Delhi District Court
Mahavir Singh vs Arjun Thakur Cs No.464/12 Page 1 Of 12 on 26 November, 2014
Mahavir Singh vs Arjun Thakur CS No.464/12 Page 1 of 12
IN THE COURT OF VISHAL GOGNE : SCJ/RC:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
CS No. 464/12
ID No : 02405C0297042012
In the matter of:
Mahavir Singh
S/o Sh. Munshi Ram
R/o RZ30A, Dashrathpuri
Palam Dabri Road
New Delhi. ....Plaintiff
Versus
Arjun Thakur
S/o Sh. Bhuvaneshwar Thakur
R/o RZ30A, Dashrathpuri
Palam Dabri Road
New Delhi. ...Defendant
Date of Institution of Case : 19.12.2012
Date of reserving judgment : 15.11.2014
Date of pronouncement : 26.11.2014
J U D G M E N T:
1. The plaintiff/landlord seeks possession of the suit shop from the defendant/tenant alongwith damages/mesne profits @ Rs. 5,000/ per Mahavir Singh vs Arjun Thakur CS No.464/12 Page 2 of 12 month upon termination of the tenancy of the later.
2. The suit was tried upon the following issues:
(i). Whether the suit of the plaintiff is barred u/s 50 of the DRC Act? OPD.
(ii). Whether the plaintiff is entitled for recovery of possession? OPP.
(iii). Whether the plaintiff is entitled for mesne profits, if any, at what rate and for which period? OPP.
(iv). Relief.
3. The Ld. Counsel for the plaintiff submitted that in a suit for recovery of possession filed by a landlord against his tenant at Delhi, proof was required to be led only with respect to three aspects viz. non applicability of Delhi Rent Control Act, 1958 (in brief, the DRC Act), the existence of a landlordtenant relationship and termination of the tenancy. It was argued that the plaint as well as the affidavit of the plaintiff (PW1), as the sole witness in his cause, had established that the defendant was in possession of the suit shop, reflected in red colour in the site plan Ex. PW1/1A, as a tenant at monthly rent of Rs. 500/ and that the tenancy has been terminated through the admittedly served legal notice dated 01.10.2012 (Ex. PW1/B). Further, that the reply dated 16.10.2012 (Ex. PW1/D) established the service of the notice.
4. In response, the ld. Counsel for the defendant, cited the written statement and affidavit in evidence filed by the defendant (DW1) to Mahavir Singh vs Arjun Thakur CS No.464/12 Page 3 of 12 submit that not only had rent been regularly paid by the defendant but that the reply Ex. PW1/D brought out the illegality of the legal notice Ex. PW1/B sent by the plaintiff.
5. The court has considered the pleadings, evidence and submissions made by the respective counsels.
6. The findings on the issues are as under:
ISSUE No.1.
7. The suit shop is situated in property bearing No. RZ30A, Dasrathpuri, Palam Dabri Road, New Delhi. The area being situated at village Palam, it is to be considered whether the DRC Act is applicable to the suit shop.
8. In Mitter Sen Jain Vs. Shakuntala Devi (2000) 9 SCC 720, the Hon'ble Apex Court recognized the two stage process for application of the DRC Act to a particular area in the following manner:
"Even if any new area is included within the urban area of Municipal Corporation Delhi, a further notification is required to be issued under the Proviso to sub section (2) of Section 1 of the Delhi Rent Control Act. Unless the area is so specified in the schedule by a notification the provisions of the Delhi Rent Control Act be made applicable to that area."
9. The Hon'ble High Court of Delhi, following Mitter Sen (Supra), reiterated in Santosh Solanki Vs. Dada Dev Prabhandhak Sabha (Barah Gaon), Palam RSA NO. 105/2014 & CM No. 6873/2014 dated Mahavir Singh vs Arjun Thakur CS No.464/12 Page 4 of 12 22.04.2014 as under:
"7. Therefore, it is clear that merely because the area is urbanized by virtue of Section 507 DMC Act that would not mean that the suit property will have protection of the Delhi Rent Control Act."
10. The Court further noted in the context of the applicability of the DRC Act to village Palam that:
"8. I may note that the issue with respect to the area of village Palam be covered under the Delhi Rent Control Act by issuing of a notification by the government came up in a Public Interest Litigation filed in this Court by the Palam Area Tenants Association by CW 4284/2000 titled as Palam Area Tenants Association Vs. Union of India & Anr. This writ petition was dismissed by a Division Bench of this Court vide its Judgment dated 29.07.2013 by making the following observations:
"This matter is placed before this court as it is stated that it is a Public Interest Litigation. The main prayer is for issuance of notification extending Delhi Rent Control Act, 1958 to the revenue estate of entire Palam village retrospectively with effect from 03.11.1994, i.e. from the date on which the area was declared urbanized. Such amendment cannot be allowed by this Court. The law is very clear on the subject. The Apex Court in "Union of India V/s Shree Gajanan Maharaj Sansthan JT 2002 (Suppl. I) SC 94, has stated as under:
"This court observed that no mandamus could be issued to the Executive directing it to commence the operation of the enactment; that such a direction Mahavir Singh vs Arjun Thakur CS No.464/12 Page 5 of 12 should not be construed as any approval by the Court, of the failure on the part of the Central Government for a long period to bring the provisions of the enactment into force."
