Delhi District Court
Sarita Agrawal vs Anshul Omar on 27 January, 2026
IN THE COURT OF MS. SHUCHI LALER,
DISTRICT JUDGE02, EAS DISTRICT,
KARKARDOOMA COURTS DELHI.
CS No. 369/2020
CNR No. DLET010024492020
In the matter of:
Ms. Sarita Agarwal,
W/o Sh. Vishnu Agarwal,
R/o Flat No. 265, Vigyapal Lok,
Plot No. 15, Mayur Vihar Phase1 Exten.,
Delhi
..............Plaintiff.
Versus
1. Sh. Anshul Omar
C/o Books & Beanss Cafe/Playing cup cafe
S/o Sh. Ashok Kumar Omar
R/o F1005, Rishabh Cloud9,
Ahinsa Khand2, Indirapuram, Ghaziabad,
Uttar Pradesh201014
Also at:
G3, G4 and G5, Ground Floor, Pankaj Tower III, Plot No. 6,
Local Shopping complex,
Mayur Vihar Phase 1 (17 Societies),
Delhi110091
2. Sh. Prakash Chand
C/o Bookss & Beanss Cafe/Playing cup cafe
R/o A1404, Trident Society,
Noida Extension,
Uttar Pradesh
Also at:
G3, G4 and G5, Ground Floor,
CS No. 369/2020
Sarita Agarwal Vs. Anshul Omar etc.
Page No.1 of 25
Pankaj Tower III, Plot No. 6,
Local Shopping Complex,
Mayur Vihar Phase 1 (17 Societies)
Delhi110091
Also at:
R/o Ground Floor, Plot No. 969, Shakti Khand,
Indirapuram, Ghaziabad,
Uttar Pradesh201014.
3. Rohit Bhati
S/o Radhey Shyam
R/o 263, Patpar Ganj,
Mayur Vihar Phase1,
Delhi110091
.........Defendants.
Date of Institution : 22.06.2020
Date of Reserving for Order : 27.01.2026
Date of Order : 27.01.2026
JUDGEMENT
1. Initially, the plaintiff had sought recovery of possession, mesne profit, damages and pending electricity bills. During the pendency of the instant lis, an application under Order XII Rule 6 CPC was filed by the plaintiff, which was allowed and defendants were directed to handover the possession of the suit property. Thus, the limited aspect of recovery of mesne profits, damages and electricity bills needs determination.
PLAINT:
2. Briefly stated facts as disclosed in the plaint are that the CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.2 of 25 plaintiff is the owner/landlord of the suit property and the defendants no. 1 and 2 were inducted as tenant in the suit property at a monthly rent of Rs.22,500/ excluding electricity and other charges vide rent agreement dated May 8, 2017 which was duly registered for a period of three years i.e. commencing from May 9, 2017 to 31st of May 2020 with the stipulation of increase in rent by 5% every year over and above the last monthly rent payable. Though the tenancy was subsisting, the plaintiff had the requirement of the suit property for setting up a clinic and other business. Defendants no. 1 and 2 agreed to vacate the suit property on or before 01.11.2019, however, they did not handover the possession nor paid the electricity bills of CA Number 151936676 w.e.f. August 2019 amounting to Rs.37,140/. The plaintiff has further alleged that she could not start her business on time as defendants failed to vacate the suit property, hence, defendants are liable to compensate her @ Rs.50,000/ per month w.e.f. 01.11.2019 till the date of handing over the possession. Moreover mesne profit @ Rs.80,000/ per month w.e.f. 01.01.2020 till the date of handing over peaceful vacant possession of the suit property alongwith pendentelite and future interest @ 18% per annum have been claimed.
