Delhi District Court
Irshad Ahmad vs Aabad Hassan on 16 December, 2019
IN THE COURT OF SH. VIKRAM: ACJCUMARCCUMCCJ :
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS No. 257/18
CNR No. DLNE030004382018
1. Irshad Ahmad
S/o Sh. Salim Ahmad
2. Naseem Khatoon
W/o Irshad Ahmad
Both R/o H.No. 253/8,
Gali No. 3, Old Mustaffabad,
Delhi110094. ........... Plaintiff
Versus
Aabad Hassan
S/o Haji Sartaj
R/o C12/546, Yamuna Vihar,
Delhi110053. ........... Defendant
Date of Institution : 19.05.2018
Date of reserving the judgment : 16.12.2019
Date of Judgment : 16.122019
Decision : Decreed
SUIT FOR POSSESSION, RECOVERY OF ARREARS AND
DAMAGES/MESNE PROFIT
JUDGEMENT:
1. This suit for recovery of possession, recovery of arrears and damages/mesne profit is filed by plaintiffs namely Irshad Ahmad and Naeema Khatoon against defendant namely Aabad CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 1 of 14 Hassan with respect to First floor of property bearing no. C 12/56, (built on plot of area admeasuring 70.18 sq. yards), Yamuna Vihar, Delhi53 (hereinafter referred as suit property as shown in red colour in the site plan as Annexure A).
2. Briefly, the facts as per the plaint are that the defendant was inducted as a tenant by the plaintiff for a period of 11 months in the suit property for a monthly rent of Rs. 11,000/ excluding electricity and water charges by plaintiff vide registered Rent agreement dated 07.04.2017 duly registered with the office of SubRegistrarIV, Seelampur, Delhi, which is annexed as Annexure B with the plaint. It is further submitted that despite repeated requests, defendant has not paid rent since 07.10.2017 and as per the rent agreement, period of lease expired on 06.03.2018. It is stated that plaintiff has sent a notice to the defendant regarding expiring of lease on 15.02.2018. Finally, plaintiff issued a legal notice dated 10.04.2018 at the addresses of the defendant which was received served but despite that defendant refused to vacate the tenanted premises.
3. In view of the aforesaid facts, plaintiff has prayed for following reliefs: a. A decree of possession of suit property;
b. A decree of rent for Rs. 66,000/ (Rupees sixty six thousands only) on account of arrears of rent from 07 th October 2017 till 6th March, 2018 alongwith interest @ 15% and CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 2 of 14 c. A decree of damages / mesne profits for a sum of Rs. 12,500/ (twelve thousand five hundred only) per month of the suit property in favour of the plaintiff and against the defendant from 07.03.2018 till the date of delivery of vacant possession of the suit property.
4. Summons of settlement were sent to the defendant to enable him to file his defence. Defendant appeared before the Court and filed written statement (WS). Defendant took preliminary objection stating that although he had entered into suit property as a tenant on monthly rent of Rs. 11,000/ vide agreement dated 07.04.2017, however, the plaintiff had agreed to sell the suit property for a sum of Rs. 32,00,000/ for which defendant paid the plaintiff Rs. 3,00,000 on 09.07.2017, Rs. 2,00,000/ on 25.10.2017, Rs. 36,000/ on 03.10.2017. It is further claimed that plaintiff again received Rs. 5,00,000/ from the defendant and on the same date executed agreement/payment receipt dated 04.12.2017 acknowledging the payment of payment of Rs. 10,36,000/, however the plaintiff became greedy and therefore he wants to deprive the defendant from his lawful rights over the suit property. Defendant further alleged that plaintiff is bound by the agreement and defendant is ready and willing to pay the balance amount on execution of ownership documents but out of greed plaintiff has filed a false and frivolous suit and cheated the defendant. Defendant also alleged that he had lodged a complaint dated 11.08.2018 to the SHO PS Bhajanpura against CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 3 of 14 the plaintiffs vide DD No. 36B date 11.08.2018. It is claimed that after execution of agreement/payment receipt dated 04.12.2017 the relationship of landlord and tenant has ceased to exist therefore the suit is liable to be rejected.
5. On merits, defendant denied the claim of plaintiff that he is defaulter in payment of rent and also denied the continuation of landlord and tenant relationship between plaintiff and defendant after execution of receipt dated 04.12.2017.
