Delhi District Court
Mrs. Praveen Nanda vs Sh. Gurdev Singh on 16 September, 2014
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDL.
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS:DELHI
CS N0. 99/10.
UID No. 02401C0239562010.
Mrs. Praveen Nanda
W/o. Shri M. K. Nanda
R/o. 37/21 (F.F.), Old Rajinder Nagar
New Delhi-60
........... Plaintiff
Versus
Sh. Gurdev Singh
R/o. 37/21, Ground Floor
Old Rajinder Nagar
New Delhi-60
......... Defendant
Date of institution of suit : 02.06.2010.
Date of reserving for judgment : 15.09.2014.
Date of announcement of judgment : 16.09.2014.
JUDGMENT
1. The plaintiff filed the suit for recovery of possession, rent and mesne profits / damages.
2. Brief facts of the case are :
(a) The plaintiff is the owner / landlord of the property no. 37/21, Old Rajinder Nagar, New Delhi-11060. The defendant was a tenant in the entire ground floor of the said property comprising of two bedrooms, one hall, bathroom, kitchen etc. The tenancy of the defendant commenced form the first day of each English calander month and ended on the last day of the same month. The rate of rent of the CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 1 tenanted premises was Rs. 6,500/- per month payable in advance by the 7th day of each calender month. The defendant has not paid rent w.e.f. 01/04/2008 to the plaintiff despite several requests and demands. As such a sum of Rs. 1,65,750/- is due and payable by the defendant towards the outstanding rent for the period w.e.f. 01/04/2008 to 15/05/2010.
(b) The plaintiff did not wish to keep the defendant as her tenant and as such through notice dated 30/04/2010 terminated the tenancy of the defendants with the expiry of 15/05/2010 and the defendant was called upon to vacate the premises on that day. The notice was duly served upon the defendant. Thus the tenancy of the defendant as such stood terminated with the expiry of 15/05/2010. The defendant was also called upon to clear the arrears of rent.
(c) The defendant has not vacated the premises and has not handed over the peaceful vacant possession of the premises to the plaintiff even after the termination of tenancy on 15/05/2010. The defendant has no right to continue in the premises after the termination of tenancy and thus is liable to vacate the suit premises.
(d) The defendant few days back after receiving the notice dated 30/04/2010 threatened the plaintiff to transfer the possession of the tenanted premises. Thus, the present suit.
3. Written statement filed by the defendant wherein it is stated that the defendant had taken the suit premises on rent in December, 2003 from one Mr. Om Prakash Wadhwa at a monthly rent of Rs. 3,000/- excluding water and electricity charges. The suit property was about 30-35 years old and was in bad shape at that time. The ground floor of the suit property needed repairs and therefore, the defendant spent about Rs. 75,000/- on the repair work after taking the premises on rent. At that time, one tenant Mr. Narang was residing on the first floor of the CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 2
suit property. In or around February 2009, however, Mr. Narang
vacated the said portion and in his place Mr. Nanda (husband of the plaintiff) along with his family members started residing in the first floor portion of the suit property. Mr. Nanda started harassing the defendant and his aged wife by various means and also threatened them to vacate the suit property immediately. Upon this, the defendant asked Mr. Nanda about his status / rights in the suit premises but Mr. Nanda did not give any reply to the queries of the defendant. The defendant on 05/03/2010 had also lodged a complaint with the SHO, PS Rajinder Nagar. It is further stated that the defendant is regularly paying the rent in cash @ Rs. 3,000/- per month excluding electricity and water charges to Mr. O. P. Wadhwa who despite repeated requests of the defendant did not issue any rent receipt to the defendant. No rent agreement was executed between the defendant and Sh. O. P. Wadhwa. The defendant at the request of Mr. O. P. Wadhwa had made a bearer cheque in the name of Praveen Nanda on account of the said rent and delivered the same to Mr. Om Prakash Wadhwa but it is submitted that this act will not make the plaintiff as landlady of the suit property as neither the defendant acknowledged the plaintiff to be her landlady at any point of time nor there was any agreement arrived at between the parties. Ownership of the plaintiff qua the suit property is disputed. It is also objected that the suit is barred under Section 50 of the Delhi Rent Control Act. Rest of the contents of the plaint are denied except the notice issued by the plaintiff to the defendant is an admitted fact.
