Delhi District Court
Mrs. Neeta Kohli vs Sanjeev Madan on 15 February, 2014
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE II(N/W): ROHINI: DELHI
CS NO. 63/12
Unique Code No. 02404C0208052010
Mrs. Neeta Kohli
w/o Sh. Baldev Raj Kohli
R/o Kothi noB1/103,
Janak Puri, New Delhi. ....Plaintiff
VERSUS
Sanjeev Madan
S/o Sh. Baldev Rai,
R/o Flat No. 226, Pocket A3,
Sector8, Rohini
Delhi85 ....Defendant
Date of Institution : 28.08.2010
Date on which the case was reserved for order : 25.01.2014
Date of Decision : 15.02.2014
J U D G M E N T
1. By this order/judgment, I shall decide the suit for recovery of possession, arrears of rent, mense profit/damages & injunction filed by the plaintiff against the defendant.
2. Briefly stated facts in the plaint are that plaintiff is the owner of Flat No. 226, Pocket A3, Sector8, Rohini, Delhi85 CS no. 63/12 (old No.457/10 ) Page no. 1 of 42 consisting of two bed rooms, drawing rooms, kitchen, latrine & bathroom with open area on the ground floor and defendant had approached the plaintiff through a common friend in 2004 to take the above said premises on rent for residential purpose, which was let out to him on the terms & conditions mutually finalized between the parties.
3. It has been further stated that as per the terms & conditions, the plaintiff had agreed to give the suit premises to the defendant on a rent w.e.f. 01.01.2005 on a monthly rent of Rs. 5,000/ excluding electricity, water, house tax and other charges and it was mutually decided that rent would be increased @ Rs. 500/ p.a. after every year during the tenancy and the rent would be accepted by the plaintiff only through cheque or cash to be deposited in the account of the plaintiff. It has been stated that several cheques were issued by the defendant in her favour from time to time and sometimes cash was also deposited in her bank account with State Bank of Travancore, Sector8, Rohini Branch, Delhi.
4. It has been further stated that defendant had assured her that he will vacate & hand over the peaceful possession as and when the rented premises is required by her or in case he fails to make the payment towards the rent and since he remained defaulter, his CS no. 63/12 (old No.457/10 ) Page no. 2 of 42 tenancy was terminated vide registered notice dt. 19.04.2010 and he is in the arrears of amounting to Rs. 3,35,500/ till 2010. However, the present suit is for the recovery of Rs. 2,55,000/ for a period of 3 years of rent as per law and the details of the arrears for a period of 3 years are as under :
(i) From May 2007 to December 2007, Rs.48,000/
(ii) From Jan 2008 to December 2008, Rs.78,000/
(iii) From Jan 2009 to December 2009, Rs.84,000/
(iv) From January 2010 to June 2010Rs.45,000/ Total amount Rs.2,55,000/
5. It has been further stated that tenancy of the defendant was terminated through registered legal notice dt. 19.04.2010 which was served upon the defendant and he was asked to vacate the rented premises on or before 19.05.2010 and despite receiving the legal notice of termination of tenancy, defendant has failed to handover the possession and is in unauthorized occupation of the premises and is liable to pay the use & occupation charges of the rented premises and is also liable to pay damages @ Rs. 15,000/ p.m. along with arrears of rent.
6. It has been prayed that there is an apprehension on account of malafide intentions of the defendant that he may hand over the possession of the tenanted premises to any person and (i) a CS no. 63/12 (old No.457/10 ) Page no. 3 of 42 decree for permanent injunction be passed in favour of the plaintiff (ii) another decree for possession in respect of suit premises be also passed in favour of the plaintiff with a direction to the defendant to hand over the vacant & peaceful possession to the plaintiff (iii) another decree for recovery of Rs. 2,77,500/ towards damages/ mesne profit for the use & occupation of premises at the prevailing market rate along with interest @ 15% p.a. be also passed in favour of the plaintiff and against the defendant w.e.f. 19.05.2010.
7. Summons of the suit were issued to the defendant, who has contested the suit by filing WS along with objections that the suit is based on false averments and the verification has not been done as per law and there is no cause of action arose in favour of the plaintiff and suit is also barred as per the provisions of Sec. 50 of D.R.C. Act as the rent of the premises is Rs. 3,000/ p.m.
8. It has been submitted that suit premises was taken on rent @ Rs. 3,000/ p.m. and the security amount of Rs.2,00,000/ was given to the plaintiff in the month of March 2005 as the rented premises was in dilapidated condition at the time of letting out and it was agreed that plaintiff will allow the defendant to remain in the tenanted premises for a minimum period of 10 years and will not claim any increase in the rent, provided the defendant shall make flat CS no. 63/12 (old No.457/10 ) Page no. 4 of 42 in question fit for living and accordingly the expenses of Rs. 50,000/ was incurred by the defendant for sanitary work, white wash, paint, change of doors & electric fitting and the rent has been duly paid.
9. It has been further submitted that in the month of September 2006, the plaintiff had informed that rent be given to his son Ashwani Kohli and the rent was regularly received by him through cash or cheques on various dates and the details are as follows :
Date Amount (in Rs.)