WRITTEN STATEMENTS:
3. The defendants no. 1 and 2 have filed a joint written statement wherein they have admitted the execution of lease deed dated, 08.05.2017, and they averred that the suit property was taken on rent for running a cafe shop in the name of "The CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.3 of 25 Playing Cup Cafe", however, the defendants were not able to fetch good business and it remained an uneconomical project for them. As there was a locking period of 1 year and the defendants were not in a position to surrender the tenancy, at that time, one Shri Rohit Bhati i.e. the defendant no. 3 made a proposal to the defendants no. 1 and 2 that he could run the cafe. As the lease remained in the name of the defendants, the defendants were hesitant in inducting defendant no. 3 unilaterally, therefore, they contacted the plaintiff to whom the entire facts were narrated. The plaintiff did not raise any objection and allowed the tenancy to continue. It is averred that though the lease remained in the name of the defendants no. 1 and 2, with the consent of the plaintiff, actually the tenancy was continued by defendant no.3 w.e.f. November 2018. The defendants no.1 & 2 claimed that the opening party with ritual of puja, which was organized by defendant no.3, was even attended by the plaintiff and her son. The defendants no. 1 and 2 have categorically stated that they remained the tenants only on papers from November 2018 onwards and practically, with the consent of the plaintiff, the cafe shop was being run by defendant no.3. They had no role in any manner in the functioning or management of the cafe which was being run by defendant no.3 at the suit property. They denied their liability to pay the damages and mesne profits.
4. In the written statement, the defendant no. 3 has taken preliminary objections, including that of Court fees, suppression CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.4 of 25 of material facts, the present being a commercial dispute. The defendant no. 3 has admitted that he is running a cafe at the suit property in the name and style of "Books & Beans Cafe", as its sole proprietor. It is averred that in the year 2018/2019, the defendant no. 1 had approached the defendant no. 3 and informed him that one of his properties was lying vacant and that the said property was a suitable location to run cafe. He was also informed that the defendant no. 1 was the owner of the said property where he was running a coffee shop along with his partner i.e. defendant no. 2 and due to financial crisis, they had to let out the suit property. Thereafter, defendant no. 3 visited the suit property and took it on rent @ Rs.45,000/p.m., to be paid equally to defendants no. 1 and 2. The defendant no. 3 has claimed that he had paid the rent of the suit property from November, 2018 till the nationwide lockdown came into effect. It is also the case of defendant no. 3 that even the plaintiff was aware about the arrangements between the defendant no. 3 and the defendants no. 1 and 2 and that the present suit has been filed by the plaintiff in collusion with defendants no. 1 and 2. The defendant no. 3 claims that time and again, he had requested for the execution of lease deed, however, defendants no. 1 and 2 used to avoid it for one reason or the other. Dismissal of the present suit has been prayed for.
REPLICATION:
5. The plaintiff, in her replication, has denied all the allegations/contents of the written statement filed by the CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.5 of 25 defendants and reiterated the facts averred by her in the plaint.
ISSUES:
6. Vide order, dated 21.10.2020, Ld. Predecessor had passed a preliminary decree of possession in the instant suit, whereby defendant No.3 was directed to handover the possession of the suit property within 15 days to the plaintiff/s or the authorized representative of the plaintiff. Upon completion of pleadings, Ld. Predecessor framed issues in the matter, vide order dated 12.10.2022, which read as under:
1. Whether the plaintiff is entitled for the decree of Rs.50,000/ (Rs. Fifty Thousand) as claimed in prayer clause (c) of the plaintiff and also interest thereupon and if so, at what rate and for what period? OPP.
2. To what amount of mesne profits, the plaintiff is entitled to and if so, at what rate and for what period, and also interest thereupon and if so, at what rate and for what period? OPP.
3. To what amount of recovery, the plaintiff is entitled towards usage of electricity, in respect of the meter installed in the premises? OPP.
4. To what amount of damages, the plaintiff is entitled, and if so, at what rate and for what period, and also interest thereupon and if so, at what rate and for what period? OPP.
5. Whether the suit is undervalued for the purposes of Court fees and jurisdiction, and appropriate Court fees CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.6 of 25 has been paid by the plaintiff? OPP.
