Delhi District Court
Sh. Kanshi Ram vs Sh. Sushil Mishra on 22 December, 2014
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 03
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 875/11
Unique ID No. 02401C0389872002
Sh. Kanshi Ram,
S/o Sh. Amar Singh
R/o SE8, Village Singhalpur,
Delhi110 088.
.......... Plaintiff
VERSUS
Sh. Sushil Mishra
S/o Sh. Ram Prashad Mishra,
R/o SE9, Village Singhalpur,
Delhi110 088.
.........Defendant
SUIT FOR RECOVERY OF POSSESSION, RENT/MESNE
PROFIT/DAMAGES AND PERMANENT INJUNCTION
Date of institution : 31.07.2002
Date for reserving for orders : 17.12.2014
Date of decision : 22.12.2014
J U D G M E N T
Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 1/12
1. Vide this judgment, I shall dispose off the present suit originally filed by the plaintiff seeking recovery of possession of one room in property bearing no. SE9, VillageSinghalpur, Delhi as shown in red color in the site plan annexed (herein afterwards referred as suit property), recovery of rent/mesne profit/damages of Rs. 31,500/ along with interest @ 15% p.a., permanent injunction against creation of third party interest qua the suit property by the defendant and damages @ Rs.1,000/ per month from the date of filing of the suit till the recovery of possession of the suit property from the defendant. It is stated that the legally recoverable rent for the period of 36 months was Rs. 36,000/, out of which Rs. 4,500/ was paid by the defendant on 15.07.2002.
2. But, vide order dated 07.08.2004, the suit of the plaintiff was dismissed qua the relief of recovery of possession of the suit property with the observation that the same is barred by the provision of section 50 of Delhi Rent Control Act, 1958 (herein afterwards referred as DRCA).
3. Briefly stated the facts as averred by the plaintiff in the plaint which are necessary for the disposal of the present suit are as follows: a. The plaintiff is the owner and landlord of the suit property which was let out to the defendant @ Rs. 1,000/ per month excluding electricity charges.
Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 2/12 b. Due to nonpayment of electricity charges by the defendant, the electricity connection was disconnected and the defendant has also failed to pay rent for the period of June, 1998 to June, 2002 to the plaintiff amounting Rs. 49,000/. But, the plaintiff is hereby limiting his claim for recovery of Rs. 31,500/ i. e. legally recoverable arrears of rent for the period of three years prior to the filing of the present suit after deducting Rs. 4,500/ paid by the defendant on 15.07.2002.
c. The plaintiff vide notice dated 07.11.2000 terminated the monthly tenancy of the defendant and also demanded unpaid rent from the defendant but, the defendant has failed to pay the same and hence the plaintiff is entitled for recovery of Rs. 31,500/ being arrears of rent along with interest @ 15% p. a and damages at the rate of Rs. 1,000/ p.m from the date of filing of the suit till the date of recovery of possession of the suit property from the defendant.
d. The plaintiff also came to know that the defendant intended to create encumbrance qua the suit property and part with the possession of the suit property in favour of third person.
4. The defendant contested the suit of the plaintiff by filing written statement (herein afterwards referred as WS) wherein the defendant has disputed the claim of the plaintiff to recover possession of the suit property raising bar of Section 50, DRCA.
5. The defendant has further disputed the entitlement of the Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 3/12 plaintiff to recover arrears of rent, interest and mesne profit stating that the defendant has sent money order to the plaintiff dated 09.11.2000 dispatched on 14.11.2000 and further disputing the rate of rent stating that the same is Rs.250/ p.m inclusive of electricity, tap water, hand ground water charges and scavenging charges.
6. It is further stated that the rent receipt as placed on record by the plaintiff is forged and fabricated . The defendant alleged that the plaintiff has disconnected the electricity supply of the suit property on 21.10.2000, water supply on 23.02.2001 and sewage line on 27.02.2002 due to which the plaintiff is not entitled for recovery of rent and damages as prayed from the defendant.
7. The plaintiff has filed replication to the WS of the defendant wherein reiterating the averments of the plaint and denying the contents of the WS.
8. After dismissal of the relief of the plaintiff for recovery of possession of the suit property, following issues were framed vide order dated 27.10.2004:
1. Whether plaintiff is entitled for recovery of amount as mesne profit/damages as claimed?OPP
2. Whether plaintiff is entitled for decree for permanent injunction?OPP
3. Relief.
Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 4/12
9. In the present matter, after framing of the aforesaid issues, the plaintiff/PW1 has filed his affidavit in evidence which was exhibited on 28.04.2005 as Ex. PW1 and the plaintiff has placed reliance on documents exhibited as Ex. PW1/1 to Ex. PW1/7 and Mark C And Mark D. PW1 was duly cross examined by Ld. Counsel for the defendant.