17.05.05 15,000/ (rent from May'05 to Sept.'05)
13.12.05 10,000/
23.12.05 10,000/
21.03.06 5,000/
12.07.06 5,500/
10.08.06 5,500/ (rent from Oct 2005 to Sept 2006)
10. It has been denied that arrears of rent was not paid and the tenancy was terminated vide registered notice dt. 19.04.2010 and there is arrears of Rs. 3,35,000/ payable to the plaintiff till April 2010 as the notice dt. 19.04.2010 was duly replied vide reply dt. 30.07.2010 and tenancy has not been terminated as per law till today. It has been further denied that his possession in respect of the tenanted premises w.e.f. from 19.05.2010 is illegal & CS no. 63/12 (old No.457/10 ) Page no. 5 of 42 unauthorized and he is liable to pay damages @ Rs. 15,000/ p.m. being an unauthorized occupant. It has been submitted that civil court has no jurisdiction to try the suit as he is protected under the D.R.C. Act and the plaintiff is not entitle for decree of possession, permanent injunction or for the recovery of Rs. 2,77,500/ towards the mesne profit and the suit is liable to be dismissed with cost.
11. From the pleadings of parties, the following issues were framed vide order dt. 28.09.2011 by the ld. Predecessor of this court.
1. Whether the plaint filed by the plaintiff is liable to be rejected for want of cause of action ? OPD
2. Whether the suit is barred U/s 50 of Delhi Rent Control Act ? OPD
3. Whether the plaint is liable to be rejected for want of proper court fees? OPD
4. Whether the plaintiff is entitled for decree for possession in respect of suit property ?OPP
5. Whether the plaintiff is entitled for decree for suit amount ? OPP
6. Whether the plaintiff is entitled for future damages and mesne profits. If so, at what rate ? OPP.
7. Whether the plaintiff is entitled for permanent injunction, as prayed ? OPP.
8. Relief In order to prove its case, plaintiff has examined herself as PW1. On the other hand, defendant has examined himself as DW1, Ms. Sumedha Madan, his wife as DW2, Sh. Sanjeev Kumar, Asst. Manager, Bank of Baroda, Badli, CS no. 63/12 (old No.457/10 ) Page no. 6 of 42 New Delhi as DW3 and Sh. Bharat Grover as DW4., the detailed testimonies of the witnesses shall be discussed in the later part of the judgment.
12. I have heard the arguments advanced on behalf of the parties, perused the evidence brought on record and also gone through the written submissions filed by the parties. My issuewise findings are as follows: ISSUE NO. 1 :Whether the plaint filed by the plaintiff is liable to be rejected for want of cause of action ? OPD
13. The onus to prove this issue is on the defendant. Case of the plaintiff is that she is the sole and exclusive owner of the suit premises which was let out to the defendant at a monthly rent of Rs. 5,000/ w.e.f. 01.01.2005 on the terms & conditions mutually finalized between the parties and there was arrears of rent till his tenancy was terminated vide registered legal notice dt. 19.04.2010 Ex. PW1/3 and was asked to handover the vacant & peaceful possession of the suit premises on or before 19.05.2010 but has failed to vacate the suit premises within the stipulated period, hence, the present suit was filed.
14. PW1 has deposed that cause of action firstly arose in favour of the plaintiff when the plaintiff had let out the suit property to CS no. 63/12 (old No.457/10 ) Page no. 7 of 42 the defendant on rent and further arose from time to time when he had failed to make the payment of arrears of rent to the plaintiff and further arose when the legal notice dt. 19.04.2010 for termination of his tenancy was issued and served upon the defendant and the cause of action is still subsisting and continuing since the defendant has not paid the arrears of rent and is still in an unauthorized occupation/possession of the suit premises.
15. On the other hand, the defence as set up by the defendant is that tenancy was for a period of 10 years and there was an oral understanding that there will be no increase of rent and as such no cause of action arose in favour of the plaintiff to file the present suit against the defendant.
16. It is an undisputed fact that the premises was let out to the defendant and there is a relationship of landlord & tenant between the parties. It is worthwhile to note here that the defendant has given the statement before the court on 20.08.2013 in which it has been stated that he is a tenant in the suit premises.
17. It is a well settled principle of law that while determining as to what would constitute the cause of action, the Hon'ble Supreme Court in the case titled as Om Prakash Shrivastava Vs. Union of India 2006 (6) SCC 207 has observed in paras 12 and 13 and CS no. 63/12 (old No.457/10 ) Page no. 8 of 42 relevant portion has been reproduced as under :
"12. The expression 'cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all these essential facts without the proof of which the plaintiff must fail in his suit.
13. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain as action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing : a factual situation that entitles one person to obtain a remedy in court from another person."
18. In view of the averments in the plaint, discussion made above and relying upon the judgment tilled as Om Prakash Shrivastava Vs. Union of India (supra), I am of the view that plaintiff has been able to prove that suit premises was let out to the defendant and his tenancy was terminated vide legal notice dt. 19.04.2010 Ex PW1/3.
19. On the other hand, defendant has raised an objection in the WS that there is no cause of action arose in favour of the paintiff CS no. 63/12 (old No.457/10 ) Page no. 9 of 42 to file the present suit. However, no cogent evidence has been brought on record to prove this issue in favour of the defendant. Pleading is no evidence, far less proof. Hence, it can not be said that there is no cause of action to file the present suit. Accordingly, this issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 2 : Whether the suit is barred U/s 50 Delhi Rent Control Act ? OPD
20. The onus to prove this issue is on the defendant, who has deposed as DW1 on the line of pleadings that plaintiff has concealed the material facts that premises was taken on rent through M/s Kaka Associates (Property Dealer) in the month of March, 2005 and it was mutually agreed that defendant will make all the expenses for sanitary work, white wash, paint, change of doors and electric fittings and rent of the suit premises was settled @ Rs. 3,000/ p.m. with a condition that there should not be increased in the rent upto 10 years and there was no written rent agreement executed between the parties and the tenancy remained oral.
