Delhi District Court
Mr. Raaj Vachher vs Mr. Jagdish Madan on 10 January, 2014
IN THE COURT OF SHRI ASHISH AGGARWAL, ADDITIONAL
SENIOR CIVIL JUDGECUMJUDGE, SMALL CAUSES COURTCUM
GUARDIAN JUDGE, NORTH WEST DISTRICT, ROHINI COURTS,
DELHI.
SUIT NO.877/09.
Unique ID no.02404C0248582009.
Mr. Raaj Vachher
S/o Mr. Gobind Ram
R/o N3, Ground Floor,
Mukherjee Nagar,
Delhi110009.
....Plaintiff
Versus
Mr. Jagdish Madan
S/o Mr. Shyam Lal
R/o N3, First Floor,
Mukherjee Nagar,
Delhi110009.
....Defendant
Date of institution : 16.09.2009
Date on which reserved for judgment : 05.12.2013
Date of decision : 10.01.2014
Suit for Possession, Permanent Injunction,
Recovery of Damages and Mesne Profits
Judgment
1.This judgment shall decide the suit filed by the plaintiff. Version of plaintiff
2. The case of the plaintiff is that he is owner of property bearing no. N3, Mukherjee Nagar, Delhi110009. He has averred that he had taken a friendly 1/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 loan from Mr. Shyam Lal, father of the defendant. An agreement dated 09.05.2000 was executed between the plaintiff and Mr. Shyam Lal. The loan amount was Rs.3,00,000/. It was to be repaid with interest at the rate of 2.5% per month. The plaintiff inducted Mr. Shyam Lal into the second floor of the aforesaid property as licensee. The interest on the loan, computed at the rate of 2.5% per month, amounted to Rs.7,500/ per month. Of this, Rs.5000/ was agreed to be treated as license fee and deductible from the sum payable by the plaintiff. It was agreed that the remaining sum of Rs.2500/ would be paid by the plaintiff to Mr. Shyam Lal each month. It was also agreed that the plaintiff shall be entitled to get back possession of the property after paying Rs. 3,00,000/ to Mr. Shyam Lal. It was further agreed that in case of death of Mr. Shyam Lal, the plaintiff would pay Rs.3,00,000/ to the defendant and would recover possession of the suit property from the latter.
3. Later, Mr. Shyam Lal found it difficult to climb stairs to the second floor and therefore he was shifted by the plaintiff to the first floor of the aforesaid property on the same terms. The first floor portion of the property is hereinafter referred to as "the suit property".
4. The plaintiff kept paying interest to Mr. Shyam Lal and after his death to the defendant. The interest was paid in cash. Interest was paid upto the month of May, 2009. In May, 2009, the plaintiff requested the defendant to accept Rs. 3,00,000/ and to vacate the suit property. The defendant agreed to this and requested for a period of one month to vacate the suit property. The defendant later reneged and neither accepted the money nor vacated the property.
5. The plaintiff then sent a legal notice dated 31.07.2009 to the defendant to vacate the suit property and to pay damages. The notice was served upon the defendant. Yet, he did not vacate the suit property. According to the plaintiff, 2/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 the defendant is liable to vacate the suit property and to pay damages to the plaintiff. According to the plaintiff, the defendant is liable to compensate him for the damage caused to the suit property and also to clear electricity and water consumption charges.
6. The plaintiff has filed the present suit praying for a decree of recovery of possession of the suit property. The plaintiff has further prayed for a decree of permanent injunction restraining the defendant and his representatives from creating third party interest in the suit property. The plaintiff has further prayed for a decree of recovery of a sum of Rs.45,000/ as prelitigation, mesne profits, besides pendente lite and future mesne profits and damages. Version of defendant
7. The defendant filed his written statement.
8. In his written statement, he stated that this Court does not have jurisdiction to entertain the suit since the suit is barred by the provisions of Delhi Rent Control Act. The defendant further stated in the written statement that the plaintiff had taken a sum of Rs.5,00,000/ from the father of the defendant in the year 2000. It was agreed that on the said payment possession of second floor of the property would be delivered by the plaintiff to the father of the defendant. The plaintiff agreed to sell the second floor of the house to the father of defendant at Rs.8,50,000/. The plaintiff agreed to execute "necessary documents" after five years. It was agreed that till then the father of the defendant would be entitled to enjoy the possession of the second floor of the house "as its owner". It was also agreed that the said sum of Rs.5,00,000/ paid by father of the defendant would be treated as fixed deposit and that the defendant would be entitled to interest at the rate of 24% per annum. It was also agreed that as an interim measure, the defendant will charge Rs.2500/ 3/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 towards use and occupation charges/rent of the second floor of the house and that balance sum of Rs.7500/ would be adjusted in the fixed deposit of Rs. 5,00,000/. According to the defendant, the sum of Rs.5,00,000/ would, after five years, mature to Rs.9,50,000/ while the sale consideration was only Rs. 8,50,000/ and the plaintiff would also enjoy rental income of Rs.2500/ per month. The father of the defendant "fell trapped" in the offer of the plaintiff and paid Rs.5,00,000/ to him. The father of the defendant then took possession of the second floor of the suit property and started living there.