6. Whether the Court has territorial jurisdiction to try and entertain the subject matter of the suit? OPP.
7. Relief.
EVIDENCE:
7. The plaintiff stepped into the witness box as PW1 and tendered her evidence by way of affidavit, which is Ex.PW1/A. She relied upon the documents, such as copy of lease deed as Ex.PW1/1; copy of legal notice with postal record as Ex.PW1/2 (colly.); site plan as Ex.PW1/3 and copy of electricity bills and theft bill as Ex.PW1/6 (colly), besides the documents marked as Mark A and Mark B, which are copy of complaint filed by defendants No.1 and 2 against the defendant No.3 and copy of complaint filed by plaintiff against the defendants No.1 & 2 respectively.
8. In her crossexamination by the Ld. Counsel for the defendants No.1 & 2, she deposed that the rented property in question is about 3km away from her residence. She had placed on record the relevant papers showing her ownership with regard to the demised premises, however, no such document was found on record. She further deposed that she did not know from whom the said property was purchased and her husband can tell about it. She had not obtained any permission from MCD for commercial use of the shop in question. She also deposed that CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.7 of 25 she did not know if house tax on commercial basis is being paid, but her husband can tell that. She admitted that she had issued notice for vacation for 15 days instead of 30 days as per the agreement. She also admitted that there was no delivery report/tracking report of delivery of the notice, dated 24.12.2019. PW1 admitted that she has not placed on record any document showing the prevalent market rent/usufruct being derived from similar property in the same situation for grant of mesne profits. She further denied the suggestion that the premises in question was in possession of defendant No.3 since November, 2018 and not in possession of other defendants and she had consented to it. No crossexamination of PW1 was conducted on behalf of defendant No.3.
9. PW2 Sh. Rajeev Kumar, Head Constable, tendered his affidavit of evidence as Ex.PW2/A and relied upon the complaints Ex.PW2/1 to Ex.PW2/4, i.e., ICMS Report of complaint No. 81680502000489 as Ex.PW2/1, copy of complaint made to SHO, PS Pandav Nagar, dated 27.06.2020 as Ex.PW2/2 and copy of local register in respect of complaint No. 00081680502000456 as Ex.PW2/3. In his crossexamination by Ld. Counsel for the defendants No.1 & 2, he admitted that there is a complaint by the defendants No.1 and 2 against the defendant No.3 registered on 17.06.2020.
10. The official of BSES, namely, Sh. Daya Krishan was examined as PW3 and he tendered his affidavit of evidence as CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.8 of 25 Ex.PW3/A. He proved the copy of bill of CA No. 151936676 as Ex.PW3/1 (colly) and the theft bill vide CA No. 401225902 Ex.PW3/2 (colly.) This witness, in his crossexamination on behalf of the defendants No. 1 & 2, admitted that he was summoned to bring the record of CA No. 151936676 from 01.07.2019 to till date. He also admitted that he was not from the enforcement department, who prepared the electricity theft bill Ex.PW3/2 and that the name of one Abhishek was mentioned as tenant in Ex.PW3/2.
11. The husband of the plaintiff, Sh. Vishnu Agarwal was examined as PW4, who tendered his affidavit of evidence as Ex.PW4/A. He relied upon the documents, i.e., Ex.PW4/1 (colly.) which is the email, dated 30.01.2019 sent by him to the defendants and Ex.PW4/2 is the certificate under Section 63(4) (C) of Bhartiya Sakshya Adhiniyam, 2023.
12. PW4, in his crossexamination, admitted that he used to manage the suit property on behalf of his wife, and that no GPA/SPA was executed by the plaintiff in respect of the suit property in his name. He admitted that he is one of the witness in the rent agreement executed between the plaintiff and the defendants No.1 and 2. He also admitted that all the monthly rental cheques given by defendants No.1 and 2 were deposited in the plaintiff's account. He never visited the suit property during the tenancy of defendants No.1 and 2. He further admitted that the plaintiff had received a security amount through cheques CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.9 of 25 totaling to Rs.67,500/ at the time of execution of the rent agreement. He deposed that he did not know that pending electricity bill of Rs.90,320/ was for which period.
