Delhi District Court
M/S. Saini Co-Operative Thrift & vs Sh.Naresh Kumar on 19 April, 2008
//1//
IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. : 108/05
M/s. Saini Co-operative Thrift &
Credit Society Ltd.
having its Registered Office at :
2420-21, Bazar Kamra Bangash
Darya Ganj
New Delhi-110 002.
through its (Honorary) General Secretary
Sh. Mahinder Kumar Bharal
...Plaintiff
VERSUS
1. Sh.Naresh Kumar
S/o. Late Sh.Mohan Lal
2420-2421, Ward No.XI
Bazar Kamra Bangash
Darya Ganj, New Delhi-110 002.
2. Sh.Mahesh Kumar (since deceased)
S/o. Late Sh.Mohan Lal
through his Legal Representatives
a) Smt.Mamta
W/o. Late Sh.Mahesh Kumar
b) Kumari Neha
D/o. Late Sh.Mahesh Kumar
through her mother and natural guardian
Smt.Mamta defendant no.2 (a)
c) Master Sarthak
s/o. Late Sh.Mahesh Kumar
through her mother and natural guardian
Smt.Mamta defendant no.2 (a)
all residents of:
2420-2421, Ward No.XI
Bazar Kamra Bangash
Darya Ganj, New Delhi-110 002.
...Defendants
1/33
//2//
Date of Institution of the Suit: 19.05.2005
Date on which the judgment has been reserved: 02.04.2008.
Date of delivery of judgment: 19.04.2008.
SUIT FOR POSSESSION AND DAMAGES/
MESNE PROFITS FOR USE AND OCCUPATION
JUDGMENT
1. By this judgment I shall dispose of the suit for possession and damages/mesne profits for use and occupation filed by the plaintiff society against the defendants.
2. In the plaint, it is submitted that plaintiff is a Cooperative society duly registered under the Delhi Cooperative Societies Act having its registered office at Darya Ganj. It is submitted that Sh.Mahinder Kumar Bharal is the General Secretary of the plaintiff society and is duly authorized to sign, verify, institute and pursue the present suit vide Resolution dt.08.08.2003. It is submitted that the plaintiff society is the sole and the absolute owner of the property premises bearing Municipal No.2420-21/XI, Kamra Bangash, PS Chandni Mahal, Darya Ganj, New Delhi. It is further submitted that several years ago a portion of the said property 2/33 //3// comprising of two rooms and a store/godown alongwith common verandah/passage besides the common bath and common latrine situated on the ground floor of the said property was demised by the predecessor in interest of plaintiff society to Sh.Mohan Lal now deceased for residential purposes only at a monthly rental of Rs.8.81 including property taxes but excluding all other charges.
It is further submitted that plaintiff society through its the then legal advisor had sent a notice dt.16.08.1988 to quit to Sh.Mohan Lal in respect of the premises in suit terminating his contractual tenancy with effect from 30.09.1988. It is submitted that plaintiff society through the said notice had contemporaneously called upon the said tenant Sh.Mohan Lal to hand over the vacant, physical and peaceful possession of the premises in suit to it on or before the said date. Sh.Mohan Lal sent a reply dt.03.10.1988. It is submitted that the tenancy of Sh.Mohan Lal stood determined/terminated with effect from.30.09.1988 and thereupon Sh.Mohan Lal became a statutory tenant in the premises in suit. It is submitted that the plaintiff society could not proceed against Sh.Mohan Lal as he was duly protected against eviction by the provisions of the Delhi Rent Control Act and the Slum Areas Act. It is submitted 3/33 //4// that protection against the eviction afforded by the Act to Sh.Mohan Lal was manifestly personal to him.
It is further submitted that Sh.Mohan Lal died on 31.03.1991 leaving behind his wife Smt.Bhagwati Devi and the present defendants as his natural heirs and/or legal representatives. It is submitted that the wife of Sh.Mohan Lal who was financially dependent upon her husband, consequently on the death of Sh.Mohan Lal became entitled to the protection afforded by the Act only for her lifetime. It is submitted that Sh.Mohan Lal had lastly paid the rentals of the suit premises to the predecessor in interest of the plaintiff society at the contractual rate of Rs.8.81 for the period upto February 1973 which was admittedly acknowledged by the then owner landlord vide an appropriate receipt of that date. Thereafter rentals in respect of the premises in suit were neither tendered nor paid by anybody. It is submitted that according to the predecessor in interest of the present defendants, he had deposited certain amounts in court purportedly being the rentals for the period ending September 1988 and this amount if deposited is still lying undisbursed in the court of the Ld. Rent Controller.
It is submitted that on or about 16.01.2004 the 4/33 //5// plaintiff society had instituted an eviction petition in the court of the Ld. Rent Controller in which the respondents appeared and informed that Smt.Bhagwati Devi wife of Sh.Mohan Lal had died and consequently the said eviction petition was unconditionally withdrawn.
It is submitted that in view of the fact that the wife of Sh.Mohan Lal or mother of the present defendants was financially dependent upon Sh.Mohan Lal, the protection afforded to the spouse of the deceased statutory tenant against eviction from the premises in suit disappeared simultaneously with her death and the present defendants are since that day for the last three years or more in unlawful use, possession and occupation of the premises in suit.
It is submitted that as soon as the factum of death of Smt.Bhagwati Devi came to the knowledge of the plaintiff society, they requested the defendants to handover the actual physical vacant possession of the suit premises but they kept on delaying the matter on one pretext or the other. It is submitted that the defendants alleged that they are still tenants in the premises in the suit having inherited the tenancy rights of Sh.Mohan Lal which is factually, equitably and legally incorrect.
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//6// It is further submitted that defendants are in illegal and unlawful use, occupation and possession of the premises in suit. It is submitted that in these facts and backgrounds the plaintiff society is entitled to recover from the defendants, jointly or severally damages for illegal use, possession and occupation of the premises in suit atleast since the day their mother Smt.Bhagwati died.
It is submitted that keeping in view the prevailing rentals for similar accommodation in the locality of Kamra Bangash, Darya Ganj New Delhi, the premises in suit can easily fetch a market rental of Rs.5,000/- per month or more excluding the prevailing premium/pugree.
It is submitted that plaintiff society is entitled to recover from the defendants mesne profits/damages for illegal use and occupation @Rs.5000/- per month for the period of three years. It is further submitted that the plaintiff society is also entitled to the appointment of Local Commissioner in terms of order XX Rule 12 CPC to determine the mesne profit/ damages payable to the plaintiff society by the defendants from the date of the institution of the present suit till the date on which the defendants deliver to the plaintiff society the actual physical vacant possession of the premises in suit. 6/33
//7// Plaintiff society further submits that the cause of action for the present suit wholly arose at Delhi; the suit premises situated at Delhi within the limits of the territorial jurisdiction of this Hon'ble Court and that the suit has been properly valued for the purposes of jurisdiction and court fees.
Accordingly plaintiff sought the following reliefs:-
1. a decree for possession in respect of the premises in suit, more fully shown bounded by red colour in the site plan Annexure C to the plaintiff society against the defendants (jointly and severally);
2. a decree for recovery of Rs.1,80,000/- as damages for unauthorised use and occupation for the period of three years prior to the date hereof @Rs.5,000/- per month to the plaintiff society and against the defendants (jointly and severally);
3. appoint a Local Commissioner in terms of Order XX Rule 12 CPC to determine the mesne profits and/or damages for unathorized use and occupation of the premises in suit payable by the defendants to the plaintiff society from the date of the institution of the present suit till the date on which the defendants hand over to the plaintiff society the actual physical vacant possession of the premises in suit;
4. a final decree in terms of the report of the Local Commissioner appointed in terms of prayer clause (3)
5. a decree for interest pendentelite as well as 7/33 //8// future on the decretal amount including that of Rs.1,80,000/- and;
6. .......
3. Defendants were duly served and filed their joint W.S. wherein they have raised several preliminary objections that this Hon'ble Court has no jurisdiction to try this suit; that the suit is not maintainable; that plaintiff has no locus standi to file this suit; that no permission has been obtained from the slum authority for this court; that no cause of action is in favour of the plaintiff and the suit is bad for non joinder of necessary party. It is denied that the plaintiff is a landlord/owner of the premises in dispute.