21. DW1 has further deposed that notice for termination dt. 19.04.2010 was duly replied through reply dt. 30.07.2010, which is exhibited as PW1/D1 and tenancy is not terminated as per law till today as the rent of the suit premises is Rs. 3,000/ p.m. and as such CS no. 63/12 (old No.457/10 ) Page no. 10 of 42 the suit is barred u/s 50 of Delhi Rent Control Act.
22. On the other hand, plaintiff has examined herself as PW1 and deposed that suit premises was let out to the defendant at a monthly rent of Rs. 5,000/ w.e.f. 01.01.2005 on the terms & conditions mutually finalized between the parties and defendant had failed to make the payment of the arrears of rent till his tenancy was terminated through registered legal notice dt. 19.04.2010, exhibited as Ex. PW1/3 and he is in the arrears of rent to the tune of Rs.3,35,000/ till April 2010 and has failed to vacate and handover the possession within the stipulated period, hence, the present suit was filed.
23. Before deciding this issue, I have gone through the provision of Order VII rule 11 of CPC. Rejection of Plaint and sub clause (d) is reproduced herein for the ready reference:
"(d) Where the suit appears from the statement in the plaint to be barred by any law."
24. Order VII Rule 11, sub clause (d) of CPC specifically provides that when it appears from the averments in the plaint to be barred by any law. Clause (d) applies to those cases only where the statement made by the plaintiff in the plaint without any doubt or dispute shows that suit is barred by any law in force as held in Popat CS no. 63/12 (old No.457/10 ) Page no. 11 of 42 and Kotecha Property vs State Bank Of India Staff Assn. (2005) 7 SCC 510. It is a well settled now that where a court is in doubt or the court is not sure and certain that the suit is barred by some law, the court would not reject the plaint under clause (d) of Order 7 Rule 11 CPC as held in Kasturi Vs. Bhaskar 2004 AIHC 561 (565) (Madras). It is also well settled that a plaint under clause (d) can be rejected on the basis of the pleading in the plaint and not by referring to material placed on record by the defendant in answer to the plaint as held in Shivrudra Shivling Pailwan Vs. Prakash Maharudra Pailwan, 2003 AIHC 1504, (1506) (Bombay).
25. In the instant case, it is an undisputed fact that there is no written rent agreement executed between the parties and the tenancy remained oral w.e.f. 01.01.2005 and the notice dt.19.04.2010 Ex. PW1/3 to terminate the tenancy was issued and duly served upon the defendant and was duly replied by him through reply, which is exhibited as Ex PW1/D1.
26. It is worthwhile to note here that defendant has made only bald averments in the WS that rent of the tenanted premises was Rs 3,000/ p.m. but has failed to prove this fact on record by any cogent evidence that rate of rent of the suit premises was Rs. 3,000/ p.m and the suit is barred as per the provision of section 50 of DRC Act.
CS no. 63/12 (old No.457/10 ) Page no. 12 of 42 Admittedly, there is no written rent agreement executed between the parties and tenancy remained oral and no rent receipt or other document has been brought on record to substantiate that rent of the suit premises was Rs. 3,000/ p.m.
27. In view of the discussion made above, averments of the plaint and evidence brought on record. It cannot be said that suit is barred u/sec 50 of Delhi Rent Control Act and liable to be rejected. Hence the present issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3 : Whether the plaint is liable to be rejected for want of proper court fees? OPD
28. The onus to prove this issue is on the defendant. Plaintiff has filed a suit for recovery of possession, arrears of rent, mesne profits/damages and for injunction and defendant has raised a preliminary objection in the WS that plaintiff has not filed an appropriate & proper court fees and suit is liable to be rejected.
29. Before deciding this issue, I have gone through the provision of Order VII rule 11 of CPC , Rejection of Plaint and sub clause (c) is reproduced herein for the ready reference:
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply CS no. 63/12 (old No.457/10 ) Page no. 13 of 42 the requisite stamp paper within a time to be fixed by the Court, fails to do so.
30. Order VII Rule 11 sub clause (c) of CPC specifically provides that when an insufficiently stamped plaint is presented, the court is under clause (c), bound to give some time to make up the deficiency before rejection.
31. Under this rule, the court is bound to grant some time to supply the deficient court fee as held in case titled as V.O. Devassy v/s Periyar Credits, AIR 1994 Ker 405. It is well settled that where a suit is not properly valued and the court fees paid is insufficient, the course of remedy will be to direct the plaintiff to correct valuation of the suit within a fixed time and make payment of this balance of Court Fees before proceeding further with the suit.
32. It is worthwhile to mention here that defendant has only raised objections in the WS that plaintiff has not filed appropriate & proper court fees and suit is liable to be rejected. However, no cogent evidence has been brought on record to show that suit is liable to be rejected for want of proper court fees and no such arguments has been even advanced in this regard at the time of final argument. Pleading is no evidence, far less proof.