4. The plaintiff filed replication wherein it is stated that Sh. O. P. Wadhwa is a property broker and the plaintiff purchased the suit property through him from one Sh. R. K. Malik. The plaintiff is a house tax payer and is paying the house tax regularly to the concerned CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 3 authorities. It is further stated that earlier the property was under the tenancy of one Smt. Dimple Marwah, W/o. Late Sh. Vijay Marwah @ Rs. 6,000/- per month excluding other charges, who vacated the premises in question way back on 31/10/2003. She also executed a possession receipt at the time of vacation of the premises. It is well within the knowledge of the defendant that the plaintiff is the owner of the suit property. Rest of the averments made in the written statement are denied and the contents made in the plaint are re-iterated and affirmed.
5. My ld predecessor by order dated 11/01/2011 framed following issues :
i) "Whether there is relationship of lessor and lesse between the parties to the suit ? If no its effect on the suit. OPP.
ii) Whether the present suit is barred U/S 50 of DRC Act 1958? OPD.
iii) Whether rate of rent of the suit premises is Rs. 6,500/-
per month as alleged by the plaintiff in the plaint? OPP.
iv) Whether the plaintiff in his suit has not disclosed material facts and particulars and suit discloses no cause of action? OPD.
v) Whether the plaintiff is entitled for the decree of possession as prayed? OPP.
vi) Whether the plaintiff is entitled for a decree of a sum of Rs. 1,65,750/- towards arrears of rent? OPP.
vii) Whether the plaintiff is entitled for a decree of mesne profits/damages ? If so, at what rate and for what period. OPP.
viii)Relief."
6. To prove her case, the plaintiff examined herself as PW1 and tendered her affidavit in evidence as Ex. PW1/A. She further relied upon documents Ex. PW1/1 to Ex. PW1/22. The plaintiff further examined CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 4 her husband Sh. M. K. Nanda as PW2 who tendered his evidence by way of affidavit Ex. PW2/A. The plaintiff further examined LDC, Sub Registrar-III, Asaf Ali Road as PW3. Inspector Income Tax, Jawahar Lal Nehru Marg was examined by the plaintiff as PW4. All these witnesses were cross-examined by ld counsel for the defendant. Thereafter, by separate statement, plaintiff closed PE. In defence, the defendant examined himself and tendered his evidence by way of affidavit Ex. DW1/A. The defendant further examined Sh. Sunil Gosain as DW2, who tendered his evidence by way of affidavit Ex. DW2/1, Ms. Veena Bhatia as DW3, who tendered her evidence by way of affidavit Ex. DW3/1, Mr. Pawan Mehra as DW4, who tendered his evidence by way of affidavit Ex. DW4/1, Ms. P. K. Bindra as DW5, who tendered her evidence by way of affidavit Ex. DW5/1, Sh. Gagan Wadhwa as DW6, who tendered his evidence by way of affidavit Ex. DW6/1, Sh. Raja Baindra as DW7, who tendered his evidence by way of affidavit Ex. DW7/1, Sh. K. V. K. Sinha as DW8, who tendered his evidence by way of affidavit Ex. DW8/1, Sh. Baljeet Singh Grewal as DW9, who tendered his evidence by way of affidavit Ex. DW9/1, UDC from the office of L & DO, Nirman Bhawan as DW10, LDC from Municipal Council, Alwar, Rajasthan as DW11. All the witnesses were cross- examined by ld counsel for the plaintiff.
7. I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard Sh. Vikrant Arora, counsel for the plaintiff and Sh. Vishwanand Singh, counsel for the defendant. My issuewise findings are :
8. ISSUES NO. 1 and 4.
Issue No. 1 : Whether there is relationship of lessor and lesse between the parties to the suit ? If no its effect on the CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 5
suit. OPP.
Issue No. 4 : Whether the plaintiff in his suit has not disclosed material facts and particulars and suit discloses no cause of action? OPD.
