Delhi District Court
Hamir Singh S/O Sh. Mehang Singh vs Harjeet Singh S/O Sh. Sohan Singh on 27 July, 2012
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS No: 141/11
Unique Case ID No. 02405C0374942011
Hamir Singh S/o Sh. Mehang Singh
R/o 1/357, Sadar Bazar,
Delhi Cantt, Delhi
...Plaintiff
Versus
Harjeet singh S/o Sh. Sohan Singh
Shop No. RZ53/54/C, Vashisht Park,
Village Dabri, Pankha Road,
New Delhi ...Defendant
Date of Institution: 04.09.2010
Date of pronouncing judgment: 27.07.2012
SUIT FOR EJECTMENT, RECOVERY OF POSSESSION, ARREARS
OF RENT, DAMAGES & MESNE PROFITS
JUDGMENT
1. The plaintiff has filed the present suit seeking recovery of possession of shop bearing No. RZ53/54/C, Vashisht Park, Village Dabri, Pankha Road, New Delhi (hereinafter referred to Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 1 of 35 as "the suit property"). In addition, the plaintiff has also prayed for recovery of arrears of rent, damages and mesne profits.
2. The plaintiff has stated in the plaint that he is the owner of the suit property. He has further stated that he authorized his wife Smt. Avtar Kaur to let out the suit property. She inducted the defendant as tenant on 01.11.1983 at the rate of rent of Rs.400/ per month besides other charges. The wife of the plaintiff died on 24.01.1992. Thereafter the plaintiff started recovering rent from the defendant.
3. The plaintiff has further stated in the plaint that the defendant has been in arrears of rent since October, 2009. By 25.08.2010, the defendant was liable to pay arrears of rent of Rs.4,400/.
4. The plaintiff terminated the tenancy of the defendant by notice dated 10.08.2010. The defendant thereupon became an unauthorized occupant of the premises.
5. According to the plaintiff, if let out in the open market, the suit property can fetch rent of Rs.12,000/ per month. The plaintiff has also stated that he is entitled to damages and mesne profits at the rate of Rs.400/ per day. The plaintiff has further stated that Rs.1,200/ are due from the defendant as damages/mesne profits from 01.09.2010 till the filing of the suit. The plaintiff has Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 2 of 35 also prayed for pendente lite and future damages and mesne profits.
6. The defendant has filed his written statement. He has stated in the written statement that the suit is not maintainable in view of provisions of Section 50 of Delhi Rent Control Act. He has also stated that the plaintiff has failed to prove his ownership over the suit property. It is further stated that tenancy of the defendant has not been terminated in accordance with law. It is further stated that the suit is only a measure to pressurize the defendant to enhance the rent being paid by him.
7. The defendant has further questioned the locus standi of the plaintiff to file the suit without obtaining permission from other legal heirs of Smt. Avtar Kaur. It is stated that the defendant has no privity of contract with the plaintiff. It is denied by the defendant that he is in arrears of rent.
8. After completion of pleadings, issues were framed by order dated 19.07.2011 as follows:
1. Whether the suit is barred by Section 50 of Delhi Rent Control Act? OPD.
2. Whether the tenancy of the defendant stands terminated in accordance with law? OPP.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 3 of 35
3. Whether the plaintiff has locus standi to file this suit? OPP.
4. Whether the plaintiff is entitled to recovery of possession of the suit property, as prayed? OPP.
5. Whether the plaintiff is entitled to recovery of arrears of rent, as prayed? OPP.
6. Whether the plaintiff is entitled to recovery of damages and mesne profits and if so at what rate and for what period? OPP.
7. Relief.
9. Plaintiff adduced evidence in support of his case. He examined himself as PW1. He tendered his affidavit Ex. PW1/A in evidence. In his affidavit, he reiterated the averments made in the plaint. He identified copy of sale deed as Ex. PW1/1. He identified the site plan as Ex. PW1/2. He identified copy of rent agreement dated 26.12.1985 as Mark A, counter foil of the rent receipt as Ex. PW1/3 (colly), legal notice dated 10.08.2010 as Ex. PW1/4, postal receipts of registered AD and UPC as Ex. PW1/5 and PW1/6 respectively and AD card as Ex. PW1/7. PW1 was crossexamined on behalf of the defendant and was discharged. Plaintiff's evidence was closed.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 4 of 35
10.The defendant led evidence in support of his defence. He examined himself as DW1. He tendered his affidavit Ex. DW1/A in evidence. In his affidavit, he deposed on the lines of the written statement. He was crossexamined and discharged. Defence evidence was closed.