33. It is worthwhile to note here that present suit was filed CS no. 63/12 (old No.457/10 ) Page no. 14 of 42 before the ld Civil Judge and subsequently an application u/o 6 rule 17 CPC was moved and allowed by the court vide order dt. 30.04.2010 and amended plaint and court fees filed by the plaintiff was taken on record and matter was transfered to this court as the suit was not within the jurisdiction of that court and matter was proceed further by the Ld predecessor and no further directions was passed to pay any deficient court fees during the pendency of the proceeding. It is also worthwhile to note here that it has been averred in para 17 of the plaint that suit has been valued for the purpose of court fees & jurisdiction and the appropriate court fees has been affixed for a sum of Rs. 5,960/ and plaintiff has undertaken to pay the court fees on account of damages & mesne profits which may be determined and awarded by the court in accordance with law.
34. In view of the discussion made above and averments of the plaint and evidence brought on record. It cannot be said that suit is liable to be rejected for want of proper court fees. Hence the present issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 4 : Whether the plaintiff is entitled for decree of possession in respect of suit property ? OPP
35. The onus to prove this issue was on the plaintiff, who has CS no. 63/12 (old No.457/10 ) Page no. 15 of 42 examined herself as PW1 and deposed on the lines of pleadings that she is the owner of suit premises, which was let out to the defendant on the terms & conditions mutually finalized between the parties and the site plan is Ex. PW1/1 and it was mutually agreed that the tenancy would start from 01.01.2005 and rent was fixed @ Rs.5000/ p.m. excluding electricity, water, house tax and other charges. PW1 has further deposed that it was further mutually agreed that rent would be increased @ Rs.500/ p.a after every year during the tenancy and rent would be accepted by the plaintiff only through cheque or cash to be deposited in bank account of the plaintiff and in pursuance to the said mutual understanding several cheques were issued from time to time and sometimes cash amount was deposited in her bank account and the statement of bank account is Ex. PW1/2.
36. PW1 has further deposed that defendant had assured to the plaintiff that he will not fail to make the payment of rent and also assured to vacate & handover the peaceful possession of the rented premises, in case, he fails to make the payment of rent or as and when rented premises is required by her for personal use.
37. PW1 has further deposed that defendant had remained defaulter in making payment and made false promises to pay the CS no. 63/12 (old No.457/10 ) Page no. 16 of 42 arrears of rent till his tenancy was terminated vide registered legal notice dt. 19.04.2010, which is Ex. PW1/3 and he is in the arrears of rent to the tune of Rs.3,35,000/ payable by him till April 2010 and suit is for the recovery of possession and arrears of rent as tenancy of the defendant was duly terminated vide registered legal notice dt. 19.04.2010 which was duly served upon and acknowledged by the defendant, where he was asked to handover the vacant & peaceful possession of the suit premises on or before 19.05.2010. PW1 has further deposed that defendant is liable to vacate & handover the possession of the tenanted premises which is required for her personal use & residence purpose as she has been residing since long at her daughter's house with her ailing husband despite her own house i.e. suit premises and is entitled for a decree of possession as the defendant is in authorized use & occupation of the tenanted premises w.e.f. 19.05.2010.
38. On the other hand, defendant has examined himself as DW1 and deposed on the line of pleadings that suit premises was taken on rent in raw condition and it was agreed that he will make all the expenses for sanitary work, white wash, paint, change of doors & electric fittings and rent was settled @ Rs. 3,000/ p.m. with a condition that there should not be any increase in the rent upto 10 CS no. 63/12 (old No.457/10 ) Page no. 17 of 42 years and the expenses of Rs. 50,000/ was incurred for the above said works. DW1 has further deposed that no rent agreement was executed and the tenancy remained oral and he has been paying the rent from time to time and rent is duly paid and there is no agreement to enhance the rent at any point of time and reply dt. 30.07.2010 was given in reply to notice dt. 19.04.2010, which is exhibited as Ex.PW1/D1 and tenancy was not terminated as per law till today.
39. Let us see the relevant part of cross examination of DW1, wherein he has denied the suggestion that statement of account filed was deliberately for a specific period in order to defeat the suit. DW1 has stated in his cross examination that he cannot say which payments were made by cheque or by cash and he is maintaining an account in the Bank Of Baroda but do not remember the exact Bank A/c number and cannot say whether he had issued any cheque from that account in favour of Neeta Kohli.
40. DW2 has deposed that she is the wife of defendant and had accompanied him at the time of negotiation and the rent was settled @ Rs.3,000 p.m. with a condition that there should not be any increase in the rent and Rs.50,000/ was incurred for miscellaneous repairs and cash of Rs. 2,00,000 was taken by plaintiff as security, refundable without interest and no written rent agreement was CS no. 63/12 (old No.457/10 ) Page no. 18 of 42 executed between the parties and the tenancy remained oral.
41. DW2 has stated in her cross examination that she cannot say whether her husband(defendant) had issued any cheque from his account in favour of the plaintiff or cash amount was deposited in the bank account of plaintiff.
42. DW3 has deposed that he is the summoned witness from Bank of Baroda and the letter dt.19.07.13 issued by the bank is Ex.DW3/1 and copies of the cheques are Ex.DW3/2 to DW3/6.
43. DW3 in his crossexamination has stated that he has no personal knowledge about the account holder and the abovesaid cheques and as per the requisite summoned record, only one cheque Ex.DW3/6 was issued in the name of Neeta Kohli and cannot say whether cheques Ex.DW3/2 to 6 were cleared or not.