Onus to prove issue no. 1 is upon the plaintiff whereas onus to prove issue no. 4 is upon the defendant. Contents of Ex. PW1/A are similar to the averments made in the plaint whereas the contents of Ex. DW1/A are similar to the averments made in the written statement. During arguments, the main crux of the arguments of ld counsel for the defendant to challenge the ownership of the plaintiff. It is submitted by ld counsel for the defendant that the plaintiff is not the owner of the suit property but in fact there was no transfer of the suit property by one Sh. R. K. Malik in favour of the plaintiff. He challenged the validity of document Ex. PW1/D i.e. GPA dated 02/01/1996 in favour of Sh. M. K. Nanda. He has further submitted that there is difference in signature of Sh. R. K. Malik on Ex. PW1/DX. He further submits that the said document was not executed by Sh. R. K. Malik but one by Sh. K. Malik. The document is perused. Upon this document there are photographs of executant and the person in whose favour the said document was executed. It is not challenged by the defendant that the document bears the photograph of the person who executed the document. There is no challenge about the name and address as mentioned in the noting at the back of page one of this document by the office of Sub Registrar, Delhi of late Sh. R. K. Malik. At page one of this document, there is signature as 'K. Malik' and the said document was executed before the erstwhile ld Sub Registrar. Definitely, ld Sub Registrar during the course of discharge of his official duties must have verified the person whose photograph has been affixed upon the document and in his presence that person signed the document not CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 6 only on the document but also at the back of page no. 1 i.e. at the noting of the office of Sub Registrar. After ensuring about due execution of the document, the ld Sub Registrar registered the document during discharge of his official duties. Therefore, this argument of the ld counsel for the defendant does not survive. Moreover, none of the LRs of late Sh. R. K. Malik has ever challenged the execution of this document. Moreover, it is not the case of the defendant that he had ever seen said Sh. R. K. Malik signing and writing at any time. It is not the case of the defendant that the defendant had ever seen or personally met Sh. R. K. Malik. No witness has been brought by the defendant who had seen Sh. R. K. Malik signing or writing. The defendant also did not call any witness who had ever seen signing and writing by Sh. R. K. Malik. The defendant also relied upon Ex. DW1/11 and submits that Sh. R. K. Malik was expired on 14/10/2013 and his name was in fact not R. K. Malik but Krishan Malik as mentioned in this document. This is the copy of extract of Birth and Death Register issued by the office of Muncipal Council, Alwar, Rajasthan. This document is brought by DW11 who stated that as per entry no. 1617/63 Sh. Krishan Malik, son of Sh. Ram Krishan Malik died on 12/10/2003. During cross- examination, this witness admitted that the register brought by him does not bear any identification or any proof or any signature of any official of his department i.e. Municipal Council, Alwar, Rajasthan. He further stated that as per the register brought by him Sh. Krishan Malik was resident of Shanti Kunj and he did not aware about the municipal number of the premises where Sh. Krishan Malik was residing. This document is not going to help the defendant inasmuch as the defendant is not able to prove that the said Sh. Krishan Malik and Sh. R. K. Malik was the same person who owned the suit property prior to CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 7 purchase by the plaintiff. Even otherwise any relative of late Sh. R. K. Malik has not come as a witness and has stated that Sh. R. K. Malik or Sh. Krishan Malik was the same person who died in Alwar, Rajasthan. It may be a matter of co-incidence that the name of father of Sh. Krishan Malik and Sh R. K. Malik is Ram Kishan Malik. However, this co-incidence does not become a probability which would have gone in favour of the defendant to arrive at the conclusion that Sh. Krishan Malik and Sh. R. K. Malik was the same person who earlier owned the suit property. To prove his case, the defendant also examined himself. During cross-examination, it was stated by DW1 that he has taken this property through Sh. O. P. Wadhwa on rent. He has further admitted that he had not seen any document pertaining to suit property and verify the title of Sh. O. P. Wadhwa before taking the premises on rent. No document was executed in this regard at any point of time. He has further admitted that he is income tax assessee since long and has been filing his income tax return till date. He has stated that he has shown in his returns regarding the payment of rent pertaining to suit property. He has further stated that he could produce income tax returns. It is also admitted by DW1 that he never met Sh. R. K. Malik, the original owner of the property. Though, it is admitted case of DW1 that he was residing earlier just at the back side and in the other lane about 10 houses away. This probability further shows that if a person residing just 10 houses away prior to taking the property on rent, he could himself have seen