6. In replication filed by the plaintiff to the written statement of defendant, in reply to preliminary objections plaintiff denied of any agreement between him and defendant for selling the suit property. Plaintiff specifically denied receipt of any money as claimed in the written statement and also denied execution of agreement/payment receipt dated 04.12.2017 and claimed that same is forged and fabricated and reiterated the avertments made in the plaint.
7. On completion of pleadings following issues were framed on 13.09.2019:
1. Whether plaintiff is entitled for possession, as prayed for? OPP
2. Whether plaintiff is entitled for recovery of arrears of rent, as prayed for? OPP
4. Whether plaintiff is entitled for damages, as prayed for? OPP CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 4 of 14
5. Whether the suit is not properly valued?
OPD
6. Whether plaintiff has not come with clean hands and has concealed material facts from the court? OPD
7. Whether defendant had agreed to purchase the suit property and paid an amount of Rs. 10,36,000/ to the plaintiff? OPD
8. Relief
8. Thereafter, matter was fixed for PE. In order to support their case, plaintiff no. 1 examined himself as PW1 and filed his affidavit Ex PW 1/A recreating the averments made in plaint. The plaintiff relied upon the following documents in support of his case: Ex. PW1/1 Site plan of the suit property Ex. PW1/2 Rent agreement Ex. PW1/3 Legal notice Ex. PW1/4 Original speed post receipts Ex. PW1/5 Original registered post receipt Ex. PW1/6 Returned speed post envelope Ex. PW1/7 Returned registered post envelope
9. Thereafter, PE was closed and matter was fixed for DE.
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10. Defendant, Sh. Aabad Hassan appeared in the witness box as DW1/1. He tendered in evidence his affidavit, reiterating the facts as mentioned in the written statement. Same are not repeated here for the sake of brevity. He relied upon the following documents:
Ex. PW1/D1 (already Agreement dated 04.12.2017 exhibited) Ex. DW1/2 Legal notice dated 29.10.2018 Ex. DW1/3 Postal receipts Ex. DW1/4 is deexhibited and Copy of complaint dated marked as Mark D4 11.08.2018
11. However, Ex DW 1/ 2 and Ex DW 1/3 were rejected from evidence at the examination itself because it was not filed at appropriate stage nor any permission was sought.
12. Defendant also summoned one Mohd. Sanjay khan, Notary public to prove the stamp on Ex PW 1/D1. However, this witness denied the stamps at point A A1, BB1 and CC1 to be his and also denied the signatures in Ex PW 1/D1.
13. Thereafter, DE was closed and matter was fixed for final arguments. Ld. Counsels for both sides addressed final arguments. I have considered the contentions of both sides and carefully gone through the record. Following is my issue wise finding.
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14. Out of the issues framed issue no. 5 is a preliminary issue i.e. valuation of suit. It is a settled law that a suit is valued as per the claim of plaintiff and courts generally do not interfere in the valuation of suit unless it is grossly undervalued or over valued to bringing or take out a suit in/from the jurisdiction of a particular Court. Of course, that is subject to the fact that there is no other defect in the prayer made by the plaintiff.
15. The plaintiff has filed this suit on the basis of his ownership and his relation with defendant as landlord and tenant. As per Section 7 (11) of Court Fees Act, the court fees in a case filed by landlord against tenant for ejectment of tenant has to be paid on 1 year's rent and not on market value. Further, for arrears of rent the valuation has to be made as per actual amount due as arrears of rent. The plaintiff has valued his suit as per relief he has sought and relief sought by the plaintiff is for ejectment of tenant and arrears of rent for 6 months as well as for mesne profits. As per the plaint of the plaintiff the total value of suit would thus come to 1,32,000/ + 66,000/ and damages. The defendant has claimed that after execution of agreement dated 04.12.2017 relationship between landlord and tenant has ceased to exist but the plaintiff is not claiming the title over the property nor he has filed the suit for cancellation of any such alleged agreement.
16. It is the defence raised by the defendant that there is cessation of landlord tenant relationship after the execution of CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 7 of 14 agreement dated 04.12.2017. It is submitted by the defendant that the tenancy as per the agreement Ex PW 1/ 2 is of the 2 nd floor of House No. C 12/546, Yamuna Vihar but the suit is filed with respect to 1st Floor of the property. It is submitted that the fact that the defendant is residing at 1 st Floor itself is a proof of the fact that initial tenancy with respect to 2 nd Floor had ceased to exist after agreement dated 04.12.2017, i.e. Ex PW 1/D1. Per contra it is the submission of plaintiff that the 2 nd Floor in agreement Ex PW 1/ 2 is a typographical mistake and tenancy was of 1st Floor only because of which the legal notices were issued for vacation of 1st floor. It is also submitted on behalf of plaintiff that at para1 of plaint it is categorically mentioned by the plaintiff that defendant is tenant in 1 st floor and this fact has not been disputed in the written statement by the defendant. Therefore, the tenancy at 1st floor is an admitted fact and defendant is raising issue merely because there is a typographical mistake.
17. It is the fact the defendant has not denied the claim of the plaintiff that he is a tenant in the 1 st floor as written statement is silent. No such plea was ever taken in the trial nor any such question was ever put to the plaintiff in his cross examination by the defendant. The only defence of defendant was that after execution of agreement Ex PW 1/D1, the relationship of landlord and tenant ceased to exist and the defendant is in possession under agreement Ex PW 1/D1. However, defendant has failed to prove this agreement as the only corroborating CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 8 of 14 witness DW2 has refused to have stamped and signed on Ex PW 1/D1. Although it is rightfully contended that the DW2 was wrongly summoned as he was not the one who had notarized Ex PW 1/D1, for the registration number of DW 2 is different than what is written in Ex PW 1/D1. But this do not help the defendant as he failed to produce the relevant witness of Ex PW 1/D1. Therefore, except defendant himself there is no other witness to prove Ex PW 1/D1.
18. Ex PW 1/D1 is denied by the plaintiff and the cross examination of defendant shows that he has failed to produce any record to prove the payment of Rs. 10,36,000/ to the plaintiff as part payment or otherwise. Order sheets show that the defendant was given sufficient opportunities to prove his case and only after that the defence evidence was closed. The naked eye comparison of the agreement Ex PW 1/D1 and rent agreement Ex PW 1/ 2 also shows that the signatures of Irshad Ahmad in these two documents do not match. However, as none of the parties have applied for expert evidence, the court desist from passing any judgment as to falsehood/forgery of signatures of Irshad Ahmed in Ex PW 1/D1. In these circumstances, I am of the view that defendant has failed to show that tenancy had ceased to exist or plaintiff and defendant entered into any ikrarnama to sale the property and as such valuation given by the plaintiff is correct and therefore, the issue no. 5 as framed is decided against defendant and in favour of plaintiff.
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19. For the same reason, as there is no evidence to prove that defendant has paid Rs. 10,36,000/ to the plaintiff and the agreement Ex PW 1/D1 has not been proved, issue no. 6 & 7 also are not proved by defendant.
20. So far as issue no. 1, 2 & 4 are concerned, it is not disputed that defendant was inducted as a tenant by the plaintiff. The defendant failed to prove the cessation of tenancy on account of agreement to that effect i.e. Ex PW 1/D1. The plaintiff has proved the service of legal notice after the expiry of tenancy period. After expiry of tenancy period, the status of the tenant at suit property is of tenancy by sufferance. Which means that tenant enjoys his right to reside in property at the pleasure of landlord and in absence of any subsequent agreement the tenancy has to be considered on monthly basis. Therefore, when the landlord i.e. plaintiff issued notice for eviction tenant is duty bound to handover the vacant possession of the tenanted premises. Which the tenant/defendant failed.
21. The objection of the defendant, however, is with respect to service of notice under section 106 read with section 111 TP Act. It is submitted by defendant that the notices sent by the plaintiff are defective as these notices do not show the intention of the plaintiff/landlord of termination of tenancy and they do not specifically demand the vacation of premises.
22. Notices Ex PW 1/3 prima facie show the intention of CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 10 of 14 plaintiff. Notice Ex PW 1/3 was issued after termination of tenancy, as the tenancy was for fixed period of 11 months. It is clearly mentioned at para no. 6 to vacate the premises within 15 days after service.
