Delhi District Court
Sh. Sukhdev Raj vs Smt. Shakuntala on 3 February, 2014
IN THE COURT OF SH. SUMIT DASS, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER (NORTH), ROHINI COURTS,
DELHI
Suit No. : 584/11
Sh. Sukhdev Raj
S/o late Shri Lal Chand Sharma,
R/o H. No. 694/3, Conductor Colony,
Village Burari,
Delhi110084 ...Plaintiff.
Versus
Smt. Shakuntala
W/o Shri Raju
R/o B4/188, J.J. Colony,
Bhalswa, Delhi110042. ...Defendant.
Date of Institution : 22.10.2011.
Date of Arguments : 03.02.2014.
Date of Judgment : 03.02.2014.
Suit No. 584/11 1 of 7
Sukhdev Raj v. Shakuntala
SUIT FOR RECOVERY OF POSSESSION, PERMANENT
INJUNCTION & RECOVERY OF ARREARS OF RENT AND
DAMAGES/MESNE PROFITS
JUDGMENT:
1. In short facts are as under: Plaintiff has sued for ejectment of defendanttenant on the averments that the property No. B4/188, J.J. Colony, Bhalswa, Delhi 110042 which is a two and half storeyed building constructed on the plot measuring about 18 sq. mts was purchased by the plaintiff for a sale consideration of Rs. four lacs vide Agreement to Sell, GPA, Affidavit, Will etc. dated 9.2.2011 and the possession of the property (symbolic) was handed over by the defendant at the time of execution of the said documents. Defendant had sought some time for vacation. Accordingly, a rent agreement dated 9.2.2011 was entered interse letting out the property for a rent of Rs. 5000/ per month to the defendant. Agreement expired by efflux of time as the tenancy was only for a period of two Suit No. 584/11 2 of 7 Sukhdev Raj v. Shakuntala month. No occupation charges was paid by the defendant. To avoid any complication a legal notice to quit dated 23.8.2011 was served upon the defendant. The defendant failed to vacate the same and under such circumstances the present suit has been filed.
2. The defendant was served with the summons of suit and was proceeded exparte on 24.5.2012 as he had not appeared/contested the matter.
3. The plaintiff had thereafter examined himself in support of his case as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and relied upon documents Ex. PW1/1 to Ex. PW1/10 i.e. Agreement to Sell (Ex. PW1/1), Copy of GPA (Ex. PW1/2), Affidavit (Ex. PW1/3), Will (Ex. PW1/4), Receipt (Ex. PW1/5), Possession Letter (Ex. PW1/6), copy of rent agreement (Ex. PW1/7), copy of notice (Ex. PW1/8), postal receipt (Ex. PW1/9) and AD card (Ex. PW1/10). P.E. was thereafter closed.
Suit No. 584/11 3 of 7 Sukhdev Raj v. Shakuntala 4. Exparte arguments were heard.
5. My Ld. Predecessor in terms of order dated 20.2.2013 had put certain questions regarding the maintainability of the suit on the reason that the documents relied upon by the plaintiff were not registered and secondly the specific performance of the contract should have been sought by the plaintiff. To my mind this is a suit for ejectment and not a title suit. Neither any declaration has been sought for in respect of the title by the plaintiff and further there was no requirement also. There is no contest as the defendant is exparte and chosen not to contest the case. The applicability of the bar of the Section 116 of the Indian Evidence Act comes into play and the defendant is precluded from challenging the title of the plaintiff. To insist for that the plaintiff should also sought for confirmation his title by way of filing of a suit for specific performance would in a manner extend the ambit of the controversy and compel the plaintiff to seek confirmation of his title and execution of same documents Suit No. 584/11 4 of 7 Sukhdev Raj v. Shakuntala prior to seeking the ejectment of the tenant which is neither required for nor legally mandated. The plaintiff could have sought for ejectment by relying on the lease deed only.
6. No doubt, absolute title passes pursuant to registered document i.e sale deed. In case the plaintiff wants to seek confirmation of his title, he is at liberty to file a suit for specific performance of the agreement.
In view of the aforesaid discussion, the objection raised in the order sheet dated 20.02.2013 stands satisfied.
7. Reverting to the evidence the plaintiff has proved the execution of the rent agreement dated 9.2.2011 Ex. PW1/7. The rate of rent is Rs. 5000/ per month which is more than Rs. 3500/ per month, thus, taking the property out of purview of the DRC Act, 1958. The tenancy has been duly terminated by a legal notice Ex. PW1/A dated 23.8.2011. Evenotherwise the tenancy has expired by efflux of time.
De hors the aforesaid the filing of a suit for possession/ejectment Suit No. 584/11 5 of 7 Sukhdev Raj v. Shakuntala itself in a manner is a notice communicating the intent of the landlord to recover back the possession of the property and it can be construed as a notice u/s 106 of Transfer of Property Act.
Consequently, under such circumstances the plaintiff is held entitled for the recovery of possession of the suit property. There is no contest to the plaintiff's version and as such the plaintiff is also entitled for the arrears of rent @ Rs. 5000/ w.e.f. April, 2010 to May, 2011. Mesne profits are also confined at the same rate as except the bald allegation that the property may fetch Rs. 7000/ per month no other additional evidence has been led by the plaintiff. Mesne profit have to be awarded by adjudging as to how much the property shall fetch if given on rent. It has to be proved by leading some cogent evidence which can be either by call some person well acquainted with the property transactions in the same area or by calling the record from the sub registrar office showing the rentals in the said area by proving the lease deeds. Same has not been done. Mesne profits, hence, are awarded @ Rs. 5000/ per month for the remaining part of the year 2011, 2012. Mesne profits are increased at 10% Suit No. 584/11 6 of 7 Sukhdev Raj v. Shakuntala i.e. Rs. 5500/ for the entire year 2013 and another 10% increase is granted making Rs. 6050/ for the entire year 2014. Mesne profit are granted at the same rate till the handing over of the possession. A decree of perpetual injunction is also granted in favour of the plaintiff and against the defendant thereby restraining the defendant from creating any third party interest in the suit property or transferring the possession whereof to any third person. Decree of Mesne profit shall be executable upon filing of deficient court fees. Cost of the suit is also awarded to the plaintiff.
The suit is decreed in terms as indicated above. Decree sheet be drawn. File be consigned to record room.
Announced in the open court (Sumit Dass)
on 03.02.2014 SCJCUMRC (NORTH)
(This judgment contains 7 pages & ROHINI COURTS, DELHI.
each page bears my signature.)
Suit No. 584/11 7 of 7
Sukhdev Raj v. Shakuntala
Suit No. 584/11
03.02.2014
Present: Ld. counsel for plaintiff.
Ex parte final arguments heard.
Vide separate judgment of even date, suit of the plaintiff is decreed. Costs of the suit are also awarded. Decree sheet be prepared accordingly. Suit file be consigned to Record Room.
(SUMIT DASS)
ACJcumARC (North West)
Rohini Courts, Delhi/03.02.2014
Suit No. 584/11 8 of 7
Sukhdev Raj v. Shakuntala