Delhi District Court
Sh. Jai Bhagwan Sharma vs Smt. Shanti Devi on 28 April, 2007
IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
Date of Institution : 1.2.2006.
Date of Decision : 28.4.2007.
In the matter of: -
RCA No. 5/2006.
Sh. Jai Bhagwan Sharma
S/o Sh. S.L. Sharma
D-266, Sarvodaya Enclave,
New Delhi. ... Appellant.
Vs.
Smt. Shanti Devi
W/o Late Sh. G.K. Saraswat
D-266, Sarvodaya Enclave,
Mehroli Road, New Delhi. ... Respondent.
- : ORDER : -
1.This appeal is directed against the judgment dated 24.12.2005 of the Ld. Civil Judge, Delhi wherein the suit of the plaintiff/respondent was decreed and the defendant/appellant was directed to handover the possession of the tenanted premises to the plaintiff/respondent. The defendant/appellant was further directed to pay damages @ Rs. 5,000/- per month w.e.f. 9.10.2002 till handing over the possession of the suit premises. In addition, a decree for a sum of Rs. 10,080.75 towards the arrears of rent was also passed in favour of the plaintiff/respondent and against the defendant/appellant.
2.The brief facts of the matter before the Ld. Civil Judge, Delhi are that the defendant/appellant was the tenant under the plaintiff/respondent in respect of front portion of House No. D-266, Sarvodaya Enclave, New Delhi comprising two rooms, one store, one kitchen and one toilet (hereinafter referred as "the tenanted premises") at monthly rent of Rs. 3,327.50. It is further stated that the rent of the tenanted premises was later on increased to Rs. 3,660.25 u/s 6A of Delhi Rent Control Act by serving a notice dated 30.5.1995; the defendant/appellant had paid rent only upto 8.7.2002 and failed to pay the enhanced rent @ Rs. 3,660/- from 9.7.2002; the defendant/ appellant had sent a reply dated 20.9.2002 to the aforesaid notice through counsel wherein he has refuted the claim of the plaintiff/respondent for enhancement of rent stating that Section 6A of the Delhi Rent Control Act has already been declared ultra virus by the Hon'ble High Court of Delhi in one of its judicial pronouncement. It is further alleged in the plaint that the defendant/appellant was in arrears of rent to the tune of Rs. 10,080.75 calculated @ Rs. 3,660.25 per month w.e.f. 9.7.2002 to 8.10.2002 and the tenancy was terminated w.e.f. 8.10.2002 by serving a legal notice dated 12.9.2002 sent through registered AD post as well as through UPC and the same has been duly served upon the defendant/ appellant; since the defendant/appellant failed to handover the possession of the tenanted premises, hence, the suit was instituted for ejectment, damages alongwith mesne profits @ Rs. 7,000/- per month from 9.10.2002 i.e. from the date of termination of his tenancy.
3.In the written statement, the defendant/appellant has taken the preliminary objections that the suit was barred u/s 50 of the Delhi Rent Control Act; the suit was liable to be dismissed for non-disclosure cause of action and also for no legal valid notice has been served upon him terminating the tenancy as per section 106 of Transfer of Property Act. On merits, the averment with regard to enhancement of rent @ Rs. 3,660.25 has been controverted and denied. It was further stated that the tenanted premises was let out to M/s Global Family Consortium of which the defendant/appellant was Director and the said tenancy was commenced from 8.11.1988 at the monthly rent of Rs. 2,500/- exclusive of electricity and water charges. The averment with regard to increasing of rent to Rs. 3,660.25 vide notice dated 30.5.1995 has been controverted and denied. It is further stated that the defendant/appellant had already deposited the rent @ Rs. 3,327.50 upto September 2002 in the Court of Ld. ARC, Delhi. The averment with regard to termination of tenancy by notice dated 12.9.2002 w.e.f. 8.10.2002 has also been controverted and denied.