9. After expiry of a period of five years, the plaintiff did not execute the sale deed. The father of the defendant asked the plaintiff to either execute the sale deed or return the loan amount of Rs.5,00,000/ with interest. The plaintiff requested the father of the defendant to give more time for the aforesaid purpose and offered sale of first floor of the suit property. The plaintiff sought extension for a period of two years on the same terms with the only modification that instead of second floor the first floor of the property would be sold to the father of the defendant. The father of the defendant agreed and shifted to the first floor of the property.
10.The father of the defendant paid electricity and water charges directly to the concerned authorities. It is further stated that the father of the defendant died on 25.03.2006 and the defendant stepped into the shoes of his father. After the extended period of two years, the defendant requested the plaintiff to execute ownership documents. The plaintiff avoided the execution of documents. After six months, the defendant again asked the plaintiff to either execute the documents or return the loan amount with interest. The defendant also requested the plaintiff to provide copy of ownership documents of the suit property. The plaintiff did not accede to the request of the defendant. 4/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09
11.The defendant has further stated that the plaintiff has fabricated the document dated 09.05.2000 filed by the plaintiff. Further, the occupation charges of the property are stated to be Rs.2500/ and not Rs.5,000/. The defendant has denied his liability to make payment of damages. The defendant has also questioned the valuation of the suit.
Admission/denial of documents
12.After completion of pleadings, admission/denial of documents was carried out. The defendant admitted the notice dated 31.07.2009 Ex.C1 (later identified by PW1 as Ex.PW1/1) and AD card Ex.C2 (later identified by PW1 as Ex.PW1/3).
Issues
13.Issues were framed by order dated 15.02.2010 passed by the Ld. Predecessor of the Court, as follows:
1. Whether the plaintiff is entitled for the relief of possession as prayed for? OPP.
2. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP.
3. Whether the plaintiff entitled to mesne profits? If yes, at what rate and for what period? OPP.
4. Whether the plaintiff is entitled to any damages? If yes, on what amount? OPP.
5. Whether this Court has no jurisdiction to entertain this suit being barred by Section 50 of DRC Act? OPD.
6. Whether any loan was taken by the father of the plaintiff? OPD.
7. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD.
5/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09
8. Relief.
14.Issue no.6 noted above was amended and framed afresh by order dated 24.05.2010 as under:
6. Whether a loan of Rs.5,00,000/ was taken from the father of the defendant? OPD.
Plaintiff's evidence
15.The plaintiff led evidence in support of his case. He examined himself as PW1. PW1 tendered his affidavit Ex.PW1 In evidence. He reiterated the averments made in the plaint. He also identified and relied upon a legal notice as Ex.C1, its postal receipt as Ex.PW1/1, AD card as Ex.C2 and copy of agreement dated 09.05.2000 as Mark A. PW1 was cross examined on behalf of the defendant and was then discharged. Plaintiff's evidence was closed. Defence Evidence
16.The defendant led evidence in support of his case. He examined himself as DW1. He tendered his affidavit Ex.DW1/A in evidence. He reiterated the averments made in the written statement. He did not rely upon any document. DW1 was crossexamined on behalf of plaintiff and was then discharged. Defence evidence was closed.
Findings of the Court
17.I have heard final arguments advanced by ld. counsels for the parties. The issuewise findings are as follows:
Issue No.1 "Whether the plaintiff is entitled for the relief of possession as prayed for? OPP. "
and 6/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 Issue No.6 "Whether a loan of Rs.5,00,000/ was taken from the father of the defendant? OPD."
18.Issues no.1 and 6 are connected with each other and are therefore decided together. The onus to prove that the loan advanced by the father of the defendant was Rs.5,00,000/, was upon the defendant. The onus to prove the entitlement of the plaintiff to the relief of possession, was upon the plaintiff.
19.It is the admitted case of the parties that money was paid by Mr. Shyam Lal, father of the defendant to the plaintiff. The quantum of money and the purpose for which it was paid are matters on which divergent versions have been presented by the parties. While the plaintiff has contended that it was Rs. 3,00,000/ which was paid, the defendant has urged that Rs.5,00,000/ was advanced. According to the plaintiff, the sum was advanced as loan without creating any proprietary interest over the suit property, whereas the defendant has pleaded that the said payment was made towards purchase of the property. The terms of agreement between the plaintiff and the father of the defendant need to be ascertained by evaluating the evidence led by the parties. Once a finding is arrived at regarding the said terms, the nature of the transaction (whether it amounts to an agreement to sell, mortgage, lease or license) may be inferred.
20.The plaintiff has stated in the plaint that the terms and conditions of the agreement were embodied in the document dated 09.05.2000. The said document was identified by the plaintiff as mark A in his testimony. The testimony of the plaintiff that the terms of agreement were reduced into writing, has not been rebutted by evidence in defence. The testimony of 7/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 plaintiff/PW1 has withstood the test of crossexamination. The defendant has not been able to impeach the genuineness of the document by cross examination. A mere suggestion was put to the defendant that the document is not a genuine one and the suggestion was denied. The defendant has not led cogent and convincing evidence to establish that the contractual terms were not reduced into writing. This is despite the fact that onus to prove the quantum of money paid by the father of the defendant (which contention stands negated by the said document) had been placed upon the defendant. Since the agreement has been reduced into writing, the said document alone has to be read to ascertain the terms of agreement. As per Section 61 and 91 of the Evidence Act, if the terms of an agreement are reduced into writing, the said terms can be proved only by proving the said document. Oral evidence to demonstrate the terms of the agreement is not admissible. This principle is based upon the "best evidence rule". Hence, the covenants set out in the agreement mark A are to determine the rights of the parties.