13. Thereafter, the plaintiff closed her evidence vide order dated 15.10.2024. Consequently, the matter was listed for defendants' evidence. However, Ld. Predecessor, vide order dated 24.12.2024 observed that no witness was present and no evidentiary affidavit was filed on behalf of the defendants, therefore, the defendants were not interested in leading any DE in the matter, thus, the DE was closed.
Final Arguments:
14. Submissions advanced by Ld. Counsels appearing on behalf of the plaintiff have been heard. Written arguments filed by them have also been perused.
15. Sh. Sanjay Kumar and Sh. Mukund Yadav, Ld. Counsels on behalf of the plaintiff, have argued on the lines as deposed by the plaintiff in his evidence by way of affidavit and submitted their written arguments too. They have submitted that the lease was validly terminated by the plaintiff vide legal notice dated 24.12.2019 as the premises was required by the plaintiff bonafidely for personal use and as such the defendants No.1 & 2 became the trespasser in the suit property as the latter failed to vacate the premises and are liable to pay the mesne profits @ Rs.2,000/ per day in terms of clause 7.4.1 of the lease deed, CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.10 of 25 dated 08.01.2020 till 14.09.2021, i.e., the date on which the plaintiff got possession of the suit property.
16. Ld. Counsels further submitted that the plaintiff has also proved that the defendant No.3 was the trespasser in the property as the defendants No.1 and 2 had subletted the suit property to the defendant no.3 without the consent and knowledge of the plaintiff, and as such the defendants are liable to pay damages @ Rs.50,000/ p.m., i.e., w.e.f. October, 2018 till 14.09.2021, i.e., the date on which the plaintiff got possession of the suit property.
17. It was further argued that the plaintiff has proved through examination of PW3 Sh. Daya Krishan from BSES that the defendants have not paid the electricity charges during their possession of the suit property and the defendants were allegedly involved in the electricity theft vide inspection dated 06.09.2019 for which bill of theft of electricity amounting to Rs.25,21,857/ is pending.
18. None appeared on behalf of the defendants to address argument in the matter. Record has been perused.
19. Issuewise findings in the matter are as under: Issue No.1."Whether the plaintiff is entitled for the decree of Rs.50,000/ (Rs. Fifty Thousand) as claimed CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.11 of 25 in prayer clause (c) of the plaintiff and also interest thereupon and if so, at what rate and for what period? OPP".
20. The onus to prove this issue was upon the plaintiff. The plaintiff claims compensation to the tune of Rs.50,000/ pm w.e.f. 01.11.2019 on the ground of financial losses suffered by her as she could not start her business on time. While the tenancy was subsisting, the plaintiff avers that she had the requirement of the suit property to start a clinic and other business, though, the defendants No.1 and 2 assurred to vacate the suit property by 01.11.2019, they failed to do so, consequently, the plaintiff suffered financial loss.
21. The plaintiff has nowhere disclosed as to what business, she was planning to start at the suit property. A vague averment has been made in the plaint that the suit property was required to start clinic and other business. There is no iota of evidence to show any expenses being incurred in drafting of business plan, obtaining of necessary permits or licences, purchase of necessary equipments or furniture etc, which would have enabled this Court to ascertain the quantum of loss suffered by the plaintiff.
22. In the absence of any documentary evidence to prove financial loss, the arbitrary and whimsical amount of Rs.50,000/ pm cannot be granted to the plaintiff solely on the basis of her CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.12 of 25 ocular testimony. Hence, no damages can be awarded on account of nonstarting of alleged business venture.
Issue No.1 is decided against the plaintiff.
Issue No.2. "To what amount of mesne profits, the plaintiff is entitled to and if so, at what rate and for what period, and also interest thereupon and if so, at what rate and for what period? OPP".
Issue No.4 "To what amount of damages, the plaintiff is entitled, and if so, at what rate and for what period, and also interest thereupon and if so, at what rate and for what period? OPP".