44. DW4 has tendered his affidavit as Ex DW4/A and stated in his deposition that he is a property dealer under the name of Kaka Associate at 8, E16, Pocket 8/383 & 384 sector8 Rohini Delhi and deal between the plaintiff & defendant was done in his presence long back but has no proof regarding the deal.
45. It is a well settled principle of law that in a suit for possession against the tenant in respect of the tenanted premises. Plaintiff is required to prove three ingredients : CS no. 63/12 (old No.457/10 ) Page no. 19 of 42 (1) Existence of relationship of landlord & tenant. (2) Valid termination of tenancy either by efflux of time or by service of notice to quit u/s 106 of Transfer of Property Act, 1882. (3) Failure of the tenant to vacate the demised premises despite termination of tenancy.
46. In the instant case, it is a matter of record that there is no written rent agreement executed between the parties and the tenancy remained oral and the notice dt.19.04.2010 to terminate the tenancy was issued and served upon the defendant and the tenancy of the defendant was terminated w.e.f. 19.05.2010.
47. Section 106 of T.P. Act, to the extent, it is relevant, provides that in the absence of a contract or a local law or usage to the contrary, a lease of immovable property for any purpose other than agriculture or manufacturing purpose can be terminated by giving 15 days notice expiring with a month of tenancy. Since, the notice has been admitted to be received and time to vacate the tenanted premises was given, the termination of the tenancy was absolutely legal. It is a well settled principle of law that the tenancy can be terminated by notice providing reasonable period to the tenant to surrender and deliver the possession to the landlord/landlady and the period mentioned in the notice relates to the surrendering of the possession.
CS no. 63/12 (old No.457/10 ) Page no. 20 of 42
48. In the instant case, notice is not ambiguous and the plaintiff intended to give reasonable period to defendant to vacate the demise premises after terminating the tenancy from the date of receipt of the notice dt.19.04.2010 Ex PW1/3. Thus the language of the notice is clearly suggestive of the fact that tenancy was terminated and defendant was called upon to surrender the possession after the period mentioned in the notice. Hence, the notice dt. 19.04.2010 was fully complied with the requirement laid down in section 106 of the Transfer of Property Act.
49. Reference can also be made to the judgment titled as Sudershan Sinha & Anr. Vs. Kuldeep Singh reported as 2006 VIII AD ( Delhi) 75, wherein it has been held that "it is now only relevant that the suit should be filed after the expiry of the period of fifteen days from the date of the receipt of the notice ".
50. The purpose of giving notice of termination of tenancy to the tenant is to make it known to him that plaintiff does not want him to continue in possession of the tenanted premises after the date from which the tenancy is being terminated so that tenant is not taken over by surprise in vacating and handing over the possession of the tenanted premises.
51. In the instant matter, the case of the plaintiff is that suit CS no. 63/12 (old No.457/10 ) Page no. 21 of 42 premises was given on monthly rent of Rs.5,000/ to the defendant w.e.f. 01.01.2005 who has failed to make the payment of arrears of rent and his tenancy was terminated through termination notice dt. 19.04.2010 but despite that he has failed to vacate the rented premises and became an unauthorized occupant after the termination of tenancy w.e.f 19.05.2010 and has no legal right to remain in the possession/occupation of the tenanted premises.
52. On the other hand, the defence as set up by the defendant is that it was agreed between the parties that he will make all the expenses for sanitary work, white wash, paint, change of doors & electric fittings and rent of the tenanted premises was Rs. 3,000/ p.m. with a condition that there should not be any increase in the rent upto 10 years and he has incurred the expenses of Rs. 50,000/ for the above said repair works. The further stand taken by the defendant is that rent was paid from time to time in cash and cheques and there is no agreement to enhance the rent at any point of time and reply to notice dt. 19.04.2010 was given vide reply dt. 30.07.2010 Ex.PW1/D1 and tenancy is not terminated as per law till today.
53. On perusal of the evidence, it is worthwhile to mention here that DW1 has admitted this fact that no rent agreement was CS no. 63/12 (old No.457/10 ) Page no. 22 of 42 executed between the parties and the tenancy remained oral. Defendant has not brought any document or evidence on record to substantiate that a security amount of Rs. 2 lakhs was given to the plaintiff and there was any oral understanding between the parties that tenancy will be for a period of 10 years. Admittedly, there is no written rent agreement executed between the parties and tenancy remained oral and no rent receipt or other document has been brought on record in this regard.
54. In the present case, this is an undisputed fact that there is a relationship of landlord & tenant between the parties and the notice dt. 19.04.2010 for terminating the tenancy was in fact duly received by the defendant/tenant and was duly replied vide reply dt.30.07.2010 Ex.PW1/D1.
55. Even in the facts of the present case, there is no dispute that there is no written Rent Agreement executed between the parties and the tenancy remained oral. Accordingly, the argument on behalf of the defendant in the absence of any cogent evidence to substantiate his defence that there was an understanding that tenancy is for a period of 10 years and is entitled to continue in the tenanted premises is solely by virtue of alleged oral understanding without there existing a registered rent agreement for the period 10 CS no. 63/12 (old No.457/10 ) Page no. 23 of 42 years for which an option is sought to have been exercised is clearly misconceived and cannot be accepted. The incidental argument on behalf of defendant that parties have acted on the basis of alleged oral understanding will not take the defendant any further, because even in such circumstances, that in the absence of any registered rent agreement with regard to the tenancy for a period of 10 years, the tenancy continues as a month to month tenancy and such monthly tenancy can always be terminated by giving a notice under section 106 of the Transfer of Property Act. So far as the requirement of a notice under section 106 Transfer of Property Act, 1882 of having been served before filing of the suit for possession.
