Delhi District Court
Sh. Hukum Chand vs Sh. Mulak Raj on 29 January, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, COMMERCIAL CIVIL
JUDGECUMADDITIONAL RENT CONTROLLER, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI.
SUIT NO.347/11.
Unique Case ID no.02404C0171372011.
Sh. Hukum Chand
S/o Late Sh. Rama Nand
R/o A1/234, Paschim Vihar,
Delhi.
....Plaintiff
Versus
Sh. Mulak Raj
S/o not known
R/o A2/6, PhaseI,
Budh Vihar, New Delhi.
....Defendant
Date of institution : 04.07.2011
Date on which reserved for judgment : 05.01.2013
Date of decision : 29.01.2013
Suit for Recovery of Possession, Recovery of Arrears of Rent,
Damages/Mesne Profits, Permanent Injunction and Mandatory
Injunction
Judgment
1. This judgment shall decide the suit filed by the plaintiff.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 1 of 55
Version of the plaintiff
2. The plaintiff has averred in the plaint that he is the landlord and
owner of three rooms, one bathroom and one kitchen on the
ground floor of property bearing no.A2/6, PhaseI, Budh Vihar,
New Delhi, shown in red colour in the site plan filed with the plaint
(hereinafter collectively referred to as "the suit property"). It is
stated that the defendant is tenant of plaintiff in the suit property.
The monthly rate of rent is stated to be Rs.5,000/ besides
electricity and water charges. It is pleaded that the rent was
payable in advance on or before the first day of each month.
3. It is averred in the plaint that on 24.12.2010, an inspection was
carried out by officials of NDPL and it was found that the
defendant had tampered with the electricity meter. A demand
of Rs.10,394/ was raised by NDPL on account of the said
tampering of meter. The defendant declined to pay the said sum
of money. The plaintiff had to make payment of Rs.8,510/ to
NDPL towards settlement of the said demand. As a consequence
of the said tampering of meter, the reputation of plaintiff got
tarnished. The defendant thereafter stopped paying electricity
and water bills to the plaintiff. The defendant defaulted in
payment of rent and has not paid any rent since December
2010.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 2 of 55
4. It is pleaded by the plaintiff that the defendant has not paid
arrears of rent from December 2010 to May 2011 and the said
arrears have accumulated to Rs.30,000/.
5. The plaintiff has further stated in the plaint that plaintiff
terminated the tenancy of defendant by service of legal notice
dated 28.05.2011, which was duly served upon the defendant on
03.06.2011. Despite service of notice, defendant failed to pay
arrears of rent and to vacate the property. Besides, the
defendant tried to transfer the suit property to others.
6. It is further stated in the plaint that the defendant has become
unauthorized occupant of the premises and is liable to pay
damages/ mesne profits at the rate of Rs.10,000/ per month with
effect from 18.06.2011, which is the market rate of rent.
7. On the basis of these averments, the plaintiff has prayed for a
decree of possession for recovery of the suit property. The plaintiff
has further prayed for permanent injunction restraining the
defendant from creating third party interest in the suit property.
The plaintiff has further sought mandatory injunction directing the
defendant to remove his belongings from the suit property. The
plaintiff has also prayed for mesne profits/damages at the rate of
Rs.10,000/ per month from the date of institution of the suit till
realization. The plaintiff has also prayed for recovery of arrears of
Suit no.347/11 Hukum Chand Vs. Mulak Raj 3 of 55
rent of Rs.30,000/, in addition to costs.
Version of defendant
8. After service of summons, defendant filed his written statement.
The defendant stated in his written statement that the rate of rent
of the suit property is Rs.1500/ per month and that rent has been
paid till April 2011. It is further stated that owing to the subsequent
refusal of plaintiff to accept rent, the defendant had to file a
petition under Section 27 of Delhi Rent Control Act. Defendant
has further stated that he had filed a suit for permanent
injunction which is pending. It is stated that the plaintiff has
deliberately not disclosed about the pendency of petition under
Section 27 of Delhi Rent Control Act and the suit filed against the
plaintiff. The defendant has further averred that the present suit is
barred in view of the rate of rent and its deposit under Section 27
of Delhi Rent Control Act.
9. The defendant has denied the assertion of the plaintiff that the
defendant is defaulter in payment of rent. It is further stated by
the defendant that Rs.8,510/ paid by the plaintiff to NDPL was
the money given by defendant himself to the plaintiff for the said
purpose. The defendant has also denied the assertion that he
had stopped paying electricity and water bills. The defendant
has denied the receipt of legal notice dated 28.05.2011. The
Suit no.347/11 Hukum Chand Vs. Mulak Raj 4 of 55
defendant has further stated that plaintiff has no right to
terminate the tenancy. The defendant has also denied his liability
to pay damages and mesne profits.
Issues
10.After completion of pleadings, the following issues were framed
by order dated 07.08.2012 :
1. Whether the plaintiff has concealed material facts from
the Court? OPD.
2. Whether the suit is barred by Section 50 of Delhi Rent
Control Act? OPD.
3. Whether the plaintiff has not filed the appropriate Court
Fees? OPD.
4. Whether the plaintiff is entitled to recovery of
possession, as prayed? OPP.
5. Whether the plaintiff is entitled to permanent injunction
as prayed? OPP.
6. Whether the plaintiff is entitled to recovery of arrears of
rent, and if so, to what extent? OPP.
7. Relief.
Plaintiff's Evidence
11.The plaintiff adduced evidence in support of his case. He
examined himself as PW1. He tendered his affidavit Ex. PW1/A in
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evidence. In his affidavit, he reiterated the averments made in
the plaint. He identified and relied upon the following
documents:
a) Site plan as Ex.PW1/1;
b) Copy of bills and report as Ex. PW1/2;
c) Copy of bill as Ex. PW1/3;
d) Legal notice and proof of service as Ex. PW1/4.
PW1 / plaintiff was crossexamined on behalf of defendant and
was then discharged.
12.The plaintiff then examined Mr. Jai Pal Jain as PW2. He tendered
his affidavit Ex.PW2/A in evidence. In his affidavit, PW2 deposed
that he is tenant in a premises in the vicinity and that he is paying
rent of Rs.8,000/ per month to his landlord. He further stated that
the landlord does not issue rent receipts to him, which is the usual
practice in the area. PW2 was crossexamined and was then
discharged.
13.The plaintiff then examined Ms. Chameli Devi as PW3. She
tendered her affidavit Ex.PW3/A in evidence. In her affidavit, PW3
deposed that she is tenant in a premises in the vicinity and that
she is paying rent of Rs.9,000/ per month to her landlord. She
further stated that the landlord does not issue rent receipts to
her, which is the usual practice in the area. PW3 was cross
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examined and was then discharged.
14.The plaintiff then examined Mr. Sumant Mehta as PW4. He
tendered his affidavit Ex.PW4/A in evidence. In his affidavit, PW4
deposed that he is tenant in a premises in the vicinity and that he
is paying rent of Rs.7,000/ per month to his landlord. He further
stated that the landlord does not issue rent receipts to him, which
is the usual practice in the area. PW4 was crossexamined and
discharged.
15.The plaintiff then examined Mr. Narender Kumar Jain as PW5. He
tendered his affidavit Ex.PW5/A in evidence. His deposition is on
the lines of the plaint. PW5 was crossexamined and discharged.
Plaintiff's evidence was closed.
Defence Evidence
16.The defendant adduced evidence in his defence. He examined
himself as DW1. He tendered his affidavit Ex. DW1/A in evidence.
In his affidavit, he reiterated the averments made in the written
statement. He was crossexamined and was discharged.
17.The defendant then examined Mr. Virender Singh as DW2. He
tendered his affidavit Ex. DW2/A in evidence. In his affidavit, he
deposed that on 03.12.2008, the plaintiff reached the tenanted
premises and demanded rent for the month of November 2008.
The defendant paid Rs.1500/ to the plaintiff for that month. The
Suit no.347/11 Hukum Chand Vs. Mulak Raj 7 of 55
witness was crossexamined and was discharged.
18.The defendant then examined Mr. Sukhdev Singh as DW3. He
tendered his affidavit Ex. DW3/A in evidence. In his affidavit, he
deposed that on 02.02.2011, he accompanied the defendant
and handed over rent of Rs.1500/ to the plaintiff for the month of
January 2011. The witness was crossexamined and was
discharged.
19.The defendant then examined Mr. Hans Raj as DW4. He
tendered his affidavit Ex. DW4/A in evidence. In his affidavit, he
deposed that on 03.03.2011, at the request of the plaintiff,
defendant paid rent of Rs.1500/ to the plaintiff for the month of
February 2011. The witness was crossexamined and was
discharged. Defence evidence was closed.
Findings of the Court
20.Final arguments have been heard. Record is perused. The issue
wise findings are as under:
ISSUE NO. 1
"Whether the plaintiff has concealed material facts from the
Court? OPD."
21.The onus to prove this issue was upon the defendant. The case
of the defendant is that the plaintiff has concealed material
facts and has suppressed the fact that the defendant had filed a
petition under Section 27 of Delhi Rent Control Act and a suit for
Suit no.347/11 Hukum Chand Vs. Mulak Raj 8 of 55
permanent injunction against the plaintiff.
22.In order to prove this issue, the defendant has examined himself
as DW1. He has stated in his affidavit that he had filed a separate
civil suit for permanent injunction and that the said case was
disposed off. He has also stated in his affidavit that the
defendant had filed two petitions under Section 27 of Delhi Rent
Control Act. The other witnesses of the defendant have not
deposed anything regarding the aforesaid issue. Hence, of all
defence witnesses, the testimony of only DW1 is relevant for
deciding this issue.
23.It is evident from the plaint that the plaintiff has not mentioned
therein regarding the suit and petitions under Section 27 of Delhi
Rent Control Act. The question which needs to be examined is
firstly whether the aforesaid facts were in the knowledge of the
plaintiff on the date of filing of the suit and secondly whether the
said facts are material and relevant to the present suit so as to
necessitate disclosure in the plaint.
24.The present suit was filed on 04.07.2011. There is nothing on
record to suggest that the proceedings under Section 27 of Delhi
Rent Control Act and the suit referred to by the defendant had
been instituted before that day and that notice of the said
proceedings had been served upon the plaintiff before
Suit no.347/11 Hukum Chand Vs. Mulak Raj 9 of 55
04.07.2011. A party can be nonsuited only for concealment of a
fact which he or she knows. The party seeking adverse inference
against the plaintiff for suppression of a fact must establish that
the said concealment is deliberate. In other words, defendant
must demonstrate that the plaintiff was aware of the fact which
he did not disclose. The defendant must therefore prove that
notice of the aforesaid petitions and summons of the
aforementioned suit had been duly served upon the plaintiff prior
to institution of the present suit. However no evidence has been
led to that effect. For proving the aforesaid, the defendant could
have produced and proved the record of the said proceedings
containing acknowledgment of service of notice and summons.
This has not been done. The defendant no.1 could also have
stated in his own testimony about the date of service of notice
and summons. This has also not been done. The defendant has
not even questioned PW1/plaintiff during his crossexamination as
to the said date of service. Since the onus to prove the aforesaid
issue was upon the defendant, he ought to have proved the
same. The defendant must suffer the consequences of his failure
to prove that the plaintiff was aware of the said proceedings as
on the date of institution of the present suit.
25.During his crossexamination, the plaintiff did admit that he is
Suit no.347/11 Hukum Chand Vs. Mulak Raj 10 of 55
aware of the aforesaid proceedings. The said awareness was
however on the date of his crossexamination. The relevant date
is not the date of testimony of PW1 but the date of institution of
the suit. It is the concealment in the plaint that is the grievance of
the defendant. The defendant ought to have proved that the
plaintiff was aware of the said proceedings not on the date of his
testimony but on the date of filing of the suit. This has not been
proved by the defendant.
26.Even if it is assumed that the aforesaid proceedings were in the
knowledge of the plaintiff on the date of filing of the suit, though
there is nothing on record to show this, adverse inference can be
drawn against the plaintiff only if the factum of pendency of the
said proceedings is found to be relevant to this suit. A plaintiff is
under no obligation to disclose the entire history of litigation. He is
required to disclose only those facts which are relevant and
which have a bearing on the suit. It is only the concealment of
such facts that can invite an adverse view. In this behalf,
reference is made to the case of Arunima Baruah Vs. Union of
India & Ors., Civil Appeal no.2205 of 2007 decided by Hon'ble
Supreme Court on 27 April 2007. It was noted thus:
th
"How far and to what extent suppression of fact
by way of nondisclosure would affect a person's
right of access to justice is the question involved
Suit no.347/11 Hukum Chand Vs. Mulak Raj 11 of 55
in this appeal which arises out of a judgment
and order dated 23.07.2003 passed by the High
Court of Delhi in LPA No. 68 of 2003.
xxx xxx xxx
What would be a material fact, suppression
whereof would disentitle the appellant to obtain
a discretionary relief, would depend upon the
facts and circumstances of each case. Material
fact would mean material for the purpose of
determination of the lis, the logical corollary
whereof would be that whether the same was
material for grant or denial of the relief. If the
fact suppressed is not material for determination
of the lis between the parties, the court may not
refuse to exercise its discretionary jurisdiction."
27.In the present suit, the plaintiff has averred that he is the landlord
whereas the defendant is tenant in the suit property. The
defendant has admitted this fact. The plaintiff has claimed that
tenancy has been terminated by service of legal notice. The
plaintiff has prayed for recovery of possession, arrears of rent,
mesne profits/damages and ancillary reliefs. For claiming the
aforesaid reliefs, the plaintiff needs to only prove the termination
of tenancy and the quantum of rent/damages recoverable from
the defendant. It is not the case of the defendant that in the
petition under Section 27 of Delhi Rent Control Act or the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 12 of 55
separate suit, the concerned court decided the issue of
applicability of the said Act or made any observation as to
subsistence of tenancy or the agreed rate of rent or extent of
arrears. It is not the case of the defendant that the plaintiff has
accepted and withdrawn rent deposited by the defendant
under Section 27 of Delhi Rent Control Act so as to disentitle the
plaintiff to claim the said sum afresh by the present suit. On the
contrary, the plaintiff has stated in his crossexamination that he
has not withdrawn the rent which was deposited in the said
petitions. It is not the case of the defendant that in those
proceedings, the plaintiff has admitted the monthly rate of rent
to be Rs.1500/. It is not the case of the defendant that the
plaintiff has, in either of those proceedings, relinquished his right
to recover possession of the premises or to recover rent or mesne
profits. It is not the case of the defendant that in the suit filed by
him, the plaintiff herein made any admission which could entitle
the defendant herein to continue to occupy the premises or
which related to the liability of the defendant to pay arrears of
rent or mesne profits/damages. The defendant has not even
disclosed the nature of permanent injunction sought by him in
the separate civil suit. In what manner the separate proceedings
instituted by the defendant would affect the claims of the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 13 of 55
plaintiff herein has not been demonstrated by the defendant.
Hence it may be concluded that the separate petition under
Section 27 of Delhi Rent Control Act and the separate suit filed by
the defendant do not influence the present proceedings and
the claims of the plaintiff made in this suit.
28.Since filing of the petitions and the separate suit by the
defendant do not have any bearing on the present case, the
plaintiff was under no obligation to disclose about the said
proceedings. Hence, it cannot be stated that the plaintiff has
concealed any material fact from the court. The said plea is
rejected.
29.Further, the defendant has, in his written statement, mentioned
about only one petition under Section 27 of Delhi Rent Control
Act. He has made no mention of the second petition filed under
the same provision of law. However, in his affidavit in evidence,
the defendant/DW1 has mentioned about two petitions under
Section 27 of Delhi Rent Control Act. As to when the second
petition was instituted has not been disclosed by the defendant.
The mention of second petition under Section 27 of Delhi Rent
Control Act by the defendant in his affidavit in evidence is
beyond his pleadings since no averment to that effect is made in
the written statement. The defendant has not explained his
Suit no.347/11 Hukum Chand Vs. Mulak Raj 14 of 55
omission to mention about the second petition under Section 27
of Delhi Rent Control Act, in his written statement. It is settled law
that evidence must be confined to the matters stated in
pleadings. In the case of Darshan Singh v. Santokh Singh, 1997(2)
R.C.R.(Civil) 577, the Hon'ble Punjab & Haryana High Court held
as under :
"It is well settled that any amount of evidence in support of a
plea which does not find place in the pleadings is
inconsequential and is to be left out of consideration".
A fact which is not pleaded to exist cannot be sought to be
proved. Hence the Court cannot take note of the plea of
defendant of filing of second petition under Section 27 of Delhi
Rent Control Act.
30.The defendant has failed to discharge the onus placed upon
him to prove that the plaintiff had deliberately concealed facts
which are relevant and material for the disposal of the suit. The
issue is decided in favour of the plaintiff and against the
defendant.
ISSUE NO. 2
"Whether the suit is barred by Section 50 of Delhi Rent Control
Act? OPD."
31.The onus to prove this issue was upon the defendant. In order to
prove that the suit is barred by Section 50 of Delhi Rent Control
Suit no.347/11 Hukum Chand Vs. Mulak Raj 15 of 55
Act, the defendant is required to demonstrate the following:
A. That the defendant is tenant of the plaintiff in the suit
property (as defined by Section 2 (l) of the Delhi Rent Control
Act);
B. That the rate of rent is less than Rs.3,500/ per month (as
required by Section 3 (c) of the Delhi Rent Control Act);
C. That the suit property lies in a locality in which the Delhi
Rent Control Act applies (as per Section 1 (2) of the Delhi Rent
Control Act).
It is discussed hereinafter whether the said ingredients exist in the
present case.
A. That the defendant is tenant of the plaintiff in the suit property
32.For a person to claim protection under the Delhi Rent Control
Act, he is required to prove that he is a tenant in the premises
whereas the person who is seeking to evict him is the landlord. In
the present case, the existence of landlord tenant relationship is
admitted by the parties, as is evident from the pleadings.
Reference is made to paragraph no.2 of the plaint and the
corresponding paragraph of reply on merits of the written
statement. It is thus indubitably established that the defendant is
the tenant of the plaintiff in the suit property.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 16 of 55
B. That the rate of rent is less than Rs.3,500/ per month
33.Section 3 (c) of the Delhi Rent Control Act excludes from the
operation of the Act premises of which the rent is less than Rs.
3,500/ per month. Hence, to assess the applicability of the Act,
the quantum of rent needs to be ascertained.
34.The plaintiff and defendant are at variance regarding the rate
of rent. The plaintiff has stated the rate of rent to be Rs.5,000/ per
month while the defendant has claimed it to be Rs.1500/ per
month.
35.The plaintiff has examined himself as PW1. He unequivocally
stated in his affidavit Ex.PW1/A that the rate of rent was Rs.5000/
per month. In crossexamination, he denied the suggestion that
the rate of rent of the property is Rs.1500/. Nothing could be
brought out during crossexamination which could cast doubt on
his testimony regarding the rate of rent.
36.The defendant had filed two petitions under Section 27 of Delhi
Rent Control Act. During crossexamination of PW1, he was asked
whether he had withdrawn the rent deposited at the rate of
Rs.1500/ per month in the said courts. The plaintiff/PW1 stated
that he had not withdrawn the said rent. This statement of PW1 of
not having withdrawn the said rent has not been controverted
by the defendant either by his testimony or by producing the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 17 of 55
judicial record. Had he withdrawn the rent, it might have been
inferred that the plaintiff has acknowledged the rate of rent to
be Rs.1500/ per month. However, this has not happened and no
such inference can be drawn. There is nothing to suggest that
the plaintiff accepted the rate of rent to be Rs.1500/ or to
suggest that the plaintiff acquiesced in the jurisdiction of the Rent
Controller trying the cases under Section 27 of Delhi Rent Control
Act. Hence, from the testimony of PW1, it cannot inferred that
the rate of rent is Rs.1500/ per month.
37. The testimony of the plaintiff is corroborated by the deposition
of Mr. Jai Pal Jain, who was examined by the plaintiff as PW2. Mr.
Jai Pal Jain is a tenant in a property in the neighbourhood. The
extent of the property leased to Mr. Jai Pal Jain is similar to that
leased to the defendant as both of them comprise of three
rooms. This is evident from the testimony of PW2 contained in his
affidavit Ex.PW2/A. PW2 Mr. Jai Pal Jain deposed in his affidavit
that the agreed rate of rent of his property is Rs.8,000/ per
month. The deposition could not be controverted during cross
examination. During crossexamination, PW2 was asked whether
he has any rent agreement or other document to show that he is
a tenant in the property or to show that the rate of rent of his
property is Rs.8,000/ per month. He replied in the negative. The
Suit no.347/11 Hukum Chand Vs. Mulak Raj 18 of 55
said omission of PW2 to produce documentary evidence does
not whittle down the effect of his testimony. It is not the case of
the defendant that a rent agreement or any other document
had been executed and that it is being withheld. It is common to
find that tenants are inducted by oral tenancy agreements. The
mere absence of a written agreement does not imply that
tenancy never took place. PW2 has withstood the test of cross
examination. Relying on the testimony of PW2, it can be safely
inferred that he is a tenant in a property in the same vicinity, that
the extent of his property corresponds with the suit property in
size and that the rate of rent of his property is Rs.8,000/ per
month.
38.Since a similar property in the neighbourhood is fetching Rs.
8,000/ per month as rent, there is no reason for the plaintiff to
lease out his property at the rate of rent of Rs.1500/ per month,
as has been contended by the defendant. The defendant has
not been able to point out any special circumstances on
account of which he would have been inducted as tenant at a
rate of rent which is far below the market rate. The defendant
has not pleaded either in his written statement or in his testimony
that there is any defect in the property leased to him on account
of which its rate of rent would be much less than the rate
Suit no.347/11 Hukum Chand Vs. Mulak Raj 19 of 55
prevailing in the locality. The testimony of PW2 lends strength to
the claim of the plaintiff that the agreed rate of rent is Rs.5000/
per month.
39.Similarly, the plaintiff has examined Ms. Chameli Devi and Mr.
Sumant Mehta as PW3 and PW4 respectively. The said witnesses
have tendered their affidavits in evidence as Ex.PW3/A and
Ex.PW4/A respectively. The said witnesses are also tenants in
different properties in the same vicinity. The extent of their
properties has been disclosed by them in their affidavits. The
property leased to Ms. Chameli Devi comprises of four rooms (on
two floors) while the property leased to Mr. Sumant Mehta
comprises of three rooms. The extent of the properties is similar to
that of the suit property. The said properties are located in the
same neighbourhood. The said witnesses have stated the rate of
rent of their properties as Rs.9000/ and Rs.7000/ per month
respectively. Their assertion regarding their tenancy and their
rate of rent could not be disproved during their cross
examination. The testimony of PW3 and PW4 is indicative of the
rate of rent prevailing in the locality and it can be concluded
that as per market rate of rent, the suit property can fetch at
least Rs.5000/ per month as rent.
40.Having regard to the market rate of rent, it would be imprudent
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for a landlord to lease out his property at Rs.1500/ per month. It
would not make sound business sense to induct the defendant as
a tenant at a much lesser rate of rent. This is improbable in the
common course of human conduct and business. Regard may
be had to the provisions of Section 114 of the Evidence Act,
1872. The defendant has failed to make out any ground to
explain why the property may have been leased to him at a
fraction of the prevailing rate of rent. It is not the case of the
defendant that he holds a special position by way of relationship
with the plaintiff or any other circumstance which could induce
the plaintiff to induct him as a tenant at a lesser rate of rent. This
is not a case where there is a minor difference between the
market rate of rent and the rate pleaded by the defendant.
Minor variations between the market rate of rent and the
contractual rate of rent is possible in light of various factors like
the location of the property, the bargaining power of the parties
and others. However, in the present case, the defendant has
claimed that the property has been leased to him at a measly
rate of rent of Rs.1500/ per month, which is substantially lower
than the market rate of rent and is improbable.
41.The plaintiff has also examined his son Mr. Narender Kumar Jain
as PW5. PW5 Mr. Narender Kumar Jain has tendered his affidavit
Suit no.347/11 Hukum Chand Vs. Mulak Raj 21 of 55
Ex.PW5/A in evidence. In his affidavit, PW5 has reiterated that the
rate of rent was Rs.5,000/ per month. He has further deposed
that the said rate of rent has been tendered in his presence by
the defendant to the plaintiff on several occasions. PW5 was
crossexamined on behalf of defendant. In his crossexamination,
he denied the suggestion that the rate of rent of the suit premises
was Rs.1500/ per month. There is nothing in the cross
examination of PW5 which could impeach his credibility. The
testimony of PW5 supports that of the other witnesses and shows
that the rate of rent of the suit property was Rs.5,000/ per month.
42.The defendant adduced evidence in support of his case. He has
examined himself as DW1 and tendered his affidavit Ex.DW1/A in
evidence. In his affidavit, the defendant reiterated his stand that
the rate of rent of the suit property was Rs.1500/ per month. DW1
was crossexamined by counsel for plaintiff. In his cross
examination, DW1 stated that "I do not know what is mentioned
in my affidavit Ex.DW1/A." The said statement of DW1 made
during his crossexamination tends to erode the value of his
assertions contained in his affidavit.
43.The defendant has not placed on record any documentary
evidence showing the rate of rent. In absence of any
documentary evidence to outweigh the testimony of the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 22 of 55
witnesses of the plaintiff, the defendant cannot be stated to
have proved his claim regarding the rate of rent by
preponderance of probability.
44.The testimony of the defendant also appears to be unreliable.
The stand of the defendant taken in his testimony is inconsistent
with that taken in written statement. The plaintiff has stated in the
plaint (paragraphs no.7 and 8) that on 24.12.2010 an inspection
was carried out by officials of NDPL and they found tampering in
the electricity meter installed in the suit property. The plaintiff has
further stated that he had to make payment of Rs.8,510/ in
settlement of the consequential demand of Rs.10,394/ and that
the defendant had refused to clear the said arrears. In response
to the aforesaid plea, the defendant stated in his written
statement (paragraphs no.7 and 8) that the settlement amount
of Rs.8,510/ had been paid by the plaintiff only after receiving
the said sum of money from the defendant. When subjected to
crossexamination, the defendant/DW1 admitted that the said
settled amount was paid by the plaintiff himself. It is stated in
crossexamination of DW1 that "It is correct that the plaintiff had
settled the said dispute with the NDPL and paid Rs.8510/." The
assertions of the defendant are inconsistent. Similarly, in
paragraph no.7 of reply on merits of written statement, the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 23 of 55
defendant has assailed the legality of impugned bill of Rs.
10,394/ whereas during crossexamination, the defendant
denied the very raising of any such bill. DW1 stated that "I am not
aware whether any electricity theft case was made against me. I
do not know whether any bill pertaining to Rs.10,394/ in respect
of the raid conducted by NDPL officials was ever raised by the
NDPL..." It is not understood as to how the defendant could
question the validity of a bill which he does even know to be in
existence. The aforesaid contradictions show that the defendant
is not worthy of credit. His testimony cannot be relied upon to
conclude that the rate of rent was Rs.1500/ per month and not
Rs.5,000/ per month.
45.The defendant has attempted to buttress his plea regarding rate
of rent by relying upon the testimony of DW2 Mr. Virender Singh,
DW3 Mr. Sukhdev Singh and DW4 Mr. Hans Raj. The aforesaid
witnesses have tendered their affidavits in evidence as
Ex.DW2/A, Ex.DW3/A and Ex.DW4/A respectively. They have
stated in their affidavits that in their presence, the defendant
paid rent of Rs.1500/ to the plaintiff as monthly rent on different
occasions. On evaluation of the testimony of the three witnesses,
it is observed that the witnesses have deposed regarding transfer
of money from the defendant to the plaintiff. Even assuming the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 24 of 55
testimony to be correct, that would only show that money
exchanged hands. Whether the said sum was accepted by the
plaintiff as full payment of rent or whether it was received only as
partial payment has not been deposed by the witnesses. The
witnesses do not appear to have any knowledge of the terms of
agreement between the plaintiff and the defendant. They have
claimed that they simply happened to be present at the spot at
the time when Rs.1500/ was paid by the defendant to the
plaintiff towards monthly rent. They have not deposed, and
could not have deposed, whether this was the agreed rate of
rent, or whether any other sum was paid before or after the said
date. They have no means to know whether the plaintiff had
received the said sum of money as entire payment or as part
payment and therefore could not have deposed in this respect.
None of the witnesses have stated that the tenancy agreement
had been arrived at between the parties to the suit in their
presence. Hence they are not competent to depose about the
quantum of rent agreed under the contract.
The said witnesses appear to have deposed only at the instance
of the defendant without having personal knowledge of the
terms of the contract. All the said witnesses have admitted that
they are not aware of terms of tenancy.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 25 of 55
During crossexamination, DW2 Mr. Virender Singh admitted that
he is not aware as to when the defendant took the property on
rent. He has also admitted that he is unaware of the terms and
conditions of tenancy. He has stated as follows:
"I cannot tell when the suit property was taken on rent by the
defendant. I cannot tell about the terms and conditions which
were being made at the time of giving of the suit property on
rent by the plaintiff to the defendant as it was not being done in
my presence."
DW3 Mr. Sukhdev Singh has also stated in his crossexamination
that he is unaware of the date on which the suit property was let
out and that he is also not aware about the terms and conditions
of tenancy. He has deposed as under:
"It is correct that I am not aware of the date on which the suit
property was taken on rent by the defendant and I am not
aware of the terms and conditions which were laid down by the
plaintiff to the defendant."
He has further stated that "I do not know the rent of the suit
property is Rs.5,000/ per month."
It is important to note that DW3 has not emphatically denied the
suggestion that the monthly rent of the suit property was Rs.
5,000/. He has only pleaded ignorance of this. This shows that
Suit no.347/11 Hukum Chand Vs. Mulak Raj 26 of 55
the witness is not aware of the rate of rent and had only
witnessed some payment being made by the defendant to the
plaintiff.
DW4 Mr. Hans Raj has also stated in his crossexamination that he
is not aware about the terms and conditions of tenancy. He has
stated as under:
"It is correct that I am not aware of the terms and conditions
which were made at the time of renting the suit property by the
plaintiff to the defendant."
46.For the aforesaid reasons, the testimony of DW2, DW3 and DW4
do not advance the case of the defendant as to the contractual
rate of rent. None of the said witnesses were present at the time
of creation of tenancy. The aforesaid witnesses have clearly
admitted in their crossexamination that they are not aware of
the contractual terms. Hence their testimony cannot be used by
the defendant to support his contention that under his contract
with the plaintiff, the agreed rate of rent was Rs.1500/ per month
and not Rs.5,000/ per month.
47.There is another factor that indicates that the rate of rent of the
suit property was Rs.5,000/ per month. This factor is the failure of
the defendant to reply to the legal notice served upon him. The
plaintiff has stated in his plaint that he has served legal notice
Suit no.347/11 Hukum Chand Vs. Mulak Raj 27 of 55
dated 28.05.2011 Ex.PW1/4 upon the defendant. The plaintiff has
reiterated the said testimony in his affidavit Ex.PW1/A. Plaintiff has
also identified the postal receipts as Ex.PW1/4B and the
acknowledgment card as Ex.PW1/4A. The defendant has
admitted in his crossexamination that the address stated in the
notice is his correct address and that he has been occupying the
said address. Since the defendant has admitted that the legal
notice and its postal receipts bear his correct address, it implies
that the notice has been sent at the correct address. The
genuineness of the postal receipts has not been called in
question. From the testimony of the PW1, duly corroborated by
the legal notice and postal receipts, it is clear that the notice
had been sent at the correct address. The defendant has failed
to disclose any reason which could have prevented the service
of notice upon him. Moreover, the acknowledgment card
Ex.PW1/4A indicates that the notice was indeed delivered at the
said address. The plaintiff has suggested to defendant during the
crossexamination of the latter that signatures on the AD card
are of the wife of defendant. The defendant has denied the
suggestion but has not supported his denial with the aid of
documents admittedly signed by his wife. He has made no effort
to have the signatures on the AD card compared with signatures
Suit no.347/11 Hukum Chand Vs. Mulak Raj 28 of 55
of his wife on other documents to show that the signatures on the
AD card are not of his wife. Moreover, when DW1 was further
questioned on this point, he stated that he does not remember
whether his wife has given him the said notice. Significantly, DW1
has not denied the suggestion that his wife had given him the
said notice. He merely stated that he does not remember this.
This shows that the defendant is unsure as to whether the notice
was handed over to him by his wife or not. This implies that the
defendant does not deny at least that the legal notice was
served upon his wife. Even otherwise there is a legal presumption
in favour of service of notice. Under Section 114 of Evidence Act,
the existence of facts which are likely to have happened in the
ordinary course of human conduct and business may be
presumed. Particular reference may be made to illustration (f) of
Section 114. By common course of business, the legal notice
would have been received by the defendant. Under Section 27
of the General Clauses Act, 1897 also, the service of legal notice
upon the defendant may be presumed.
As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla,
1980 (2) AIRCJ 543, a mere bald denial by the defendant of
service of notice is not sufficient to rebut the presumption under
Section 114 of illustration (f) of the Evidence Act. Some other
Suit no.347/11 Hukum Chand Vs. Mulak Raj 29 of 55
evidence to show the interruption of post has to be adduced by
the tenant.
On this point, the Hon'ble High Court of Delhi has, in the case of
Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR
1996 Delhi 32 noted thus:
"From Ex. P1 to P11 it is proved and established that the
aforesaid notice dated 12.12.1988 (Ex. P1) terminating the
tenancy was dispatched to defendant No. 2 at its registered
office and also to the appellant No. 1 and 3 at their
addresses at 5, Golf Links, where they were admittedly
residing, as is disclosed from the evidence of DW 1/appellant
No. 1. In view of the dispatch of the said notices to the
appellants/defendants individually at their proper addresses
now the question arises as to whether a presumption of
service of notice could be drawn in favour of the plaintiff or
not. The basic law of presumption of service of notice is
permitted under the provisions of Section 27 of the General
Clauses Act and also under the provisions of Section 114 of
the Evidence Act. The earliest case on the issue of drawing of
presumption of service under such circumstances is probably
the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918
Privy Council 102, wherein it was held that if a letter properly
directed containing a notice to quit, is proved to have been
put in the post office, it is presumed that the letter reached its
destination at the proper time according to the regular
course of business of the post office and was received by the
person to whom it was addressed and that presumption
would apply with still greater force to letters which the sender
had taken the precaution to register. In the case of M/s.
Madan v. Wazir J.V. Chand the Apex Court had held that all
that a landlord can do is to comply with the provision is to
Suit no.347/11 Hukum Chand Vs. Mulak Raj 30 of 55
post a prepaid registered letter (acknowledgment due or
otherwise) containing the tenant's correct address and that
once the same is done and a letter is delivered to the post
office, he has no control over it and that it can then be
presumed to have been delivered to the addressee under
Section 27 of the General Clauses Act. The above being the
settled law and in the present case it having been proved by
the plaintiffs that a notice as envisaged under Section 106 of
the Transfer of Property Act having been issued by the
plaintiffs to the concerned defendants at their residential
address in accordance with law, it can well be presumed
under the aforesaid provisions statutory as well as case laws
that the said notices have been duly served on the said
defendants and therefore, in that view of the letter we do not
find any infirmity to interfere with the findings of the learned
trial court that the notice terminating the tenancy was duly,
properly and validly served on the defendants."
Reference may also be made to the case of C.C. Alavi Haji
Vs. Palapetty Muhammed & Anr., 2007(2) DCR 321 SC in
which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice
has been effected when it is sent to the correct address by
registered post. In view of the said presumption, when stating
that a notice has been sent by registered post to the address
of the drawer, it is unnecessary to further aver in the
complaint that in spite of the return of the notice unserved, it
is deemed to have been served or that the addressee is
deemed to have knowledge of the notice. Unless and until
the contrary is proved by the addressee, service of notice is
deemed to have been effected at the time at which the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 31 of 55
letter would have been delivered in the ordinary course of
business".
48.It is therefore safe to presume that the said legal notice was duly
served upon the defendant. The legal notice Ex.PW1/4 states,
inter alia, that the rate of rent of suit property was Rs.5,000/ per
month. The defendant has not replied to the said legal notice.
Failure to reply to the legal notice implies acceptance of
correctness of its contents. Had the rate of rent been different
from that stated in the legal notice, the defendant would surely
have responded to the said notice to state the correct rate of
rent and to deny his liability to pay rent at the rate claimed by
the plaintiff. No such disclaimer has been sent by the defendant.
The failure of the defendant to reply to the notice bolsters the
claim of the plaintiff that the rate of rent was Rs.5,000/ per
month.
49.It may be noted here that the onus to prove the aforesaid issue
was upon the defendant. The defendant ought to have led
cogent and convincing evidence to outweigh the testimony of
the plaintiff and to prove that the rate of rent was Rs.1500 per
month. Since the burden lay upon the defendant, the evidence
led by defendant ought to have, overwhelmingly and by
preponderance of probability, proved that the rate of rent was
Suit no.347/11 Hukum Chand Vs. Mulak Raj 32 of 55
not Rs.5000/ but Rs.1500/ per month. The defendant has failed
to attain this standard of proof. In the result, the rate of rent is
held to be Rs.5000/ per month.
C. That the suit property lies in a locality in which the Delhi Rent
Control Act applies
50.Section 1 (2) of the Delhi Rent Control Act provides as under:
"It extends to the areas included within the limits of the New
Delhi Municipal Committee and the Delhi Cantonment Board
and to such urban areas within the limits of the Municipal
Corporation of Delhi as are specified in the First Schedule:
Provided that the Central Government may, by notification in
the Official Gazette, extend this Act or any provision thereof, to
any other urban area included within the limits of the Municipal
Corporation of Delhi or exclude any area from the operation of
this Act or any provision thereof."
From the aforesaid provision, it is clear that the Delhi Rent Control
Act applies to areas under the New Delhi Municipal Committee,
the Delhi Cantonment Board, and to such urban areas of the
Municipal Corporation of Delhi as are specified in the First
Schedule or are subsequently included in the Corporation and
notified by the Central Government.
51.The area of Budh Vihar, PhaseI is not under the jurisdiction of
New Delhi Municipal Committee or the Delhi Cantonment Board.
The question that arises is that whether the area, having been
Suit no.347/11 Hukum Chand Vs. Mulak Raj 33 of 55
urbanized and included within the purview of the Municipal
Corporation of Delhi, is brought within the folds of the Act.
52.The proviso to Section 1(2) of the Act provides that the Act
would govern a locality subsequently included under the
Municipal Corporation of Delhi only if the said area has been
notified by the Central Government for this purpose. The Hon'ble
Supreme Court has also underlined the need for such a
notification, in the case of Mitter Sen Jain v. Shakuntla Devi
85(2000) DLT 658. This has been reiterated by Hon'ble High Court
of Delhi in the case of Brahma Devi Vs. Krishna Devi, 1996 (39)
DRJ 747. In the case of Sarvesh Kumar & Anr. vs. Ratan Lal RSA
No.38687/2006 dated 30.3.2011, the Hon'ble High Court of Delhi
emphasized that the defendant ought to prove the said
notification in his defence so as to rely on it.
53.In the present case, the defendant has made no attempt to
produce or prove such a notification whereby the operation of
the Act may have been extended to the area within which the
suit property is located. The defendant has not given particulars
of any such notification. He has not even asserted the existence
of such a notification. Section 91 of the Evidence Act lays down
that matters which are required to be in writing can be proved
only by producing the document containing the said matter.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 34 of 55
Hence, the notification stands not proved.
54.From the aforesaid, it may be concluded that the defendant
has failed to prove that the rate of rent of the suit property was
less than Rs.3500/ per month and has also failed to prove that
the suit property falls within an area to which the Delhi Rent
Control Act applies. The ingredients not having been fulfilled, it is
inferred that the Delhi Rent Control Act, 1958 does not apply to
the suit property. Consequently, the present suit is not barred by
Section 50 of the Delhi Rent Control Act, 1958.
55.The issue is decided in favour of the plaintiff and against the
defendant.
ISSUE NO.3
"Whether the plaintiff has not filed the appropriate Court Fees?
OPD."
56.The onus to prove this issue was upon the defendant. The
defendant has stated in his written statement that the plaintiff
has not paid appropriate court fees. The defendant has not
disclosed the relief in respect of which, according to him,
appropriate court fee has not been paid. The plea of the
defendant contained in paragraph no.22 of his written statement
is vague.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 35 of 55
57.The present suit has been filed for recovery of possession,
permanent injunction, mandatory injunction, mesne profits and
arrears of rent. The plaintiff has provided separate value for each
of the said prayers in paragraph no.22 of the plaint.
58.The relief of possession has been valued by the plaintiff as
Rs.60,000/. Under Section 7 (xi) of the Court Fees Act, a suit for
ejectment of tenant is required to be valued at the annual rate
of rent. According to the plaintiff, the monthly rent is Rs.5,000/
per month. Defendant has not pleaded that the rate of rent was
more than the said sum. Hence, computing the value of the suit
as per the said rate of rent, it is concluded that the plaintiff has
correctly valued the suit at Rs.60,000/. The court fee paid for the
said relief is Rs.2930/ which is in accordance with the ScheduleI
of the Court Fees Act, 1870.
59.The plaintiff has valued his prayers for permanent and
mandatory injunction at Rs.130/ each. He has paid court fees of
Rs.13/ each for the said reliefs. This is in accordance with Section
7 (iv) (d) of the Court Fees Act, 1870 read with ScheduleI of the
said Act.
60.The plaintiff has prayed for recovery of arrears of rent of
Rs.30,000/. He has valued the said relief at Rs.30,000/. The value
of the prayer is in accordance with Section 7 (i) of the Court Fees
Suit no.347/11 Hukum Chand Vs. Mulak Raj 36 of 55
Act. For the said relief, court fees of Rs.2344/ has been affixed
which is in accordance with ScheduleI of the Court Fees Act,
1870.
61.The plaintiff has also prayed for recovery of mesne
profits/damages. Mesne profits/damages have been sought only
for the period subsequent to institution of the suit. It has not been
claimed for the period antecedent to the suit. It is trite law that
claim for prelitigation mesne profits/damages is valued as per
Section 7 (i) of the Court Fees Act. Since no such prayer has
been made, the plaintiff is not required to affix ad valorem court
fee.
62.For the mesne profits claimed for the period of pendency of the
suit, ad valorem court fee is payable by the plaintiff but the same
is not capable of being quantified at the time of institution of the
suit. While filing the suit, a plaintiff is not aware of the period that
will be consumed in deciding the suit and therefore he is unable
to quantify the value of relief of pendente lite mesne profits at
that stage. Taking note of this situation, the law entitles the
claimant to make a tentative valuation for the said relief and
pay court fee accordingly. As per Section 11 of the Court Fees
Act, 1870, for a prayer for mesne profits, the plaintiff is at liberty to
pay the deficient court fees even after passing of judgment and
Suit no.347/11 Hukum Chand Vs. Mulak Raj 37 of 55
before execution of the decree. The plaintiff is therefore only
required to provide merely an estimate and the deficiency in
court fee can be made good by him after passing of the
decree. The plaintiff herein has paid court fees of Rs.100/ for the
said relief. The said deposit of court fee cannot be held to be
improper and the deficiency in the court fee can be, and is
legally required to be, paid by the plaintiff after passing of
decree. Hence no infirmity is found on this count as well.
63.All the aforesaid prayers have been correctly valued and proper
court fees has been paid thereon. There is no merit in the plea of
the defendant. The issue is decided in favour of the plaintiff and
against the defendant.
ISSUE NO.4
"Whether the plaintiff is entitled to recovery of possession, as
prayed? OPP."
64.The onus to prove this issue is upon the plaintiff. According to the
plaintiff, the tenancy of the defendant has been terminated by
service of notice under Section 106 of the Transfer of Property
Act.
65.On the other hand, the defendant has denied that he has
received any such notice. According to the defendant, he
continues to be the tenant of the plaintiff.
66.It is not in dispute between the parties that the defendant has
Suit no.347/11 Hukum Chand Vs. Mulak Raj 38 of 55
been the tenant of the plaintiff. Reference is made to paragraph
no.2 of the plaint and the corresponding paragraph of reply on
merits of the written statement. The defendant has been
accepting the plaintiff as his landlord and has admittedly been
tendering rent to him. It is thus indubitably established that the
defendant is the tenant of the plaintiff in the suit property.
67.It is not in dispute that the tenancy is for purposes other than
agriculture and manufacture and as per Section 106 of the
Transfer of Property Act, 1882 it is treated as a month to month
tenancy. That this is a monthly tenancy is also borne out from the
testimony of the defendant/DW1. The defendant has admitted
that he is residing in the suit property with his family. By the
admissions of the parties, it stands proved that this is a monthly
tenancy. As per Section 106 of the Transfer of Property Act, 1882,
the tenancy is terminable by fifteen days' notice.
68.According to the plaintiff, he had sent the said notice for
termination of tenancy and the same was duly served upon the
defendant. This plea finds mention in the plaint and has been
reiterated in the testimony of the plaintiff PW1 in his affidavit Ex.
PW1/A. The plaintiff has also identified the legal notice dated
28.05.2011 as Ex.PW1/4. That the said notice has been served
upon the defendant, has already been noted above while
Suit no.347/11 Hukum Chand Vs. Mulak Raj 39 of 55
deciding issue no.2, and the reasons are not repeated herein. It is
concluded that the notice was served upon the defendant.
69.The legal notice dated 28.05.2011 Ex.PW1/4 states that the
tenancy of the defendant is terminated and the defendant shall
vacate the suit property by 17.06.2011. The legal notice was
dispatched on 28.05.2011 as is evident from the postal receipts. It
was dispatched from Delhi and was destined for Delhi. It affords
fifteen days' time for vacating the suit property. The notice
satisfies the requirement of Section 106 of Transfer of Property
Act, 1882. By way of the said legal notice, tenancy of the
defendant stood terminated, in keeping with Section 111(h) of
the Transfer of Property Act, 1882. The defendant therefore
became liable to hand over the vacant possession of the suit
property to the plaintiff.
70.The defendant has denied being served with notice of
termination of tenancy. As held above, the said denial is not
sufficient and is not supported by any evidence to rebut the
presumption of service of notice. Hence, the said denial is liable
to be rejected and the notice shall be treated as having been
served upon the defendant, which in turn has terminated the
tenancy. Yet, even if it is assumed that the said notice was not
delivered to the defendant, that would not sustain the tenancy.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 40 of 55
In that event, the institution of the present suit shall be treated as
notice of termination of tenancy since the intention to terminate
the tenancy has been unequivocally expressed in the plaint. The
Hon'ble Supreme Court has, in the case of Nopany Investments
(P)Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728, held that the
tenancy would stand terminated on filing of a suit for eviction.
This decision has been followed by Hon'ble High Court of Delhi in
the case of M/s. Jeevan Diesels & Electricals vs M/s. Jasbir Singh
Chadha (Huf) & RFA No.179/2011 dated 25.3.2011. Hence, from
the expiry of fifteen days from the institution of the suit, the
tenancy has stood terminated and the plaintiff has become
entitled to recover vacant physical possession of the suit
property.
71.From the above, it is clear that the tenancy of the defendant
has been terminated. Since the tenancy has been terminated,
the defendant has become an unauthorized occupant. He is
under an obligation to deliver vacant physical possession of the
suit property to the plaintiff, as prayed by the plaintiff. The plaintiff
has further prayed for mandatory injunction directing the
defendant to remove his belongings from the suit property. This
prayer of the plaintiff is subsumed within, and implicit in, the
prayer for recovery of possession.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 41 of 55
72.The defendant is duty bound to remove his belongings from the
suit property and then hand over vacant physical possession of
the suit property to the plaintiff.
73.For the aforesaid reasons, the plaintiff is entitled to mandatory
injunction directing the defendant to remove his belongings from
the suit property. The plaintiff is entitled to thereafter receive
vacant physical possession of the suit property from the
defendant. The issue is decided in favour of the plaintiff and
against the defendant.
ISSUE NO.5
"Whether the plaintiff is entitled to permanent injunction as
prayed? OPP."
74.The onus to prove this issue was upon the plaintiff. The plaintiff
has prayed for permanent injunction restraining the defendant
and his representatives from creating third party interest in the
suit property.
75.As held above, the plaintiff has succeeded in proving that he is
entitled to recover possession of the suit property from the
defendant. The defendant has to become an unauthorized
occupant, his tenancy having been terminated. As such, the
defendant is not entitled to create third party interest in the suit
property. The plaintiff is entitled to permanent injunction
Suit no.347/11 Hukum Chand Vs. Mulak Raj 42 of 55
restraining the defendant from doing so.
76.Even if it is assumed that the tenancy of the defendant had not
been terminated and that it continues to subsists, the plaintiff
would then be landlord and the defendant would be a tenant in
the suit property. As a tenant too, defendant does not enjoy the
right to create third party interest in the suit property. The plaintiff
is entitled to restrain the defendant from doing so.
77.The issue is decided in favour of the plaintiff and against the
defendant.
ISSUE NO.6
"Whether the plaintiff is entitled to recovery of arrears of rent,
and if so, to what extent? OPP."
78.The onus to prove this issue was upon the plaintiff. Plaintiff has
claimed recovery of arrears of Rs.30,000/. According to the
plaintiff, the defendant was his tenant and the rate of rent was
Rs.5,000/ per month. Further, according to the plaintiff, the
defendant has not been paying rent since December 2010. The
plaintiff has therefore prayed for arrears of rent for the period
from December 2010 to May 2011 i.e. for a period of six months
at the rate of Rs.5,000/ per month, the aggregate amounting to
Rs.30,000/.
79.The defendant has disputed his liability to pay arrears of rent.
According to the defendant, he has been regularly making
Suit no.347/11 Hukum Chand Vs. Mulak Raj 43 of 55
payment of rent. The defendant has urged that he has paid rent
till the month of April 2011 directly to the plaintiff. It is further
pleaded by the defendant that for the subsequent period the
plaintiff had refused to accept rent and therefore the defendant
had to deposit rent in the court of Rent Controller under Section
27 of Delhi Rent Control Act. The defendant has further stated
that the rate of rent was not Rs.5,000/ per month but Rs.1500/
per month.
80.To prove his claim for arrears of rent, the plaintiff is required to
establish that the defendant was his tenant in the suit property,
that the rate of rent was Rs.5,000/ per month, and that the
defendant has not paid rent for the period from December 2010
till May 2011. It shall be assessed hereinafter whether the plaintiff
has succeeded in proving the above.
81.As has been noted above, the existence of landlord tenant
relationship between the parties stands admitted by them. The
plaintiff has stated in paragraph no.2 of the plaint that the
defendant is his tenant in the suit property. The defendant has
admitted this in the corresponding paragraph of his written
statement. It therefore stands proved by the admission of the
parties that the defendant is the tenant of the plaintiff in the suit
property.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 44 of 55
82.The plaintiff has pleaded in the plaint that tenancy subsisted till it
was terminated on 17.06.2011 by service of legal notice dated
28.05.2011 Ex.PW1/4. The defendant, on the other hand, has
pleaded that tenancy continues to subsist. Hence from the
pleadings of the parties, it stands proved that for the period from
December 2010 till May 2011, tenancy of the defendant was in
existence.
83.There is a dispute between the parties regarding the rate of rent.
According to the plaintiff, the rate of rent was Rs.5,000/ per
month. The defendant, on the other hand, has claimed that the
rate of rent was Rs.1500/ per month. This disputed question of
fact has already been settled above while deciding issue no.2
and it has been concluded that the rate of rent was Rs.5,000/
per month. Hence, it is inferred that the agreed rate of rent of the
suit property was Rs.5,000/ per month.
84.The plaintiff has claimed that the rent was not paid by the
defendant for the period commencing from December 2010 till
May 2011. According to the defendant, he has paid rent directly
to the plaintiff till the month of April 2011 and for the subsequent
period, he has deposited rent before the Rent Controller under
Section 27 of Delhi Rent Control Act.
85.The plaintiff has reiterated his plea of nonpayment of rent in his
Suit no.347/11 Hukum Chand Vs. Mulak Raj 45 of 55
own testimony. He has stated in his affidavit Ex.PW1/A that rent
was not paid during the said period. The plaintiff/PW1 was cross
examined by the defendant. In his crossexamination, he denied
the suggestion that rent was paid for the said period.
86.The plaintiff has sought to support his plea by the testimony of his
son PW5 Mr. Narender Kumar Jain. PW5 has also reiterated the
same assertion in his affidavit Ex.PW5/A. In his crossexamination,
he denied the suggestion that rent was paid for the said period.
87.The defendant has supported his claim of having paid rent by his
own testimony. He has examined himself as DW1 and has
tendered his affidavit Ex.DW1/A in evidence. He has deposed
that he paid rent to the plaintiff till the month of April 2011 and
that he has deposited the rent for the subsequent months before
the Rent Controller under Section 27 of Delhi Rent Control Act.
When crossexamined, the defendant remained steadfast on this
stand.
88.The defendant examined DW3 Mr. Sukhdev Singh and DW4 Mr.
Hans Raj to corroborate his version of having paid rent. DW3 Mr.
Sukhdev Singh stated in his affidavit Ex.DW3/A that in his
presence rent for the month of January 2011 was paid to the
plaintiff. DW4 Mr. Hans Raj stated in his affidavit Ex.DW4/A that in
his presence rent for the month of February 2011 was paid to the
Suit no.347/11 Hukum Chand Vs. Mulak Raj 46 of 55
plaintiff.
89.From the above, it is noticed that on one hand PW1 and PW5
have asserted that the defendant has failed to pay rent for the
aforesaid period, on the other hand, DW1, DW3 and DW4 have
testified that rent has been paid. All the witnesses have
maintained their stand during crossexamination. Nothing could
be brought out in their crossexamination which could discredit
their claims. Thus, the oral version of the plaintiff and his witnesses
is pitted against that of the defendant and his witnesses. The
plaintiff has not been able to lead evidence which could
outweigh that of the defendant. Ordinarily it is the person who
makes payment who must prove that payment has been made.
It is the payer who is expected to be in possession of receipts of
payment. However, in the present case, since the plaintiff has
admitted in his crossexamination that he has not been issuing
rent receipts, no adverse inference can be drawn against the
defendant for his inability to produce receipts of payment of
rent. The plaintiff has failed to prove his version by
preponderance of probability. Since the onus to prove this issue
was upon the plaintiff, for his failure to lead cogent and
convincing evidence that could discredit the version of the
defendant, it must be inferred that the defendant has made
Suit no.347/11 Hukum Chand Vs. Mulak Raj 47 of 55
payment of rent to the plaintiff for the months of December 2010
to April 2011.
90.For the month of May 2011, the defendant has stated in his
written statement that he has deposited rent before the Rent
Controller under Section 27 of Delhi Rent Control Act. This plea
has been reiterated in the affidavit Ex.DW1/A tendered in
evidence by the defendant. The plaintiff has admitted in his
crossexamination that rent had been deposited before the Rent
Controller by the defendant by way of a petition under Section
27 of Delhi Rent Control Act. The plaintiff has however stated that
he has not withdrawn the said rent. This denial of withdrawal of
rent could not be disproved by the defendant. From the above,
it is concluded that rent for the month of May 2011 was
deposited by the defendant before the Rent Controller and was
not withdrawn by the plaintiff.
91.While deciding issue no.2, it was held that the suit property is not
governed by the Delhi Rent Control Act. The deposit of rent by
the defendant under Section 27 of Delhi Rent Control Act is
therefore not valid. Consequently, the plaintiff cannot be
compelled to withdraw rent from the court of Rent Controller. The
plaintiff is entitled to receive rent directly from the defendant.
Hence, the deposit of rent by the defendant before the Rent
Suit no.347/11 Hukum Chand Vs. Mulak Raj 48 of 55
Controller does not absolve him from paying rent to the plaintiff.
As such, for the month of May 2011, the plaintiff is entitled to
recover rent of Rs.5,000/ from the defendant.
92.The defendant has succeeded in proving that for the months of
December 2010 till April 2011, he paid rent directly to the plaintiff.
This quantum of rent so paid has been stated by the defendant
as well as DW3 and DW4 to be Rs.1500/ per month. As held
above, agreed rate of rent was Rs.5,000/ per month. Hence,
after taking into account payment that was made for the
months of December 2010 till April 2011 and after setting it off,
the plaintiff is entitled to receive from the defendant a sum of
Rs.3,500/ for each of the said months, the total amounting to
Rs.17,500/.
93.In the result, it is held that the plaintiff is entitled to receive a total
sum of Rs.22,500/ from the defendant as arrears of rent for the
months of December 2010 till May 2011. The issue is decided
partly in favour of the plaintiff and against the defendant.
Claim of plaintiff for mesne profits/damages
94.In the plaint, the plaintiff has also prayed for pendente lite and
future mesne profits/damages at the rate of Rs.10,000/ per
month. No separate issue has been framed regarding the said
claim of the plaintiff since Order 20 Rule 12 of Code of Civil
Suit no.347/11 Hukum Chand Vs. Mulak Raj 49 of 55
Procedure contemplates an inquiry into the said mesne profits
after the decision of the suit. However, at the stage of final
arguments, the plaintiff stated that he confines his prayer for
mesne profits and damages at the agreed rate of rent i.e. Rs.
5,000/ per month. In view of the said statement made by
counsel for plaintiff on 07.11.2012, there is no requirement of
holding a separate inquiry into mesne profits/damages. The
Hon'ble High Court of Delhi has also laid down in the case of M/s
Banner India Ltd. Vs. Smt. Savitri Devi Sikand, RSA no.154/05
decided on 15.03.2011 (paragraph no.13) that the inquiry
contemplated by Order 20 Rule 12 of Code of Civil Procedure "is
in the alternate" and may be dispensed with and that in the final
judgment itself, provision may be made for mesne
profits/damages. In view thereof, the claim of the plaintiff for
mesne profits/damages is decided in this judgment itself and no
separate inquiry is being held for the said purpose.
95.The plaintiff has claimed pendente lite and future mesne
profits/damages at the rate of Rs.5,000/ per month. It has
already been held above that the tenancy of the defendant has
been terminated and that the defendant is an illegal occupant
of the suit property. For the said occupation, the defendant must
pay charges to compensate the plaintiff. The question is at what
Suit no.347/11 Hukum Chand Vs. Mulak Raj 50 of 55
rate and for what period should the said charges be paid.
96.The first question which needs to be determined is the date with
effect from which the defendant must pay these charges. It has
already been demonstrated above that the lease was
terminated by way of legal notice dated 28.05.2011 Ex. PW1/4.
The legal notice was dispatched registered post on 28.05.2011
itself, as evident from the postal receipts Ex. PW1/4B. The notice
was dispatched from Delhi and was destined for Delhi. Since the
addressee is of Delhi itself, it is reasonable to assume that the
notice was delivered upon the defendant within four days of the
dispatch. The notice must have been delivered upon the
defendant by 28.05.2011.
97.The notice purports to terminate the tenancy with effect from
17.06.2011. Under Section 106 of the Transfer of Property Act too,
the notice can terminate the tenancy only after fifteen days of its
service. This period has been duly afforded by the notice. That
being so, by service of notice, tenancy stood terminated with
effect from 17.06.2011. From 18.06.2011, the defendant became
an unauthorized occupant in the premises. The defendant is
therefore liable to pay damages/mesne profits for the said
occupation with effect from 18.06.2011 and till vacant physical
possession of the property is handed over to the plaintiff. The
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plaintiff has however claimed mesne profits/damages only from
the date of institution of the suit i.e. 04.07.2011. Since the plaintiff
has prayed for damages/mesne profits with effect from
04.07.2011, there is no impediment in granting the same. Mesne
profits shall be payable till vacant possession of the suit property
is handed over by the defendant to the plaintiff.
98.The quantum of mesne profits is next required to be ascertained.
As held above, the lease has already been terminated and for
this period, the plaintiff is entitled to recover mesne profits. Mesne
profits has been defined by Section 2(12) of Code of Civil
Procedure as profits which the wrongful occupant actually
received or might have, with ordinary diligence, received. It has
been consistently laid down in a catena of decisions that mesne
profits must be awarded on the basis of the market rate of rent.
To determine the quantum of mesne profits/damages, reference
may be made to the case of Bakshi Sachdev (D) by L.Rs. v.
Concord 1993 RLR 563, wherein Hon'ble High Court of Delhi held
that the damages and mesne profits can be granted at a higher
rate than the agreed rate of rent after the expiry of the tenancy
and after taking judicial notice of the phenomenal rise in rents in
Delhi. In the present case, the market rate of rent can be
assessed on the basis of the rent agreed upon between the
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plaintiff and the defendant since there is nothing to suggest that
this was not as per the market rate. It is not the case of either
party that the bargaining position of either of them was weak or
that the rent agreement was unconscionable or onesided.
99.Since the plaintiff has confined his claim over mesne profits to
the agreed rate of rent, there is no impediment in allowing the
same. Taking judicial notice of increase of rentals in Delhi, it can
safely be held that the market rate of rent would at least be Rs.
5,000/ which is the agreed rate of rent. Having regard to the
location and extent of the property too, this would be fair market
rate of rent.
100.It is concluded that the plaintiff is entitled to recover mesne
profits/damages from the defendant at the rate of Rs.5,000/
from the date of institution of the suit i.e. 04.07.2011 till the date
on which vacant possession of the suit property is handed over
by the defendant to the plaintiff.
101.The issue is decided in favour of the plaintiff and against the
defendant.
ISSUE NO. 7 - " Relief"
.
102.In the aforesaid circumstances, the suit is decreed in favour of the plaintiff and against the defendant.
103.A decree of possession is passed in favour of the plaintiff and Suit no.347/11 Hukum Chand Vs. Mulak Raj 53 of 55 the defendant is directed to hand over vacant and peaceful possession of property no.A2/6, Budh Vihar, PhaseI, Delhi shown in red colour in the site plan Ex. PW1/1 to the plaintiff forthwith. A decree of mandatory injunction is also passed in favour of the plaintiff directing the defendant and his representatives to remove their belongings from the said property.
104.A further decree of permanent injunction is passed in favour of the plaintiff restraining the defendant and his representatives from creating third party interest in the aforesaid property.
105.A further decree of recovery of money is passed in favour of plaintiff directing the defendant to pay to the plaintiff a sum of Rs.22,500/ as arrears of rent for the months from December 2010 till May 2011.
106.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff pendente lite mesne profits at the rate of Rs.5,000/ per month from the date of institution of the suit till the date of decree. This direction for payment of pendente lite mesne profits shall be executable only after payment of appropriate court fee thereon.
107.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future mesne profits computed at the rate of Rs.5,000/ per month from the date of decree till Suit no.347/11 Hukum Chand Vs. Mulak Raj 54 of 55 the date on which vacant possession is handed over by the defendant to the plaintiff.
108.The plaintiff is entitled to recover costs of the suit from the defendant.
Decree sheet shall be prepared. File be consigned to record room.
Announced in the open Court (Ashish Aggarwal) on 29 January, 2013. CCJcumARC (NorthWest) th Rohini Courts, Delhi.
Suit no.347/11 Hukum Chand Vs. Mulak Raj 55 of 55