In reply on merits, it is submitted that father of the defendants was tenant in the suit premises and after his death, the defendants and their mother inherited tenancy rights and now the mother has also died and the defendants are tenant in the suit premises. It is submitted that no notice dt.16.08.1988 was ever received by Sh.Mohan Lal, the father of the defendants. It is submitted that the father of the defendants never gave any reply to the notice dt.16.08.1988. It is submitted that the father of the defendants was not a statutory tenant in respect of the suit premises. It is further submitted 8/33 //9// that Sh.Mohan Lal died in the year 1991 leaving behind his wife, present defendants and five daughters. It is submitted that the father of the defendants was tenant of the suit premises since 1941. It is further submitted that the father of the defendants paid rent to his landlord upto the period before his death in 1991. It is admitted that in January 2004, the plaintiff had filed an eviction petition in the court of Ld. Rent Controller, Delhi and later on withdrew the same and rest of the contents of para no.12 are denied.
It is claimed that Mohan Lal father of the defendants died in 1991 and according to the plaintiff, the tenancy of the father of the defendants was terminated by a notice dt.16.08.1988 in respect of the suit premises and plaintiffs are filing the present suit after fourteen years from the date of death of Sh.Mohan Lal.
It is further submitted that the tenancy in respect of the suit premises never terminated in the lifetime of Sh.Mohan Lal and the defendants are tenant of the suit premises. It is further submitted that the defendants have inherited the tenancy rights of their father. It is further submitted that the plaintiff has filed the suit only to harass the defendants.
Accordingly, it is prayed by the defendants that 9/33 //10// the suit of the plaintiff be dismissed with cost.
After leading evidence and prior to final arguments defendant no.2 died. Vide order dt.01.08.2007 L.R.'s of defendant no.2 brought on record.
4. Subsequently, replication to the W.S. of the defendants was filed wherein the plaintiff has denied the allegations made in the W.S. and reiterated the averments contained in the plaint.
5. After the completion of pleadings following issues were framed by the Ld. Predecessor of this Court on 19.09.2005:-
1. Whether plaintiff is a landlord of the premises?OPP.
2. Whether suit cannot proceed further in absence of permission from Slum authorities?OPD.
3. Whether suit is bad for misjoinder of the parties?OPD.
4. Whether defendant and his mother became tenant in the property after death of his father?OPD.
5. Whether plaintiff had sent notice dt.16.08.1988 terminating the tenancy?OPP.
6. Whether plaintiff is entitled to damages at 10/33 //11// the rate of Rs.5,000/- per month and for what period?OPP.
7. Whether plaintiff is entitled to decree in the sum of Rs.1,80,000/-?OPP.
8. Whether plaintiff is entitled to interest if so at what period?OPP.
9. Whether plaintiff is entitled to decree of possession as prayed for?OPP.
10.Relief.
6. Parties led their evidence. On behalf of plaintiff, Sh.Hari Kishan Saini, President of the plaintiff society deposed as PW1.
Opportunity given to advocate of defendants to cross examine plaintiff's witness but none appeared on behalf of defendant to cross examine the witness. Accordingly the cross of PW1 treated as Nil.
7. On behalf of defendants, defendant no.2 and defendant no.1 deposed as DW1 and DW2.
DW1 in his affidavit supported the averments made in the WS.
In cross examination DW1 deposed that he is in possession of the suit property only because his father was also residing here for the last 55 years. DW1 deposed that 11/33 //12// they never paid the property taxes for the portion in which they are residing. DW1 deposed that he cannot read or write English. DW1 further deposed that his father had paid the rent and after his death no rent was paid by them. DW1 was unaware about the notice to quit served upon his father. DW1 further deposed that he cannot affirm or deny that the notice to quit was replied to by his father. DW1 deposed that his father had said that as they are not tenants why should they pay the rent. DW1 admitted that his mother has also died on 30.07.2004. On a specific question DW1 admitted that after the death of his father the statutory protection under the DRC Act devolved upon is widow Smt.Bhagwati Devi for her lifetime and after the death of his mother they became the tenants. DW1 further submitted that after the death of his father not only their mother but also they were living in the premises in suit. DW1 further submitted that they were joint tenants. On a specific question by advocate of plaintiff that under whom you were joint tenants, DW1 replied that there is no landlord in respect of the premises in suit as no body is coming to collect the rent. DW1 further deposed that he never deposited any rental in the court of the Rent Controller pleading that he was not aware of the name of the new landlord. DW1 further deposed that they 12/33 //13// are living in the suit property ever since he was born. DW1 deposed that Voter I-Card was issued to him before the death of his father and his father died on 21.03.1991. On a specific question by advocate of plaintiff that Election I-Cards were issued first time in this country only in 1995, DW1 replied that his vote was prepared earlier when he attained the age of 18 years.
DW1 denied the suggestion that the locality of Kamra Bangush has been totally commercialized. DW1 submitted that there are shops on the main road and inside the main road all are residential. DW1 do not know what is the prevailing rental for one room accommodation in this locality. DW1 cannot affirm or deny the suggestion that accommodation in his possession can fetch a rental of Rs.5000/- per month.
DW2 (defendant no.1) in his affidavit supported the averments of W.S. DW2 in cross examination admitted that his father was the original tenant in the premises in suit but he cannot say under whom his father was tenant. DW2 do not know till what date he had paid rent of the premises in suit. DW2 cannot say anything on the question put up by the advocate of plaintiff 13/33 //14// that the tenancy of his father was terminated in terms of notice dt.16.08.1988 and that the receipt of this notice was acknowledged by his father by sending a reply dt.03.10.1988. DW2 denied the suggestion that his mother was only holding tenancy during her lifetime after the death of his father. DW2 further denied the suggestion that they have no right in the suit property after the death of their mother. DW2 further denied that the locality has become commercialized. DW2 deposed that today the market rent prevalent is only Rs.1000-1200/- per month and not otherwise. DW2 admitted that his father has took the premises only for residential purposes.
8. Both parties filed written arguments.
9. In the written arguments, advocate of plaintiff states that the suit for ejectment against the legal heirs of the tenant Sh.Mohan Lal whose tenancy in respect of residential premises had been determined by serving upon the tenant during his lifetime an appropriate notice dt.16.08.1988. Advocate of plaintiff further argued that this notice exh.PW1/5 was served upon the addressee by post which is duly acknowledged. Advocate of plaintiff states that after 14/33 //15// termination of his tenancy in respect of premises in the suit Sh.Mohan Lal was a "statutory" tenant under the premises in suit. Sh.Mohan Lal was protected against his eviction from the premises in suit by the provisions of the Slum Area Act, 1956 as well as the Delhi Rent Control Act, 1958. Advocate of plaintiff states that Sh.Mohan Lal died on 31.03.1991 and thereafter the protection against eviction from the premises in suit that was afforded earlier by DRC Act to Late Sh.Mohan Lal being personal to him disappeared and the present defendants are the legal heirs of Sh.Mohan Lal.
Advocate of plaintiff further states that Sh.Mohan Lal had also left behind a widow Smt.Bhagwati Devi and on the death of Sh.Mohan Lal, Smt.Bhagwati Devi alone became entitled to the protection afforded by the Act only for her lifetime and Smt.Bhagwati Devi has admittedly died. Advocate of plaintiff states that the sons of Sh.Mohan Lal are in actual possession of the suit premises and they have no right, title or interest there in as much as the protection against eviction afforded to Sh.Mohan Lal being personal to him did not devolve at all on the present defendants and is not available to them at all. Advocate of plaintiff cited AIR 1978 Delhi 92.
Advocate of plaintiff further states that the factum of 15/33 //16// the death of Smt.Bhagwati Devi widow of Sh.Mohan Lal came to the knowledge of the plaintiff society only on a perusal of the Written Statement filed by the present defendants in the court of Ld.Addl. Rent Controller in eviction proceedings instituted by the plaintiff society against Smt.Bhagwati Devi and the present defendants and immediately that eviction petition was withdrawn and the present suit was filed and there has been no delay much less inordinate delay in the institution of this suit. On the maintainability of suit, Advocate of plaintiff stated that the constitution validity of Section 2(1) of the DRC Act upheld by the Hon'ble Supreme Court in the case Gauri Shankar vs. Union of India reported as 1994 (6) SCC 349. Advocate of plaintiff further cited judgment by a Division Bench of the Hon'ble High Court of Delhi in the case of Smt.Krishna Prakash vs. Sh.Dilip Harel Mitra Chenoy reported as AIR 2002 Delhi 81.
Advocate of plaintiff states that the testimony of Sh.Hari Kishan Saini, the President of plaintiff society was placed on record which has not been challenged by the defendants jointly and severally. There is no cross examination of the witness and the said testimony has remained unconverted and unrebutted.
16/33
//17// In view of above, it is stated that since the plaintiff has proved his case the suit of the plaintiff be decreed.
10. In the written arguments, advocate of defendants states that defendants have clearly denied the plaintiff as the landlord/owner of the suit premises and further that the predecessor in interest of plaintiff society had given on rent the suit property several years ago. Advocate of defendant states that after the death of Sh.Mohan Lal, the defendants and their mother inherited tenancy rights. Advocate of defendants stated that the father of defendants was not a statutory tenant of the suit premises as his tenancy was not terminated during his lifetime.
Advocate of defendants stated that it is false and denied that the father of the defendants ever deposited rent u/s.27 of Delhi Rent Control Act in favour of his landlord or any person including plaintiff. Advocate of defendants states that the suit of the plaintiff is false and bogus. Advocate of defendants argued that in the plaint it is stated that Sh.Mahender Kumar Bharal is duly authorised to sign, verify, institute and pursue the present case but he has not come in the witness box to give evidence on oath before the court or to 17/33 //18// give evidence by way of the affidavit. Advocate of defendants argued that Sh.Hari Kishan Saini has filed affidavit by way of evidence in support of the pleadings and legally his evidence by way of evidence has no legal value to support the pleadings of the plaint. Advocate of defendants further argued that this court has no jurisdiction to try this suit because the tenancy of defendants father was never terminated by his landlord during his lifetime.
Advocate of defendants further argued that the plaintiff has failed to furnish any Registry of ownership (Sale Deed) or any documents which could prove that plaintiff was/is the landlord/owner of the suit premises. Advocate of defendants further stated that plaintiff has failed to prove its title in the suit property. Advocate of defendants further stated that the suit property falls in the Slum Area and the plaintiff has not taken permission from the competent authority to file the suit. Advocate of defendants further stated that the suit is bad for non joinder of necessary parties. Advocate of defendants stated that the plaintiff have impleaded only the defendants as a party whereas Sh.Mohan Lal has left behind him five daughters also.
Advocate of defendants stated that as per plaintiff, 18/33 //19// the plaintiff society had sent a legal notice to quit on 16.08.1988, the father of defendants died on 21.03.1991 and accordingly the suit is time barred as the suit was filed only in May 2005. Advocate of defendants stated that it is wrong to say on the part of the plaintiff that the defendants are liable to pay Rs.5000/- for a period of three years before the filing of the present suit as damages for use of the suit premises. Advocate of defendants states that plaintiff has filed the suit only with the purpose of harassing defendants and accordingly, the suit of the plaintiff be dismissed with costs.
11. My findings with respect to the issues are as follows:
REGARDING ISSUES NO.1 & 5
Whether plaintiff is a landlord of the premises?OPP.
AND
Whether plaintiff had sent notice
dt.16.08.1988 terminating the tenancy?OPP. These issues were OPP i.e. the onus to prove these issues was on plaintiff.
These issues have been framed on a specific objections taken by the defendants in the WS that though the 19/33 //20// defendants are tenant but the plaintiffs are not landlord and that no notice dt.16.08.1988 was ever received by Sh.Mohan Lal.
I have seen the pleadings, evidence, documents on record, written submissions and feel that plaintiff has proved issues nos.1 and 5 on the following grounds:
Firstly, defendants in the W.S. as well as in the evidence states that they are tenant in the suit property however, they do not know who is the landlord. It is very strange that tenants do not know who is landlord of the property. Despite specific statement in the plaint that the plaintiffs are owners and landlords, defendants denied this fact. Once defendant denies plaintiffs to be landlord, they should have uttered as to who is landlord. Defendants do not know the name of the owner of the suit property. Defendants further admits that they never paid taxes to any authority with respect to the suit property.
Secondly, plaintiff has placed on record Annexure D which is Exh.PW1/5. Annexure D is a legal notice sent by registered A/D as well as UPC dt.16.08.1988. By this notice 20/33 //21// plaintiff has terminated the tenancy of Sh.Mohan Lal (father of the defendants) i.e. the predecessor in interest of the defendants. Original postal receipts and acknowledgment due is Annexure E. Hence it is proved that the predecessor in interest of defendants Sh.Mohan Lal was issued and served a legal notice dt.16.08.1988 by which his tenancy was terminated. Further plaintiff has placed on record the Annexure F which is a reply to this notice by lawyer Sh.Inderjeet Singh dt.03.10.1988. In this reply dt.03.10.1988, Sh.Mohan Lal admitted that he was tenant under Sh.Rattan Lal Gupta. Sh.Mohan Lal further admits that plaintiff has purchased the suit property from Sh.Rattan Lal Gupta and Ors. and further states that the rent has been paid upto date and remaining rent upto 17.09.1988 was deposited in the court of Sh. Rakesh Kapoor, ARC, Delhi. These notice and the reply to the counter notice clearly proves that plaintiff is the landlord of the suit premises.