11.Final arguments are heard. Record is perused.
12.The issuewise findings are as under:
ISSUE NO. 1
"Whether the suit is barred by Section 50 of Delhi Rent Control Act? OPD."
13.The onus to prove this issue was upon the defendant. In order to prove that the suit is barred by Section 50 of Delhi Rent Control Act, the defendant is required to demonstrate the following:
A. That the defendant is tenant of the plaintiff in the suit property (as defined by Section 2(l) of the Delhi Rent Control Act);
B. That the rate of rent is less than Rs.3,500/ per month (as required by Section 3(c) of the Delhi Rent Control Act);
C. That the suit property lies in a locality in which the Delhi Rent Control Act applies (as per Section 1(2) of the Delhi Rent Control Act).
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 5 of 35 It is discussed hereinafter whether the said ingredients exist in the present case.
A. That the defendant is tenant of the plaintiff in the suit property
14.For a person to claim protection under the Delhi Rent Control Act, he is required to prove that he is a tenant in the premises whereas the person who is seeking to evict him is the landlord. In the present case, the existence of landlord tenant relationship is demonstrated by the following circumstances:
i) The plaintiff has admitted that after the death of his wife, the defendant became his tenant. In paragraph no. 2 of the plaint the plaintiff has stated that he has been receiving rent from the defendant. This also finds mention in the affidavit of the plaintiff Ex. PW1/A.
ii) The plaintiff has recognized the defendant as his tenant in as much as he has purported to "terminate the tenancy", as stated in paragraph no. 5 of the plaint. The said plea finds reiteration in the testimony of the plaintiff/PW1 by affidavit Ex. PW1/A.
iii) The defendant has stated in the written statement that he has been paying rent to the plaintiff. He has further stated in paragraph no.1 of the written statement that "there exists a relationship of landlord and tenant between the parties".
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 6 of 35
iv) The plaintiff has identified the rent receipts as Ex. PW1/3 collectively. These rent receipts show that rent has been paid by the defendant to the plaintiff for use of the suit property. The said rent receipts indicate that the defendant has been accepting the plaintiff as his landlord and is therefore tendering rent to him. Similarly, the receipts indicate that the plaintiff has been recognizing the defendant as his tenant and has therefore been accepting rent from him.
The Delhi Rent Control Act provides protection to a certain class of "tenants" and prescribes a special procedure for their eviction. Section 50 of the Act bars the jurisdiction of Civil Courts to entertain suits for the eviction of such tenants. The expression "tenant" has been defined in Section 2 (l) of the Delhi Rent Control Act as "any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable". Since in the present case, rent is being paid, that too voluntarily, by the defendant to the plaintiff, the defendant qualifies to be a tenant as defined in the Act. In the case of Gurcharan Singh vs. Chairman Delhi Improvement Trust AIR 1955 P&H 34, the Hon'ble Punjab and Haryana High Court held:
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 7 of 35 "Rent is a usual, though not an essential, incident of the relationship of landlord and tenant and payment of rent by the occupier to the owner of premises raises a presumption that the relationship of landlord and tenant has come into existence."
Applying the aforesaid decision to the facts of the case, by payment of rent, the defendant is presumed to be the tenant of the plaintiff. None of the parties have led evidence to rebut this presumption. On the contrary, by their pleadings and testimonies, they have affirmed their status as landlord and tenant. It is another matter that the plaintiff has pleaded that the said tenancy has been terminated.
It is thus indubitably established by the admissions of the parties that the defendant is the tenant of the plaintiff in the suit property.
