Delhi District Court
Plaintif'S Case vs Unknown on 16 December, 2015
In the Court of Ms. Shivali Sharma : Judge Small Causes Court of
Central Delhi District at Tis Hazari Courts, Delhi
SCC No. 13/2013
Unique ID No : 02401C0224772013
In the matter of :-
Shri Nawal Kishore
S/o late Shri Jawahar Lal,
5571-75, Raiger Pura,
Karol Bagh, New Delhi - 110005
........Plaintif
VERSUS
Mr. Arvind Gupta,
S/o Shri Brij Mohan Lal,
75/5571, Ground Floor,
Raiger Pura, Karol Bagh,
New Delhi - 110005
Also At :
R/o 39/3, First Floor,
East Patel Nagar,
New Delhi
.....Defendant
Date of institution : 04.05.2013
Reserved for Judgment : 16.12.2015
Date of decision : 16.12.2015
Suit for Recovery
JUDGMENT
1. This is a suit for recovery of Rs.700/- (Rupees Seven Hundred Only) with pendente lite and future interest.
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2. The case of the plaintiff is that the plaintiff is the owner/landlord of property no.5571-75, Raiger Pura, Karol Bagh, New Delhi - 110005 (hereinafter referred to as 'the suit property') and the defendant is a tenant in respect of one shop on the ground floor in the suit property @ monthly rate of Rs.3500/- excluding all charges. The defendant has been depositing the monthly rent in the bank account of the plaintiff at the said rate. Since the rent had not been increased for the last three years, the plaintiff through his counsel Shri Devanshu Jain sent a legal notice dated 31.01.2013 under Section 8 of the Delhi Rent Control Act calling upon the defendant to increase the rent by 10% w.e.f. 01.03.2013 by speed post which was duly served. The defendant has paid the rent to the plaintiff for month of March and April, 2013 @ Rs.3500/- only in place of Rs.3850/-. Thus a sum of Rs.700/- has fallen due against the defendant being the arrears of rent for the said months and hence the present suit.
Defendant's Case
3. A written statement was filed by defendants wherein suit of the plaintiff has been controverted primarily on the ground that the suit is without any cause of action and is liable to be dismissed under the provisions of Order 7 Rule 11 CPC. No notice has ever been served upon the defendant as claimed by the plaintiff. The plaintiff has not come to the Court with clean hands and has suppressed the material facts regarding pendency of a suit bearing CS(OS) No. 309/2006 before the Hon'ble High Court of Delhi filed by the defendant for specific performance and permanent injunction against the plaintiff herein. The said suit has been filed seeking directions to plaintiff to execute the SCC No: 13/2013 Nawal Kishore v. Arvind Gupta Page no. 2 of 11 sale deed of the suit property in favour of defendant as he has already received a sum of Rs.11,67,500/- from the defendant but intentionally did not execute the sale deed. The plaintiff has been earning huge amount of interest on the said amount and in addition to the same, a monthly amount of Rs.3500/- is being paid by defendant to plaintiff. Hence, the plaintiff is not entitled to seek the alleged increase in rent. The subject matter is governed by the DRC Act as such this Court has no jurisdiction to entertain and try the present suit. It is also alleged that the suit is based under Section 53A of the Transfer of Property Act as the possession of the shop has been handed over in part performance of the admitted Agreement to Sale in favour of the defendant. On merits, all the allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
4. Since this is a Small Cause Case, no issues have been framed.
Plaintif's Evidence
5. Plaintiff has examined himself as PW-1. He stated and reiterated on oath the contents of the plaint. He relied upon certain documents. Ex.PW1/1 & Ex.PW1/2 are the two original postal receipts vide which the legal demand notice dated 31.01.2013 was sent to the defendant at his two addresses. Ex.PW1/3 is the copy of the legal demand notice dated 31.01.2013. Ex.PW1/4 is one original POD card received back duly signed on behalf of the defendant. Ex.PW1/5 is copy of the statement of account of the plaintiff showing payment of rent by the defendant @ Rs.3500/- per month for the months of March and April, 2013.
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6. Defendant Shri Arvind Gupta examined himself as DW1. He stated and reiterated on oath the contents of the WS of the defendants.
7. DW1 deposed that the amount of Rs.3,500/- per month is being deposited by him in the bank account of the plaintiff not towards rent of the suit property but as part of sale consideration. Accordingly, the defendant was not liable to pay alleged increased rent @ Rs.3850/- for the month of March and April, 2013. He has also denied having received any legal notice for the increase in the rent. No document was proved on record by defendant.
