Delhi District Court
Goldy Goel vs M/S. Express Info Solutions on 13 March, 2013
IN THE COURT OF PAWAN KUMAR MATTO
ADDITIONAL DISTRICT JUDGE03 (EAST)
KARKARDOOMA COURTS, DELHI
Suit No.78/2012
IN THE MATTER OF :
Goldy Goel .....Plaintiff
Versus
M/s. Express Info Solutions .....Defendant
O R D E R
13.03.2013
1. This order will dispose of an application under order 12 rule 6 CPC filed by the plaintiff.
2. Briefly stating that the plaintiff has filed the present suit for recovery of possession, recovery of arrear of rent, for recovery of damages/mesne profits and also for permanent injunction against the defendant, on the averments that the plaintiffs is the owner/landlady of the suit property bearing no. A15, second floor, (Back Portion), Priyadarshini Vihar, Delhi92, which is shown red in colour in the site plan, filed on the record (IN FACT NO SITE PLAN FILED ON THE RECORD) and the present suit has been filed by the plaintiff through her attorney namely Suit No.78/2012 Page No.1 of 16 Sh. Rakesh Kumar Aggarwal, as the plaintiff, being lady is not in a position to look after the day to day proceedings of the present matter and the attorney is dealing with the defendant and he is conversant with the entire facts of the case.
3. It is further stated that suit property was let out to the defendant company for a period of 11 months for the residential purpose and the monthly rent was Rs.18000/ per month excluding other charges and tenancy was created by virtue of rent agreement dated 01.01.2011 and tenancy commenced on 01.01.2011 and ended on 30.11.2011. It is further averred that the defendant had deposited a sum of Rs.13000/ with the plaintiff as security, which was interest free and refundable at the time of vacating of the suit property and the tenancy has come to an end on 30.11.2011 by efflux of time. But, the defendant has failed to vacate and hand over the actual, vacant and peaceful possession of the suit premises to the plaintiff despite of expiry of period of tenancy and repeated requests made by the plaintiff and her other family members and the defendant had approached to the plaintiff through its officers to allow it to continue using the said premises, as the defendant had informed to Suit No.78/2012 Page No.2 of 16 the plaintiff that it was searching a suitable premises and as and when, the suitable premises would be available, the defendant would vacate and hand over the actual, vacant and peaceful possession of the suit property to the plaintiff latest by December, 2011, but, in spite of such assurance given by the defendant company, it has failed to vacate and hand over the actual, physical possession of the suit property to the plaintiff on or before 31.12.2011 or till date and thus the defendant is liable to pay Rs.2000/ per day, as damages / mesne profit for illegal use and occupation of the suit premises, in accordance with the terms and conditions of the lease deed. She has further averred that the defendant is also liable to pay an interest on the outstanding amount @ 18% p.a. from the date of its due till the date of its realization.
4. It is further averred that the plaintiff through her attorney contacted with the defendant company and asked for vacation of tenanted premises in first week of March, 2012, but, instead of vacating the same, it was threatened that the defendant would create third party interest in the suit property, of which, the defendant has no right. It is also averred that the plaintiff has also served a legal notice dated 16.03.2012 through her counsel, vide which, the defendant Suit No.78/2012 Page No.3 of 16 was called upon to vacate the suit premises and to pay the entire arrears of due/damages/mesne profit and to hand over the possession and to not create third party interest in suit property and the defendant attempted to sub let the premises and it has also given false reply to the legal notice on dated 12.04.12 and it was stated therein that the suit premises was taken by the defendant for its employees and they have left the job. So, the defendant has nothing to do with the suit premises and the plaintiff should take the possession from his employee. The plaintiff has also averred that the defendant has tried to show the possession of his employee in the suit premises and the plaintiff has also failed to pay the arrear of dues @ Rs.2000/ per day with effect from December, 2011 and claimed that the plaintiff is entitled to recover the damages @ Rs.2000/ per day with effect from 01.01.2012 and prayed for passing a decree of possession of the suit premises against the defendant and the decree of recovery of an amount of Rs.240000/ being damages / mesne profit and also prayed for passing a decree of recovery of Rs.2000/ per day with effect from 01.01.2012 till 04.05.2012 and also for recovery of Rs. 2000/ per month with effect from 05.05.2012 till the Suit No.78/2012 Page No.4 of 16 handing over the actual physical possession of the suit premises and further prayed for passing a decree of permanent injunction for restraining the defendants, their agents, employees, associates, workers, members of family from disposing off or damaging the suit property or making any addition or alteration or structural change in the suit property.