Thirdly, defendants have not placed on record any document to show that someone else except the plaintiff is the landlord of the suit property.
21/33
//22// Fourthly, it may be noted that defendants failed to cross examine the plaintiff's witness. Hence, whatever averments given by the plaintiff' s witness in affidavit went unrebutted and stands proved.
Accordingly issues nos.1 and 5 are decided in favour of the plaintiff and against the defendants and it is held that plaintiff is landlord and had sent notice dt.16.08.1988 terminating the tenancy of Sh.Mohan Lal which was duly received by Sh.Mohan Lal. REGARDING ISSUES NO.2 AND 4
Whether suit cannot proceed further in absence of permission from Slum authorities?OPD.
AND Whether defendant and his mother became tenant in the property after death of his father?OPD.
These issues were OPD i.e. the onus to prove these issues was on defendants.
These issues were framed on specific objections taken by the defendants in the W.S. that the suit is not maintainable as no permission has been obtained from the Slum Authority and that after the death of Sh.Mohan Lal, the 22/33 //23// defendants and their mother inherited the tenancy rights.
I have seen the pleadings, evidence, documents on record, written submissions and feel that issues no.2 and 4 be decided against the defendants on the following grounds:
Firstly, defendants failed to place on record any document or law to show that prior permission from the Slum Authority was sine qua non for filing of the present suit.
Secondly, permission from the Slum Authority under the Slum Clearance Act is required where landlord proceeds against the tenant under the DRC Act. DRC Act is not applicable in the present case.
Thirdly, usually in all cases where the rent is below Rs.3500/-, the tenant is protected by provisions of the DRC Act. If it is proved that the property falls under the Slum Clearance Act then prior permission from the Slum Control Authority is must before proceeding under the DRC Act. However, where the DRC Act is not applicable then no permission from the Slum Clearance Authority is required. Under the DRC Act, the tenant is protected however, Annexure 23/33 //24// D shows that the tenancy of Sh.Mohan Lal was terminated. After the termination of tenancy of Sh.Mohan Lal he became only statutory tenant. Under the provisions of DRC Act, "statutory tenant" has interest only upto his life and after his death only his wife who is dependent on him can enjoy the property till her death. In the present case both Sh.Mohan Lal as well as his wife Smt.Bhagwati Devi have admitted to be died before filing of the present suit and since Sh.Mohan Lal was merely statutory tenant, after his death, his wife Smt.Bhagwati Devi has interest till her death and after the death of Smt.Bhagwati Devi the protection has been lost under DRC and Slum Clearance Act. Further legal heirs of Sh.Mohan Lal are excluded from the protection of DRC Act/Slum Clearance Act. (M.L.Goela vs. Kishan AIR 1978 Delhi 92; Gauri Shankar vs Union of India 1994 (6) SCC 349; Krishna Prakash vs Dilip Harel Mitra Chenoy AIR 2002 Delhi 81).
Fourthly, previously plaintiff has filed petition for eviction before Ld. Additional Rent Controller against Smt.Bhagwati Devi wife of Sh.Mohan Lal and L.R. of Sh.Mohan Lal. Thereafter it was informed that Smt.Bhagwati 24/33 //25// Devi had died. Once Sh.Bhagwati Devi died, the suit became beyond the purview of DRC Act. Hence petitioner/plaintiff had to withdraw that petition and the reason was that since Smt.Bhagwati Devi died Rent Control Act ceased to give protection to her.
Fifthly, it may be noted that defendants failed to cross examine the plaintiff's witness. Hence, whatever averments given by the plaintiff' s witness in affidavit went unrebutted and stands proved.
Accordingly the defendants failed to prove these issues. Hence, issues nos.2 and 4 are decided in favour of the plaintiff and against the defendants and it is held that the suit can proceed further in absence of permission from Slum Authorities for the reasons given above and further that the defendant and his mother do not became tenant in the property after death of his father.
REGARDING ISSUE NO.3 Whether suit is bad for mis joinder of the parties?OPD.
25/33
//26// This issue was OPD i.e. the onus to prove this issue was on the defendants.
This issue was framed on a specific objection taken by the defendants in the WS. I have seen the pleadings, evidence, written submissions and feel that defendants have failed to prove the issue no.3 on the following grounds :
Firstly, defendants have not stated specifically in the W.S. that who should be impleaded and who should not be impleaded in the present suit in support of their prayer of mis joinder of parties.
Secondly, vague allegation has been taken by the defendants that Sh.Mohan Lal also left daughters. It is a fact that all Legal Heirs are not in possession of the suit property and suit property is in possession of only Sh.Naresh Kumar and L.R.'s of Late Sh.Mahesh Kumar.
Thirdly, being statutory tenant the only L.R. under the DRC Act in view of AIR 78 Delhi 1992 was the wife of Sh.Mohan Lal i.e. Smt.Bhagwati Devi. Hence other persons are not legal heirs to be necessary impleaded in the present suit.
26/33
//27// Accordingly defendants have failed to prove this issue. Hence, issue no.3 is decided in favour of the plaintiff and it is held that the suit is not bad for mis joinder of parties.
REGARDING ISSUE NO.9 Whether plaintiff is entitled to decree of possession as prayed for?OPP.
This issue was OPP i.e. the onus to prove this issue was on the plaintiff.
I have seen the pleadings, evidence, documents on record, written submissions and feel that plaintiff has proved this issue on the following grounds:
Firstly, it is held in issues nos.1 & 5 that plaintiff is landlord of the suit property and had sent notice dt.16.08.1988 terminating the tenancy of Sh.Mohan Lal which was duly received by Sh.Mohan Lal.
It is further held in issues nos.2 & 4 that the suit can proceed further in absence of permission from Slum Authorities and further that the defendant and his mother do not became tenant in the property after death of his father.
Secondly, the present plaint has been filed by Saini 27/33 //28// Co-operative Thrift & Credit Society Ltd. through Honorary General Secretary Sh.Mahinder Kumar Bharal who is duly authorised to sign, verify, institute and pursue the present plaint under the Articles of Association of the plaintiff/ Cooperative Society as well as by a Resolution dt.08.08.2003 passed by the Executive Committee of the plaintiff society. Bye laws of Saini Co-operative Society is Annexure A, original extract from the minutes of Managing Committee of the society held on dt.08.08.2003 at the office of the society at 2420-21/XI, Bazar Kamra Bangash, Darya Ganj, New Delhi is Annexure B. This shows that Sh.M.K.Bharal is competent to sign, verify and institute the present suit.
Thirdly, the site plan of the suit property is Annexure C. There is no cross examination on the site plan and hence proved. Annexure D is notice dt.16.08.1988, true copies of the postal receipts are Annexure E, true copy of the reply to the legal notice by Advocate Sh.Inderjit Singh on behalf of Sh.Mohan Lal predecessor in interest of the defendants is Annexure F. Hence it is proved that the predecessor in interest of defendant Sh.Mohan Lal was issued and served a legal notice dt.16.08.1988 by which his tenancy 28/33 //29// was terminated. Thereafter Sh.Mohan Lal remained statutory tenant till his death and after the death of Sh.Mohan Lal his wife Smt.Bhagwati Devi became statutory tenant. Smt.Bhagwati Devi died on 30.07.2004 and after 30.07.2004 the protection of Delhi Rent Control Act extinguished. Now defendants and other L.R. of Sh.Mohan Lal have no legal interest in the suit property and they are without any protection from DRC Act or Slum Clearance Act.
Fourthly, in reply to the notice by Sh.Mohan Lal through Advocate Sh.Inderjit Singh the predecessor in interest of defendants has admitted plaintiff as landlord and himself as tenant.
In view of above, I feel that plaintiff has proved this issue and is entitled to decree of possession as prayed. Accordingly issue no.9 is decided in favour of the plaintiff and against the defendants. REGARDING ISSUES NO.6 & 7
Whether plaintiff is entitled to damages at the rate of Rs.5,000/- per month and for what period?OPP.
AND 29/33 //30// Whether plaintiff is entitled to decree in the sum of Rs.1,80,000/-?OPP.
These issues were OPP i.e. the onus to prove these issues was on the plaintiff. In the plaint, plaintiff has claimed damages for the period of three years prior to the date of filing the suit @Rs.5,000/- per month totalling to Rs.1,80,000/-. I feel that issues nos.6 and 7 be disposed with following directions:
Firstly, it is a proved fact that Sh.Mohan Lal was statutory tenant till his death and Sh.Mohan Lal predecessor in interest of defendants died on 31.03.1991. After his death in view of AIR 1978 Delhi 92 his wife Smt.Bhagwati Devi became entitled to reside in the suit property. Smt.Bhagwati Devi died on 30.07.2004. The rate of rent was Rs.8.81 per month, the same rate shall be applicable till 30.07.2004.
Secondly, it is the case of the plaintiff that Sh.Mohan Lal did not paid rent since 01.12.1971 as per the facts given in the registered legal notice dt.16.08.1988. In reply, Sh.Mohan Lal the predecessor in interest of defendants stated that the rent was paid upto date and till 17.09.1988. Rent was deposited in the court of Sh.Rakesh Kapoor, Ld. 30/33 //31// Additional Rent Controller. However it is a proved and admitted fact that after the death of Sh.Mohan Lal no rent was paid. Accordingly plaintiff is entitled to rent for three years preceding from the date of the filing of the suit. The suit was filed on 19.05.2005 hence plaintiff is entitled to claim rent from 19.05.2002 i.e. three years preceding from the date of the filing of the suit. Plaintiff is entitled to recover rent @Rs.8.81 per month from 19.05.2002/(taking w.e.f. 01.06.2002) till 30.07.2004 = Rs.8.80 x 26 months = Rs.228.80 (Rupees Two Hundred Twenty Eight and Eighty paise only).
Thirdly, after the death of Smt. Bhagwati Devi, defendants had no status in the suit property and no protection by DRC Act. Hence plaintiff is entitled to damages also. Plaintiff has claimed damages @Rs.5000/- per month stating that the suit property is situated in commercial area and if let out will fetch atleast Rs.5000/- per month. While one of the defendant states that property situates around the commercial area while other defendant states that property situates in partly commercial area. The suit property consists of two rooms, store/godown, common verandah/passage, bath and latrine and I feel that keeping in view the area of Daryaganj at 31/33 //32// least the property will fetch Rs.5000/- per month. Hence plaintiff is entitled to damages from 01.08.2004 till date of filing of suit i.e. 19.05.2005= 01.08.2004 to 30.05.2005 = Rs.5000/- x 10 months = Rs.50,000/- (Rupees Fifty Thousand only). Further rate of damages shall depend subject to the outcome of the report of the Local Commissioner.
Accordingly issues no.6 and 7 is decided in favour of plaintiff and against the defendants.
REGARDING ISSUE NO.8 Whether plaintiff is entitled to interest if so at what period?OPP.
This issue was OPP i.e. the onus to prove this issue was on the plaintiff. I feel that the plaintiff shall be entitled to interest at prevalent bank rate i.e. 9% p.a. on the amount of Rs.50,228.80 from the date of filing of the suit till amount recovered.
R E L I E F'S In view of findings on all issues, the suit of the plaintiff against the defendants is preliminary decreed with following relief's:-
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1. A decree for possession in respect of the premises in suit shown in red colour in site plan Annexure C in favour of the plaintiff society against the defendants jointly and severally;
2. A decree of Rs.228.80 towards rent @Rs.8.80 per month from 19.05.2002/(taking w.e.f. 01.06.2002) till 30.07.2004 in favour of the plaintiff and against the defendants jointly and severally;
3. Plaintiff is entitled to damages from 01.08.2004 till date of filing of suit i.e. 19.05.2005 (taking 01.08.2004 to 30.05.2005)=Rs.5000/- x 10 months = Rs.50,000/-
(Rupees Fifty Thousand only). Further rate of damages shall depend subject to the outcome of the report of the Local Commissioner.
4. Plaintiff is entitled to interest at prevalent bank rate i.e. 9% p.a. on the amount of Rs.50,228.80 (Rupees Fifty Thousand Two Hundred Twenty Eight and Eighty paise only) from the date of filing of the suit till amount recovered.
12. Preliminary decree be prepared accordingly.
13. Put up for appointment of Local Commissioner on 06.05.2008.
Announced in open Court DAYA PRAKASH today on dated 19.04.2008 ADDITIONAL DISTRICT JUDGE DELHI 33/33