B. That the rate of rent is less than Rs.3,500/ per month
15.Section 3(c) of the Delhi Rent Control Act excludes from the operation of the Act premises of which the rent is less than Rs.3,500/ per month. Hence, to assess the applicability of the Act, the quantum of rent needs to be ascertained. Perusal of the pleadings shows that the plaintiff has claimed that the monthly Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 8 of 35 rate of rent of the suit property was Rs.400/ (para 2 of the plaint). The defendant has also stated in the written statement (para no. 1 of reply on merits of the written statement) that the rate of rent was Rs.400/ per month. It is thus clear that the rent of the suit property is less than Rs.3,500/ per month. C. That the suit property lies in a locality in which the Delhi Rent Control Act applies
16.Section 1 (2) of the Delhi Rent Control Act provides as under:
"It extends to the areas included within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule:
Provided that the Central Government; may, by notification in the Official Gazette, extend this Act or any provision thereof, to any other urban area included within the limits of the Municipal Corporation of Delhi or exclude any area from the operation of this Act or any provision thereof."
From the aforesaid provision, it is clear that the Delhi Rent Control Act applies to areas under the New Delhi Municipal Committee, the Delhi Cantonment Board, and to such urban areas of the Municipal Corporation of Delhi as are specified in the First Schedule or are subsequently included in the Corporation and notified by the Central Government.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 9 of 35
17. The area of Village Dabri, Pankha Road is not under the jurisdiction of New Delhi Municipal Committee or the Delhi Cantonment Board. It also does not find mention in the First Schedule of the Act. The question that arises is that whether the area, having been urbanized and included within the purview of the Municipal Corporation of Delhi, is brought within the folds of the Act.
18.The proviso to Section 1(2) of the Act provides that the Act would govern a locality subsequently included under the Municipal Corporation of Delhi only if the said area has been notified by the Central Government for this purpose. The Hon'ble Supreme Court has also underlined the need for such a notification, in the case of Mitter Sen Jain v. Shakuntla Devi 85(2000) DLT 658. This has been reiterated by Hon'ble High Court of Delhi in the case of Brahma Devi Vs. Krishna Devi, 1996 (39) DRJ 747. In the case of Sarvesh Kumar & Anr. vs. Ratan Lal RSA No.38687/2006 dated 30.3.2011, the Hon'ble High Court of Delhi emphasized that the defendant ought to prove the said notification in his defence so as to rely on it.
19.In the present case, the defendant has made no attempt to produce or prove such a notification whereby the operation of Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 10 of 35 the Act may have been extended to the area within which the suit property is located. The defendant has not given particulars of any such notification. He has not even asserted the existence of such a notification. Section 91 of the Evidence Act lays down that matters which are required to be in writing can be proved only by producing the document containing the said matter. Hence, the notification stands not proved.
20.The aforesaid ingredient not having been fulfilled, it is inferred that the Delhi Rent Control Act, 1958 does not apply to the suit property. Consequently, the present suit is not barred by Section 50 of the Delhi Rent Control Act, 1958. The issue is decided in favour of the plaintiff and against the defendant. ISSUE NO.2 "Whether the tenancy of the defendant stands terminated in accordance with law? OPP."
21.The onus to prove this issue is upon the plaintiff. According to the plaintiff, the tenancy of the defendant has been terminated by service of notice under Section 106 of the Transfer of Property Act. On the other hand, the defendant has denied that he has received any such notice. According to the defendant, he continues to be the tenant of the plaintiff.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 11 of 35
22.It is not in dispute between the parties that the defendant has been the tenant of the plaintiff. The defendant has been accepting the plaintiff as the landlord and has been tendering rent to him. This has already been noted while deciding issue no.1 above and is not being repeated to avoid prolixity. It is thus clear that the defendant has been the tenant of the plaintiff.
23.The tenancy is for purposes other than agriculture and manufacture and as per Section 106 of the Transfer of Property Act, 1882 it is treated as a month to month tenancy. That this is a monthly tenancy is also borne out from paragraph no. 3 of the plaint, which is not denied by the defendant in the corresponding paragraph of the written statement. By the admissions of the parties, it stands proved that this is a monthly tenancy. As per Section 106 of the Transfer of Property Act, 1882, the tenancy is terminable by fifteen days' notice.