56. In the case titled as M/s Jeevan Diesels & Electricals Ltd vs. M/s Jasbir Singh Chaddha (HUF) & Anrs. 2011 (182) DLT 402 , it has been held that the service of the summons in a suit filed by a landlord accompanied by the plaint can always be treated as notice under section 106 of the Transfer of Property Act, 1882. It was further held that along with the suit, the notice by which the tenancy was terminated is filed as a document and was served upon the defendant.
57. In view of the discussion made above and relying upon the judgment M/s Jeevan Diesels & Electricals Ltd vs. M/s Jasbir Singh CS no. 63/12 (old No.457/10 ) Page no. 24 of 42 Chaddha (HUF) & Anrs.(supra), it can be said that defendant after receiving the notice of termination dt. 19.04.2010 is in unauthorized occupation of the rented premises and is liable to handover the possession of suit premises to the plaintiff. Accordingly, it can be concluded that plaintiff is entitled to a decree of possession, hence this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5 : Whether the plaintiff is entitled for decree for suit amount ? OPP
58. In the instant matter, case of the plaintiff is that suit premises was given on monthly rent of Rs.5,000/ to the defendant w.e.f. 01.01.2005 and the defendant has failed to vacate the suit premises despite receiving the notice of termination dt. 19.04.2010 and became an illegal occupant of the suit premises after the termination of tenancy w.e.f 19.05.2010 and has no legal right to remain in the possession/occupation of the tenanted premises and the rent has not been paid by the defendant and the details of the due amount liable to be paid is as under:
B. Details of rents as per terms
(i) For the year 2005 @ Rs.5,000/ p.m. from January to December Rs.60,000/ CS no. 63/12 (old No.457/10 ) Page no. 25 of 42
(ii) For the year 2006 @ Rs.5500/ p.m. from January to December Rs.66,000/
(iii) For the year 2007 @ Rs.6000/ p.m from January to December Rs.72,000/
(iv) For the year 2008 @ Rs.6500/ p.m from January to December Rs.78,000/
(v) For the year 2009 @ Rs.7000/ p.m from January to December Rs.84,000/
(vi) For the year 2010 @ Rs.7500/ p.m from January to July Rs.42,500/ Total rent amount Rs.4,12,500/ B. Detail of paid rent amounts.
(i) Paid vide cheque no. 118226
dt.17.5.2005 a sum of Rs.15,000/
(ii) Paid vide Ch. No. 26072
dt. 23.12.2005 a sum of Rs.10,000/
(iii) Cash deposited in bank account of
plaintiff on dt. 13.12.2005 Rs.10,000/
(iv) Cash deposited in bank account of
plaintiff on dt. 21.03.2006 Rs.5,000/
(v) Paid vide Ch. No. 921077
dt. 12.07.2006 a sum of Rs.5,500/
(vi) Paid vide Ch. No. 921079
dt. 10.08.2006 a sum of Rs.5,500/
(vii) Paid vide Ch. No. 515916
dt. 11.12.2008 a sum of Rs.6,000/
Total paid rent amount Rs.62,500/
59. On the other hand, the defence as set up by the defendant CS no. 63/12 (old No.457/10 ) Page no. 26 of 42 is that it was agreed between the parties that defendant will make all the expenses for sanitary work, white wash, paint, change of doors & electric fittings and monthly rent was settled @ Rs. 3,000/ p.m. with a condition that there should not be increased in rent upto 10 years and incurred the expenses of Rs. 50,000/ for the above said works and the due rent was paid from time to time and there is no arrears of rent.
60. Plaintiff has claimed the recovery of arrears of rent for a period of three years, prior to the filing of the suit in August, 2010 to the tune of Rs. 2,62,500/.
61. The case of the plaintiff is that rent of the tenanted premises was Rs. 5,000/ p.m. and there was an oral understanding between the parties that there will be an increase of rent @ Rs. 500 every year and the plaintiff is entitled to recover the arrears of rent at the enhanced rate.
62. On the other hand, stand taken by the defendant is that tenancy was for a period of 10 years and rent of the premises was Rs. 3,000/ p.m. and rent upto date has been paid and there is no arrears of rent. However, no cogent evidence or proof in this regard has been brought on record by the defendant to establish that rent was paid up to date and there is no arrears of rent to be recovered CS no. 63/12 (old No.457/10 ) Page no. 27 of 42 from him.
63. It is an admitted fact that there is no written rent agreement executed between the parties and no rent receipts has been brought on record. Plaintiff has been able to prove that she is the owner of the suit premises which was given on rent to the defendant in the year 2005 and his tenancy was terminated vide notice dt.
19.04.2010 Ex PW1/3 and defendant is still in the occupation of the tenanted premises and is liable to pay the arrears of rent for a period of three years prior to the filing of the suit.