5. The defendant was served with the summons of the suit, and it has put its appearance through its counsel and filed the written statement and contested the same on the ground inter alia that the suit of the plaintiff is bad for mis joinder and nonjoinder of parties. It is further stated by the defendant that the suit premises was taken for the purpose of its employee Sh. Irfan M. Malik and he is necessary party to the present suit and Sh. Irfan M. Malik has already been terminated by the defendant company and information regarding the same was already sent to the plaintiff and Irfan M. Malik informed to the defendant company through various emails that he is in touch with the plaintiff and he wants to retain the suit premises for his residential purpose. The defendant has admitted that the plaintiff is owner / landlady. It has admitted that the suit property was let out to Suit No.78/2012 Page No.5 of 16 it for a period of 11 months and the rate of rent was Rs. 18000/ per month excluding other charges and the tenancy was commenced on dated 01.01.2011 and ended on dated 30.11.2011 and an amount of Rs.13000/ was deposited as security by the defendant with the plaintiff. It has further stated that it might be possible that Sh. Irfan M. Malik has requested to the plaintiff for retaining the suit premises in his personal capacity. It has denied that the defendant had ever requested to the plaintiff for extension of time. It has denied that the defendant is liable to pay any due to the plaintiff. It has further stated that since the defendant has informed to the plaintiff that Sh. Irfan M. Malik is no more employee of the defendant and despite of such information the plaintiff was ready to continue the tenancy of Sh. Irfan M. Malik, so, the defendant is not liable to pay any damages or mesne profit for the suit premises. The defendant has admitted the receiving of legal notice. The defendant has denied that it has ever threatened to alter, add or to do structural charge in the suit property and after denying the other averments made in the plaint, it has sought dismissal of the suit of the plaintiff.
6. The plaintiff has also filed the application u/o 12 rule Suit No.78/2012 Page No.6 of 16 6 of CPC, on the averments that the plaintiff has filed the present suit for recovery of possession, recovery of arrear of rent, for recovery of damages/mesne profits and also for permanent injunction against the defendant and the tenancy was created for a period of 11 months which commenced on dated 01.01.2011 and ended on dated 30.11.2011 and the rate of rent was Rs.18000/ per month and the defendant has failed to hand over the peaceful possession of suit property to the plaintiff despite of expiry of the period of tenancy and the legal notice dated 16.03.2012 was also served vide which, the plaintiff had demanded for handing over the actual physical possession of the suit premises and demanded Rs.2000/ per day with effect from 01.12.2011 and the defendant has filed the Written statement. It has admitted that relationship of landlord and tenant and also admitted the rate of rent as Rs.18000/ per month and further admitted the service of legal notice and also admitted the lease deed dated 01.01.2011 and the defendant has taken the plea that the suit premises was taken by the defendant for its employee Sh. Irfan M. Malik and since the defendant has admitted that he has taken the premises on rent, so, it was the sweet will of the defendant to use the premises as per its Suit No.78/2012 Page No.7 of 16 will and since the all the requirements for recovery of possession and mesne profit have been complied with and prayed for passing the judgment on admission directing to the defendant to hand over vacant peaceful possession of suit property bearing no.A15, second floor (back portion), Priyadarshini Vihar, Delhi92 and also prayed for passing a decree of Rs.2000/ per day with effect from 01.12.2012.
7. On the other hand, the Ld. counsel for the defendant has not filed reply to the said application and stated that he will straightway argue on the said application.