24.According to the plaintiff, he had sent the said notice for termination of tenancy which was duly served upon the defendant. This plea finds mention in the plaint and has been reiterated in the testimony of the plaintiff PW1 in his affidavit Ex. PW1/A. The plaintiff has also identified the legal notice dated 10.08.2010 as Ex. PW1/5. He has identified the receipts of Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 12 of 35 dispatch of notice by UPC and registered post as Ex. PW1/6. The postal receipts indicate that the legal notice had been duly sent for service upon the defendant by way of registered post and UPC. The address at which the notice has been sent is that of the suit property where the defendant is admittedly carrying on business. This denotes that the notice has been sent at the correct address. It is also not the case of the defendant that he was not carrying on business at the said address when the legal notice was dispatched. The genuineness of the postal receipts has not been called in question. From the testimony of the PW1, duly corroborated by the legal notice and postal receipts, it is clear that the notice had been sent at the correct address. The defendant has failed to disclose any reason which could have prevented the service of notice upon him. Moreover, the acknowledgment card Ex. PW1/7 indicates that the notice was indeed delivered upon one Mr. Pradeep Singh. Mr. Pradeep Singh is the son of the defendant and the defendant has in his crossexamination admitted the signatures of his son on the acknowledgment card. Even otherwise there is a legal presumption in favour of service of notice. Under Section 114 of Evidence Act, the existence of facts which are likely to have Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 13 of 35 happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration (f) of Section 114. By common course of business, the legal notice would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed. As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543, a mere bald denial by the defendant of service of notice is not sufficient to rebut the presumption under Section 114 of illustration (f) of the Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant.
On this point, the Hon'ble High Court of Delhi has, in the case of Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR 1996 Delhi 32 noted thus:
"From Ex. P1 to P11 it is proved and established that the aforesaid notice dated 12.12.1988 (Ex. P1) terminating the tenancy was despatched to defendant No. 2 at its registered office and also to the appellant No. 1 and 3 at their addresses at 5, Golf Links, where they were admittedly residing, as is disclosed from the evidence of DW 1/appellant No. 1. In view of the despatch of the said notices to the appellants/defendants individually at their proper addresses now the question arises as Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 14 of 35 to whether a presumption of service of notice could be drawn in favour of the plaintiff or not. The basic law of presumption of service of notice is permitted under the provisions of Section 27 of the General Clauses Act and also under the provisions of Section 114 of the Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918 Privy Council 102, wherein it was held that if a letter properly directed containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan v. Wazir J.V. Chand the Apex Court had held that all that a landlord can do is to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged under Section 106 of the Transfer of Property Act having been issued by the plaintiffs to the concerned defendants at their residential address in accordance with law, it can well be presumed under the aforesaid provisions statutory as well as case laws that the said notices have been duly served on the said defendants and therefore, in that view of the letter we do not find any infirmity to interfere with the findings of the learned trial court that the notice Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 15 of 35 terminating the tenancy was duly, properly and validly served on the defendants."
Reference may also be made to the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007 (2) DCR 321 SC in which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business".
It is therefore safe to presume that the said legal notice was duly served upon the defendant.
25.The legal notice dated 10.08.2010 Ex. PW1/5 states that the defendant shall vacate the suit property after fifteen days from the date of the service. The notice satisfies the requirement of Section 106 of Transfer of Property Act, 1882. By way of the said legal notice, tenancy of the defendant stood terminated, in keeping with Section 111(h) of the Transfer of Property Act, Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 16 of 35 1882. The defendant therefore became liable to hand over the vacant possession of the suit property to the plaintiff.
26.The defendant has denied being served with notice of termination of tenancy. As held above, the said denial is not sufficient and is not supported by any evidence to rebut the presumption of service of notice. Hence, the said denial is liable to be rejected and the notice shall be treated as having been served upon the defendant, which in turn has terminated the tenancy. Yet, even if it is assumed that the said notice was not delivered to the defendant, that would not sustain the tenancy. In that event, the institution of the present suit shall be treated as notice of termination of tenancy since the intention to terminate the tenancy has been unequivocally expressed in the plaint. The Hon'ble Supreme Court has, in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728, held that the tenancy would stand terminated on filing of a suit for eviction. This decision has been followed by Hon'ble High Court of Delhi in the case of M/s. Jeevan Diesels & Electricals vs M/s. Jasbir Singh Chadha (Huf) & RFA No.179/2011 dated 25.3.2011. Hence, from the expiry of fifteen days from the institution of the suit, the tenancy has stood terminated and the plaintiff has Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 17 of 35 become entitled to recover vacant physical possession of the suit property.
27.From the above, it is clear that the tenancy of the defendant has been terminated. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3
"Whether the plaintiff has locus standi to file this suit? OPP."