23. Both these issues are taken up together as these are inter connected and can be disposed off by a common discussion. There is no gain saying that the relief of mesne profits or damages emanates from wrongful possession of a tenant. Section 2 (12) of CPC defines mesne profits as under: " mesne profits " of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
24. The plaintiff had inducted defendants No.1 & 2 as tenants by virtue of registered lease deed, dated 08.05.2017 Ex.PW1/1, whereas, the defendants no.1 & 2, in complete violation of CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.13 of 25 clause 6.6 of Ex.PW1/1, had transferred the possession of the suit property to defendant No.3. The lease of defendants No. 1 & 2 stood terminated by service of legal notice and even by eflux of time. Hence, they became tenants at sufferance, who are liable to pay mesne profits. The defendants No. 1 & 2, in order to escape their liability to pay the mesne profits, have set up the plea that they were not in actual possession of the suit property, since November 2018 and it is the defendant No.3, who remained in wrongful possession of the suit property, consequently, the liability be fastened upon him.
25. The pivital question which has arisen for consideration is 'who is liable to pay the mesne profits, whether it is defendants No.1 & 2 or defendant No.3 or all the defendants?
26. Mesne profits can be recovered from a person who is an unauthorized occupant of the suit property. In the instant case, the landlordtenant relationship existed between the plaintiff and defendants No.1 & 2, and they were duty bound to handover the vacant and peaceful possession of the suit property to the plaintiff, rather, they acted in breach of the terms of lease deed Ex.PW1/1 and parted with the possession to defendant No.3
27. There is no privity of contract between the plaintiff and defendant No.3. The defendant No.3 was not inducted in the suit property with the permission of the plaintiff. Though defendant No.1 & 2 have averred, in their written statement, that the CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.14 of 25 plaintiff had allowed the tenancy to be continued by defendant No.3, this plea is in complete contrast to the complaint Ex.PW2/2 made to SHO, PS Pandav Nagar, Delhi, by defendants No.1 & 2 wherein they have stated that defendant No.3 had asked them to run the business at the suit property on oral agreement without any information to the landlady.
28. The plaintiff/PW1 and her husband/PW4 categorically denied the suggestion that they had attended the pooja/inauguration ceremony organized by defendant No.3 at the suit property. It is beyond the realm of reality that a landlady, who was vigilant enough to execute a registered rent agreement with her tenants, would agree to part with possession of her property situated in a wellknown locality of Mayur Vihar to a third party without any written agreement.
29. An interesting suggestion was given to the husband of the plaintiff/PW4 that the monthly rental amount through cheques were deposited in the account of the plaintiff till December, 2019. PW4 admitted it to be correct, however, he volunteered that some cheques got bounced or instructions were received to defer the deposit from defendants No.1 & 2. In case the plaintiff would have acceeded to transfer of possession in favour of defendant No.3 in November, 2018, there was no reason for defendants No.1 & 2 to pay the monthly rent to the plaintiff till December 2019, rather, it should have been directly paid by defendant No.3. It was not so. This celarly establishes that the possession of the suit property was handed over by defendants CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.15 of 25 No. 1 & 2 to defendant No.3 without the permission/disclosure of the same to the plaintiff.
30. It is a classic case where the landlord had let out the property at monthly rent of Rs.22,500/ only and the same property was sublet by his tenants at an enhanced monthly rent, which was just the double, i.e., Rs.45,000/pm. No prudent landlord would grant permission for such an arrangement where he is incurring annual loss of Rs. 2,70,000/. The defendants No.1 & 2, have made substantial profit from the suit property and now, they are denying their liability to pay the mesne profits by affixing it upon defendant No.3.
31. The actual liability for mesne profits rests exclusively upon defendants No.1 & 2, who were tenants and were duty bound to hand over the possession to their landlady/plaintiff. The defendant No.3 was inducted by the defendants No.1 & 2 in the suit property in complete violation of the lease deed Ex.PW1/1. In case the liability is fastened upon the defendant No.3, the tenants/defendants No.1 & 2 would derive advantage of their own wrong doing. The plaintiff has a right to claim mesne profits against his tenants and not against any third party who had entered into possession without his authorization. This Court is of the opinion that the actual tenants/defendants No.1 & 2 are liable to pay the mesne profits.
32. Now the aspect of determination of appropriate rate of CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.16 of 25 mesne profits arises for consideration. The plaintiff has claimed mesne profits @ Rs.80,000/ pm w.e.f. 01.01.2020 till the date of handing over the peaceful possession of the suit property along with pendentelite and future interest @ 18% p.a.
33. The plaintiff/PW1 initially, in her affidavit Ex.PW1/A, claimed damages @ Rs.80,000/ pm, however, subsequently in para No.10 of her affidavit, the plaintiff/PW1 restricted her claim to Rs.2,000/ per day (approximately Rs. 60,000/ a month). Moreover, PW1 admitted, in her crossexamination that she has not placed on record any document showing the prevalent market rent/usufruct being drived from the similar property in the same situation for grant of mesne profits.
34. Nonfiling of rent agreement of properties similarly situated as the suit property, would not, perse, disentitle the plaintiff to damages/mesne profits. Though defendants No.1 & 2 have failed to lead any evidence regarding the prevailing market rent of the suit property, there is an admission of defendant No.3, on record, that he was paying rent to defendants No.1 & 2 @ Rs. 45,000/pm. The relevant extract of written statement of defendant No.3 is reproduced herein below: "L. That it is submitted after visiting the said property, defendant No.3 really liked the location and immediately agreed to take the said property on rent on a monthly rent of Rs.45,000/ divided in two parts to be paid to the defendants in the name of Playing Cup. It is pertinent to mention that all the arrears towards the monthly rent has been paid till the nationwide lockdown come into effect. That the bank statement CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.17 of 25 of defendant No.3 clearly shows that defendant No.3 has been paying rent to the defendants No.1 and 2 from November, 2018. That the bank statement of defendant No.3 is filed with the present written statement along with the list of documents."
35. The aforesaid specific averment of defendant No.3 of agreed rate of rent being Rs.45,000/pm, was detrimental to the case putforth by the defendants no.1 & 2, hence, they should have obtained the leave of the Court to file additional written statement under Order VIII Rule 9 CPC. Same was not done. As the plea of monthly rent being Rs.45,000/ has not been categorically denied by defendants No.1 & 2, it amounts to an admission and the same can be read against them. Admission is as such the best evidence against the person making it.
36. The rent of Rs.45,000/ is the actual and correct amount which the tenanted shop was fetching per month from the person who was in its actual possession. The said amount, therefore, constitutes a just, fair and reasonable measure of mesne profits in the present case, particularly, when there is an admission of defendants No.1 & 2 on record and there is no evidence to the contrary to show that the prevailing market rent was less than the said amount.
37. It is noteworthy that the plaintiff has claimed the mesne profits/damages w.e.f. 01.01.2020 and there is no dispute that the defendants continued in unauthorized occupation of tenanted shop from the said date, despite termination of tenancy. The CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.18 of 25 possession was received by the plaintiff with the aid of court bailiff on 14.09.2021. Accordingly, the plaintiff is entitled to recover damages/mense profits from defendants No.1 & 2 @ Rs.45,000/pm w.e.f. 01.01.2020 till 14.09.2021.
38. As regards interest payable on mesne profits, it is a settled law that interest forms an integral part of the mesne profits, therefore, once the Court awards mesne profits, the interest accruing thereon has to be allowed as a necessary corollary in the computation of the mesne profits. Reliance in this regard is placed on the judgement titled as J.K. Laxmi Cement Vs. Master Avishkar Prakash, 2024 DHC 9239.
39. In the present case, the plaintiff has claimed pendentelite and future interest @ 18% p.a., however, in the opinion of the Court, the said rate of interest is exorbitant and without any basis. Considering the prevailing market rate, this Court is of the view that grant of simple interest @ 9% p.a. on the amount of damages/mense profits is just and equitable.
40. The defendants No.1 & 2 are, therefore, held jointly and severally liable to pay damages/mesne profits @ Rs.45,000/ pm w.e.f. 01.01.2020 till 14.09.2021 along with simple interest @ 9% p.a. for the said period.
Issues No. 2 & 4, are accordingly, disposed off.
CS No. 369/2020Sarita Agarwal Vs. Anshul Omar etc. Page No.19 of 25 Issue No.3. "To what amount of recovery, the plaintiff is entitled towards usage of electricity, in respect of the meter installed in the premises? OPP".
41. The onus to prove this issue was upon the plaintiff. The plaintiff, in para No.5 of the plaint, has averred that the defendants did not pay the electricity bills of CA No. 151936676, which had an outstanding balance of Rs.54,790/ on 14.07.2020. The competent officials of the BSES was examined as PW3, who had produced the electricity bills of CA No. 151936676 Ex.PW3/1 (colly. running into 35 pages). These bills show that the payment has been made upto 10.06.2022. The possession of the suit property was received by the plaintiff on 14.09.2021.
42. The plaintiff, in her affidavit Ex.PW1/A, deposed that the bill dated 26.10.2021 had an outstanding balance of Rs.90,320/, which pertained to the period since August, 2019. No payment slip or any other document has been filed by the plaintiff to show that the aforesaid payment was made by her on behalf of the defendants to the electricity department. In the absence of proof of payment, she cannot claim the amount of electricity bills from the defendants.
43. During evidence, PW3 also produced a theft bill dated 11.09.2019 of the period 07.09.2018 to 06.09.2019 Ex.PW3/2 (colly.). Though the theft bill is dated 11.09.2019 and the present CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.20 of 25 suit was filed on 23.06.2020, there is not even a single averment in the plaint regarding this theft bill. The plaintiff has only stated that the electricity bill from August, 2019, which was received on 14.03.2020, has oustanding balance of Rs.37,140/.
44. A vague prayer has been made for passing of a decree for recovery of pending electricity bills as per meter reading of CA No. 151936676. When any relief is sought from the Court, its foundation has to be laid in the pleadings and the material facts shall be specifically disclosed. Granting unasked relief deprives the defendants of an opportunity to rebut the allegations, which is against the principles of natural justice.
45. A Civil Court cannot go beyond the pleadings and grant relief, which are not specifically pleaded and prayed for in the plaint. When the plaintiff has not sought recovery of theft bill in the prayer clause nor there is mention of any theft bill in the entire plaint, the evidence adduced in support thereof cannot be read. Consequently, the plaintiff is not even entitled to recover the amount of the theft bill, if any.
Issue No.3 is decided against the plaintiff and in favour of the defendants.
Issue No.5 "Whether the suit is undervalued for the purposes of Court fees and jurisdiction, and appropriate Court fees has been paid by the plaintiff? OPP".
CS No. 369/2020Sarita Agarwal Vs. Anshul Omar etc. Page No.21 of 25
46. The onus to prove this issue was upon the plaintiff. The defendant No.3, in para No. R of preliminary objections of written statement, has alleged that the plaintiff has not valued the suit properly as the value of suit property is more than Rs.50 lakhs and the plaintiff has not paid adequate court fees. No report of any valuer has been filed nor any competent witness on valuation aspect has been examined by defendant No.3. After the decree of possession dated 21.10.2020 was passed against defendant No.3, he chose not to contest the present suit.
47. The doctrine of dominus litis entitles the plaintiff to put a valuation to the reliefs claimed and to choose the forum for pursuit of his claim. This discretion is not absolute, but it cannot be interferred with unless shown to be arbitrary or capricious. In Veena Bahl v. Manmohan Bahl (2017) 238 DLT 281 the Hon'ble Delhi High Court observed as under: "18. It is well settled that the plaintiff is dominus litis and in him vests the power to choose the court and determine the valuation of the suit for purposes of pecuniary jurisdiction and that the defendant cannot insist that the suit be tried before a particular court. Nor can the courts compel the plaintiff to go to another court or interfere with his valuation of the suit."