Sh. R. K. Malik or atleast he could have challenged the photograph affixed on Ex.PW1/D. But no such challenge is there. In further cross-examination when a question put to DW1 whether he informed Sh. O. P. Wadhwa that a case has been filed by the plaintiff against him then he had stated that it was informed to Mr. O. P. Wadhwa. Again this answer goes against the defendant. If CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 8 the premises was taken from Sh. O. P. Wadhwa and if the fact of filing of the case was informed then definitely to protect his title on the suit property, Sh. Wadhwa himself would have approached to this court to implead him as a party in the suit but nothing has happened as such. DW1 further stated that when he had taken the premises on rent, he was a tenant at the upper floor / first floor at the suit property i.e. Mr. Narang. He gave evasive answer about the rate of rent being paid by Mr. Narang to the plaintiff. When a suggestion was given to DW1 that he deliberately not produced on record his income tax return as it would disclose the rent of the suit property i.e. Rs. 6,500/- per month, however, the suggestion was denied. But till date, no income tax return brought by the defendant on the record, though, it is the case of the defendant that he was income tax assessee and paying the rent. He has also admitted that he has not paid the rent since May, 2010. He has also not placed on record statement of account or cheque regarding the payment of rent to Sh. O. P. Wadhwa. A suggestion was given that rate of rent of the suit premises was Rs. 6,500/- p.m. and the suggestion was denied. Therefore, the onus was lying on the defendant to prove that the rate of rent was below to avail the statutory protection i.e. below Rs. 3,500/- p.m. but no such record has been brought by the defendant. Section 106 of Indian Evidence Act says :
"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
A suggestion was further given that the rate of rent was not Rs. 3,000/- p.m. and the suggestion was denied. DW2 appears who stated that he is living in vicinity of the suit property for the last 10-11 years in Ex. DW2/1. He has stated that the defendant told him that he had CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 9 taken the premises from Sh. O. P. Wadhwa. He has further stated that he had handed over cash of Rs. 3,000/- to Sh O. P. Wadhwa at his chemist shop against which no receipt was issued. During cross- examination, DW2 stated that he met the defendant about 20-25 days back and he kept meeting him regularly. Statement of this witness does not inspire confidence inasmuch as he is not able to disclose the address of the chemist shop of Sh. O. P. Wadhwa where he had paid the rent. The name and style of chemist shop of Sh. O. P. Wadhwa also not disclosed. Therefore, statement of this witness cannot be believed upon. Smt. Veena Bhatia appeared as DW3 and stated that she was introduced to son of Mr. Om Prakash Wadhwa namely Kapil and defendant no. 1 paid a sum of Rs. 3,000/- cash as rent to Sh. Kapil son of Mr. Om Prakash Wadhwa in her presence in the month of August 2007. During cross-examination, he has stated that she did not know Sh. O. P. Wadhwa and she never met Sh. O. P. Wadhwa. During cross-examination, she could not say whether the defendant was in India during the month of June, July or August, 2007. She has further stated that as far as she remembered the defendant most of time visit outside India in June and returns somewhere around September every year. Therefore, the testimony of DW3 that defendant no. 1 paid rent to Sh. Kapil in August, 2007 is demolished by herself. Similar statement was given by DW4 i.e. DW1 paid rent of Rs. 3,000/- in his presence. During cross-examination, this witness stated that he did not know the address of Sh. O. P. Wadhwa but the same is in Rajinder Nagar. The witness is residing at G.K.-II. The shop is in Rajinder Nagar and defendant no. 1 also resides in Rajinder Nagar but surprisingly none of the witness stated about the address of the shop of Sh. O. P. Wadhwa. Therefore, testimony of DW4 also does not inspire confidence in the mind of this court. DW5 similarly stated in her CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 10 affidavit but testimony of this witness also does not inspire confidence because as per paras 6 and 7 of Ex. DW5/1, the facts stated are hearsay and therefore, do not inspire confidence in the mind of this court. Similar evidence given by DW6 who also stated that he is not aware about the address of the chemist shop but he says that he know the chemist shop which is somewhere in New Rajinder Nagar. Therefore, testimony of this witness is itself falsified inasmuch as the other witnesses stated that the chemist shop of Sh. O. P. Wadhwa is in Rajinder Nagar whereas this witness stated that the shop is in New Rajinder Nagar. DW7 who is son of the defendant has stated that in para 7 of Ex. DW7/1 that on request of Sh. O. P. Wadhwa, the defendant had issued a bearer cheuqe in the name of Praveen Nanda on the account of said rent about 5-6 times. Testimony of this witness itself demolishes the testimony of all the witness of the defendant. All the witnesses who appeared on behalf of the defendant stated that the rent was paid to Sh O. P. Wadhwa in cash but at the instance of