28.The onus to prove this issue is upon the plaintiff. According to the plaintiff, he is the owner of the suit property. He had authorized his wife to induct a tenant in the suit property. His wife has inducted the defendant as a tenant. After her death, the defendant started paying rent to the plaintiff and resultantly the plaintiff became the landlord of the property.
29.According to the defendant, the plaintiff does not have locus standi to file the suit. It is urged on behalf of the defendant that the defendant has no privity of contract with the plaintiff. It is the wife of the plaintiff who had inducted him as a tenant and after her death, the plaintiff has no right to file this suit without obtaining instructions from the other legal heirs of his wife.
30.Locus standi refers to one's "standing". The person approaching the court must prove that he has suffered a legal injury and it is Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 18 of 35 for the enforcement of his rights that he requires redressal. He must demonstrate his grievance that has impelled him to move court.
31.In the present case, the plaintiff wishes to recover possession from the defendant. According to the plaintiff, defendant is in unauthorized and illegal possession as his tenancy has already been terminated. This is being so, for recovery of possession of the property, the plaintiff has a locus standi to maintain the suit.
32.The defence of the defendant is queer. On one hand, he has asserted the existence of a landlord tenant relationship between the plaintiff and himself. He has stated in paragraph no. 1 of preliminary objections in the written statement that "there exists a relationship of landlord and tenant between the parties". On the other hand, in paragraph no. 2 on the reply of merits, he states that the plaintiff has no locus standi to maintain the suit as the defendant has no privity of contract between the plaintiff. Once the defendant admits that he is the tenant of the plaintiff, the plaintiff becomes entitled to seek enforcement of the rights of a landlord including the right to terminate tenancy and to recover possession. Even otherwise, the plaintiff has locus standi to recover property of which he is the owner. The Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 19 of 35 ownership of the plaintiff is demonstrated from the sale deed Ex. PW1/1 which is in his favour, the genuineness of which could not be assailed by the defendant. It is worthy to note that the defendant has himself stated in the written statement that he has been making payment of rent to the plaintiff. Payment of rent implies that the defendant has accepted the right of the plaintiff to receive rent. It indicates his acknowledgment of the rights of the plaintiff as owner and landlord. As such, the plaintiff cannot be stated to have no locus standi to file the present suit. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4
"Whether the plaintiff is entitled to recovery of possession of the suit property, as prayed? OPP."
33.The onus to prove this issue is upon the plaintiff. It has already been demonstrated above that the defendant has been the tenant of the plaintiff and the said tenancy has been terminated by the plaintiff in accordance with law. It has already been held above that the plaintiff has locus standi to file the present suit. Since the plaintiff is admittedly the landlord in the premises and Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 20 of 35 the tenancy has been terminated, the defendant has become an unauthorized occupant. He is under an obligation to deliver vacant physical possession of the suit property to the plaintiff.
34.The defendant has stated in his written statement that the plaintiff is not the owner of the suit property and is therefore not entitled to recovery of possession. This plea is not supported by any evidence. On the other hand, the plaintiff has proved his ownership rights by placing on record and identifying the sale deed Ex. PW1/1. The sale deed Ex. PW1/1 dated 17.06.1966 confers ownership rights over the suit property in favour of the plaintiff. The sale deed shows that the plaintiff is the owner of the suit property and is entitled to receive possession.
35.Even otherwise, the defendant is not entitled to question the title of the plaintiff. The defendant has admitted in paragraph no. 1 of the preliminary objections of his written statement that he is tenant of the plaintiff. He has also admitted in the written statement that he has been paying rent to the plaintiff. Having accepted the plaintiff as the landlord, the defendant is estopped from questioning his title, in accordance with Section 116 of the Evidence Act.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 21 of 35
36.The defendant has also stated that the landlady was the wife of the plaintiff and that the plaintiff has no privity of contract with the defendant. The plaintiff has stated in the plaint that he had himself authorized his wife to induct a tenant in the property. This plea was reiterated by the plaintiff PW1 in his affidavit Ex.PW1/A. Nothing could be brought out in the cross examination of PW1 which could cast doubt on the correctness of this plea. The defendant, on the other hand, has failed to demonstrate that the wife of the plaintiff had inducted the defendant as tenant in her own independent capacity. It follows from this that the wife of the plaintiff was, while inducting the defendant as tenant, acting as agent of the plaintiff. Since she was acting as agent, the principal (plaintiff) himself is at liberty to enforce the rights and obligations arising from the contract. This has been laid down under Section 226 of the Indian Contract Act, 1872. The defendant is therefore deemed to be tenant of the plaintiff himself.