8. In his cross examination, DW1 stated that he came in possession of the suit property for the first time in 1984 as a tenant under the plaintiff. This testimony of DW1 was contrary to his examination in chief wherein he had denied that the plaintif was the owner of the suit property and he was a tenant therein.
9. When questioned about an eviction petition bearing No. E- 1702/2004 decided vide order dated 29.10.2007, DW-1 showed ignorance about the same. On his evasive reply, DW-1 was confronted with copy of judgment dated 29.10.2007 passed by Ld. Rent Controller in Eviction Petition No. E-1702/2004 which he admitted. The said document is Ex.DW1/X-1.
10. In his cross examination, DW1 also admitted that there was an employee by the name of Rajender working for him since 1990's. When SCC No: 13/2013 Nawal Kishore v. Arvind Gupta Page no. 4 of 11 shown the signatures on point A on the AD Card (Ex.PW1/4) showing proof of delivery of the legal demand notice dated 31.01.2013 (Ex.PW1/3) as well as for the AD Card issued from the Court for the service of summons of the suit on the defendant for 06.06.2013 (Ex.PW1/X-3); the witness denied that the said signatures were of Shri Rajender i.e. his employee.
11. DW1 also admitted that in his suit for specific performance filed before Hon'ble High Court of Delhi in the memo of parties (Ex.DW1/X-
2), he had mentioned his address as 39/3, First Floor, East Patel Nagar, New Delhi. However he stated that it was a typographical error and actual address was 39/13.
12. The witness denied having received the legal notice dated Ex.PW1/3 either by himself or through his employee Rajender. The vouchers regarding salary paid to Rajender were called for the comparison of the signatures of Rajender. The said vouchers 32 in number, are Ex.DW1/X-3. He was also confronted with certain receipts (Ex.DW1/X-4) which the defendant had filed before Hon'ble High Court of Delhi in civil suit for specific performance. He admitted that the signatures of witness no. 2 at point A on the said receipts were those of his employee Rajender. He also admitted that the signatures of his employee Rajender on either of the vouncers (Ex.DW1/X-3) did not resemble or match with his signatures appearing on receipts (Ex.DW1/X-4).
13. Final arguments have been heard and record has been carefully perused.
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14. The plaintiff has filed the present suit for recovery of arrears of rent qua the suit property. The plaintiff has alleged the following facts which were required to be proved by him for the purpose of obtaining the decree of recovery as prayed.
i. That the plaintiff was the owner of the suit property. ii. That there was a relation of landlord and tenant between the plaintiff and the defendant.
iii. That the rate of rent was initially Rs.3500/-. iv. That a legal notice dated 31.01.2013 (Ex.PW1/3) was issued by the plaintiff demanding increase in rent @ 10% w.e.f. 01.03.2013.
v. That the said legal notice Ex.PW1/3 was duly served upon the defendant and;
vi That the defendant had not paid the rent at the enhanced rent and the same was only paid @ Rs.3,500/-.
15. Now I shall deal with all these aspects one by one.
16. The ownership of the plaintiff over the suit property is not in dispute. Although, defendant, in his written statement has denied the fact that the plaintiff is the owner of the suit property. However, as per his contentions he had purchased the suit property from the plaintiff and a suit for specific performance and permanent injunction bearing CS (OS) No. 309/2006 has been filed by him against the defendant and is pending before the Hon'ble High Court of Delhi. Thus, the ownership of the plaintiff over the suit property is duly proved on record.
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17. The relationship of landlord and tenant between the parties has already been decided by Ld. Rent Controller vide judgment dated 29.10.2007 (Ex.DW1/X-1) whereby the Eviction Petition No. E-1702/04 filed by the plaintiff herein against the defendant was decided.
18. It is an admitted case of the defendant that he had entered the suit property in the year 1984 as a tenant under the plaintiff. As per his case after execution of an agreement to sell between the parties, the plaintiff is in possession of the suit property as its owner. However interestingly, the plaintiff has neither given the details of the said Agreement to Sell like date etc. nor has proved on record any document in support of the said contention. He has merely stated that he has filed a suit for specific performance in respect of the alleged Agreement to Sell which is pending before Hon'ble High Court of Delhi. The pendency of the said suit is not disputed. However, mere pendency of the suit does not give any right to the plaintiff to act as an owner of the suit property. This is more so when the plaintiff had miserably failed to even disclose the details of the alleged agreement to sell. Since, admittedly, the defendant had entered into the suit property as a tenant and he has failed to bring on record any evidence to prove his contention of having purchased the suit property, unless there is any decision or finding on this aspect in favour of the plaintiff in his pending suit, he has to be considered as a tenant in the suit property. Thus, from the evidence filed on record, I have no hesitation in holding that a relationship of landlord and tenant existed between the parties at the time of filing the suit and during the months of March and April, 2013 for which the present suit has been filed.