64. Plaintiff has claimed that initially the premises was given on monthly rent of Rs. 5,000/, however, there was an oral understanding that there will be an increase of rent @ Rs. 500/ every year and is claiming an arrears at the enhanced rate of rent. It is an undisputed fact that there is no written rent agreement executed between the parties and no rent receipts has been brought on record to establish that plaintiff is entitled to claim the arrears of rent at the enhanced rate of rent. In the absence of any cogent evidence in this regard to show that plaintiff is entitled to recover the arrears of rent at the enhanced rate of rent. Hence, plaintiff is entitled to recover the rent @ Rs. 5,000/p.m. for a period of 3 years prior to the filing of the suit which is as under:
CS no. 63/12 (old No.457/10 ) Page no. 28 of 42
(i) From August, 2007 to December, 2007 = Rs. 25,000/
(ii) From January, 2008 to December,2008 = Rs. 60,000/
(iii) From January 2009 to December 2009 = Rs. 60,000/
(iv) From January, 2010 to July, 2010 = Rs. 35,000/ Hence, the plaintiff is entitled to recover an amount towards the arrears of rent for a period of three years @ Rs. 5,000/ p.m. as mentioned above which comes to Rs. 1,80,000/ .
65. Plaintiff is also claiming the interest @ 15% p.a. but has not brought any document or evidence on record to show that how she is entitled for interest @ 15% p.a. Hon'ble Supreme Court in the recent chain of judgments titled as "Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority & Ors. 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and Others 2006(11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd. (2006) 7 SCC 700, and Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra 2007 (2) SCC 720"
has mandated that courts must reduce the high rate of interest on account of the consistent fall in the rates of interest in the changed economic scenario. Relying upon the above mentioned judgments, it can be said that interest claimed @ 15% p.a. by the plaintiff is on the higher side and in the absence of any evidence cannot be granted.
CS no. 63/12 (old No.457/10 ) Page no. 29 of 42
66. In these circumstances, considering the prevailing rate of interest in the market and economic scenario. I am of the view that justice would be met if the interest @ 9% is granted to the plaintiff. Hence, plaintiff will be thus entitled to interest @ 9% p.a. on the money decree. Accordingly, this issue is decided in favour of the plaintiff and against the defendants holding that plaintiff is entitled to a recover a sum of Rs. 1,80,000/ along with interest @ 9% p.a. ISSUE NO. 6 :Whether the plaintiff is entitled for future damages and mesne profits. If so, at what rate ? OPP.
67. The onus to prove this issue is on the plaintiff, who has examined herself as PW1 and deposed that she is the owner of the suit premises, which was given on rent to the defendant at a monthly rent of Rs. 5,000/ w.e.f. 1.1.2005 and the defendant has failed to pay the rent and there was arrears of rent and tenancy of the defendant was terminated through termination notice dt. 19.04.2010, which was duly served upon the defendant and he was asked to handover the vacant & peaceful possession of the rented premises on or before 19.05.2010 and defendant is liable to vacate the suit premises. PW1 has further deposed that since he has not handed over the vacant & peaceful possession of the suit premises after the termination of tenancy and he would be deemed to be in CS no. 63/12 (old No.457/10 ) Page no. 30 of 42 unauthorized occupation/possession of the tenanted premises and is liable to pay the use & occupation charges towards the rented premises being in unauthorized occupation w.e.f. 19.05.2010 and thereafter, liable to pay the damages.
68. On the other hand, the stand taken by the defendant is that it was agreed between the parties that defendant will make all the expenses for sanitary work, white wash, paint, change of doors & electric fittings and rent was settled at Rs. 3,000/ p.m. with a condition that there should not be increased in the rent upto 10 years and defendant has incurred expenses of Rs. 50,000/ for the above said works.
69. It is worthwhile to mention here that DW1 has admitted this fact that no rent agreement was executed between the parties and the tenancy remained oral and defendant has not brought any document or cogent evidence to prove on record that tenancy was for a period of 10 years and the monthly rent was Rs. 3,000/.
70. The entitlement of a landlord is to claim mesne profits from a tenant, who is in illegal possession of the premises after the tenancy is terminated, is governed by Section 2 (12) of Code of Civil Procedure and which defines mesne profits as under: "Section 2(12) "mesne profits" of property means CS no. 63/12 (old No.457/10 ) Page no. 31 of 42 those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
71. The above provision has been interpreted in various judgments that ordinarily the mesne profits which a landlord/landlady is entitled against a tenant who continues to stay in the tenanted premises after the termination of the tenancy is the amount which the premises can fetch if let out on rent during the period of its illegal occupation by the tenant.
72. What is the rent, which the premises can fetch during the period of the illegal occupation by the erstwhile tenant is a fact which can be easily proved in a suit for possession and mesne profits against the tenant by leading evidence with respect to rent of similar premises within the locality and the Court, on considering such evidence, with respect to rent of similar premises thereafter awards mesne profits to the landlord/landlady.
73. Section 74 of Indian Contract Act boldly cuts the most troublesome knot in common law of doctrine of damage. Whether actual loss or damages is proved or not the court is entitled to award CS no. 63/12 (old No.457/10 ) Page no. 32 of 42 reasonable damages not exceeding the stipulated amount. The Section confers very wide powers on the court and only restriction is that the court can not decree damages exceeding the amount previously agreed upon by the parties. The discretion of the court in the matter of reducing amount of damages agreed upon is left unqualified by any specific limitation, though, of course, the expression "reasonable compensation used in the Section necessarily implies that the discretion so vested must be exercised with care, caution and on sound principles.