48. It has further been explained in Subhashini Malik v. S.K. Gandhi, 2016 SCC OnLine Del 5058 that the plaintiff as the master of the proceedings, is entitled to choose not only the remedy but also the forum where he wishes to agitate the same. The relevant portion of the decision reads as under:
CS No. 369/2020Sarita Agarwal Vs. Anshul Omar etc. Page No.22 of 25 "46. The prime considerations on the basis of which the majority opinion rests its final conclusions stem from the doctrine of dominus litis; that is to say, the plaintiff is the master of the proceedings and has been vested, by law, with the prerogative not only to put a valuation to the reliefs claimed by him but also to choose the remedy and the forum for its pursuit. Reference has been made in this regard to the provisions contained in Section 7 of the Court Fees Act, 1870 and Section 8 of the Suits Valuation Act, 1887." XXX
74. It is trite that the plaintiff, as the master of the proceedings, is entitled to choose not only the remedy but also the forum where he wishes to agitate the same, should there be more than one available in law."
49. Thus, it is apparent that the valuation primarily lies within the plaintiff's discretion unless shown to be malafide. The plaintiff has filed the instant suit for recovery of possession against the defendants No. 1 & 2, who are her tenants by virtue of registered lease deed, dated 08.05.2017 Ex.PW1/1. The tenants/defendants No.1 & 2 malafidely parted with the possession of the suit property to defendant No.3. In the instant case, a landlady is seeking recovery of possession from her tenants and would be required to value a suit at the annual rate of rent. The landlady cannot be compelled to value the suit at market value and pay enhanced court fees thereon due to fault of her tenants, who without her permission and in violation of terms of lease deed Ex.PW1/1, transferred the possession to someone else.
50. Section 7 (xi)(cc) of the Court Fees Act, 1870 provides that in a suit between landlord and tenant for recovery of CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.23 of 25 immovable property from a tenant, the suit has to be valued according to the amount of rent of an immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.
51. The foundation of the present suit is the registered lease deed Ex.PW1/1 and the subsequent breach of its terms, thus, the suit had to be valued on the annual rent payable. The plaintiff, in para No.10 of the plaint, has rightly valued the suit for the relief of possession at the annual rent, i.e., Rs.22,500 X 12 = Rs.2,70,000/. The plaintiff was not required to value the suit at market value of the suit property, but he had to value it in terms of Section 7 (xi)(cc) of the Court Fees Act, 1870. Same has been done. This Court is of the opinion that the instant suit has been properly valued for the purposes of court fees and jurisdiction.
Issue No.5 is decided against the defendants and in favour of the plaintiff.
Issue No.6 "Whether the Court has territorial jurisdiction to try and entertain the subject matter of the suit? OPP".
52. The onus to prove this issue was upon the plaintiff. Section 16 of Civil Procedure Code, 1908 lays down a well established principle that actions against res or property should be brought in the forum where such res or property is situated. A Court within whose territorial jurisdiction, the property is not CS No. 369/2020 Sarita Agarwal Vs. Anshul Omar etc. Page No.24 of 25 situated has no power to deal with or decide the rights or interest in such property.
53. In the instant case, the suit property is situated in the area of Mayur Vihar, PhaseI, which falls within the territorial jurisdiction of East District. Consequently, this Court has the territorial jurisdiction to try and entertain the present suit.
Issue No.6 is decided in favour of the plaintiff and against the defendant.
RELIEF:
54. In view of the foregoing reasons and discussion, the plaintiff is held entitled to damages/mesne profits @ Rs.45,000/ pm w.e.f. 01.01.2020 till 14.09.2021 along with interest @ 9% p.a. on the said amount for aforesaid period to be paid jointly or severally by the defendants No.1 & 2. The suit of the plaintiff is, accordingly, decreed. Costs are also awarded in favour of the plaintiff.
55. Decreesheet be prepared accordingly. File be consigned to Record Room.
Annouced in the Open Court, (Shuchi Laler) On this 27.01.2026. District Judge02, East District, Karkardooma Courts, Delhi.
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