4.From the pleadings of the parties, following issues were framed by the Ld. Trial Court, on 30.4.2003: -
1. Whether the jurisdiction of this Court is barred by Section 50 of the Delhi Rent Control Act? OPD.
2. Whether the tenancy of the defendant has been validly terminated by the plaintiff? OPP.
3. Whether the plaintiff is entitled to the recovery of arrears of rent as prayed? OPP.
4. Whether the plaintiff is entitled to possession of the suit property? OPP.
5. Relief.
5.The finding on all the issues were recorded in favour of the plaintiff/respondent and the suit of the plaintiff/respondent was accordingly decreed.
6.Aggrieved by the impugned judgment, the defendant/ appellant has challenged the said judgment on the grounds that the same is based on conjectures and surmises; the Ld. Trial Court did not apply judicial mind and did not consider the facts and the evidence on record; the Ld. Trial Court has committed error in holding that the tenancy of the defendant/appellant was validly terminated; that the notice terminating the tenancy was never served because vide letter dated 27.8.2000, the defendant/appellant had requested the plaintiff/respondent to send all future mails to him at R-108, Greater Kailash-I, New Delhi- 48 or to his counsel Major Siya Ram, Advocate, Seat No. 20, Post office Road, Tis Hazari Courts, Delhi-54; the notice was deliberately sent at the tenanted premises which cannot be stated to have been served upon the defendant/appellant; the order of the Ld. Trial Court is against the facts and evidence on record. It is, therefore, stated that the impugned judgment is liable to be set aside and the suit of the plaintiff/ respondent be dismissed.
7.Both the parties have filed written submissions in support of their case before this Court. I have gone through the written submissions and the impugned judgment.
8.With regard to the issue no. 1, the Ld. Trial Court stated that the said issue was treated as preliminary issue and was decided in favour of the plaintiff vide order dated 27.9.2003. The said order was never challenged by the appellant. In the written arguments, the appellant has again raised the said issue questioning the finding of the Ld. Trial Court. The appellant cannot challenge the said order in this appeal because the said order has already obtained finality as it was never challenged during the trial of the suit. In the appeal also it is no where mentioned by the appellant that this appeal is also directed against the order dated 27.9.2003. In these circumstances, the appellant has accepted the finality of the said order with regard to the issue no. 1 and, therefore, cannot raise the same before this Court in this appeal.
9.With regard to the issue no. 2, in the written arguments it is argued that the parties were not having good terms and litigating in Courts since long; the landlord in order to seek eviction of the tenant/ appellant had been adopting all fouls means. It is, therefore, stated that in collusion with the Postman, the respondent has obtained the refusal report with regard to the registered letter in which he has allegedly sent the notice of the termination of the tenancy of the appellant. With regard to the notice of termination of tenancy sent through UPC, it is stated that the plaintiff used to send the letter to the defendant under UPC and also used to keep vigilance at the rear door of the defendant and as and when a letter was received in the mailbox under the UPC, the respondent used to take it away and as such the letter in UPC was never reached to the appellant. It is further stated that the appellant has never refused the notice dated 12.9.2002 on 14.9.2002 and the alleged notice under UPC was never received by the appellant at any point of time as the same would have been collected by the respondent from the Postman in the illegal manner as stated above. It is further argued that the appellant has already served a registered letter dated 27.8.2002 to the landlord requesting him to send any further correspondence in future at the fresh address i.e. R/108, Greater Kailash-I, New Delhi or c/o Major Siya Ram (Retd), Advocate, Seat No. 20, Post Office Road, Near Central Hall, Tis Hazari Courts, Delhi-54. It is, therefore, argued that the respondent did not send the termination notice at the above address and in collusion with the Postman manipulated the refusal report and has prevented the receiving of the alleged notice sent through UPC in collusion with the Postman and as such there was no service of notice of termination upon the appellant. It is further argued that the service by UPC has been misinterpreted and the Ld. Trial Court wrongly appreciated the evidence in that regard and the defendant has rebutted the presumption so raised under Section 27 of the General Clauses Act with regard to the deemed service of the notice of termination by 'refusal' as well as by UPC as is claimed by the respondent.
10.The appellant has also moved an application seeking permission to lead additional evidence on this issue and to prove the service of the notice upon the respondent with regard to the changed address for correspondence and also to file the following four documents: -
1. Original letter dated 25.9.2002 alongwith registered AD.
2. Copy of the judgment in suit no. 332/04 passed by Ms. Varinda Kumari, Ld. Civil Judge, Delhi.
3. Original challan for deposit of rent for the month of July, August and September 2002.
4. Original certificate issued by Postal Department for confirming the delivery of letter against registry no. 1653 dated 26.8.2002.