8. So, I have heard learned counsel for the parties and perused the record of the case.
9. Ld. counsel for the plaintiff has submitted that plaintiff has filed the suit for recovery of possession, recovery of arrears of rent, recovery of mesne profits / damages and permanent injunction against the defendant. He has further submitted that for the purpose of passing the judgment, the plaintiff was to prove the relationship of landlord and tenant and rate of rent more than Rs.3500/ and termination of tenancy and he has further submitted that the plaintiff has pleaded in para no.1 of the plaint that the plaintiff is the owner / landlady of the suit premises and Suit No.78/2012 Page No.8 of 16 corresponding para no.1 of the Written statement would make it clear that the defendant has admitted this fact that the plaintiff is the owner / landlady. He has further submitted that in para no.2 of the plaint, the plaintiff has averred that the rate of rent is Rs.18000/ per month excluding all other charges by virtue of rent agreement and it is also averred that the suit property was let out for a period of 11 months which commenced on dated 01.01.2011 and ended on dated 30.11.11 and corresponding para no.2 of the Written statement would make it clear that defendant has admitted that rate of rent is Rs.18000/ per month and the tenancy commenced on 01.01.2011 which was created for a period of 11 months and this fact is also admitted that a sum of Rs.13000/ has also been deposited by the defendant with the plaintiff, as refundable security without interest. He has further submitted that in para no.7 of the plaint, the plaintiff has averred that the plaintiff has also served a legal demand notice through its counsel on dated 16.03.12 vide which the defendant was called upon to vacate the premises and handed over the vacant and peaceful possession of the suit premises and corresponding para of the Written statement would make it clear the the service of the legal notice has Suit No.78/2012 Page No.9 of 16 not been denied. He has further submitted that as per lease deed, the plaintiff is entitled to recovery of an amount of Rs. 2000/ per day after the termination of the tenancy and prayed for decreetal of entire suit of the plaintiff.
10. On the other hand, the ld. counsel for the defendant has submitted that relationship of landlady and tenant are not denied and rate of rent is also not disputed. He has submitted that so far as the question of mesne profit is concerned, the defendant has already terminated to Sh. Irfan M. Malik from the defendant company. He has further submitted that there are contradictions in the pleading of the plaintiff and in prayer clause (b) of the plaint, she has claimed Rs.2000/ per day as mesne profit w.e.f. 01.01.2011 till 04.05.2012. He has further submitted that in the same prayer clause, she has claimed damages / mesne profit Rs. 2000/ per month. He has also submitted that since the defendant company has already terminated to Sh. Irfan M. Malik and he is in possession of the suit premises and he has not been impleaded as party, so, the defendant is not liable to pay rent/damages and this is a question of trial as to how much amount the plaintiff is entitled to recover as mesne profit, so, the application u/o 12 rule 6 CPC is liable to be Suit No.78/2012 Page No.10 of 16 dismissed.
11. I have given thoughtful consideration to the submissions made by the ld. counsel for the parties and perused the record.
12. The perusal of the pleading of the parties shows that the defendant has admitted the relationship of landlady and tenant, as in para no.1 of the plaint, the plaintiff has categorically pleaded the relationship of landlady and tenant. The same para is admitted by the defendant and similarly, the rate of rent @ Rs.18000/ per month and period of tenancy of 11 months is also admitted by the defendant in para no.2 of the Written statement and thus, it is clear that the tenancy was created for a period of 11 months, which commenced on dated 01.01.11 and ended on dated 30.11.11 and in addition to it, the plaintiff has also issued a quit notice dated 16.03.12. The service of the quit notice is also admitted.
13. Their lordship of Delhi High Court in case Atma Ram Properties Pvt. Ltd. v. Pal Properties Pvt. Ltd. & Ors. 2002(62) DRJ 623, was pleased to hold that in order to succeed in the suit for possession, the plaintiff has to prove following ingredients : Suit No.78/2012 Page No.11 of 16
1. That there is a relationship of landlord and tenant between the parties.
2. Tenancy in respect of the premises has come to an end either by efflux of time or by a valid notice sent by the plaintiff to defendants under section 106 of the Transfer of Property Act and duly served on the defendants.
3. The rent of the premises in question is more than Rs. 3,500/ per month and therefore, there is no protection of the provisions of Delhi Rent Control Act available to the tenants.