37.Moreover, the defendant has, subsequent to the death of the wife of the plaintiff, been accepting the plaintiff as the landlord and has admittedly been tendering rent to the plaintiff. He cannot therefore take a contrary plea questioning the plaintiff's Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 22 of 35 rights as landlord.
38.Further, even if it is assumed that the plaintiff was not the original owner of the property and it is assumed that the plaintiff had not authorized his wife to induct a tenant, and it is further presumed that the plaintiff's wife had inducted the defendant as tenant in her independent capacity, that would not advance the defence of the defendant. In that event too, the plaintiff would acquire rights as landlord and owner by way of succession from his deceased wife. After her death, the plaintiff inherited her rights as landlord and has stepped into her shoes. It is not the case of the defendant that the property has devolved upon anybody else by way of testamentary succession. The defendant has not disclosed the name of any other person who may have acquired rights in the property in place of or in addition to the plaintiff herein. The plaintiff is therefore entitled to recover possession of the suit property from the defendant.
39.Even if it is assumed that the wife of the plaintiff was the landlord of the property and had inducted the defendant as tenant in her independent capacity, and it is further assumed that after her death, there are other legal heirs who succeeded to her estate along with the plaintiff, that would not disentitle the Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 23 of 35 plaintiff from filing the present suit. To enforce the rights arising out of the tenancy and to recover physical possession, the plaintiff need not join other legal heirs. It is not the case of the defendant that there has been partition of the suit property between the coowners. Till partition takes place, all coowners remain owners of the entire estate. As such, any of them can exercise ownership rights over the entire property. One such right is the right to terminate tenancy and recover possession. The proposition of law that a coowner need not join other co owners in order to evict a tenant finds support from the decision of Hon'ble Supreme Court in the case of Pal Singh vs. Sunder Singh, AIR 1989 SC 758, wherein the Hon'ble Supreme Court has held that a coowner can maintain a suit for eviction for tenant without joining other coowners as plaintiffs in the suit. In the case of Kanta Goel vs. B.P. Pathak & Ors., AIR 1977 SC 1599 the Hon'ble Supreme Court observed as under :
"Where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one coheir to whom the rent is being paid by the tenant and who receives it on behalf of the estate of the Act. The Coheirs constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 24 of 35 landlord, and was therefore entitled to institute proceedings for eviction against the tenant qua landlord."
Similarly, in the case of Dhannalal vs. Kalawatibai and Others, AIR 2002 SC 2572(1) the Hon'ble Supreme Court noted as under :
"When the property forming subject matter of eviction proceedings is owned by several owners, every coowner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner of a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other coowners if such other coowners do not object."
40.Hence the contention of the defendant that the suit is not maintainable as the other legal heirs, if any, of the wife of the plaintiff have not been added as parties to the suit, is not tenable.
41.The defendant has contended that the signatures of the plaintiff do not figure on the rent receipts and therefore the said receipts are forged and fabricated. This plea is without merit. A doubt could be cast on the genuineness of the receipts had the signatures of the defendant not figured on them. That is not the case herein. For want of signatures of the plaintiff on the rent Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 25 of 35 receipts, the receipts cannot be called in question. The rent receipts have been filed by the plaintiff. He could have signed the same at any time, had he desired to do so. It is noteworthy that the rent receipts do not have any provision for appending signatures of the landlord. These are the counterfoils of rent receipts. Being counterfoils, these are copies which were to be kept by the plaintiff and there was no need for the plaintiff to sign them. It is probable that it is for this reason that the landlord has not signed them. The omission of signatures of the landlord is irrelevant since the landlord/plaintiff is himself relying upon the documents. It is the defendant who is questioning the veracity of the documents. Genuineness of his signatures is not denied. It is not the case of the defendant that he was coerced to sign the receipts. On account of the signatures of the defendant, his challenge to the genuineness of the receipts cannot be accepted.