Sh. O. P. Wadhwa, bearer cheque in the name of plaintiff was issued on account of rent about 5-6 times. First of all, there is admission regarding the status of landlord qua the tenanted premises in respect of the plaintiff and moreover, probabilities also go against the defendant that according to the witness on behalf on behalf of the defendant, he always paid rent as cash to Sh. O. P. Wadhwa. But at his instance given cheques to the plaintiff. If a person paid rent regularly to his landlord then definitely he would obtain rent receipt or if that person one or two times did not issue rent receipt then definitely to have evidence of the payment of rent, he would have paid the rent through cheque only but nothing has been done by the defendant. Therefore, this court is of the considered opinion that the defendant only tried to manipulate the plea and evidence to show that he was CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 11 paying the rent @ Rs. 3,000/- per month but nothing concrete has been brought by him on the record. Even he has not brought the income tax return to show that he was paying the rent of Rs. 3,000/- per month despite having admission in this regard. In the cross- examination, this witness admitted that his father has not initiated any action against Sh. O. P. Wadhwa despite requests made by him to issue receipts. It is further stated that he maintains bank account and he knows that whenever a bearer cheuqe issued in the name of any person, the said cheque could be encashed by any person through the said bank. DW8 also appeared but his testimony as per para 5 of Ex. DW8/1 is only hearsay evidence and therefore, his evidence cannot be believed upon. Similarly testimony of DW9 cannot be believed upon as per para 3 of Ex. DW9/1 as the same is hearsay evidence. DW10 proved conveyance deed as Ex. PW1/2 which is in favour of the plaintiff. This document is perused. This is the conveyance deed dated 15/02/2005 in favour of the plaintiff. Thus, DW10 himself proves the case in favour of the plaintiff. This witness also proved the set of documents brought by him as Ex. DW10/1 and agreement to sell dated 29/10/2004 as Ex. PW1/1. Thus, DW10 proved the case of the plaintiff as conveyance deed duly executed in favour of the plaintiff. During cross-examination of PW1, it is challenged by the defendant that the conveyance deed executed by DDA in her favour is null and void and illegal and was executed from DDA by suppression of the death of Sh. R. K. Malik and the suggestion was denied. However, this court observes that no case or counter claim or any other case has been filed to declare the conveyance deed in favour of the plaintiff, as null and void. During cross-examination, PW1 stated that the water and electricity bills with regard to the tenanted portion which is in occupation of the defendant comes in her name. A suggestion was CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 12 given that the water and electricity bills raised in the name of Smt. Bhagwani Devi and the suggestion was denied. PW1 clarified that earlier the said bills used to come in the name of Smt. Bhagwani Devi, however, for the last two years they were received in her name. There is no challenge to this statement of PW1. No witness has been brought from the electricity and water department to challenge this statement of PW1 by the defendant. She has further stated that she knows Mr. O. P. Wadhwa who is property dealer / broker. It was he who got all the property papers prepared for the purchase of this property. She has admitted that the defendant had taken the premises on rent from Sh. O. P. Wadhwa. She has stated that he was looking after this property on their behalf and was carrying out the instruction of her husband to let out the same. It is not challenged by the defendant that Sh. O. P. Wadhwa was not a property dealer but a chemist as stated by the defendant as well as by all the witnesses of the defendant appeared before this court. The plaintiff also proved record of Municipal Corporation of Delhi as Ex. PW1/3 (OSR). Along with this document there is self assessment property tax forms for the year 2008-09, 2009-10 and thereafter for the year 2010-11. The plaintiff also files computation of her total income for the purpose of income tax where she has shown income from house property i.e. from the suit property. This computation of the income for the financial year of 2008-09 is Ex. PW1/4. Similarly for the year 2009-10 is Ex. PW1/6 and for the year 2010-11 is Ex. PW1/8 wherein the income from the suit property received as rent is shown. This document further fortifies the case of the plaintiff that the rent was being paid by the defendant to the plaintiff @ Rs. 6,500/- p.m. There is no substantial challenge to these documents by the defendant during cross-examination. In view of the observations made herein above, the plaintiff duly discharged the onus CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 13 to prove issue no. 1 that there was relationship of lessor and lessee between the parties to the suit and the defendant is not able to discharge the onus to prove issue no. 4 and accordingly issue no. 1 is answered in favour of the plaintiff and issue no. 4 is answered against the defendant.
9. ISSUE NO. 2.
Whether the present suit is barred U/S 50 of DRC Act 1958? OPD.
Onus to prove this issue is upon the defendant. During disposal of issue no. 1, this court already observed that the defendant is not able to discharge the onus to prove that the rate of rent of the suit property is Rs. 3,000/- per month. No document has been brought on the record to substantiate the fact that the rate of rent is below the statutory protection given by Delhi Rent Control Act i.e. Rs. 3,500/- per month. Therefore, this issue is also answered against the defendant.
10. ISSUE NO. 3.
Whether rate of rent of the suit premises is Rs. 6,500/- per month as alleged by the plaintiff in the plaint? OPP.
Onus to prove this issue is upon the plaintiff. The plaintiff proved Ex. PW1/17 to Ex. PW1/19 where the rent received Rs. 78,000/- per annum which shows that the rate of rent was Rs. 6,500/- per month. Moreover, it was the defendant who could demolish this evidence by bringing his own income tax return to show that the rent was paying by him to the plaintiff was much below to Rs. 6,500/- per month. PW4 also proved the certified copy of income tax return as Ex. PW4/A to Ex. PW4/C. However, the defendant did not take any step to file and prove his income tax returns to show that the rate of rent was being paid by him to the plaintiff much below to Rs. 6,500/- p.m. As per Section 106 of Indian Evidence Act, the party who is having the evidence and CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 14 document must bring on the record but the said document has not been brought by the defendant. Illustration (g) of Section 114 of Indian Evidence Act says :
"114 ill. (g) That evidence which could be and is not produced would, if produced, be unfvourable to the person who withholds it."
Thus, according to this illustration, this court is of the considered opinion that the defendant withhold his income tax returns intentionally as if these documents would have been produced, it would have gone against him. Thus, this issue is also answered against the defendant and in favour of the plaintiff.
11. ISSUE NO. 5.
Whether the plaintiff is entitled for the decree of possession as prayed? OPP.
Onus to prove this issue is upon the plaintiff. During disposal of issue no. 3, this court already held that the rate of rent is Rs. 6,500/- per month. During disposal of issue no. 1, this court already answered that there is relationship of lessor and lessee between the parties. It is the case of the defendant himself that there is no agreement between the parties. Therefore, in absence of the contract the lease is terminated on part of the lessee and which has been terminated by the lessee i.e. the plaintiff, by giving notice Ex. PW1/11 to Ex. PW1/16. Accordingly, the plaintiff is entitled forthwith decree for possession against the defendant in respect of entire ground floor of property no. 37/21, Old Rajinder Nagar, New Delhi-110 060. Thus, this issue is also answered against the defendant and in favour of the plaintiff.
12. ISSUES NO. 6 AND 7.
Issue No. 6 : Whether the plaintiff is entitled for a decree of a sum of Rs. 1,65,750/- towards arrears of rent? OPP.
Issue No. 7 : Whether the plaintiff is entitled for a decree of mesne CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 15 profits/damages ? If so, at what rate and for what period. OPP.
Onus to prove both these issues is upon the plaintiff. The plaintiff in Ex.PW1/A tendered Mark A i.e. Lease deed in the neighbourhood of the suit property. She has claimed in the suit mesne profits from 01/04/2008 to 15/05/2010 @ 6,500/- per month which is the arrears of rent. Since during disposal of issue no. 3, this court already held that the rate of rent of suit premises is Rs 6,500/- per month, therefore, the plaintiff is entitled for decree for Rs. 1,65,750/- as rent. The plaintiff further claimed mesne profits/damages @ Rs. 7,500/- per month for the period w.e.f. 16/05/2010 to 31/05/2010. This court can take judicial notice of the fact that in Delhi where the suit property is situated the rate of rent were on rising side and the suit property is situated in the heart of Delhi in a posh locality. Therefore, this claim of rent cannot be declined to the plaintiff. Thus, the plaintiff is entitled for this amount from 16/05/2010 to 31/05/2010. The plaintiff also claimed future damages for use and occupation. Therefore, the plaintiff shall also be entitled for Rs. 7,500/- per month from 01/06/2010 till the date of possession be handed over by the defendant to the plaintiff. However, the defendant is further directed that in case he does not vacate the suit premises within two months from the date of this judgment then he will be liable to pay interest at the entire amount of arrears of rent including mesne profits and damages @ 18% per annum from the date of filing of the suit till realization. The Hon'ble Delhi High Court in M. C. Agrawal HUF Versus Sahara India RFA Nos. 458/2011 & 457/2011, decided on 02/09/2011 held in para 8 :
"What is now therefore to be determined is that what should be the mesne profits which should be awarded to the landlord in the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area. Though it CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 16 has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent int he urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in Connaught Place, an increase of 15% every year should be awarded (and nothing has otherwise been shown to me for the increase to be lesser) during the period for which the tenants have over stayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 3.4.2005. I rely upon and refer to a Division Bench judgment of this Court in the case of S. Kumar Vs. G. R. Kathpalia 1999 RLR 114, and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent."