11.It is stated that the above evidence was brought to the notice of the Ld. Trial Court during the cross examination but the said documents were not placed before the Ld. Trial Court as the same were misplaced/not traceable. It is, therefore, stated that in the interests of justice, the appellant be allowed to lead that additional documentary evidence.
12.The respondent has stated in reply to the said application that the same is not maintainable as the additional evidence can be led only u/o 41 r 27 CPC and the conditions mentioned therein are not fulfilled by the appellant. It is further stated that the appellant want to delay the trial of this appeal and has deliberately moved this application which is liable to be dismissed with cost.
13.I have gone through the documents sought to be placed on record. As per the provisions of order 41 r 27 CPC, the appellant/applicant has to satisfy that notwithstanding exercise of due diligence such evidence was not within his knowledge or would not be produced by him despite due diligence. All the four documents which the appellant sought to place on record by way of additional evidence are such which were very well within the knowledge of the appellant at the time of trial. The appellant has failed to show any such circumstances and exercise of due diligence by him which prevented him from filing of such additional evidence before the Ld. Trial Court. Moreover, after considering the finding recorded by the Ld. Trial Court, I am of the considered opinion that this additional evidence is neither relevant nor it can be considered at this stage as the applicant/appellant has failed to satisfy the conditions of the requirement of permitting additional evidence at this stage. For these reasons, the application of the appellant for leading additional evidence is rejected.
14.In the additional written arguments, the appellant has brought the point that the plaintiff/respondent has deliberately made an attempt to confuse the issue with regard to the receiving of letter dated 24.8.2002 vide registry no. 4592 whereas he has received the letter dated 27.4.2002 through said registry. The appellant has pointed out that the observations in the impugned judgment in the para no. 1, at page no. 8 and in line no. 5, 6, 7 and 8 are not correct wherein the Ld. Trial Court was of the opinion that from the letter issued by Postal authority confirming the delivery of letter against registry no. 4592 on 28.8.2002 placed on record by the plaintiff, it is no where clear as to which letter i.e. whether letter dated 24.8.2002 or 27.8.2002 was actually delivered against the said registry receipt. It is, therefore, argued on behalf of the appellant that vide registry no. 4592, the letter dated 24.8.2002 was received by the plaintiff wherein the appellant has asked the plaintiff to make further correspondence on the new address at R/108, Greater Kailash-I, New Delhi and the said letter has been proved as Ex DW1/1.
15.The appellant has tried to point out the observations in paras whereas the observations of the Ld. Trial Court on this issue is to be considered as a whole. At page 8 in the impugned judgment, the Ld. Trial Court has also observed as under: -
"The defendant at the time of arguments has raised the plea that the letter dated 24.8.2002 was sent through another registry receipt no. 1653 whereas in the cross examination DW1 has deposed that the said letter was posted only through UPC. The aforesaid contradiction further makes the testimony of DW1 unreliable."
16.The Ld. Trial Court has also referred the case of Hon'ble Apex Courts of Anil Kumar Vs. Nanak Chandra cited as AIR 1990 SC 1215 stating that "The Hon'ble Apex Court has observed that it is always a question of fact in each case whether there was sufficient evidence from tenant to discharge the initial burden. It has been further observed by the Court that, if the testimony of a tenant is inherently unreliable, then unchallenged testimony of tenant may not be sufficient to rebut the presumption which has arisen in favour of the plaintiff. Hence, in view of the aforesaid testimony and other material brought on record by the parties, I am not inclined to hold that defendant has been successful in discharging the initial burden to rebut the presumption which has arisen in favour of the plaintiff u/s 27 of General Clauses Act and Section 114 of Indian Evidence Act. Hence, I feel no hesitation in holding that the notice of termination of tenancy dated 12.9.2002 was duly served upon the defendant."