10. After conclusion of evidence of the plaintiff, the defendant has got himself examined as DW1 and his examination in chief by way of affidavit was exhibited as Ex. DW1/A. The defendant has placed reliance on documents exhibited as Mark A to Mark M .
11. In the present matter, an additional issue with regard to interest was framed vide order dated 23.10.2013 by the directions of Ld. Appellate Court's order dated 25.09.2013 which is reiterated as follows:
"Whether the plaintiff is entitled for any interest if so, at what rate and for which period?OPP"
12. Final arguments were addressed by Ld. Counsels for both the parties.
13. Arguments heard and on perusal of the records of the case in Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 5/12 the light of rival submissions of both the parties and relevant provisions of law, issue wise findings of this court are as follows:
ISSUE No.1 "Whether plaintiff is entitled for recovery of amount as mesne profit/damages as claimed?OPP"
14. The onus of proving the present issue is on the plaintiff. The present issue has been framed so as to determine the entitlement of the plaintiff to claim damages but, perusal of the averments of the plaint and prayer clause reveals that the plaintiff has claimed arrears of rent for the period of 36 months prior to the filing of the present suit in the form of damages and the same has been so mentioned in the prayer clause as relief for recovery of arrears of rent/damages, as well as recovery of pendentlite and future mesne profits.
15. Thus, the present issue comprises of two parts. In the first part, the plaintiff has claimed arrears of rent @ Rs. 1,000/ p.m for the period of 36 months and in the second part, the plaintiff has claimed recovery of pendentlite and future mesne profits.
16. With regards to entitlement of the plaintiff to recover arrears of rent @ Rs. 1,000/ p. m for the period of 36 months excluding Rs. 4,500/ paid by the defendant on 15.07.2002, the main dispute Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 6/12 between the parties on the basis of the respective pleadings of the parties are the rate of rent and the period for which the same remained unpaid by the defendant. The plaintiff averred that the rate of rent was Rs. 1,000/ p.m whereas the defendant averred the same to be @ Rs. 250/ p.m. The plaintiff further averred that the defendant has not paid the rent for the period of 36 months immediately prior to the filing of the suit i.e from July 1999 to June 2002, but the defendant has averred that the same has been paid by him upto November 2000.
17. During the course of the trial of the present suit, as admitted by both the parties, both the aforesaid disputes has been adjudicated by Ld. ARC vide judgment and decree dated 16.04.2008 which decision was further upheld by Ld. District Judge/A.R.C.T, NorthWest, Rohini Delhi vide order dated 31.10.2009 and as both these issues were directly and substantially in issue before Ld. ARC who after appreciating the evidence on record has held that the rate of rent was Rs. 250/ p.m and the defendant was in arrears of rent since November 2000, thus, as per Section 11, Explanation VII CPC, the same operates as resjudicata between the parties and consequently, the plaintiff's entitlement to recover arrears of rent @ 250/ p.m from November 2000 to June 2002 is duly proved.
18. But, the plaintiff has further admitted that the said rent was Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 7/12 duly deposited by the defendant before the court of Ld. ARC, thus at present, the defendant is not liable to pay arrears of rent as prayed.
19. The plaintiff has further claimed pendentlite and future mesne profits from the defendant, but as admitted by the plaintiff himself that the defendant is in possession of the suit property as a tenant governed by the provisions of DRCA, thus there is no question of the defendant being unauthorized occupant of the suit property so as to entitle the plaintiff to recover pendentlite and future mesne profit of damages from the defendant for the unauthorised use of the suit property by the defendant.
This issue is decided accordingly.
ISSUE No.2 "Whether plaintiff is entitled for decree for permanent injunction?OPP"
20. The onus of proving the present issue is on the plaintiff. But, the plaintiff has failed to lead any evidence to prove the cause of action or alleged threat extended by the defendant to part with the possession of the suit property. Further, in Ex. PW1, the plaintiff himself deposed that he is willing to forego the relief of permanent injunction, thus the plaintiff is not entitled to claim permanent injunction as prayed.
Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 8/12 This issue is decided accordingly.
ADDITIONAL ISSUE "Whether the plaintiff is entitled for any interest if so, at what rate and for which period?OPP"
21. In the present matter, the plaintiff has claimed interest @ 15% p. a. on the arrears of the rent as claimed i. e. on Rs. 31,500/ @ Rs. 1000/ for 36 months i.e. from July 1999 to June 2002, but as the rate of rent was already adjudicated as Rs.250/ p.m. therefore, the arrears that remains outstanding was Rs.9,000/ @ Rs.250/ p.m. for 36 months out of which, admittedly the defendant has paid Rs. 4,500/ prior to the filing of the present suit i. e. on 15.07.2002. Thus, on the date of the filing of the present suit as per the case of the plaintiff, the defendant was liable to pay Rs.4,500/ as arrears of rent.