21.The document mark A is notarized by a public notary. A document is attested by a public notary, as per Section 8 (1) (a) of the Notaries Act, 1952, only after verifying its execution. The fact that the document mark A has been so attested implies that the notary had satisfied himself of its due execution by the executants named therein. There is a presumption of due discharge of official acts as per Section 114 of Evidence Act, 1872. Reference may particularly be made to illustration (e) of the said provision. By operation thereof, it is presumed that the document mark A was duly executed by the executants mentioned therein including the father of the defendant. It is for the defendant to rebut the said presumption. The defendant has failed to do so.
22.The defendant has denied the signatures of his father on the aforesaid 8/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 document and has examined himself to buttress his version. It is relevant to note that while the version of the plaintiff is backed by his own testimony, the defendant has not been able to prove by the testimony of his father that the said document was not signed by his father. As per the aforesaid document mark A there were no witnesses to the document. Had the defendant or other person been present, he would have signed as a witness and the space meant for this purpose would not have been left blank. The persons present at the time of execution of the document were apparently the executants themselves and a notary. Also, it is unlikely that the defendant was present there since in his testimony he has stated that the document was not executed in his presence. The persons who are purported to have signed a document are in the best capacity to depose as to whether or not the said document was so signed. The plaintiff has contended that he had signed the document. He has proved this fact by his testimony. The defendant has urged that his father had not signed the document. He could not examine his father to support his plea of denial of signatures. The father of the defendant was the best person to depose on this point. The Court did not have the benefit of his testimony since he had expired. The defendant need not necessarily be aware of all documents signed by his father during his life time. His denial of signatures of his father on the said document is therefore feeble, particularly in absence of explanation of source of belief. He has not explained as to why he believes that the document had not been signed by his father. The defendant is not a party executant. He is not competent to state whether such an agreement was executed by his father or not.
23.The defendant also did not try to summon the notary who is purported to have attested the said document. The defendant could have obtained the particulars 9/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 of the notary on the basis of the registration number mentioned in his seal. The defendant could have secured the presence of the notary to testify about the execution of the document. However the defendant did not take any such step. The irresistible conclusion is that the defendant apprehended that the testimony of the notary would be unfavourable to the defendant. That is the only conceivable reason for withholding the witness from the Court. Since the plaintiff had examined himself to depose about the execution of the document, the onus had shifted to the defendant and it was obligatory upon him to have examined the said notary. From the aforesaid, it appears that the signatures of the father of the defendant on the document mark A are genuine.
24.The defendant has also not placed on record any other document signed by his father from which the signatures on the document mark A could have been compared to assess the genuineness of signatures on the disputed document. Being the son of Mr. Shyam Lal, the defendant would surely have been in possession of documents signed by Mr. Shyam Lal. The defendant could have produced the said documents but the defendant chose to withhold the same. Since the purported executant is father of the defendant and the defendant must be in possession of the documents of his late father, it was incumbent upon the defendant to produce the said documents. This is notwithstanding the fact that the onus to prove the issue may be upon the plaintiff. Even if onus is not on a party to prove an issue, if he is in possession of a material document relating to the issue, it is his duty to produce the document. He cannot escape this responsibility on the ground that the burden to prove the issue was not upon him. In the case of Hiralal and Ors. v. Badkulal and Ors. AIR 1953 SC 225, the Hon'ble Supreme Court has held that instead of relying on the abstract doctrine of onus of proof, a party to the suit desiring to rely upon a certain 10/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 state of facts ought not to withhold from the court the written evidence in his possession. In the case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. AIR 1968 SC 1413, the Hon'ble Supreme Court reiterated that:
"Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."
The defendant could have applied to the Court for sending the disputed document mark A for forensic examination of signatures. That was not done. The defendant could have got a private handwriting expert to examine the disputed document. That was also not done. The defendant's denial of signatures on the document is bald and unsubstantiated.
25.The initial onus on the plaintiff was discharged by him by examining the executant to the document (that is himself). Upon the said proof, the onus shifts to the defendant. It is now for the defendant to lead evidence to disprove the genuineness of the document. The said onus has not been discharged. It must be borne in mind that burden of proof is distinct from onus of proof, as explained by Hon'ble Supreme Court in A. Raghavamma & anr. vs. A. Chenchamma & anr., AIR 1964 SC 136 in the following words:
"There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous 11/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 process in the evaluation of evidence."
Elaborating on this principle, the Hon'ble High Court of Delhi in Surajbhan Kailash Chand and anr. vs Hari Shanker Vashisht and anr. AIR 1976 Delhi 70 held as follows:
"This section shows that the initial burden of proving a prima facie case in his favor is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus, shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff."
26.Ld. counsel for defendant has questioned the mode of proving the said document mark A. It is contended that the said document has not been proved in accordance with law since it is merely a photocopy and the original has not been produced. The defendant has highlighted order dated 26.02.2011, according to which the plaintiff withdrew his application under Section 63 of the Evidence Act.
The mere fact that the plaintiff proved the document by producing its photocopy does not imply that the document is inadmissible. The objection of the defendant relates to the mode of proving the document and is required to be raised at the time of identification of the document in examinationinchief so as to be sustainable. In the present case, when the agreement was sought to be proved during examinationinchief of PW1, no objection to the mode of proof was raised by the defendant. Not having raised any such objection during examinationinchief, the defendant is not entitled to urge this contention during final arguments. In this behalf, reference is made to the decision of Hon'ble Supreme Court in the case of Dayamathi Bai vs. K. M. Shaffi AIR 2004 SC 4082.
Since the defendant did not object to the mode of proof at the relevant time, 12/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 the defendant is not permitted to agitate this contention at this stage. Although the document has been "marked" as A and "exhibit" has not been stated on the document, this is not material for the purpose of determining admissibility. Marking of a document is for the purpose of identification and there is no difference in "exhibiting" the document or "marking" it. Also, the withdrawal of an application under Section 63 of the Evidence Act does not imply that the plaintiff has conceded that the document is inadmissible. The withdrawal of an application simply relegates the plaintiff to the position in which he would have been had the application not been filed. Nothing more can be inferred from the withdrawal of the application. It cannot he held that withdrawal of an application amounts to an admission that the application is without merit. Hence, by withdrawal of the application it shall deemed as if the application under Section 63 of the Evidence Act was not filed by the plaintiff. Since there is no legal requirement for the plaintiff to file such an application, no adverse inference can be drawn against the plaintiff on this count.
27.It follows from the above that the document mark A can and ought to be read in evidence. The document contains the terms of agreement entered into between the plaintiff and Mr. Shyam Lal. The said contractual terms are binding on the contracting parties as well as their legal representatives including the defendant herein (since the defendant is the son of Mr. Shyam Lal and Mr. Shyam Lal has expired).
28.As per the document, it is not Rs.5,00,000/ but Rs.3,00,000/ which was given by Mr. Shyam Lal to the plaintiff. The said sum was advanced as loan. The father of the defendant was permitted to occupy the property (which was later admittedly changed to the suit property) till the repayment of loan. Of the 13/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 interest accruing on the loan, Rs.5,000/ were adjusted as rent whereas Rs. 2500/ were payable by the plaintiff to the defendant on monthly basis. In light of the express terms set out in the agreement, the contentions of the defendant that a sum of Rs.5,00,000/ was advanced by his father, and that the plaintiff had agreed to sell the property, are rejected. The issue no.6 is liable to be decided in favour of the plaintiff and against the defendant.
29.The covenants of the document show the existence of two separate contracts. The first is a loan agreement in which loan of Rs.3,00,000/ was advanced and was to be repaid with interest. The second contract is of lease by which the father of defendant was permitted to occupy the property at a monthly rate of rent of Rs.5,000/. The mere fact that part of consideration of one of these contracts was used to fulfill the corresponding consideration for the other contract does not change the nature of the contracts so as to transform them into a mortgage or agreement to sell. Thus, it is a lease and a loan agreement which define the contractual relationship of the plaintiff and the defendant.
30.The plaintiff has urged that the said occupation of the defendant is that of a licensee. I am unable to agree with the said contention. As held in the cases of Delta International Ltd. v. Shyam Sundar Ganeriwalla AIR 1999 SC 2607, Inderjeet Singh Sial v. Karam Chand Thapar, (1995) 6 SCC 166 and Vayallakath Muhammedkutty v. Illikkal Moosakutty, (1996) 9 SCC 382, a document has to be construed as per its pith and substance, instead of its label. As held in the case of Capt. B. V. D'Souza v. Antonio Fansto Fernandes, (1989) 3 SCC 574, the paramount test is 'the intention of the parties'. This intent has to be gathered from the document and other circumstances, which in the present case point towards creation of a lease and loan agreement. The agreement mark A shows that possession of the unit/floor was handed over to 14/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 the father of the defendant and later to the defendant. There are no restrictions in the manner of use of the property. Since possession itself has been given, the relationship cannot be termed as a "license" and qualifies as "lease" as defined in Section 105 of Transfer of Property Act,1882. This view is supported by the case of Sohan Lal Naraindas v. Laxmidas Raghunath Gadit, (1971) 1 SCC 276.
31.Ld. counsel for defendant has argued that the agreement between the plaintiff and the father of the defendant amount to an agreement to sell or sale deed and the defendant is thereby entitled to ownership of the suit property. This contention does not appear to be tenable. The document mark A does not show any undertaking of the plaintiff to execute any document for transfer of title. No interest over the property has been created by the said document. The document is also not registered. For these reasons, the document cannot be treated as a sale deed or as an agreement to sell, as contended by the defendant.
32.The document also does not qualify as a "mortgage" since it does not transfer interest in the property "for the purpose of" securing payment of money. From the document, one cannot elicit any intention to confer ownership rights on the father of the defendant in the event of nonrepayment of loan. On the contrary, the use of the expression "rent" shows that possession was handed over only as lease. There is no mention of ownership of father of the defendant in the entire document. The stipulation for transfer of interest in case of default is an essential requirement of Section 58 of the Transfer of Property Act. Since it has not been fulfilled, the transaction does not amount to a mortgage. Further, a mortgage can be created by only a registered instrument except a mortgage by deposit of title deeds (Section 59 of the Transfer of Property Act, 1882). In 15/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 the present case, the agreement mark A is not registered and therefore cannot be treated as a simple mortgage, mortgage by conditional sale, usufructuary mortgage, english mortgage or anomalous mortgage. There is also no mortgage by deposit of title deeds since admittedly the title deeds of the property were not handed over by the plaintiff to the defendant or his father. As per the written statement (paragraph no.5 of preliminary submissions), the defendant requested the plaintiff to provide copy of title documents but the plaintiff did not do so. This shows that the title deeds were not in the possession of the defendant or his father. Hence, the facts of the case do not show the existence of any form of mortgage.
33.The relationship of the plaintiff and the defendant is that of lessor and lessee, and of debtor and creditor, in the two contracts respectively.
34.As far as the loan agreement is concerned, as per the deposition of the plaintiff/PW1 Mr. Raaj Vachher, he is prepared to pay the principal amount and has already paid interest after adjusting the rent accrued on his property. This plea could not be controverted by the defendant either by cross examination of PW1 or by defence evidence. There are also other circumstances which tilt the scales in favour of the plaintiff, which are outlined hereinafter.
35.The plaintiff has issued legal notice dated 31.07.2009 Ex.PW1/1 to the defendant. In the said notice, the plaintiff asserted the fact that he has paid interest and has tendered the payment of principal sum. The notice as well as its acknowledgment were admitted by the defendant during admission/denial of documents. Thus it is safe to conclude that the notice had been served upon the defendant. Yet, the defendant did not send any reply to the notice. The failure to reply to the notice implies acceptance of correctness of its contents. 16/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 Had the defendant disputed its correctness, he would surely have replied thereto to lodge his protest. The failure of the defendant to reply to the notice shows that he admitted its assertions: that the loan amount was Rs.3,00,000/ and not Rs.5,00,000/, that money was advanced as loan and not towards purchase of the property, that the agreement between the parties had been reduced into writing, that the rate of rent was Rs.5000/ which was deductible from the interest payable, that interest was paid from time to time after deducting rent, that the plaintiff had tendered payment of the loan amount, that the defendant did not accept the money and has been overstaying in the property.
36.Another relevant circumstance is that the defendant never demanded payment of interest. There is no document to show any such demand. Had the plaintiff defaulted in payment of interest, the defendant or his father would surely have demanded the same by a letter or legal notice. However, this was not done. Even after the plaintiff himself served the defendant with a legal notice, the defendant chose to remain silent.
37.Yet another circumstance which erodes the credibility of the defendant is his conduct. The defendant has evidently raised false pleas in his defence. During admission/denial of documents, the defendant admitted the legal notice dated 31.07.2009 and its acknowledgment card. The documents were marked as Ex.C1 and Ex.C2. As against this, in his written statement (paragraph no.8 of reply on merits), the defendant chose to deny receiving the said notice. The crossexamination of the plaintiff also suggests that the defendant admits the receipt of legal notice. The pleas of the defendant are inconsistent and contradictory. This shows that the defendant is unworthy of credit and his version cannot be relied upon.
17/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09
38.From the above, it is inferred that the plaintiff had taken loan of Rs.3,00,000/ from the father of the defendant; that he had duly paid interest on the loan amount to the defendant and his father; that he had also tendered the principal sum which was not accepted by the defendant. The plaintiff has therefore discharged his contractual obligations whereas the defendant has failed to do the same.
39.The lease agreement is stated by the plaintiff to have been terminated by service of notice. On the other hand, in the written statement, the defendant has denied that he has received any such notice. According to the defendant, he continues to be the tenant of the plaintiff.
40.As held above, the defendant has been the tenant of the plaintiff. This inference is drawn on the basis of the agreement dated 09.05.2000 mark A and the pleadings. In the written statement, the defendant has admitted that he is a tenant in the property. In his affidavit in evidence too, the defendant has asserted the plaintiff to be his landlord. In his crossexamination also, the defendant admitted, "I am residing as a tenant in the suit property." It is thus indubitably established that the defendant is the tenant of the plaintiff in the suit property.
41.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. As per Section 106 of the Transfer of Property Act, 1882, the tenancy is terminable by fifteen days' notice.
42.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. P1. The plaintiff has also identified the legal notice 18/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 dated 31.07.2009 as Ex.PW1/1. Although the defendant has, in his written statement, denied receiving the notice, the said denial cannot be accepted because of two reasons. Firstly, the defendant has, during admission/denial of documents, admitted the notice and its acknowledgment. The cross examination of the plaintiff also suggests that the defendant admits receipt of the notice. Secondly, there is a legal presumption of service of the notice. Plaintiff has proved the the receipt of registered post as Ex.PW1/2. The notice mentions the address of the suit property. This implies that the notice has been sent at the correct address. The genuineness of the postal receipt has not been called in question. From the testimony of the PW1, duly corroborated by the legal notice and postal receipt, 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. 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 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 19/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 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 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."
20/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 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 letter would have been delivered in the ordinary course of business".
From the above, it is concluded that the notice was duly served upon the defendant.
43.The legal notice dated 31.07.2009 Ex.PW1/1 states that the tenancy of the defendant is terminated and the defendant shall vacate the suit property within fifteen days. 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.
44.Even if it is assumed that the aforementioned notice was not delivered to the defendant, that would not sustain the tenancy. 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 21/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 would stand terminated on filing of a suit for eviction. Hence, the tenancy has stood terminated and the plaintiff has become entitled to recover vacant physical possession of the suit property.
45.As noted above, the plaintiff has proved that he has been tendering payment of interest to the defendant and his father from time to time. Yet, even if it is assumed that he has failed to pay the said interest, that does not entitle the defendant to continue in occupation of the property. The document mark A does not create a mortgage and does not entitle the defendant or his father to continue in occupation of the property till the said interest is paid. It only entitles the defendant and his father to remain in occupation till the principal sum is paid. Hence, for recovery of interest, if outstanding, the defendant has to file a suit against the plaintiff and cannot on that count overstay in the property. The defendant is under an obligation to deliver vacant physical possession of the suit property to the plaintiff, as prayed by the plaintiff.
46.The defendant has also contended that the plaintiff cannot recover possession of the property since he is not the owner thereof. The said contention is devoid of merit. This is not a title suit against a trespasser where the plaintiff has to prove his ownership. In this case, admittedly the defendant and his father were inducted into the property by the plaintiff himself. While drawing advantage from this, the defendant cannot simultaneously impugn the very authority of the plaintiff to induct the former. If the plaintiff was not the owner of the property and was not authorized to induct the defendant and his father into the property, that would also imply that the defendant has no right to stay therein.
47.This is essentially a landlord tenant dispute. The defendant has admitted that he is a tenant in the suit property. He has unequivocally asserted the existence of a lease and the fact that the plaintiff is the landlord. It is on the basis of this 22/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 relationship itself that the defendant has sought to invoke the provisions of Delhi Rent Control Act. As per the defendant, part of the money payable to his father was to be deducted by the plaintiff towards occupation charges. This further buttresses the fact that the plaintiff is the landlord whereas the defendant is tenant in the suit property. Having accepted the plaintiff as his landlord, the defendant cannot question title of the plaintiff. This principle of estoppel is laid down in Section 116 of the Evidence Act. In this regard, it would be apt to refer to the following observations of Hon'ble High Court of Delhi in the case of Sky Land International Vs. Kavita P. Lalwani 191 (2012) DLT 594:
"A suit for ejectment is different from a title suit for possession against a trespasser. In a suit for possession against a trespasser, title can be in dispute but in a suit for ejectment against an erstwhile tenant, ordinarily there is no dispute of title as the tenant is estopped from denying the landlord's title under Section 116 of the Indian Evidence Act."
In that case, the Hon'ble High Court of Delhi further observed as under:
"Howsoever defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession of his landlord. It is based upon the salutary principle of law and justice that a tenant who could not have got the possession but for his contract of tenancy admitting the right of the landlord."
It was further observed that the onus is on the person resisting the claim for recovery of possession to establish that he has a right to continue in possession.
Similarly, in the case of Bhogadi Kannababu v. Vuggina Pydamma AIR 2006 SC 2403, the tenant had been inducted into the property by the wife of the owner. When the said wife sued for evicting the tenant, the tenant questioned 23/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 her title. It was held that question of title is not to be decided and the suit is maintainable.
It follows from the above that a landlord need not necessarily be owner of the property and the absence of title does not preclude the landlord from exercising his right to evict the tenant.
48.Further, the denial of ownership of the plaintiff is not specific. The defendant has not stated in his written statement as to who is the owner of the property if not the plaintiff. The denial of title of the plaintiff is bald. The defendant has claimed to be the tenant in the suit property. He ought to know who the owner of the property is. Unless he knows the identity of the owner, he cannot contend that the plaintiff is not the owner. Since the defendant has not disclosed the name of the owner, the irresistible conclusion is that the said denial of ownership is without any basis and the defendant has actually no knowledge of ownership of the property. Hence, the denial of ownership of the plaintiff is not specific. As per Section 58 of the Evidence Act and Order 8 Rule 5 of Code of Civil Procedure, such a bald denial is of no effect and amounts to an admission of fact. Reference may be made to the cases of Asha Kapoor v. Hari Om Sharda (2010) 171 DLT 743 and Kishan Lal Kalra and anr. V. LIC ILR Supp. 12 (2007) Delhi 1. The defendant is therefore deemed to have admitted that the plaintiff is the owner of the suit premises.
49.From the aforesaid, it is concluded that the plaintiff is landlord and the defendant is tenant in the suit premises. It is also concluded that the plaintiff is competent to file the present suit and to recover possession from the defendant. The recovery of possession shall be subject to the plaintiff tendering payment of a sum of Rs.3,00,000/ to the defendant.
50.The issues no.1 and 6 are decided in favour of the plaintiff and against the 24/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 defendant.
Issue No.2 "Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP"
51.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendant from creating third party interest in the suit property.
52.It has already been noted above that the plaintiff is the landlord whereas defendant is tenant in the suit property. The defendant has admitted himself to be tenant in the suit property in his crossexamination wherein he has stated, "I am residing as a tenant in the suit property."
53.Being a tenant, the defendant is not entitled to create third party interest in the suit property. The plaintiff is entitled to restrain the defendant from creating third party interest and an injunction may be issued in favour of the plaintiff for this purpose. The issue is decided in favour of the plaintiff and against the defendant.
Issue No.3 "Whether the plaintiff entitled to mesne profits? If yes, at what rate and for what period? OPP"
54.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for prelitigation mesneprofits of Rs.45,000/ and has further prayed for pendentelite and future mesneprofits.
55.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 25/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 plaintiff. The question is at what rate and for what period should the said charges be paid.
56.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 31.7.2009 Ex.PW1/1. The legal notice has been admitted by the defendant to be correct, during admission/denial. The legal notice was dispatched through registered/speed post on 1.8.2009, as evident from the postal receipt Ex. PW1/2. The acknowledgment card is signed by the recipient. The acknowledgment card was also admitted by the defendant to be correct, during admission/denial. However, the card does not bear the date of delivery of notice. The notice was dispatched from Delhi and was destined for Delhi. Since the addressee is of Delhi itself, it is reasonable to assume, in the absence of date on acknowledgment card, that the notice was delivered upon the defendant within three days of the dispatch. The notice must have been delivered upon the defendant by 4.8.2009.
57.The notice purports to terminate the tenancy upon expiry of fifteen days of its service. Under Section 106 of the Transfer of Property Act too, the notice can terminate the tenancy only after fifteen days of its service. That being so, by service of notice, tenancy stood terminated with effect from 19.08.2009. From 20.08.2009, 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 20.08.2009 and till vacant physical possession of the property is handed over to the plaintiff.
58.The quantum of mesne profits is next required to be ascertained. The plaintiff has claimed mesne profits for use of the suit property at the rate of Rs.15,000/ 26/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 per month. 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. Hence, the rent that the property could have fetched, if let out in the open market, is required to be ascertained.
59.The plaintiff PW1 has stated in his affidavit Ex. PW1 that the prevailing market rate of rent is Rs.15,000/ per month. Significantly, PW1 has not been crossexamined by the defendant on the point of the rent that the suit property can fetch. The assertion of PW1 that the property can obtain rent of Rs. 15,000/ per month has remained unrebutted and unchallenged during cross examination. On the other hand, the defendant has not disclosed as to what is the market rate of rent (if not the rate claimed by the plaintiff) either in his written statement or in his affidavit in evidence. The denial in the written statement of the defendant to the assertion of the plaintiff about the market rate of rent is not specific and cannot be accepted. Further, the defendant admittedly received the legal notice dated 31.07.2009 Ex.PW1/1. The said notice specifically states that the defendant will be liable to pay occupation charges of Rs.15,000/ per month. The defendant did not reply to this notice. For overstaying in the property despite being put to notice of this claim, the defendant cannot be now permitted to escape from the resulting liability.
60.This is also the fair rate of mesne profits, having regard to the size, location and extent of the suit property. Although the plaintiff has not produced any witness other than himself to support his claim, this can be inferred by taking judicial notice of the phenomenal rise in rents in Delhi. That the Court is competent to take judicial notice of the rise in rental values follows from the 27/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 decision of Vinod Khanna v. Bakshi Sachdev AIR 1996 Delhi 32, wherein the Hon'ble High Court of Delhi noted:
"21. The learned counsel for the appellants also urged before us that the learned trial court was not justified in taking a judicial notice of the fact of increase of rents like the suit property and also in providing Rs. 10,000/ per month as fair amount towards damages/mesne profits in favour of the plaintiffs. It is true that no substantial evidence has been led by the plaintiffs in respect of the increase of rent in the properties like that of the suit property. However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. At this stage we may appropriately refer to the Court taking judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial notice in case of D.C. Oswal v. V.K. Subbiah AIR 1992 SC 184."
Similarly in the case of Rattan Arya etc. v. State of Tamil Nadu and another AIR 1986 SC 1444, the Apex Court laid down that the Court can take judicial notice of enormous manifold increase of rents throughout the country particularly in urban areas.
In my opinion, taking judicial notice of the escalation in rents in Delhi, the sum of Rs.15,000/ per month does reflect the market rate of rent.
61.It is concluded that from 20.08.2009 till the date of handing over vacant possession of the suit property, the plaintiff is entitled to mesne profits at the rate of Rs.15,000/ per month. The issue is decided in favour of the plaintiff and against the defendant.
28/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 Issue No.4 "Whether the plaintiff is entitled to any damages? If yes, on what amount? OPP."
62.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for compensation on the ground that the defendant has caused damage to the suit property. The plaintiff has not quantified the sum prayed for under this head. The plaintiff has also not valued the suit for the said relief. Unless the said sum is quantified and damage to the property to that extent is proved, the plaintiff cannot succeed in recovery of the said sum. The present claim of the plaintiff is vague and unsubstantiated. Hence it is liable to be rejected. The issue is decided in favour of the defendant and against the plaintiff. Issue No.5 "Whether this Court has no jurisdiction to entertain this suit being barred by Section 50 of DRC Act? OPD."
63.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 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.
29/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 A. That the defendant is tenant of the plaintiff in the suit property
64.It has already been noted above that the defendant is tenant of the plaintiff in the suit property. Hence this aspect of the issue stands established.
B. That the rate of rent is less than Rs.3,500/ per month
65.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.
66.Perusal of the pleadings shows that the plaintiff has claimed that the monthly rate of rent of the suit property was Rs.5000/ (para 5 of the plaint). The defendant has however claimed in the written statement (para no. 2 of preliminary objections of the written statement) that the rate of rent was Rs. 2500/ per month.
67.It has already been held above (paragraph No. 28 & 29) that the plaintiff has succeeded in proving the terms of lease as claimed by him. The said terms reflect that the rate of rent was Rs.5000/ per month. The reasons for arriving at this conclusion have already been noted above and need not be repeated here. It is inferred that the rent of the suit property is more than Rs.3,500/ per month.
C. That the suit property lies in a locality in which the Delhi Rent Control Act applies
68.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 30/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 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.
69.The question that arises is that whether the area, having been urbanized and included within the purview of the Municipal Corporation of Delhi, is brought within the folds of the Act.
70.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.
71.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 31/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 the document containing the said matter. Hence, the notification stands not proved.
72.The aforesaid two 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. The issue is decided in favour of the plaintiff and against the defendant.
Issue No.7 "Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD."
73.The onus to prove this issue was upon the defendant.
74.The present suit has been filed with the prayers of possession, permanent injunction, mesneprofits and damages.
75.For the relief of possession, the suit is required to be valued as per the annual rate of rent. This is laid down in Section 7 (xi) (cc) of the Court Fees Act. It has already been held above that the agreed rate of rent of the suit property was Rs.5000/ per month. The annual rate of rent would therefore be Rs. 60,000/. The plaintiff has also valued the said relief at Rs.60,000/. Hence the valuation of the said relief in the plaint is proper.
76.For the relief of permanent injunction, the plaintiff has valued the suit at Rs. 130/. This is in accordance with the provisions of Section 7 (iv) (d) of the Court Fees Act and therefore the value accorded in the plaint at Rs.130/ is accepted as correct.
77.For the relief of prelitigation mesneprofits, the suit has been rightly valued by the plaintiff at Rs.45,000/, which is the sum sought to be recovered. No 32/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 fault can be found with the said valuation.
78.For the relief of pendentelite mesne profits, a plaintiff is not required to accord value thereto in the plaint and it is open to the plaintiff to pay appropriate court fee thereon after, and depending on, the sum awarded. Hence the suit is not defective on this count as well.
79.The relief of future mesneprofits is not required to be valued in the plaint. Hence, the valuation of the suit cannot be called into question.
80.Regarding the relief of damages, the sum of money sought to be recovered has not been disclosed by the plaintiff. Since the sum has not been disclosed, the value of the said relief cannot be ascertained. Be that as it may, as noted above, the said relief has already been declined.
81.It is concluded that the suit is properly valued for the purpose of court fees and jurisdiction. The issue is decided in favour of plaintiff and against the defendant.
Issue No.8 "Relief"
82.In the aforesaid facts and circumstances, the suit is partly decreed in favour of the plaintiff and against the defendant. A decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant possession of the property bearing No. N3, First Floor, Mukherjee Nagar, Delhi110009 to the plaintiff forthwith. This direction shall be executable only subject to the plaintiff tendering payment of a sum of Rs.3,00,000/ to the defendant.
83.A further decree of permanent injunction is passed in favour of plaintiff restraining the defendant and his representatives from creating any third party interest in the aforesaid suit property.
33/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09
84.A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff mesne profits at the rate of Rs.15,000/ per month from 20.08.2009 till the date of handing over possession of the suit property to the plaintiff. Of the said sum, the direction for payment of pendentelite mesne profits shall be executable only after payment of appropriate court fee thereon.
85.The plaintiff is not entitled to recovery of any compensation/damages from the defendant on account of damage to the aforesaid property.
86.The plaintiff is entitled to recover the costs of the suit from the defendant.
87.Decree sheet shall be prepared accordingly.
88.Before parting with the case, it would be proper to clarify as to why I have decided this case despite the objection of the defendant. During final arguments, the then counsel for defendant had submitted that I should not decide the present case since he had, seven years ago, submitted a complaint against me. Keeping in view the objection of the said counsel and in order to allay any apprehension of prejudice, though unfounded, the case was repeatedly adjourned giving liberty to the defendant to file a transfer application in the competent Court. Despite grant of four long adjournments, the defendant never took any step for seeking transfer of the case. He did not choose to file any transfer petition and kept seeking adjournments. The case could not have been kept pending indefinitely on account of the said plea. Hence, the defendant was informed that the case would be taken up for hearing. The defendant then changed his counsel and some other counsel has represented the defendant and has addressed final arguments. Hence, I have come to decide the present case. It is also relevant to note that the complaint which was submitted by counsel for defendant, copy of which has been filed by him in this case, concerned the delayed hearing of a case due to which the 34/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09 said lawyer had to wait in Court. The said complaint had not been made by either of the parties who are before this Court.
89.File be consigned to record room.
Announced in the open Court on 10th January, 2014.
(Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District, Rohini, Delhi.
35/35 Mr. Raaj Vachher Vs. Mr. Jagdish Madan Suit no.877/09