17.The question which arises is as to whether the sending of a notice for the further correspondence at the new address other then the tenanted premises is binding up the plaintiff/respondent or in other words the plaintiff/respondent was duty bound to send the notice of termination of tenancy on the new address and not on the tenanted premises? It is not the case of the appellant that the tenanted premises was not occupied by him at the time when the alleged termination notice was sent and served upon the tenanted premises. It is a matter of discretion with the landlord after receiving the fresh address of correspondence of the tenant that he may serve the termination notice at the new address or the legal requirement is also fulfilled if the said notice is sent at the tenanted premises. The question which is most important is as to whether the notice of termination of tenancy was duly served or not? I am of the considered opinion that the appellant cannot take benefit of this fact that he has already served a notice upon the landlord to send the further correspondence on the new address or to his counsel and not at the tenanted premises. The appellant has failed to show any law in support of his contention which may enjoin the landlord to send the legal notice on the new address and not at the tenanted premises in the possession of the tenant.
18.The Ld. Trial Court has fully satisfied about the service of notice of termination of tenancy upon the appellant. The observation at page 6 of the impugned judgment are relevant and reproduced as under: -
"... ... ... However, in the cross examination, DW1 has admitted that he was residing in th front portion of the ground floor of the property in question and the plaintiff was residing at the back portion of the same and, hence, in view of these facts, it would be highly improbable that the Postman would meet the plaintiff first whenever he came to deliver the post at the address of tenanted premises. Further there was no occasion for the plaintiff to procure the manipulated report on the registered cover as the alleged manipulation could not have brought any benefit to the plaintiff for the reasons that even after receipt of legal notice, the defendant would have either vacated the suit premises or had continued to remain in possession of the same and in second eventuality, the plaintiff again would have to file a suit for seeking eviction of the defendant from the suit premises. Hence, in said circumstances, it could not be believed that refusal report on the registered cover was manipulated as no motive could be imputed on the plaintiff for doing so."
19.Thus, the above finding so recorded by the Ld. Trial Court is based on legal and justified appreciation of evidence and material on record. On the basis of the preponderance and probability, no other finding from the finding so recorded by the Ld. Trial Court is possible. The finding so recorded by the Ld. Trial Court on the issue no. 2 is accordingly confirmed.
20.With regard to the remaining issues i.e. decree of possession and mesne profits, in the written arguments it has been argued on behalf of the appellant that he was in lawful possession as his tenancy was not validly terminated, therefore, the Ld. Trial Court has grossly erred in awarding the mesne profits @ Rs. 5,000/- per month. It is further argued that the landlord/respondent was not entitled to the rent because he has not fulfilled his mandatory obligation to make the tenanted premises inhabitable. It is further argued that the appellant was even compelled to approach the National Human Rights Commission against the landlord/respondent and with the intervention of the DCP, Sought District and National Human Rights Commission, the new electricity meter was installed in the tenanted premises on 22.11.2000 after 11 months and 2 days under heavy police protection. It is further argued that the respondent has even withheld the water supply and has not given the no objection certificate for the separate water connection. It is, therefore, argued that for the period as claimed in the plaint, the respondent/landlord was not entitled to the rent for the tenanted premises and the judgment of the Ld. Trial Court is totally based on surmises and conjectures and is accordingly liable to be dismissed.
21.In the written arguments on behalf of the respondent, it is argued that the defendant has admitted that he has not paid the rent w.e.f. 9.7.2002 till 8.10.2002 @ Rs. 3,660.25 per month. It is stated that the tenant has alleged to have deposited rent @ Rs. 3,327.50 per month in the Court of Ld. ARC and the said deposit, if any, is illegal because the rate of rent was Rs. 3,660.25 per month. It is further argued that the mesne profits has been claimed w.e.f. 9.10.2002 @ Rs. 7,000/- month. It is pointed out that the defendant in the written arguments has not denied the said rate of rent being the prevalent rate of rent for the similar premises in the locality. The plaintiff/respondent has proved the said fact on oath and no cross examination was carried out by the defendant/appellant with the regard to the claim of the plaintiff/respondent towards mesne profits @ Rs. 7,000/- per month. It is pointed out that the Hon'ble Trial Court has granted Rs. 5,000/- per month at a lower side despite proving of the market rate of rent @ Rs. 7,000/- per month by the plaintiff/respondent. It is, therefore, argued that the order of the Ld. Trial Court is legal and justified and appeal is liable to be dismissed.