In this view of the matter, this petition is required to be dismissed.
Ordered accordingly."
9. Therefore, in view of the above discussion, it is clear that the appellant will have no protection of the Delhi Rent Control Act because the operation of the Delhi Rent Control Act is not extended to the area of village Palam where the suit property is situated."
11. It is apparent from the above noted decisions that the DRC Act becomes applicable to a particular area only when the notification under Section 507 of the DMC Act, urbanizing an area, is followed by a separate notification under Section 1 (2) of the DRC Act. In the absence of such a subsequent notification, the DRC Act remains non applicable to the area in question.
12. In the present facts, the description of the premises in question, reflected from the plaint itself, places the same within the area of village Palam. The decision in Palam Area Tenants Association Vs. Union of India, noted in Santosh Solanki (Supra) implies that no notification had been issued under Section 1 (2) of the DRC Act qua village Palam. The decision in Santosh Solanki (Supra), dated as recent as 22.04.2014, further establishes that no such notification has been issued. The defendant has not claimed either that any such Mahavir Singh vs Arjun Thakur CS No.464/12 Page 6 of 12 notification has been made with respect to village Palam.
13. Since the address of the suit property places the same on the PalamDabri road, the court would notice the decision in Sohan Pal vs Umashankar & Anr. in RSA 223 /2013 decided on 07.05.2014. wherein it was found that the DRC Act is not applicable to the area of Dabri either. The Hon'ble High Court held as under:
"9. In view of the above, it is held that the civil courts have no jurisdiction because the area of village Dabri which contains the Sagarpur area, and where the suit premises are situated, are not covered by the Delhi Rent Control Act because no notification has been issued under Section 1(2) of this Act for applicability of this Act to the Sagarpur area. "
14. The Court finds that the Delhi Rent Control Act, 1958 is not applicable to the premises in question in the present suit. Hence, the suit is not barred by section 50 of the said Act.
15. Issue No.1 is decided in favour of the plaintiff and against the defendant.
ISSUE No.2.
16. The ld counsel for the defendant was quite accurate in enumerating the three facts/circumstances required to be proved by a landlord for eviction of his tenant by way of a civil suit within the territory of Delhi. Reference may be made here to the decision in Payal Vision Ltd. Vs. Radhika Chaudhary JT 2012 (9) SC 214 Mahavir Singh vs Arjun Thakur CS No.464/12 Page 7 of 12 wherein the Apex Court held as under: "6. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintifflandlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order XII Rule 6 of the CPC, ......."
17. Since issue No.1 has already been decided in favour of the plaintiff, the first ingredient stands established by the defendant.
18. As to the existence of a landlordtenant relationship between the parties, it was the explicit admission of the defendant in his written statement and affidavit in evidence (DW1/1) that he was a tenant of the plaintiff in the suit shop since 1986 at monthly rent of Rs. 500/. The admission negates the necessity of any further evidence from the plaintiff in this regard. It stands established that the defendant was inducted into the suit shop as a tenant by the plaintiff.
19. The last exercise to be performed by the plaintiff was proof of termination of the tenancy. Since the defendant also admitted that he had replied to the legal notice of the plaintiff dated 01.10.2012 (Ex. PW1/B) through reply dated 16.10.2012 (EX. PW1/D), the service of Mahavir Singh vs Arjun Thakur CS No.464/12 Page 8 of 12 the legal notice Ex. PW1/B stands established. This notice intimated the defendant that his tenancy stood terminated within 30 days from 01.10.2012. The court thus records that the tenancy of the defendant in the suit shop came to an end on 30.10.2012 by virtue of notice dated 01.10.2012 Ex. PW1/B.
20. In an event, even the institution of a civil suit for eviction would operate as a notice to quit upon the defendant and the service of the legal notice is in that sense rendered redundant for purpose of termination of the tenancy. Reference may be made here to the decision in Nopany Investments(P) Ltd. Vs. Santokh Singh (HUF) 2008(2) SCC 728).
21. The defendant is liable to hand over the possession of the suit shop, as reflected in red colour in site plan Ex. PW1/1A, to the plaintiff in consequence of the termination of his tenancy.
22. Issue No.2 is decided in favour of the plaintiff and against the defendant.
ISSUE No.3.
23. The liability of the defendant to pay damages for occupation of the suit shop arises in consequence of termination of the tenancy on 30.10.2012 as recorded in the findings upon issue No.2. Since the tenancy was terminated on the said date, the continued occupation of the suit shop by the defendant can only be termed as unauthorized. Mahavir Singh vs Arjun Thakur CS No.464/12 Page 9 of 12
24. The next aspect relates to the rate at which damages ought to be paid by the defendant. The admitted rate at which rent has thus far been paid is Rs. 500/ per month. The plaintiff has, however, prayed for grant of damages @ Rs. 5000/ per month. The plaintiff (PW1) deposed in his affidavit that Rs. 5,000/ per month would be the reasonable letting value of the suit property. The ld counsel for the defendant instead portrayed this demand as being excessive.
25. The court would decide this issue with respect to one fact and one circumstance. DW1 stated in his affidavit that he has been paying rent @ Rs. 500/ per month to the plaintiff since 1986. This rate of monthly rent was not disputed by the plaintiff. It is thus apparent that the defendant has continued to pay an unchanged amount as monthly rent for a period of 28 years by his own admission. Even if the court were to consider the year of commencement of tenancy to be 1995 as asserted by the plaintiff (PW1), the defendant has paid the same rent for the last 19 years. In either scenario, damages to be paid by the defendant from 01.11.2012 cannot be @ Rs. 500/ per month as rent could not have remained static for such a long period of time.
26. Here, the court would notice the commonly accepted circumstance of rates of rent having multiplied exponentially in Delhi over the last two decades. The court is empowered to take judicial notice of such appreciation of rents while deciding the aspect of damages to be paid by unauthorized occupants. Reference may be Mahavir Singh vs Arjun Thakur CS No.464/12 Page 10 of 12 made here to the decisions reported as Sriram Pistons & Rings Ltd. Vs. Basant Khatri 190 (2012) DLT 769 and MC Aggarwal HUF Vs. Sahara India & Ors. 183 (2011) DLT 105.
27. The inherent imperfection in the mode of deciding the quantum of damages/mesne profits renders the same a delicate and necessarily imperfect exercise. The same is after all an estimation formed by the Court on the basis of material which is almost never fool proof. The Court hence cites the observation of the Hon'ble High Court of Delhi in Sriram (Supra) as under:
"8...........In every case for determining mesne profits some amount of honest guess work is always called in. As long as the guess work is based within legal parameters and is supported by relevant evidence such a conclusion can be adopted by the courts for determining the mesne profits."
28. Apart from noticing the apparent difficulty in determining mesne profits, the Hon'ble High Court also noticed in MC Aggarwal (Supra) that:
"8..........I rely upon and refer to a Division Bench Judgment of this court in the case of S. Kumar Vs. GR Kathpalia 1999 RLR 114 and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase of rent and has accordingly allowed the mesne profits at a rate higher than the contractual rate of rent."Mahavir Singh vs Arjun Thakur CS No.464/12 Page 11 of 12
29. It is evident that successive judicial pronouncements have imparted direction and a measure of certainty to the exercise of determining mesne profits by enabling the Courts to take judicial notice of prevailing rates of rent.
30. The court thus determines that the claim of the plaintiff for damages @ Rs. 5,000/ per month is not excessive as rent would certainly have appreciated exponentially since the year 1986 when the defendant entered the suit shop as a tenant. The plaintiff is entitled to recover damages at the rate Rs. 5,000/ per month from 01.11.2012 till the handing over of possession of the suit property to him by the defendant.
31. The court would qualify this finding with the observation that the plaintiff (PW1) agreed during cross examination that he has been receiving rent @ Rs. 500/ per month regularly from the defendant upon orders of the Ld. ARC in a previous eviction petition. Consequently, the defendant is at liberty to set off a sum of Rs. 500/ per month against the above damages with effect from 01.11.2012 till the month for which rent has been paid by him to the plaintiff.
32. Issue no.3 is accordingly decided in favour of the plaintiff and against the defendant.
Relief.
33. In view of the findings on issues No. 2 and 3, a decree of Mahavir Singh vs Arjun Thakur CS No.464/12 Page 12 of 12 possession is passed in favour of the plaintiff and against the defendant with respect to the suit shop as shown in red colour in the site plan Ex. PW1/1A with respect to the property bearing No. RZ30A, Dasrathpuri, Palam Dabri Road, New Delhi. The plaintiff is also granted damages @ Rs. 5,000/ per month from 01.11.2012 till the date of handing over of possession of the suit shop to him by the defendant. The defendant is at liberty to set off a sum of Rs. 500/ per month against the above damages with effect from 01.11.2012 till the month for which rent has been paid by him to the plaintiff.
34. Let decree sheet be drawn up accordingly.
35. File be consigned to record room.
Announced in the (Vishal Gogne)
open Court on 26.11.2014 SCJ/RC/South West
Dwarka Courts/New Delhi