42.For the aforesaid reasons, the plaintiff is entitled to receive vacant physical possession of the suit property from the defendant. The issue is decided in favour of the plaintiff and against the defendant.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 26 of 35 ISSUE NO. 5 "Whether the plaintiff is entitled to recovery of arrears of rent, as prayed? OPP."
43.This issue is not required to be decided. The prayer for recovery of arrears of rent was withdrawn by the plaintiff during the pendency of the suit. The said prayer has accordingly been dismissed by the Court on 25.05.2012. Hence no finding is being returned in respect of this issue.
ISSUE NO. 6
"Whether the plaintiff is entitled to recovery of damages and mesne profits and if so at what rate and for what period? OPP."
44.The onus to prove this issue is upon the plaintiff. It has already been held above that the tenancy of the defendant has been terminated and that the defendant is an illegal occupant of the suit property. For the said occupation, the defendant must pay charges to compensate the plaintiff. The question is at what rate and for what period should the said charges be paid.
45.The first question which needs to be determined is the date with effect from which the defendant must pay these charges. It has already been demonstrated above that the lease was terminated by way of legal notice dated 10.08.2010 Ex. PW1/5. The legal Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 27 of 35 notice was dispatched registered post and UPC on 10.08.2010 itself, as evident from the postal receipts Ex. PW1/6. The notice was dispatched from Delhi and was destined for Delhi. Since the addressee is of Delhi itself, it is reasonable to assume, in the absence of any acknowledgment or receipt, that the notice was delivered upon the defendant within three days of the dispatch. The notice must have been delivered upon the defendant by 13.08.2010.
46.The notice purports to terminate the tenancy upon expiry of fifteen days of its service. Under Section 106 of the Transfer of Property Act too, the notice can terminate the tenancy only after fifteen days of its service. That being so, by service of notice, tenancy stood terminated with effect from 28.08.2010. From 29.08.2010, the defendant became an unauthorized occupant in the premises. The defendant is therefore liable to pay damages/mesne profits for the said occupation with effect from 29.08.2010 and till vacant physical possession of the property is handed over to the plaintiff. Since the plaintiff has prayed for damages/mesne profits with effect from 01.09.2010, there is no impediment in granting the same.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 28 of 35
47.The quantum of rent/mesne profits is next required to be ascertained. The plaintiff has claimed charges for use of the suit property from 01.09.2010 till the date of filing of the suit i.e. 04.09.2010 as Rs.1,200/. This is the sum of presuit damages/mesne profits claimed by the plaintiff. As held above, the lease had already been terminated and for this period, the plaintiff is entitled to recover mesne profits. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent. Hence, the rent that the property could have fetched, if let out in the open market is required to be ascertained.
48.The plaintiff PW1 has stated in his affidavit Ex. PW1/A that if the suit property is let out in the open market, it can realize a sum of Rs.12,000/ per month as rent. Significantly, PW1 has not been crossexamined by the defendant on the point of the rent that the suit property can fetch. The assertion of PW1 that the property can obtain rent of Rs.12,000/ per month has remained unrebutted and unchallenged during cross Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 29 of 35 examination. On the other hand, the defendant has examined himself as DW1 in support of his claims regarding the market rate of rent. DW1 has deposed in his affidavit Ex. DW1/A that the prevailing rate of rent is Rs.500/ to Rs.600/ per month. However, this assertion came to be demolished during cross examination of DW1 when he admitted that he has no knowledge of the market rate of rent. DW1 has thus admitted the absence of any knowledge on this point. Since he has no knowledge of the market rate of rent, his assertion that the rate of rent is not Rs.12,000/ but Rs.500/ to Rs. 600/ is devoid of value. A witness can only depose on matters of which he has knowledge. In respect of other matters, he is incompetent to testify. Hence, no credence can be attached to the statement of the defendant DW1 regarding the market rate of rent. The denial in the written statement of the defendant to the assertion of the plaintiff about the market rate of rent cannot be accepted. From this, it follows that the plea of the plaintiff that the market rate of rent is Rs.12,000/ per month, corroborated by the unchallenged testimony of PW1, stands proved.