22.I have considered the rival submissions and gone through the impugned judgment, especially the finding recorded on the issue no. 3. The finding at page 10 is relevant and reproduced as under: -
"... ... ... It is pertinent to point out here that the defendant in his cross examination further deposed that he did not remember whether his petition for deposit of rent at the rate of Rs. 3,327.50 filed in the Court of Ld. ARC, Delhi was rejected on the ground of lack of jurisdiction as the rent had already been enchanced to Rs. 3,660.25. In the later part of his cross examination, he admitted that his petition for deposit of rent for the month of July, August and September, 2002 was dismissed. He further admitted that thereafter he neither deposited any rent in the Court nor he paid any amount to the plaintiff as the plaintiff had already filed the present suit against him. In view of aforesaid testimony of DW1, it is apparently clear that the defendant himself has admitted that his petition for deposit of rent for the month of July, August and September 2002 was dismissed and thereafter he never made any payment of rent to the plaintiff either in the Court of directly to the plaintiff. In view of the said circumstances, it has been clearly established on record that the defendant is in arrears of rent for the period from 9.7.2002 to 8.10.2002 at the rate of Rs. 3,660.25 per month which comes out to Rs. 10,080.75."
23.Thus, the finding so recorded by the Ld. Trial Court with regard to the arrears of rent is based on evidence and the material produced by the plaintiff and the defendant has failed to show any illegality and infirmity in the said finding and the same is accordingly confirmed.
24.With regard to the granting of damages, the Ld. Trial Court has given a detailed finding at page no. 11, 12 and 13 of the impugned judgment and has also relied upon the various cases of Hon'ble Apex Courts and the Hon'ble High Court of Delhi. Reliance of Ld. Trial Court on the judgment of Hon'ble Apex Court cited as AIR 1967 SC 155 and 1979 SC 1214 gives credence to the finding so recorded by the Ld. Trial Court wherein it has been held that the Trial Court is competent to grant past and future mesne profits u/o 20 r 12 CPC whiling passing a decree of possession as has been done by the Ld. Trial Court in the present case. The amount of Rs. 5,000/- per month as damages so granted by the Ld. Trial Court is perfectly justified. In UCO Bank Vs. M/s Vyas Aqua Products Pvt. Ltd. & Anothers cited as 2006 IX AD (Delhi) 701 it has been held that the Court, is competent to take judicial notice of the escalation in rent while granting mesne profits. The following observation of the Hon'ble High Court is relevant and reproduced as under: -
"In a Metropolis like Delhi where housing, whether residential or commercial, is always in short supply compared to the demand and with the ever rising price index and inflation, one could reasonable assume that like prices of all other goods and services, rentals in the city have also been steadily rising. A property that was rented at a given rate in the year 1996 may not be available seven years later at the same rate. Application of a rate that was seven years removed from the relevant period for which the court was determining the rental value of the demised premises was not, therefore, a legally sound option. The Court had to take judicial notice of the fact that the rentals had been steadily rising over the years. That is what was done by the Supreme Court in D.C. Oswal Vs. V.K. Subbain and Others, AIR 1992 SC 184. The following passage is in this regard apposite. We allow the appeal and reverse the judgment of the High Court and dismiss the petition for eviction. We would, however, like to add that judicial notice can be taken of the fact that rental has escalated everywhere and appropriate rent in the present case should be raised to Rs. 400 per month from 1.1.1992. The tenant should have a direction to pay the rent in advance from month-to-month as stated by him in the Courts below and it should be by the end of every month."
25.Thus, the law referred (supra) and the material on record shows that the finding so recorded by the Ld. Trial Court on all the issues is found to be apt and accurate and there is no illegality and infirmity in the finding so recorded by the Ld. Trial Court which may needs interference by this Court. For these reasons, I find no merit in the appeal and the same is accordingly dismissed. Parties are left to bear their own cost. Copy of this order be sent to the Ld. Trial Court alongwith TCR. Appeal file be consigned to the record room after due compliance.
Announced in the open Court on 28.4.2007.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI