Delhi District Court
Sh. Nakul Grover vs Sh. Vinod Gupta on 23 August, 2010
IN THE COURT OF SH. SANJAY SHARMA, JSCC CUMASCJ CUM
GUARDIAN JUDGE (WEST): DELHI
Suit No. 550 / 0 8
Unique Case ID No. 024 0 1C 0 0 7 8 8 6 2 0 0 2
Sh. Nakul Grover
S /o Sh. Raj Kumar Grover
R/o A179, Derawal Nagar,
Delhi 110009. ......Plaintiff
Versus
Sh. Vinod Gupta
S /o Late R.C. Gupta
R/o B 3 / 2 7 2 , Paschim Vihar,
New Delhi 110063. .....Defenda n t
Date of institution of the suit : 09.12.200 2
Date on which order was reserved : 02.08.201 0
Date of decision : 23.08.201 0
J U D G M E N T
1.The plaintiff filed a suit against the defenda n t for a decree of posses sion in respect of the premises meas u ri ng 400 square feet comprising one big room, one small cabin for reception, one cabin for staff, a pantry, common bath and water closet with common use of stairs on the back side of the first floor of the property no. 6, Transport Centre, Punjabi Bagh, New Delhi 110035 (Hereinafter referred as 'the suit property') and further, a decree for recovery of damages @ Rs. 500 / per day from the date of filing of the suit till delivery of the posses sion of the suit property together with interest @ 12% per mont h and further, a decree for recovery of Rs. 8,250 / on accou n t of price of goods purch a s e d by the defenda n t together with pendente lite and future interest @ 2% per mont h.
2. The case set out in the plaint is that the plaintiff through his father had taken the suit property on rent @ Rs.5000 / per month including water and electricity charges, Rs. 1500 / per mont h towards income tax, Rs. 1000 / towards house tax total amou n t of Rs. 7,500 / w.e.f.
Suit No. 550/08 Page 1/1501.09.20 0 0 vide agreemen t dated 08.08.20 0 0.
3. According to the plaintiff, he had started using the suit property w.e.f. 08.09.20 0 0. The plaintiff had taken the suit property on rent for carrying busines s of supply of grocery and other house hold goods, by home delivery, as a franchise of 'Khaa Paan'. The plaintiff had invested Rs.1,00,00 0 / in stocks and 'Khaan Paan' had invested Rs.1,70,00 0 / in office furnis hing and infrastr uc t u r e etc. The plaintiff's busines s had received good respon se. In November, the electricity & water connection were disconnected for non payment of arrear s and therefore, the plaintiff's busines s had suffered adversely and therefore, the plaintiff sent a notice dated 28.11.20 0 0 to the defenda n t. The defenda n t neither paid the said arrear s of Rs. 40,000 / nor replied the notice. The plaintiff got the pipeline repaired at his costs. It is stated that water and electricity problem again surfaced leading to the issua nc e of anot her notice dated 28.05.20 0 1. The defenda n t had not taken any action despite service of the said notice and therefore, the plaintiff had plan ne d to shift the office. It is stated that the defenda n t had removed the neon sign and board from the suit property in the abse nce of the plaintiff and his staff. It is stated that the plaintiff had shifted some of his busines s activities to WZ50, Sri Nagar, Delhi in order to save his busines s and the suit property remained un u s e d and locked for most of the time. The furnit u re and other items of the suit property became useless. It is stated that the plaintiff had supplied goods worth Rs.8250 / to the defenda n t.
4. The case of the plaintiff is that he had visited the suit property on 16.12.20 0 1 and found the stairs leading to the suit property locked. The plaintiff made attempt for amicable settleme n t of the dispute with the intervention of Sh. Dhara mvir but to no avail. The plaintiff had served a legal notice on the defenda n t on 15.01.200 2. The defenda n t replied the said notice vide reply dated 30.01.20 0 2. The plaintiff was a tena n t in respect of the suit property and he had neither surren dere d his tena n cy nor hande d over the posses sion of the suit property to the defend a n t .
Suit No. 550/08 Page 2/15The plaintiff claimed Rs. 500 / per day for the loss of his busine s s . The defenda n t illegally locked the stair case and blocked his entry and therefore, the suit for posses sion and dam ages against the defenda n t.
5. In the written state me n t, the defenda n t controvert ed the avermen t s made in the plaint. The defenda n t raised prelimin ary objection that the suit is not maintai n a ble as the suit for posses sion can not be filed after a period of six mont h s. The plaintiff has not affixed proper court fees on the plaint. According to the defenda n t, the plaintiff had taken on rent one Hall meas u ri ng 400 square feet on the back side of first floor of the property no.6, DDA Transport Centre, Rohtak Road, New Delhi @ Rs.7,500 / per mont h excluding water and electricity charges vide agreeme nt dated 03.08.200 0 w.e.f. 01.08.20 0 0. It is stated that the rent for the mont h of August, 2000 was paid by the plaintiff vide cheq ue no. 343157 dated 06.08.200 0 for Rs. 7,5000 drawn on Bank of Baroda, Model Town Branc h, Delhi. The plaintiff had paid Rs. 25,00 0 / as security to Sh. Ashok Gupta / t h e defenda n t's brother which was mentioned in the rent agreemen t. The posses sion of the suit property was given to the plaintiff on 01.08.200 0. The plaintiff had started using the suit property w.e.f. 01.08.20 0 0. The plaintiff never dema n de d any rent receipt as he used to pay the rent of the suit property throug h cheq ue s. It is denied that the plaintiff had faced any problem regarding water and electricity supply. The plaintiff had vacated the suit property as his busines s was not upto his expectation and he had suffered losses. It is denied that the plaintiff had sent notice dated 28.11.20 0 0 and 28.05.20 0 1 and he had supplied goods of Rs.8250 / to the defenda n t.
6. The case of the defenda n t is that the plaintiff had surre n dered the tena ncy and vacated the suit property on 16.07.20 0 1 and promised to pay Rs.56,25 0 / being arrears of rent for the period from 01.12.20 0 0 to 15.07.20 0 1 and further, electricity and water charges for the period w.e.f. 01.01.200 1 to 15.07.20 0 1. The defenda n t has not dispute d the receipt of the notice dated 15.01.200 2. It is stated that the plaintiff was Suit No. 550/08 Page 3/15 not a tena n t in respect of the suit property. The defenda n t has denied that he has locked the stairs leading to the suit property.
7. In the replication, the plaintiff controverted the averme nt s made in the written state me n t and re affirmed his case pleaded in the plaint.
8. On the pleadings of the parties, the following issues were framed on 23.03.200 4:
(1) Whether the plaintiff is entitled to a decree of posses sion, as prayed for?
OPP
(2) Whether the plaintiff is entitled to a decree in the sum of
Rs.8,250 / ? OPP
(3) Whether the plaintiff is entitled to any interest, if so, at what rate
and for what period? OPP
(4) Whether the plaintiff is entitled for damages, if so, at what rate and
for what period? OPP
(5) Whether the plaintiff has surre n dered the tena ncy and vacated the
same on 16.07.200 1 ? OPD
(6). Relief.
9. In the evidence, plaintiff examined himself as PW 1 whereas the defenda n t stepped into the witnes s box as DW 2 and examined his brother Sh. Ashok Gupta as DW 1.
10. In his cross examina tion, the plaintiff (PW1) admitted the rent agreemen t dated 03.08.20 0 0 Ex. PW1 / D 1. He stated that he had taken one Hall meas u ri ng 400 sq. fts. on back side of the property no. 6, DDA Transport Centre, Rohtak Road New Delhi @ Rs.7,500 / per month excluding electricity and water charges w.e.f. 01.08.20 0 0. He had paid the rent for the mont h of August, 2000 through cheque. He paid the rent of the suit property to the plaintiff through cheques only and not by Suit No. 550/08 Page 4/15 cash. He had not maint ained any accou nt in respect of his busines s in the suit property. He had suffered losses in the busines s. He remained in the suit property for 7 / 8 mont h s. He has not placed any bill in respect of house hold articles supplied to the defenda n t. He stated that he had not prepared any Pacca bill in respect of the goods supplied to the defenda n t or his mother but prepared only Kacha bill. He denied that he had left the suit property on his own as he suffered heavy losses. He could not state whether he had paid the rent w.e.f. 01.12.20 0 0 to 15.07.200 1.
11. In his examin a tion in chief filed by way of affidavit, Sh. Ashok Gupta (DW1) stated that the plaintiff had surren dered his tena ncy to the defenda n t in his presence. In his cross examina tion, he stated that he never met the plaintiff till date. He can not recognize the plaintiff. He stated that he had never visited the premises in question after tena n cy.
He had received Rs.25,000 / as security which was not refunded.
12. In his examin a tion in chief filed by way of affidavit, Sh. Vinod Gupta (DW2) stated that he had not purch a s e d any house hold goods from the plaintiff. He denied that goods worth Rs. 8,250 / were supplied to him. He stated that the plaintiff's busines s was not going well and he had suffered losses and therefore, he kept the suit property locked for most of the times. The plaintiff had surren dere d the tena ncy and vacated the suit property on 16.07.20 0 1 and promised to pay Rs. 56,25 0 / towards arrears of rent for the period from 01.12.200 0 to 15.07.20 0 1 and balance rent of Rs.3000 / and electricity & water charges of Rs.11,809 / and Rs.600 / for the period from 01.01.200 1 to 15.07.20 0 1 . He stated that the plaintiff had vacated the premises on his own as he could not bear the losses in his busines s. The plaintiff had removed his belongings.
13. In his cross examina tion, DW 2 stated that had never met plaintiff till date. He stated that he had visited the suit property twice after 23.08.20 0 0. He stated that he had visited the suit property as the Suit No. 550/08 Page 5/15 plaintiff had made complaint s for carrying out certain works in the suit property and on both the said occasions, chair and tables were lying in the suit property. Neither the plaintiff nor any of his employees was present at the time of his visit. He had met the plaintiff twice in the year 2000. No meeting had taken place with the plaintiff for settlemen t of accoun t of the rent. He denied that he had put the locks on the staircase leading the suit premises. The plaintiff had already removed his belongings from the suit property. He stated that he had put the locks on the suit property on 16.07.20 0 1 when it was vacated and handed back by the plaintiff. He could not state whether he or his brother had put the locks on that date. He stated that no rent was due as on 16.07.20 0 1.
14. I have heard argume n t s of Sh. S.S. Budhiraja, Adv. for the plaintiff and Sh.R.K. Gupta, Adv. for the defenda n t and perused the record.
15. Issue wise finding is as under:
Issue no.2 and 3 :
16. The case of the plaintiff is that he had supplied house hold goods worth Rs. 8,250 / to the defenda n t . The plaintiff has also claimed pendente lite and future interest @ 2% per mont h on the said amou n t .
17. Ld. Counsel for the plaintiff argued that no pucca bills were prepared. He argued that normally, no tena n t would ask his landlord to sign delivery challan s or bills. He argued that the plaintiff stated that kuch h a bills were prepared. He argued that ordinary hu m a n cond uct and behaviour should be kept into consideration and the plaintiff would not tell lie on oath for such a petty amou n t in view of his volumino u s busines s and stat u s . He prayed for a decree for recovery of Rs.825 0 / together with pendente lite and future interest @ 2% per mont h.
18. Ld. Counsel for the defenda n t argued that the plaintiff never sup plied any goods worth Rs. 8,250 / to the defenda n t.
Suit No. 550/08 Page 6/1519. The onus to prove the issue no.2 was upon the plaintiff. Besides making bare averme nt that the plaintiff had supplied house hold goods worth Rs. 8,250 / to the defenda n t , there is no evidence on record with regard to alleged sale of house hold goods to the defenda n t. The plaintiff in his cross examin a tion categorically admitted that he had not prepared any pakka bill for the goods supplied to the defenda n t. He stated that he had prepared only kach h a bill. The defenda n t has not placed any kuch h a bill on record. The plaintiff has failed to discharge onus placed on him in respect of the issue no.2. Conseque n tly, the issue no.3 relating to interest does not survive for determin a tion.
20. Accordingly, the issue no.2 and 3 are decided in favour of the defenda n t and against the plaintiff.
Issue no.1 and 5:
21. Ld. Counsel for the plaintiff argued that the defenda n t disposses s ed the plaintiff by locking staircase leading to the suit property. He argued that the plaintiff had visited the suit property on 16.12.20 0 1 and found staircase leading to the suit property locked. He argued that the plaintiff made attempt to settle the matter with the intervention of Sh. Dhara mvir but the defenda n t did not attend the meeting. He argued that the plaintiff served a notice Ex.PW 1 / 9 on the defenda n t on 15.01.200 2. He argued that the defenda n t had replied the said notice vide reply dated 30.01.200 2. He argued that the plaintiff had served notice dated 06.02.200 2 Ex.PW 1 / 1 0 and notice dated 14.03.20 0 2 Ex.PW 1 / 1 1 for amicable settleme nt of the matter but to no avail and finally, the plaintiff knocked the doors of the court.
22. Ld. Counsel for the plaintiff further argued that the plaintiff was a tena n t in respect of the suit property and he had not surren dere d his tena ncy to the defenda n t. He argued that the plaintiff deposed that he Suit No. 550/08 Page 7/15 had never surre n dered his tena ncy to the defenda n t. He argued that the defenda n t has failed to prove that the plaintiff had surre n dered the tena ncy on 16.07.20 0 1. He argued that the defence plea regarding not lodging of police complaint would not deprive the plaintiff from approac hi ng the court for seeking relief of posses sion. He argued that the suit for posses sion of immovable property can be filed within 12 years from the date of the dispos se s sion. He relied on Rame s h Chan d Arda w a t i y a v. Anil Panjw a n i , 111 (2003) SLT 608 (SC) He argued that no person in settled posses sion can be disposse s se d without due process of law. He argued that the plaintiff was dispos ses s e d from the suit property without due process of law and therefore, the defenda n t is liable to restore the posses sion of the suit property. He argued that the plaintiff is entitled to decree of posses sion of the suit property. He argued that the plaintiff is entitled to damages @ Rs.500 / per mont h from the date of filing of the suit till the restoration of the posses sion of the suit property towards loss of busine s s on accou nt of illegal disposse s sion.
23. Ld. Counsel for the defenda n t argued that the suit property was let out to the plaintiff for a period of 11 month s comme ncing from 01.08.20 0 0 to 30.06.200 1. He argued that the tena ncy of the plaintiff had come to an end by efflux of time on 01.07.200 1 and therefore, the plaintiff is not entitled to the relief of posses sion.
24. Ld. Counsel for the defenda n t further argued that the plaintiff admitted in his plaint that he had shifted his busines s to WZ50, Sri Nagar, Delhi as he had suffered losses in his busine s s . He argued that the plaintiff has admitted in his plaint that the suit property remained un u s e d and locked for most of the time and the furnit ure and other items went waste and useless. He argued that the plaintiff had filed the present suit one year after the date of alleged disposses sion. He argued that the fact that the plaintiff had shifted his busines s as he suffered losses, expiry of the rent agreeme nt on 30.06.200 1 and inordinate delay of one year in filing the present suit would go to show that the plaintiff Suit No. 550/08 Page 8/15 had surren dere d the tena ncy.
25. Ld. Counsel for the defenda n t argued that the testimony of DW1 and DW2 that the plaintiff had vacated the suit property on 16.07.2 0 0 1 remained unch allenged. He argued that the plaintiff has not placed anythi ng on record that he made the payment of rent after 01.07.20 0 1 . He argued that the plaintiff had not lodged any complaint with the police nor served any notice on the defenda n t . He argued that the plaintiff had vacated the suit property voluntarily and filed the present suit only to hara s s the defenda n t. He argued that the plaintiff was not disposse s s e d from the suit premises and therefore, the suit is liable to be dismisse d.
26. Ld. Counsel for the defenda n t finally argued that the plaintiff had shifted his busines s in November, 2000 and limited visits were made to suit property. He argued that the plaintiff has not placed anything on record with regard to alleged losses. He argued that the plaintiff's claim for Rs. 500 / per day from the date of the filing of the suit till restoration of the posses sion of the suit property is also liable to be dismissed.
27. Onus to prove the issue no.1 was upon the plaintiff and onus to prove the issue no.5 was upon the defenda n t .
28. It is the specific case of the plaintiff that the defenda n t had locked the stairs leading to the suit property. It is the case of the plaintiff that he had visited the suit property on 16.12.20 0 1 and found stairs leading to the suit property locked. It is further case of the plaintiff that he made attem pt to settle the matter amicably with the intervention of Sh. Dhara mvir but the defenda n t did not attend the meeting. It is further case of the plaintiff that the defenda n t had not removed the lock despite notice dated 15.01.20 0 2 Ex.PW 1 / 9, notice dated 06.02.200 2 Ex.PW 1 / 1 0 and notice dated 14.03.20 0 2 Ex.PW 1 / 1 1. It is further case of the plaintiff that he had not surre n dered his tena ncy nor delivered the posses sion thereof to the defenda n t and he had been dispos ses s e d Suit No. 550/08 Page 9/15 illegally without due process of law.
29. The plaintiff examined himself as PW 1 in support of his case. He categorically stated that on 16.12.200 1, when he had visited the suit property, lock was found at the entry door of stairs and entry was not possible. He stated that his goods, furniture, stationary etc. were inside. He stated that he had not vacated the suit property on 16.07.200 1 nor removed his goods and articles. Testimony of the plaintiff (PW1) remained un impeac hed and intact. The defenda n t could not elicit anythi ng from his cross examina tion. He denied the suggestion that he had surren dere d the tena ncy and hande d over the posses sion on 16.07.20 0 1. Ex.PW 1 / 9 is the notice dated 15.01.20 0 2 sent by the plaintiff to the defenda n t wherein he had stated that the door at the stairs was found locked on 16.12.200 1 and he could not enter the suit property. Ex.PW 1 / 1 0 is the notice dated 06.02.200 2 and postal receipt thereof is Ex.PW 1 / 1 3 and Ex.PW 1 / 1 1 is the notice dated 14.03.2 0 0 2 and postal receipt thereof is Ex.PW 1 / 1 2. The said notices were duly served upon the defenda n t as evident from AD Card Ex.PW 1 / 1 4 and Ex.PW 1 / 1 5. Besides a suggestion that the said AD Cards were forged and fabricated, the defenda n t has not led any evidence to the contrary.
30. In order to prove its case that the plaintiff had surre n dered the tena ncy and vacated the suit property on 16.07.20 0 1 in the morning and promised to pay Rs. 56,250 / on accou nt of arrears of rent and outst a n di ng electricity and water charges amou n ti ng to Rs. 11,809 / and Rs. 600 / respectively, the defenda n t stepped into the witness box as DW 2 and examined his brother Sh. Ashok Gupta as DW 1.
31. DW 1 Sh. Ashok Gupta stated in his examina tion in chief that the plaintiff had surren dered the tena ncy to his brother in his presence. The defenda n t (DW2) has not stated in examination in chief that Sh. Ashok Gupta (DW1) was present at the time when the plaintiff had surre n d ered his tena ncy on 16.07.200 1. Moreover, there is no suggestion to the Suit No. 550/08 Page 10/15 plaintiff in his cross examina tion that he had surren dered the tena n cy and hande d over the posses sion of the suit property on 16.07.200 1 to the defenda n t in the presence of Sh. Ashok Gupta.
32. The defenda n t (DW2) deposed in his examina tion in chief that the plaintiff had surren dered the tena ncy and vacated the suit property on 16.07.20 0 1 in the morning whereas in his cross examina tion, he stated that he had never met the plaintiff. He stated that he had visited the suit property twice after 23.08.20 0 0 and on both the said occasions, neither the plaintiff nor his employees were present. He stated in his examina tion in chief that the plaintiff had promised to pay Rs. 56,250 on accoun t of arrears of rent for the period from 01.12.200 0 to 15.07.20 0 1 and further, Rs. 11,809 / and Rs. 600 / towards electricity and water charges for the period from 01.01.20 0 1 to 15.07.200 1 whereas in his cross examina tion, he stated that no rent was due as on 16.07.20 0 1 . Moreover, there is no suggestion to the plaintiff in his cross examina tio n that he had promised to pay the arrears of rent and electricity and water charges to the defenda n t at the time of vacation of the suit property. It is appare n t that DW 2 had not met the plaintiff on 16.07.20 0 1 and no rent was due as on that date. Therefore, the depositions of the defenda n t (DW2) cannot be relied upon.
33. At the cost of repetition, DW 1 Sh. Ashok Gupta stated in his examina tion in chief that the plaintiff had surre n de red the tena ncy to his brother in his presence whereas he had stated in his cross examina tion that he had never met the plaintiff till date. He stated that he can not recognize the plaintiff. Further, he had stated that he had not visited the suit property after tena ncy. He stated that the security of Rs. 25,000 / was not refunde d. It is evident that DW 1 had never met the plaintiff and visited the suit property after tena ncy. Therefore, the depositions of DW 1 that the plaintiff had surren dered the tena ncy to the defenda n t in his presence cannot be relied upon.
Suit No. 550/08 Page 11/1534. It is evident that the defenda n t has not been able to prove that the plaintiff had surren dered the tena ncy and vacated the suit property on 16.07.20 0 1. The plaintiff's testimony that the defenda n t had locked the suit property and thereby, blocked his entry to the suit property does not suffer from any infirmity.
35. Contention of Ld. Counsel for the defenda n t that the tena ncy of the plaintiff had expired by efflux of time on 01.07.200 1 and therefore, the plaintiff is not entitled to the relief of posses sion cannot be accepted. It is the admitted case of the parties that the plaintiff had been inducted as a tena n t in respect of the suit property @ Rs. 7,500 / per month w.e.f. 01.08.20 0 0 for a period of 11 mont h s vide rent agreeme nt dated 03.08.20 0 0. The plaintiff was carrying his busines s in the suit property. The plaintiff had entered into the posses sion of the suit property under authority of law. The defenda n t cannot recover the posses sion of the suit property from without due process even after expiry of rent agreeme n t on 01.07.20 0 0. The defenda n t can only recover the posses sion of the suit property throug h the proced ure prescribed by law.
36. The defenda n t cannot be permitted to take recourse to extra legal meas u re s like locking the stairs leading to the suit property and blocking the entry of the plaintiff to recover the posses sion of the suit property.
37. Mere fact that the plaintiff had shifted some part of his busines s to WZ50, Sri Nagar, Delhi and kept the suit property locked for most of the time cannot give rise to the inference that the plaintiff had surren dere d his tena ncy and vacated the suit property. The defenda n t can not be allowed to take advant age of the abse nce of the plaintiff in the suit property and to recover the posses sion of the suit property by locking the stairs leading to the suit property and blocking the entry of the plaintiff.
Suit No. 550/08 Page 12/1538. Contention that the plaintiff had filed the present suit more tha n one year after the date of alleged disposses sion would not advance the case of the defenda n t . Article 64 of the Limitation Act provides that the suit for posses sion can be filed within a period of 12 years from the date of disposse s sion.
39. Contention that the plaintiff has not placed anythi ng on record that he made the payme nt of rent after 01.07.20 0 1 cannot be accepted. Firstly, DW 2 admitted in his cross examina tion that no rent was due as on 16.07.20 0 1. Non payme nt of rent after expiry of lease agreeme n t is not an evidence of vacation of the suit property.
40. Fact that the plaintiff had not lodged any complaint with the police regarding locking of the stairs leading to the suit property or blocking of the entry of the plaintiff is insignificant. Veracity of the plaintiff's case can not be doubted on this ground alone. Moreover, the plaintiff had served notice Ex.PW 1 / 9, Ex.PW 1 / 1 0 and Ex.PW 1 / 1 0 and made attem pt to settle the matter amicably.
41. Facts that the plaintiff had shifted his busines s on accou n t of losses, rent agreeme n t had expired on 30.06.200 1, no complaint to the police was made and delay of more tha n one year in filing of the suit would not either severally or jointly lead to the inference that the plaintiff had surren dere d the tena ncy and vacated the suit property on 16.07.20 0 1 in the absence of positive and convincing to that effect. The defenda n t has failed to discharge the onus in respect of issue no.5. The plaintiff has been able to discharge the onus placed upon him.
42. In view of the aforesaid discus sion, it is appare nt that the defenda n t has failed to prove that the plaintiff had surre n dered the tena ncy and vacated the suit property on 16.07.200 1. The defenda n t had locked the stairs leading to the suit property and blocked the entry of the plaintiff. The defenda n t had disposses s e d the plaintiff from the suit Suit No. 550/08 Page 13/15 property without due process of law. The plaintiff was a tena n t in respect of the suit property even after expiry of the rent agreeme nt on 01.07.20 0 1. The plaintiff is entitled to recover the posses sion of the suit property subject to valuation of the relief of posses sion on the basis of an n u al rent @ Rs. 7,500 / per month as provided under Section 7(v)(xi) (cc) of the Court fees Act.
43. Accordingly, the issue no.1 and 5 are decided in favour of the plaintiff and against the defenda n t .
Issue no.4:
44. Onus to prove the issue no.4 was upon the plaintiff. The plaintiff examined himself in order to discha rge the onus placed upon him. In his depositions, he was deprived from the user of the premises and office items and further, his busines s had suffered.
45. Admittedly, the plaintiff had shifted part of his busine s s to WZ50, Sri Nagar, Delhi in November, 2000. In the para no. 15 of the plaint, the plaintiff categorically stated that the suit property remained locked and un u s e d for most of the times and further, furniture and other items had gone waste and became useless. In the para no. 16 of the plaint, the plaintiff stated that the suit property was not useable and only limited visits were made to the suit property. It is appare n t from the depositions of the plaintiff and avermen t s made in the plaint that the plaintiff had already shifted part of his busines s to WZ50, Sri Nagar, Delhi and the furniture and other items of the suit property were not useable. It is not the case of the plaintiff that he had to arra nge altern ate accom mod a tio n and office items. The plaintiff admitted in his cross examina tion that he was not maintaining any accou n t in respect of his busines s .
46. The plaintiff has failed to prove that he had suffered loss of Rs. 500 / per day as he was deprived from the user of the suit property. The Suit No. 550/08 Page 14/15 plaintiff has failed to discha rge the onus placed upon him in respect of issue no.5.
47. Accordingly, issue no.5 is decided in favour of the defenda n t and against the plaintiff.
Relief:
48. In view of finding on Issue no.1 and 5, the suit for posses sion filed by the plaintiff against the defenda n t is decreed and a decree for posses sio n of one Hall meas u ri ng 400 square feet on the back side of First Floor of the property no.6, DDA Trans port Centre, Rohtak Road, New Delhi 110035 is passed in favour of the plaintiff and against the defenda n t.
49. The plaintiff shall also be entitled to costs of the suit.
50. Decree sheet be prepared subject to deposit of deficient court fees.
Annou nced in the open court on 23 rd August, 2010 (SANJAY SHARMA) JSCC cum ASCJ cum Guardia n Ju dge (West), Delhi 23.08.2 0 1 0 Suit No. 550/08 Page 15/15