49.This is also the fair rate of mesne profits, having regard to the commercial usage of the property, its location and extent.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 30 of 35 Although the plaintiff has not produced any witness other than himself to support his claim, this can be inferred by taking judicial notice of the phenomenal rise in rents in Delhi. That the Court is competent to take judicial notice of the rise in rental values follows from the decision of Vinod Khanna v. Bakshi Sachdev AIR 1996 Delhi 32, wherein the Hon'ble High Court of Delhi noted:
"21. The learned counsel for the appellants also urged before us that the learned trial court was not justified in taking a judicial notice of the fact of increase of rents like the suit property and also in providing Rs. 10,000/ per month as fair amount towards damages/mesne profits in favour of the plaintiffs. It is true that no substantial evidence has been led by the plaintiffs in respect of the increase of rent in the properties like that of the suit property. However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. At this stage we may appropriately refer to the Court taking judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial notice in case of D.C. Oswal v. V.K. Subbiah AIR 1992 SC 184".
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 31 of 35 Similarly in the case of Rattan Arya etc. v. State of Tamil Nadu and another AIR 1986 SC 1444, the Apex Court laid down that the Court can take judicial notice of enormous manifold increase of rents throughout the country particularly in urban areas. In my opinion, taking judicial notice of the escalation in rents in Delhi, the sum of Rs.12,000/ per month does reflect the market rate of rent.
50.The plaintiff is therefore entitled to claim damages/mesne profits at the rate of Rs.12,000/ per month. From 01.09.2010 till 04.09.2010 (date of filing of the suit), the plaintiff is entitled to receive damages/mesne profits at the rate of Rs.12,000/ per month. For these four days, computed at the rate of Rs.12,000/ per month, the plaintiff would be entitled to receive Rs.1,600/. He has however claimed only a sum of Rs.1,200/ for this period. Hence he is entitled to a decree for recovery of the said sum. This sum became payable to the plaintiff on 04.09.2010.
51.From 04.09.2010 till the date of handing over vacant possession of the suit property, the plaintiff has claimed damages/mesne profits at the rate of Rs.400/ per day or at such other rate that this court finds to be the market rate of rent. As far as pendente lite and future mesne profits/damages are concerned, this court Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 32 of 35 is not bound by the sum of money prayed for by the plaintiff. The court is obliged to ascertain the market rate of rent and then to award mesne profits at the said rate. As noted above, the market rate of rent is Rs.12,000/ per month. The plaintiff is therefore entitled to receive pendente lite and future mesne profits at the said rate from 04.09.2010 till the date of handing over vacant physical possession.
52.The pendente lite mesne profits amount to a sum of Rs.2,72,800/ (Rs.12,000/ x 22 months and 22 days). This is in addition to the future mesne profits.
53.From the above, it may be concluded that the plaintiff is entitled to receive a total sum of Rs.2,74,000/ (Rs.1200/ + Rs. 2,72,800/) as presuit and pendente lite mesne profits.
54.On 25.05.2012, the plaintiff admitted that he has received a sum of Rs.5,200/ as occupation charges which may be set off against the occupation charges payable to him. The defendant is therefore entitled to set off the said sum from the sum awarded to the plaintiff. Accordingly, in respect of use of the property till the date of decree, the defendant is required to pay a sum of Rs.2,68,800 (Rs.2,74,000.00 - Rs.5,200.00). For the subsequent period and till handing over of possession, the Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 33 of 35 defendant shall pay a sum of Rs.12,000/ per month to the plaintiff as future mesne profits.
55.The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 7 RELIEF
56.In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant. A decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant possession of the Shop bearing No. RZ53/54/C, Vashisht Park, Village Dabri, Pankha Road, New Delhi shown in red colour in the site plan Ex. PW1/2 to the plaintiff forthwith.
57.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff pendente lite mesne profits amounting to Rs.2,68,800/. This direction for payment of pendente lite mesne profits shall be executable only after payment of appropriate court fee thereon.
58.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future mesne profits computed at the rate of Rs.12,000/ per month from the date of decree till the date on which vacant possession is handed over by the Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 34 of 35 defendant to the plaintiff.
The plaintiff is entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared accordingly. File be consigned to Record Room.
Announced in the open Court (Ashish Aggarwal) th on 27 day of July, 2012 Civil Judge1, SouthWest District, Dwarka Courts, Delhi.
Hamir Singh vs. Harjeet Singh CS. NO. 141/11 page 35 of 35