.,2002 and he also voluteered to say that he had sent the receipt to the 17 Of 37 18 defendant and the cheque amount was also appropriated towards the damages and not towards the rent. He was also aware about the eviction petition earlier filed by the plaintiff against the defendant and the appeal filed by the present plaintiff before Rent Control Tribunal. So, it is clear from the aforesaid material on record that whatever PW.1 Shri R.C. Suneja deposed before Ld. Trial Court it was based on his personal knowledge. As such, judgment in the case of Janki Vashdeo Bhojwani and Another (Supra) relied upon by the learned defence counsel is not applicable to the facts of the present case.
24. In the instant case, there is no dispute between the parties regarding execution of the lease deed dated 12.1.1979 at the time of commencement of the tenancy of the defendant. It is not the case of the defendant that any document placed on record by it had been executed by the plaintiff and execution whereof had been denied by her in the case set up by her before Ld. Trial Court . On the other hand, whatever payments were made by the defendant to the plaintiff already stand admitted. The plaintiff in the power of attorney Ex.PW1/1 has clearly stated that she is a 18 Of 37 19 housewife. It is very common in Indian Society that generally properties are bought in the name of women folk of the house and the entire dealings in respect thereof are conducted by men. In the case of Vidhyadhar (Supra) relied upon by learned defence counsel, defendant no.1 had claimed that transaction of sale between plaintiff and defendant no.2 was sham and bogus whereas mortgage deed executed in his favour by defendant no.2 was in fact an outright sale. According to the plaintiff, in that case, the sale deed had been executed by defendant no.2 in his favour i.e. in favour of the plaintiff. However, in that case, defendant No.1 did not enter the witness box. In this fact situation when question of intention of the parties at the time of entering into the said transaction was most important, it was held that on account of non-examination of defendant no.1, that an adverse inference had to be drawn against him I state that in the peculiar facts and circumstances, of the present case, discussed in this paragraph as also the previous paragraph mentioned above, this judgment is not applicable to the facts of the present case and is clearly distinguishable.
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25. PW-1 Sh. R.C.Suneja, during the course of his cross- examination at the hands of learned defence counsel proved photocopy of a letter dated 26.02.1986 written by both viz. the present plaintiff and the said Smt. Santosh Suneja to M/s S.K. Constructions Pvt. Ltd., as Ex.PW1/DX-1, which inter-alia stated that change of right to use the suit flat be permitted in favour of their nominee, Mrs. Kiran Suneja, the present plaintiff. It is further mentioned in the said letter Ex.PW-1/DX1 that the said Smt. Santosh Suneja had no interest left in the suit flat. As per the endorsement appearing at the bottom of the said letter Ex.PW- 1/DX-1, the said request was confirmed even by the seller namely M/s S.K. Constructions Pvt. Ltd. Genuineness and authenticity of this document was not challenged by the defendant during the course of cross-examination of PW-1 and therefore it became an admitted document. Even PW-1 in response to a question put to him by learned defence counsel admitted as correct that the plaintiff and the said Smt. Santosh Suneja were the joint owners. However, he hastened to add and volunteered to say that they were so up to February, 1986. This portion of the oral deposition was also not challenged and is also therefore deemed to have been 20 Of 37 21 admitted as correct. So, at best what could be said is that the said two persons continued to be joint owners till February, 1986. Ld. Trial Court in para 18 of the impugned judgment held that in the absence of any sale deed, relinquishment deed etc. as required by Section 17 of Registration Act, 1908, the said Smt. Santosh Suneja continued to be joint owner of suit flat. Presuming that to be so, the question is, should non impleadment of the said Smt. Santosh Suneja, be fatal to the institution of the Civil suit by the plaintiff alone particularly against the defendant, the tenant in the facts and circumstances of the present case.
26. It is important to note that even before institution of the suit, in question present plaintiff had filed a suit for recovery of rent against the defendant in the year 1995 which was registered as Suit No. 71 of 1995. Certified copy of the order dated 27.08.1995 passed by Sh. S.N. Dhingra, Ld. ADJ, Delhi (as his Lordship then was) was, also proved as Ex.PW1/2 before learned trial court. In the said suit, the defendant did not take the defence that the said civil suit was not maintainable on any ground whatsoever including non impleadment of Smt. Santosh Suneja, as is being 21 Of 37 22 sought to be projected now. In fact vide the said judgment Ex.PW-1/2 the said civil suit was decreed in favour of the plaintiff and against the defendant. The said judgment was not challenged even by the defendant and therefore it attained finality. Thereafter even the defendant by virtue of its letter dated 01.09.1997 Ex.PW- 1/3 complied with the said judgment Ex.PW1/2 and inter-alia paid arrears of rent and also started paying enhanced rent w.e.f. 01.03.1995 to the plaintiff alone. Even DW-1 Sh. Amiya Kaushik in his cross-examination admitted that after 1987 it has been paying rent to the plaintiff alone. This witness also proved some of its letters as Ex.DW1/4 to Ex.DW1/14 whereby rent was paid to plaintiff alone. Admittedly the suit flat falls in a multi storied commercial building in Delhi. It is nobody's case that the said Smt. Santosh Suneja ever asked for payment of rent from the defendant or protested against the filing of the present civil suit. In the peculiar facts and circumstances of present case and the law laid down by the Apex Court in the case of Sri Ram Pasricha (Supra) & Hon'ble Delhi High Court in the case of Kanwal Kishore Manchanda (Supra) , I have no hesitation in holding that non impleadment of Smt. Santosh Suneja in the civil suit was 22 Of 37 23 not fatal and the civil suit filed by the plaintiff, landlady alone was maintainable since admittedly she alone is the landlady. With respect, I say that the judgment in the case of Suchitra Pradhan and others (Supra) is not applicable to the facts of the present case with regard to this portion of the controversy. Consequently finding of Ld. Trial Court on issue No.1, to the effect that the suit was bad on account of non-impleadment of Smt. Santosh Suneja being erroneous, is set aside.
27. Ld. Trial Court while deciding issue no.1 also held in paragraph 19 of the impugned judgment as follows:-
"Now the notice of termination is Ex.PW1/7 . It is dated 12/5/2001. The notice has been given by Smt. Kiran Suneja in her own name and as sole owner of the suit property. There is no mention of Smt. Santosh Suneja. As such notice is defective having been given only by one co-owner. The judgment of Nanalal's case and Suchitra's case squarely applied in the present case."
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28. In view of the above also it is clear that according to learned trial Court Ex.PW1/7 was defective since apparently the name of Smt. Santosh Suneja was not mentioned therein.
29. In the case of Nanna Lal(Supra) relied upon by Hon'ble Delhi High Court in the case of Suchitra Pradhan and others (Supra) it was held in paragraph 9 of the report that it was not necessary that notice to quit should be signed by all co-owners. It was further observed that it was sufficient if it was given by an agent who might be one of the co-owners or even an advocate. But the authority of the agent must exist on the date when notice to quit is given. Hon'ble Gujarat High Court further held that when the said agent acts under an authority incidental to the general agency to manage the demised property, then he might give the notice even in his own name. This judgment also lays down that where a co-owner is, by common consent of all co- owners , entrusted with the management of leased property, then he may give notice to quit in his own name and the notice to quit need not show on the face of it that he has been acting as an agent on behalf of the other co-owners.
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30. Now in the instant case, by virture of Ex.PW1/DX-1, the said Smt. Santosh Suneja constituted the present plaintiff as her nominee as mentioned therein and specifically stated that she had no interest in the suit flat. Hon'ble Supreme Court while dealing with the question of receipt of amount of insurance of a deceased assured, in the case of Sarbati Devi Vs. Usha Devi 1984 RLR 1 held that in the absence of a Will, the nominee receives the insured sum as an agent of the heirs of the deceased. Looked at this way, plaintiff at least could be said to be agent of the said Smt. Santosh Suneja. So, in the face of the aforesaid law when applied to the facts of the present case mentioned above, notice Ex.PW1/7 cannot be said to be defective. I have no manner of doubt that notice to quit, Ex.PW1/7 issued on behalf of plaintiff, was valid. Finding of Ld. Trial Court in this regard in the impugned judgment while deciding issue no.1 is erroneous and is therefore set-aside.