23. Even if there was no notice, the plaint is sufficient notice to the defendant expressing the intention to terminate the tenancy and demanding vacation of premises. It has been held by Hon'ble High Court of Delhi in M/s Jeevan Diesels & Electricals Vs. M/s Jasbir Singh Chadha (HUF) & Anr RFA no. 179/11, that " I hold that even assuming the notice terminating tenancy was not served upon appellant the tenancy would stand terminate on filing of suit against the appellant/defendant." Hon'ble High Court has referred to decision to Supreme Court in case of Nopany Investment P. Ltd. V. V. Santokh Singh (HUF), 2008 2 SCC where it was held that "tenancy would stand terminated under general law on filing of suit for eviction."
24. Besides that in this case legal notice was sent through registered post and there is a presumption of its service under general clause act. Therefore, issue no. 1 that whether the plaintiff are entitled to decree of possession is decided in favour of plaintiff and against defendant.
25. For the issue with respect to arrears of rent, defendant has disputed the same as it is claimed that he has paid the rent continuously. The arrears claimed by the plaintiff are for the CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 11 of 14 period of 7th October 2017 to 6th of March 2018 and plaintiff has deposed so in his evidence. Defendant has failed to bring on any receipt of the rent paid for this period on record to show that he has paid such rent. Even in cross examination of the plaintiff there is no admission from the plaintiff side neither any suggestion from defence about the payment of rent for this period. Therefore, except denial in the written statement there is nothing on record to show that defendant has paid rent at rate of RS. 11,000/ per month for the period of October, 2017 to March, 2018. The entire defence of defendant is based on agreement dated 07.04.2017 which defendant has failed to prove. Therefore, issue no. 2 is also decided in favour of plaintiff and against defendant. However, rent agreement Ex PW 1/ 2 itself shows that is refundable security deposit of Rs. 24,000/ which shall be adjusted against the arrears of rent. And as the defendant has not paid the rent in due time he is also entitled to reasonable rate of interest at 9% per annum from the filing of suit till the date of decision and at 6% per annum from the date of decision till realization of amount.
26. Consequently, as the issue regarding arrears of rent has been decided in favour of plaintiff and there is no evidence of payment by defendant in favour of plaintiff except for the plea of payment under agreement dated 07.04.2017 (a defence which has not been proved) the issue with respect to damages / mesne profit also goes in favour of plaintiff that he is entitled to damages for occupation of tenanted premises after service of CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 12 of 14 notice. However, towards the rate of damages at Rs. 12,500/ per month no evidence has been led by the plaintiff to show that tenanted premises or any similar premises in this locality is able to fetch rent at Rs. 12,500/ per month. It is the duty of plaintiff to prove the possible rate of rent in which plaintiff has failed and court can not make its own inference just because plaintiff has given a rate of rent in his prayer. It is the duty of plaintiff to bring on record the market rate of rent and as no such rate of rent has been proved by the plaintiff, damages can not exceed the agreed rate of rent which defendant had been paying under tenancy except under the circumstances where the rent agreement itself provide for enhanced rate of rent which is not there in Ex PW 1/ 2. Therefore, the plaintiff is entitled to damages at Rs. 11,000/ per month from the service of legal notice i.e. 10.04.2018 alongwith interest at rate of 9% per month till the date of decree and at Rs. 6% per month till realization.
Relief
27. In view of the above said appreciation plaintiff is entitled to decree of possession as prayed for and of arrears of rent at Rs. 11,000/ per month for the period 07.10.2017 to 06.03.2018, less the refundable security of Rs. 24,000/ alongwith interest at 9% per annum from the date of filing of suit till decree and at Rs. 6% per month from the date of decree till realization, and plaintiff is also entitled to decree of damages at Rs .11,000/ per month from April 2018 till the vacation of suit premises CS No. 257/2018 Irshad Ahmad & Ors vs Aabad Hassan 13 of 14 alongwith interest at rate of 9% till the date of decree and at rate of 6% from the date of decree till realization. Plaintiff is also awarded the cost of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
Digitally signed by VIKRAM Announced in the open court today VIKRAM Date:
2019.12.17 on 16.12.2019 16:17:43 +0530 (VIKRAM) ARC/ACJ/CCJ:
North East Distt.
Karkardooma Courts, Delhi.
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