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19. The rate of rent qua the suit property, as per the case of the plaintiff was Rs.3500/-. Ld. Rent Controller, vide his judgment dated 29.10.2007 (Ex.DW1/X-1) has held that the rate of rent of the suit property was Rs.3500/- per month w.e.f. 01.01.2002. The said decision has not been challenged by the defendant and the same has attained finality. Admittedly, the defendant is depositing Rs.3500/- in the account of the plaintiff. Although the defendant has disputed that the said payment is towards rent and has rather stated that the payment is being made as part sale consideration. However, no evidence on this aspect whatsoever has been produced on record. Accordingly, in all probabilities, the amount of Rs.3500/- has to be considered as the rent of the suit property.
20. Section 6A of the Delhi Rent Control Act, 1958 provides that the standard rent or the rent agreed upon between the landlord and tenant may be increased by 10% every three years. Section 8 of the said Act provides for issuance of a notice in writing by the landlord in case he wishes to increase the rent of any premises. It also provides that in case the increase in rent is lawful under the Act, it shall become due and recoverable after the expiry of 30 days from the date of the notice.
21. As per the case of the plaintiff, he had issued a legal notice dated 31.01.2013 (Ex.PW1/3) under Section 8 of the DRC Act seeking enhancement of rate of rent @ 10%. The said notice was addressed to the defendant and sent at his two addresses i.e. his residential address as 39/3, First Floor, East Patel Nagar, New Delhi and the address of the suit property. The postal receipts in this regard have been proved as Ex.PW1/1 and Ex.PW1/2.
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22. Defendant has admitted in his cross examination that he has given his address as 39/3, East Patel Nagar, New Delhi in the memo of parties (Ex.DW1/X-2) filed before Hon'ble High Court of Delhi. Although he stated that there was a typographical error in the said memo of parties and his actual address was 39/13, however it is not his case that the said typographical error was ever got corrected by him by filing an amended memo of parties. Accordingly, plaintiff was well within his rights to send the legal notice for enhancement of rent to the defendant on his address of 39/3.
23. The legal notice has also been sent on the address of the suit property by registered post. The AD card duly signed by one Rajender Kumar has been proved as Ex.PW1/4. Defendant has admitted that Rajender Kumar is an employee under him working at the suit property. Even the summons of the suit sent through registered AD have been received by Rajender Kumar vide AD Card Ex.DW1/X-3. A comparison of the signatures on the two AD cards i.e. Ex.PW1/4 and Ex.DW1/X-3 shows that both the signatures appear to have been made by the same person. Defendant has not disputed that the summons of the suit were not received by him. Rather appearance has come in the present suit after service of the summons through Registered AD. Certain vouchers of payment of salary to Rajender Kumar by the defendant have been proved as Ex.DW1/X-3, however they are not much relevant as they do not bear the complete signatures of Rajender Kumar. Certain receipts admittedly signed by Rajender Kumar, employee of the defendant have been proved as Ex.DW1/X-4. A perusal of the same also shows that they bear similar signatures as those on the AD Card Ex.PW1/4.
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24. In view of the above discussed evidence on record, mere ocular testimony of the defendant that he had not received the legal notice Ex.PW1/3 is not sufficient to rebut the case of the plaintiff of having served the legal notice on the defendant through registered post. From the evidence on record, I have no hesitation in holding that the legal notice of enhancement of rent under Section 8 of the DRC Act Ex.PW1/3 has been duly served upon the defendant.
25. Admittedly, the defendant has not made any payment at the enhanced rate of rent and payment has been made only @ Rs.3,500/- per month. Accordingly, the defendant is under a liability to pay the enhanced amount of Rs.350/- per month to the plaintiff.
Relief
26. In view of my above discussions, the suit of the plaintiff is decreed and following reliefs are granted in favour of the plaintiff and against the defendants:
i. A decree for Recovery of Rs.700/- (Rupees Seven Hundred Only) comprising of Rs.350/- as arrears of enhanced rent for the months of March and April, 2013.
ii. The pendente lite interest @ 12% per annum on the decreed amount of Rs.700/- is awarded in favour of the plaintiff and against the defendants from the date of filing of the present suit i.e. 04.05.2013 till the date of decree.
iii. The future interest @ 6% is also awarded on the decreed amount of Rs.700/- from the date of decree till realization. iv. Cost of the suit.
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27. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the Open Court on 16.12.2015 (Shivali Sharma) Judge Small Causes Court Central District: Tis Hazari Courts: Delhi SCC No: 13/2013 Nawal Kishore v. Arvind Gupta Page no. 11 of 11