This court can take judicial notice of the fact that the suit premises is situated only 4-5 km from Connaught Place, New Delhi.
13. ISSUE NO. 8.
Relief.
In view of the observations made herein above, the plaintiff is entitled forthwith decree for possession against the defendant in respect of entire ground floor of property no. 37/21, Old Rajinder Nagar, New Delhi-110 060. The plaintiff is further entitled for mesne profits from 01/04/2008 to 15/05/2010 @ 6,500/- per month which is the arrears of rent and comes to Rs. 1,65,750/-. The plaintiff is further entitled for Rs. 7,500/- towards mesne profits / damages from 16/05/2010 to 31/05/2010. The plaintiff is also entitled for Rs. 7,500/- per month as future damages for use and occupation from 01/06/2010 till the date of possession be handed over by the defendant to the CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 17 plaintiff. However, the defendant is further directed that in case he does not vacate the suit premises within one month from the date of this judgment then he will be liable to pay interest at the entire amount of arrears of rent including mesne profits and damages @ 18% per annum from the date of filing of the suit till realization. The plaintiff is also entitled for proportionate costs of the suit. But this court has already observed that the defendant is guilty of not telling the truth before this court. The defendant is also guilty of leading misleading evidence. The defendant is also guilty of concealing of his income tax returns. The defendant has also taken false pleas intentionally to harass the defendant by disputing her title qua the suit property. The Hon'ble Supreme Court in Ramrameshwari Devi and Ors Vs. Nirmala Devi and Ors Civil Appeal Nos. 4912-4913 of 2011 observed in para 34 :
"34. According to Dr. Mohan, in our legal system, uncalled for litigation gets encouragement because our courts do not impose realistic costs. The parties raise unwarranted claims and defences and also adopt obstructionist and delaying tactics because the courts do not impose actual or realistic costs. Ordinarily, the successful party usually remains uncompensated in our courts and that operates as the main motivating factor for unscrupulous litigants. Unless the courts, by appropriate orders or directions remove the cause for motivation or the incentives, uncalled for litigation will continue to accrue, and there will be expansion and obstruction of the litigation. Court time and resources will be consumed and justice will be both delayed and denied."
The Hon'ble Supreme Court further held in para 52 in the same judgment :
"52. ...... At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 18 itself so that the date fixed for the main suit may not be disturbed."
Earlier the Hon'ble Supreme Court in Mahila Vinod Kumari Vs. State of Madhya Pradesh (2008) 8 Supreme Court Cases 34 held in para 10 to 12 :
"10. For exercising the powers under the section the court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the court must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory (see Narayanswami v. State of Maharashtra).
11. The object of the provision is to deal with the evil of perjury in a summary way.
12. The evil of perjury has assumed alarming propositions (sic proportions) in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done."
Further, the Hon'ble Supreme Court in V. Chandrasekaran and another Vs. Administrative Officer and others (2012) 12 Supreme Court Cases 133 held in paras 45, 47 and 48 :
"45. The judicial process cannot become an instrument or oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.
47. The truth should be the guiding star in the entire judicial process. "Every trial is a voyage of discovery in CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 19 which truth is the quest". An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings (Vide Ritesh Tewari v. State of U.P. and Amar Singh v. Union of India).
48. In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi held:
(Maria Margarida case, SCC p. 393, para 81)
81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate.
Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.
The Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon false pleadings and forged or fabricated documents in the records furnished by them to the court."
Further in paras no. 38 and 39 of A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others (2012) 6 Supreme Court Cases 430, it was held by the Hon'ble Supreme Court:
"38. False averments of facts and untenable contentions are serious problems faced by our courts. The other problem is that litigants deliberately create confusion by introducing irrelevant and minimally relevant facts and documents. The court cannot reject such claims, defences and pleas at the first look. It may take quite some time, at times years, before the court is able to see through, discern and reach to the truth. More often than not, they appear attractive at first blush and only on a deeper examination the irrelevance and hollowness of those pleadings and documents come to light.
CS No. 99/10.
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39. Our courts are usually short of time because of huge pendency of cases and at times the courts arrive at an erroneous conclusion because of false pleas, claims, defences and irrelevant facts. A litigant could deviate from the facts which are liable for all the conclusions. In the journey of discovering the truth, at times, this Court, at a later stage, but once discovered, it is the duty of the court to take appropriate remedial and preventive steps so that no one should derive benefits or advantages by abusing the process of law. The court must effectively discourage fraudulent and dishonest litigants."
Recently in Subrata Roy Sahara v. Union of India Writ Petition (Criminal) No. 57 of 2014 it was held by Hon'ble Supreme Court in para 150 :
"150. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family is lost, for no fault of his. Should a litigant not be compensated at he has lost, for no fault ? The suggestion to the legislature is, that a litigant who has succeeded, must be compensated by the one, who has lost. The suggestion to the legislature is to formulate a mechanism, that anyone who initiates and continues a litigation senselessly, pays for the same. It is suggested that the legislature should consider the introduction of a "Code of Compulsory Costs".
14. In this case, the defendant by making false pleadings and evidence abused the process of the court. Surprisingly Sh. O. P. Wadhwa to whom the defendant is claiming as his landlord, was not called as a witness by the defendant, though, it is stated that he is residing in Rajinder Nagar or running his shop in Rajinder Nagar. Moreover, the CS No. 99/10.
Praveen Nanda Vs. Gurdev Singh Page 21 defendant called many persons from Rajinder Nagar who are claiming that they either met to Sh. O. P. Wadhwa or his son but the defendant has not taken any step to call Sh. O. P. Wadhwa to examine as a landlord. It shows that the claim of the defendant is only to defeat the process of justice and to raise false defence. This court is of the considered opinion that the defendant intentionally has concealed material fact of rate of rent and made false case or defence to justify his claim. He is also guilty of bringing those witnesses before this court who were not aware about the facts of the case, as most of those witnesses were given testimony based upon hearsay evidence, as already observed by this court in this judgment. Therefore, the defendant is burdened with a cost of Rs. 1,00,000/- (One Lakh), out of which Rs. 25,000/- to be deposited with D.L.S.A and remaining Rs. 75,000/- shall be payable to the plaintiff. The cost is imposed upon the defendant in view of the fact that defendant tried to misled this court by leading evidences which are not correct and it was well within his knowledge. Moreover, the defendant also created concocted and false pleas to defend his case. Decree sheet be prepared accordingly. Copy of decree sheet be also sent to the Secretary, D.L.S.A. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 16/09/2014. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 99/10.
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Praveen Nanda Vs. Gurdev Singh
CS No. 99/10
16/09/2014 (At 5:22 pm)
Present : Plaintiff in person along with proxy counsel.
None for the defendant.
Vide separate judgment announced in the open court today, the plaintiff is entitled forthwith decree for possession against the defendant in respect of entire ground floor of property no. 37/21, Old Rajinder Nagar, New Delhi-110 060. The plaintiff is further entitled for mesne profits from 01/04/2008 to 15/05/2010 @ 6,500/- per month which is the arrears of rent and comes to Rs. 1,65,750/-. The plaintiff is further entitled for Rs. 7,500/-
towards mesne profits / damages from 16/05/2010 to 31/05/2010. The plaintiff is also entitled for Rs. 7,500/- per month as future damages for use and occupation from 01/06/2010 till the date of possession be handed over by the defendant to the plaintiff.
However, the defendant is further directed that in case he does not vacate the suit premises within two months from the date of this judgment then he will be liable to pay interest at the entire amount of arrears of rent including mesne profits and damages @ 18% per annum from the date of filing of the suit till realization. The plaintiff is also entitled for proportionate costs of the suit. Further, the defendant is burdened with a cost of Rs. 1,00,000/- (One Lakh), out of which Rs. 25,000/- to be deposited with D.L.S.A and remaining Rs. 75,000/- shall be payable to the plaintiff. Decree sheet be prepared accordingly. Copy of decree sheet be also sent to the Secretary, D.L.S.A. File be consigned to record room.
(Jitendra Kumar Mishra) Additional District Judge-09 Central District, Tis Hazari Courts, Delhi. 16/09/2014 CS No. 99/10.
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