31. It is not in dispute that in the earlier civil suit between the parties, in terms of the judgment, certified copy of which has 25 Of 37 26 been proved on record as Ex.PW1/2, rent stood enhanced w.e.f. 1.3.1995. Also admittedly the defendant in pursuance of the said judgment Ex.PW1/2, started paying enhanced rent @ Rs.3019.68 per month w.e.f. 1.3.1995 to the plaintiff as is mentioned in defendant's letter Ex.PW1/3. DW.1 during the course of cross- examination admitted that rent stood increased in 1995 and again in 1998. Further according to him rent in 1998 was Rs.3321.64 per month. This is an admission of defendant's own witness. Ld. Counsel for the defendant during the course of arguments vehemently argued that rate of rent was lastly increased in 1999 and therefore enhancement of rent by the plaintiff again after two years vide notices Ex.PW-1/4 and Ex.PW-1/7 is illegal being in contravention of Section 6 A of Delhi Rent Control Act, 1958. In this regard he also invited my attention to the averment made by the plaintiff in para 9 of the plaint as also mentioned in para 10 of the affidavit Ex.P.1 of PW/1. Shri R.C. Suneja. This very fact has also been mentioned by the defendant repeatedly in its aforesaid reply and objection petition. On the other hand, learned counsel for the plaintiff submits that by mistake instead of 1.3.1998, date 1.3.99 was typed in the plaint and affidavit as pointed out above 26 Of 37 27 but this mistake stood rectified when it was mentioned in para no. 11 of the plaint as also affidavit Ex.P.1, that the next enhancement was due w.e.f. March, 2001. So on the basis of this and other documents on record, he argues that last increase of rent was w.e.f. 01.03.1998 and thereafter rent was again increased w.e.f. 01.03.2001 or 01.05.2001 vide notices Ex.PW-1/4 and Ex.PW-1/7.
32. As per plaintiff's own case, before institution of the civil suit in question, she had got issued two notices one dated 21.03.2001 Ex.PW-1/4 and the other dated 12.05.2001 Ex.PW-1/7 to the defendant.
33. The defendant in its written statement denies having received the said notices Ex.PW1/4 and Ex.PW1/7. Learned trial court while dealing with this aspect of the matter during the course of discussion on issue nos. 2 and 5 held that the said notices stood served on the defendant. Admittedly both Ex.PW-1/4 and Ex.PW- 1/7 mention correct address of the defendant. Even UPC receipts Ex.PW-1/5 and Ex.PW-1/9 pertaining thereto mention correct address of the defendant. Relevant receipts Ex.PW-1/6 and 27 Of 37 28 Ex.PW-1/8 show that the said notices Ex.PW-1/4 and Ex.PW-1/7 were also sent to the defendant through registered A.D. post. It is not the case of either party that the address of the defendant stood changed. In fact defendant is still in possession of the suit flat and the present suit relates inter-alia to recovery of possession thereof. Consequently relying on the judgment in the case of Jagdish Kaur Vs. Rabinder Singh, AIR 1991 Delhi 50, it is held that there is a presumption under law that in case a letter etc. is forwarded under postal certificate on a correct address, the letter had reached the address unless it is received back with a report that the addressee does not reside at the given address. In Kishan Chand Vs. Satya Paul, 1974 RLR (N) 84, it was held by Hon'ble Delhi High Court that a service effected by a certificate of posting is a good service under Section 106 Transfer of Property Act, 1882. To the same effect is the law laid down in the case of O.P. Bahal Vs. A.K. Shroff, 1973 RLR N 17, wherein it was held that a notice sent by post under postal certificate carries presumption under Section 114
(f) of Evidence Act, 1872 that it was duly delivered.
34. In the present case also notice Ex.PW-1/7 was correctly 28 Of 37 29 addressed and under Section 114 (f) of Evidence Act, 1872 it would be presumed that the common course of business was followed in delivery thereof to the addressee. To rebut this presumption defendant should have shown that there was some peculiar or special reason why the letter could not have been delivered to it. It is neither the defence of the defendant nor there is evidence that it does not have office at the suit flat of which complete address is mentioned in notices Ex.PW-1/4 and Ex.PW- 1/7. DW.1 Shri Amiya Kaushik had inter-alia testified that the dak of the defendant is received by a peon and he himself does not receive the same. For the reasons best known to the defendant, the said peon was not examined before learned trial Court. Therefore argument of learned defence counsel that notices Ex.PW-1/ 4 and Ex.PW-1/7 were not served on defendant, is meritless and therefore rejected. Consequently, it has to be held that the said notices stood served on the defendant. Finding of learned trial court in this regard does not suffer from any illegality and is accordingly affirmed.
35. Now in the notices Ex.PW-1/4 & Ex.PW-1/7 it had 29 Of 37 30 been categorically mentioned by the plaintiff that rent stood increased to Rs.3321.64 w.e.f. 01.03.1998 and consequently plaintiff sought another enhancement of rent by 10% w.e.f. 01.03.2001 which it was entitled to do as per Section 6 A of Delhi Rent Control Act, 1958. Though as per Ex.PW-1/4 plaintiff wanted payment of enhanced rent @ Rs.3,653.80 w.e.f. 01.03.2001 but vide Ex.PW-1/7 she stated that at least rent at the rate should be paid w.e.f. 01.05.2001. Despite receipt of the said notices Ex.PW-1/4 and Ex.PW-1/7, the defendant neither sent any reply nor tendered/paid rent at enhanced rate. Therefore averments made in Ex.PW1/4 and Ex.PW1/7 were deemed to have been admitted by the defendant, as correct on account of its inaction and complete silence in this regard. It is clear on a reading of notices Ex.PW-1/4 and Ex.PW-1/7, that according to the plaintiff the rent was increased w.e.f. 01.03.1998 and not w.e.f. 01.03.1999. The said discrepancy was an account of typographical mistake and I am in complete agreement with learned counsel for the plaintiff in this regard. Consequently the said mistake committed by the plaintiff in mentioning the last date of enhancement of rent as 01.03.1999 in paragraph 9 of the plaint 30 Of 37 31 and affidavit Ex.P-1 is of no help to the defendant. Argument of learned defence counsel in this regard is rejected. I hold that learned trial court rightly held that rent was legally enhanced by plaintiff w.e.f. 01.03.2001 or at least w.e.f. 1.5.2001 to Rs.3,653.80. The Civil suit in question came to be filed on 9.7.2001 and at that time rate of rent was more than Rs.3500/- per month. Therefore the civil suit in question was not barred by Section 50 of D.R.C. Act, 1958. It is well settled that rent under Section 6A of D.R.C. Act , 1958 could be unilaterally enhanced by a notice and the enhanced rent could not be challenged as unlawful for making premises exempt from Rent Control Act. Hence finding of learned trial Court with regard to this aspect of the mater stands affirmed.
36. By virtue of Ex.PW1/7 dated 12.5.2001 , plaintiff inter alia terminated tenancy of the defendant since it was a month to month tenancy. As per the postal receipts Ex.PW1/8 and Ex.PW1/9, notice Ex.PW1/7 was sent by post on 15.5.2001. So, the said notice Ex.PW-1/7 must have been received by the defendant in a week's time. (Refer Sudhir Kumar Gupta Vs. 31 Of 37 32 Varshawati and others, 1995 RLR 94)
37. By virtue of Ex.PW1/7 plaintiff had also asked the defendant to vacate the suit flat after expiry of 15 days of its service i.e. by 31.5.2001 or any other date it thought its tenancy month expired. Present suit was filed on 09.07.2001. So as per Section 106 of Transfer of Property Act, 1882 as amended w.e.f. 01.01.2003, the said notice Ex.PW-1/7 cannot be said to be invalid. Therefore at least w.e.f. 01.07.2001 defendant became an unauthorised occupant in respect of the suit flat, liable to vacate and handover possession to the plaintiff and further liable to pay mesne profits at market rate.
38. Plaintiff in the civil suit in question had claimed damages/use and occupation charges from the defendant @ Rs.40/- per sq.ft. and calculated at that rate, monthly charges came to Rs.30,000/- per month. However no rate of mesne profits/damages was mentioned in the notice Ex.PW-1/7. PW-1 Sh. R.C. Suneja orally deposed about plaintiff's claim in paragraph 17 of his affidavit in this regard. Plaintiff also examined PW-2 Surender Singh in this regard. Evidence of PW.1 32 Of 37 33 contained in Ex.PW1/A was also given in rebuttal and in paragraph 4 thereof he had also proved photocopy of a lease deed of some other premises as Ex.PW-1/27. However, it was ordered by learned trial court on 19.09.2003 that the said portion of deposition of PW-1 contained in paragraph 4 of Ex.PW-1/A would not be read in evidence. The said order of learned trial court had not been challenged before any Superior Court and therefore has become final. Admittedly no documentary evidence was produced on record by the plaintiff in support of her claim regarding use and occupation charges @ Rs.40/- per sq. foot. As already stated, Ex.PW-1/27 which was the only document in support of the said portion of claim, also stood rejected by learned trial Court .
39. At this stage a reference may be made to a judgment of Hon'ble Delhi High Court reported as Phool Rani Vs. Sh. Sheel Chandra, 2004 RLR 467, and in paragraph 13 of the said judgment it was observed as follows:
"The net result of the discussion is that the Trial Court judgment is set aside. A decree of possession is passed for entire ground floor as per the site plan Ex. P.2. We 33 Of 37 34 have been told that the mesne profit at the rate of Rs.4,000/- per month upto September, 2003 has been paid. The respondent is directed to pay from October,2003 till date at the rate of Rs.4,000/-. We have been told that the premises are in posh south Delhi colony and the plot area is 600 sq. yds. It has got four bed rooms on the ground floor apart from drawing and dining rooms. If the premises are not vacated by the respondent who has been in the premises after efflux of time from 2.05.1987 for almost 17 years and and the peaceful possession of premises is not handed over to appellant within one month from today, the appellant shall be entitled for mesne profit at the rate of Rs.20,000/- per month till possession is delivered".
40. Now in the facts and circumstances of the present case what should be done. Admittedly use and occupation charges @ Rs.3321.64 already stand paid by the defendant to plaintiff till 34 Of 37 35 December, 2002. As already held, the plaintiff became entitled to receive enhanced rent @ Rs.3,563.80 per month from the defendant w.e.f. 01.05.2001 and therefore defendant should pay arrears of rent for the months of May and June, 2001 accordingly to the plaintiff. Further as per my findings hereinbefore, after service of the notice to quit Ex.PW-1/7 dated 12.05.2001, the defendant became an unauthorised occupant w.e.f. 01.07.2001, in respect of the suit flat and therefore became liable to pay use and occupation charges in respect thereof at prevalent market rate with effect from the said date. Learned trial Court in the impugned judgment while dealing with issue nos. 8 and 9, refused relief of possession to the plaintiff and failed to return any finding regarding grant of damages/use and occupation charges to the plaintiff. In fact after framing of issues and recording of evidence, it was incumbent upon learned trial court to decide issue regarding grant of damages one way or the other. Despite the said lapse, I have myself considered the materials available on record of learned trial court with regard to this portion of the controversy. In the notice to quit Ex.PW-1/7 the plaintiff did not specify the rate at which she wanted the payment of mesne profits. This 35 Of 37 36 aspect of the matter has also been dealt with by me in forgoing paragraph nos. 37 and 38 of the instant judgment. As mentioned therein, photocopy of the lease deed Ex.PW-1/27 relied upon by the plaintiff cannot be taken into consideration. Apart from this there is not documentary evidence available on record of learned trial court to show that the prevalent market rent at the relevant time was Rs.40/- per square foot. I am not willing to accept mere word of mouth of PW-1 Sh. R.C. Suneja and PW-2 Sh. Surender Singh in that regard. In view of this factual position and the law laid down by Hon'ble Delhi High Court in the case of Phool Rani (Supra) I direct that the defendant would keep on paying use and occupation charges @Rs.3,563.80 per month w.e.f. 01.07.2001 till delivery of possession. Needless to mention that defendant would be entitled to the benefit of the payments already made by it to the plaintiff @ Rs.3321.64 per month.
41. Apart from the above, no other argument has been raised or pressed.
42. Resultantly the present appeal stands allowed. It is held 36 Of 37 37 that plaintiff is entitled to a decree of possession in respect of the suit flat bearing No. 605, Eros Apartments, 56, Nehru Place, New Delhi-110 019 and the defendant would handover the possession thereof within one month failing which, as observed in the case of Phool Rani (Supra), defendant would be liable to pay damages/mesne profits to the plaintiff @ Rs.20,000/- per month. Plaintiff would also be entitled to grant of costs throughout. Findings of learned trial Court on issue nos. 1,3,8 & 9 recorded in the impugned judgment, being erroneous are therefore set aside whereas its findings on other issues mentioned above stand affirmed. The aforesaid reply and objection petition of the defendant therefore stand dismissed. It is ordered accordingly.
Dictated and announced (PADAM KANT SAXENA)
in the open Court ADDITIONAL DISTRICT JUDGE
Today : 31.05.2007 DELHI.
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