22. The defendant has disputed the entitlement of the plaintiff to claim interest raising the defence that as the plaintiff has disconnected electricity and water supply, therefore, on the ground of doctrine of suppression of rent, the plaintiff is neither entitled to recover arrears of rent nor interest as claimed.
23. But, the entitlement of the plaintiff to recover arrears of rent w. e. f. November 2000 has already being adjudicated by the Court of Ld. ARC vide judgment and decree dated 16.04.2008, Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 9/12 therefore, the same operates as resjudicata between the parties and the defendant can not be allowed to reagitate the same in the present matter.
24. By virtue of the said decision, the plaintiff's entitlement for recovery of arrears of rent @ Rs. 250/ p. m. was adjudicated and it was also held that the plaintiff has already received rent upto October 2000.
25. In the present matter, the plaintiff has admitted payment of Rs. 4,500/ by the defendant on 15.07.2002 which includes rent from November 2000 to April 2002. Thus, at the time of the filing of the present suit, the arrears if any, was only pertaining to the month of May and June 2002 amounting Rs.500/ which has also been paid by the defendant on 04.10.2002 as per the admitted treasury challans, the copy of which has been placed in the present matter. Thus, the plaintiff is entitled for interest on Rs. 500/ w.e.f. 31.07.2002 to 03.10.2002.
26. The plaintiff has claimed interest @ 15% p. a. on the aforesaid amount from the date of filing of the suit till the recovery of the said amount as deposed by PW1 in his examination in chief (Ex. PW1) and it is argued by the plaintiff that he has been claiming the interest at the said rate because the same is provided under DRCA.
Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 10/12
27. The defendant has disputed the entitlement of the plaintiff to claim interest at the said rate stating that there was no agreement between the parties as to the said rate of interest and the same is ex orbitant and much higher than the prevalent market rate of interest, thus, it is stated that the plaintiff is not entitled for interest @ Rs. 15% as provided under DRCA.
28. In order to substantiate his submission, the defendant has placed reliance on two decisions i.e decision of Hon'ble High Court of Delhi in CS(OS) No. 1581A/1998, date of decision 18th November 2009 titled as Sh. S. Kumar Vs. DDA, wherein the award of interest @ 18% p.a. was set aside by observing changed economic scenario and decision of Hon' ble Apex Court in Civil Appeal No. 2764 of 2009 (Arising out of SLP (C) No. 10818 of 2007, titled as State of Rajasthan & Another Vs. M/s. Ferro Concrete Construction Pvt. Ltd. in which it was observed that after coming into force of Interest Act, 1978, a person is not entitled to interest exceeding current rate of interest.
29. But, it is worthwhile to mention here that the said decisions were pertaining to interest awarded in arbitration proceedings when the Arbitration Act does not stipulates any rate of interest, thereby leaving it to the discretion of the Arbitrator to decide the rate of interest if the same has not been agreed between the parties.
30. But, in the present case, the plaintiff has been claiming interest Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 11/12 @ 15% p. a. which has been provided under the provisions of DRCA in the event of tenant's default in payment of the rent to his landlord within the stipulated time. And since, DRCA provides various protection to a tenant covered by the said Act, thus interest of justice demands that a tenant should not be allowed/permitted to escape his/her liability arising out of the said Act in case he fails to perform the duties imposed on him by the said Act, thus, the defendant is liable to pay the interest at the rate stipulated in the same. Consequently, the plaintiff is entitled for recovery of interest @ 15% p. a. from the defendant.
This relief is decided accordingly.
Relief
31. In view of the findings of this court on the aforesaid issues, the suit of the plaintiff is partly decreed and the plaintiff is entitled for recovery of interest @ 15% p. a. on Rs. 500/ w. e. f. 31.07.2002 to 03.10.2002. Cost of the suit is also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
Announced in the open court today i. e. on 22.12.2014.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /22.12.2014 Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 12/12 CS No.875/11 Kanshi Ram Vs. Sushil Mishra 22.12.2014 Present: None.
Vide separate judgment of even date, the suit of the plaintiff is partly decreed and the plaintiff is entitled for recovery of interest @ 15% p. a. on Rs. 500/ w. e. f. 31.07.2002 to 03.10.2002. Cost of the suit is also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /22.12.2014 Suit no. 875/11 Kanshi Ram Vs. Sushil Mishra 13/12