14. Coming to the case in hand, all the three conditions as required for passing the judgment on admission in a suit for possession are complied with and the plaintiff has successfully proved on the record that she is the landlady and defendant is her tenant and the rate of rent is also admitted as Rs.18000/ per month. Ld. counsel for the defendant has contended that the said suit premises was taken on rent for the use of his employee Sh. Irfan M. Malik, who has already been terminated by the defendant company and he has not been impleaded as party and he is in possession of the suit premises and prayed for dismissal of the application. But, I do not find any force in such submissions of the Ld. counsel for the defendant, as perusal Suit No.78/2012 Page No.12 of 16 of the pleading make it clear that the defendant had taken the premises on rent for the use and enjoyment of his employee namely Sh. Irfan M. Malik and Sh. Irfan M. Malik cannot claim any independent right or interest in the suit property and whatever rights and interests of the defendant herein are there in the suit property, he can enjoy the same, as he can claim the rights or interests in the suit property through the defendant and from the pleading of the parties, it is clear that the tenancy was created for a period of 11 months which commenced on dated 01.01.2011 and ended on dated 30.11.11 with the efflux of time and despite of it, the plaintiff had also issued a quit notice dated 16.03.12 vide which, the defendant was called upon to hand over the possession of the suit property and the service of the legal notice is also not denied and the defendant has not vacated the premises despite of service of legal notice.
15. Even otherwise, in the case in hand, the plaintiff has resorted the remedy of taking the possession under the general law and their lordship of Hon´ble Supreme Court in case titled NOPANY INVESTIMENTS(P) LTD V/S. SANTOKH SINGH(HUF) 146(2008)DLT 217(SC), was pleased to hold that the service of the notice u/s 106 of TPA Suit No.78/2012 Page No.13 of 16 was not necessary. Because ''Filing of eviction suit under the General Law, itself is a notice to quit on the tenant''.
16. It is worthwhile to mention here that the plaintiff has also sought the decree of permanent injunction against the defendant for restraining the defendants, their agents, employees, workers and any other person working on their behalf from disposing off / damaging any part of suit property or making any alteration or structural change in the suit premises and since the plaintiff has successfully proved on the record that the plaintiff is the landlady and the defendant is the tenant in the suit property. So, taking into consideration the admission of the defendant, the suit of the plaintiff for passing the decree of possession of the suit property bearing No.A15, second floor, (Back Portion), Priyadarshini Vihar, Delhi92, is hereby decreed and at the same time, the suit of the plaintiff for decree of permanent injunction is also hereby decreed. The defendants, their agents, employees, workers and any other person working on its behalf are restrained from disposing off / damaging the suit property and from making any alteration or structural change in the suit premises.
17. So far as the question of arrear of rent and mesne Suit No.78/2012 Page No.14 of 16 profit are concerned, the Ld. counsel for the defendant has submitted that the defendant has also terminated Sh. Irfan M. Malik, who is in possession of the suit property and the defendant is not liable to pay any damages and he has also submitted that there are contradictions in the prayer clause of the plaint of the plaintiff, as at one place in the prayer clause, the plaintiff has claimed Rs.2000/ per month as damages / mesne profit and on the other place, she has claimed Rs.2000/ per day, as damages.
18. Even otherwise, in the considered opinion of this court, the judgment on admission can be passed on unequivocal admission made by any party. The Ld. Counsel for the plaintiff has submitted that there are certain typographical errors in the prayer clause. Had there been any typographical errors in the prayer clause, the plaintiff could file an application for rectification thereof. The suit was filed on 16.05.12 but till date the plaintiff did not resort to rectify the error, if any, in typing of the plaint. So, in the given circumstances this court is of the considered view that so far as the question of passing the decree regarding mesne profit / damages is concerned, this is a triable issue which is required to be determined on the production of evidence by Suit No.78/2012 Page No.15 of 16 the parties. The plaintiff is a careless person. She has written in the plaint that she has filed the site plan of the suit property. But, she has not filed any site plan of the suit property. So, in view of above discussion, the suit of the plaintiff for recovery of possession of suit property bearing No.A15, second floor, (Back Portion), Priyadarshini Vihar, Delhi92 and for permanent injunction, is hereby decreed. Decree sheet be prepared accordingly. In the above said terms, the application u/o 12 rule 6 CPC, stands disposed off.
Announced in the open court.
On: 13.03.2013 (Pawan Kumar Matto) Additional District Judge03, East District, KKD Courts, Delhi / 13.03.2013 Suit No.78/2012 Page No.16 of 16