74. Considering the facts & circumstances of the matter and the evidence placed on record, it is an undisputed fact that there is no written rent agreement executed between the parties and the tenancy remained oral. Plaintiff is claiming that initial rent of the suit premises was Rs. 5,000/ p.m. and the defendant is liable to pay damages/mesne profits @ Rs. 15,000/ p.m. after the termination of the tenancy w.e.f.19.05.2010.
75. On the other hand, the defence taken by the defendant is that tenancy is for a period of 10 years and rate of rent of the tenanted premises was Rs. 3,000/ p.m. and the notice dt. 19.04.2010 for termination of tenancy was received and duly replied vide reply dt. 30.07.2010 which is exhibited as Ex. PW1/D1 and the tenancy has CS no. 63/12 (old No.457/10 ) Page no. 33 of 42 not been terminated as per law.
76. Now the point for discussion here is what should be an amount for use & occupation charges and which factor should be taken into consideration to calculate the mesne profit to be paid by the tenant/defendant for the rented premises. The present issue is concerned with the mesne profit/damages not during the period of tenancy but post the expiry of tenancy period which was terminated w.e.f.19.05.2010.
77. In the instant case, it is an undisputed fact that defendant is in the occupation/possession of the suit/rented premises till today and as such liable to pay the use & occupation charges. The only defence as set up by the defendant is that tenancy has not been terminated as per law and there was a understanding between the parties that tenancy will be for a period of 10 years and defendant is not liable to vacate the suit premises. However, the defendant has failed to prove on record to substantiate the same. Pleading is no evidence, far less proof. In the absence of cogent evidence led on behalf of the defendant, the plea of the defendant can not be accepted as the same is not tenable in the eyes of law.
78. Therefore, considering the facts and circumstances of the case and evidence placed on record, I am of the view that CS no. 63/12 (old No.457/10 ) Page no. 34 of 42 plaintiff/landlady is entitled to mesne profit for the period during which landlady was deprived of the possession of the tenanted premises because the tenant/defendant is still in the possession of the tenanted premises after the termination of tenancy and continues to stay in the premises, not because of any relationship of landlord & tenant but only as an unauthorized occupant after the termination of tenancy w.e.f. 19.05.2010.
79. In these circumstances, I am of the view that considering the rate of rent of the premises which was Rs. 5000/ p.m. and in the absence of any evidence having been led by the plaintiff with respect to the prevailing rate of rents in the locality of Rohini for the similar premises in question, where the suit premises is situated. Reliance has been placed to the judgment of Hon'ble High Court of Delhi in case titled as "S.Kumar Vs. G.R. Kathpalia 1999 RLR 114" in which, the Hon'ble Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profit at a rate higher than the contractual rate of rent.
80. Hence, in view of the discussion made above, and considering the area of the suit premises consisting of two bed rooms, drawing room, kitchen,latrine, and bathroom with open area. This court is of the view that interest of justice would be met if a sum CS no. 63/12 (old No.457/10 ) Page no. 35 of 42 of Rs. 7,000/ p.m. towards the mesne profit is granted to the plaintiff for use & occupation charges of the tenanted premises by the defendant after the termination of his tenancy w.e.f. 19.05.2010.
81. Hence, the plaintiff is entitled to recover the use & occupation charges of the rented premises @ Rs 7,000/ p.m. w.e.f. 01.08.2010 till December'2013 which comes to as under:
01.08.2010 to 31.12. 2010 for 5 months @ Rs. 7,000/ = 35,000/ 01.01.2011 to 31.12.2011 for 12 months @ Rs. 7,000/= 84,000/ 01.01.2012 to 31.12.2012 for 12 months @ Rs. 7,000/ = 84,000/ 01.01.2013 to 31.12.2013 for 12 months @ Rs. 7,000/ = 84,000/ Total=2,87,000/ Accordingly, this issue is decided in favour of the plaintiff and against the defendant holding that plaintiff is entitled to recover the mesne profit/damages to the tune of Rs.2,87,000/ along with future charges @ 7,000/ p.m. till the handing over the vacant possession of suit/rented premises to the plaintiff.
ISSUE NO. 7 : Whether the plaintiff is entitled for permanent injunction, as prayed ? OPP.
82. The onus to prove this issue was on the plaintiff. PW1 has deposed that she is owner of the suit premises i.e. flat no. 226, pocket A3, Sector8, Rohini, Delhi, which was let out to the defendant on the terms & conditions mutually finalized between the CS no. 63/12 (old No.457/10 ) Page no. 36 of 42 parties and the rate of rent was Rs.5000/ p.m. excluding other charges and defendant had assured her that he will vacate the premises and handover the peaceful possession, in case, he fails to pay the rent or as and when rented premises is required for her personal use. PW1 has further deposed that defendant has failed to pay the arrears of rent and his tenancy was terminated vide termination notice dt. 19.04.2010, which is Ex. PW1/3 and was asked to handover the possession of the suit premises to her on or before 19.05.2010 and is liable to vacate the suit premises and there is an apprehension that defendant may handover the possession of the tenanted premises to any third person and is required to be restrained by way of an injunction.
83. On the other hand, the defence as set up by the defendant is that there was an understanding between the parties that tenancy will be for a period of 10 years and rent was settled at Rs. 3,000/ p.m. and he has incurred the expenses of Rs. 50,000/ on the rented premises. Defendant has taken further stand that tenancy has not been terminated as per law as tenancy was for a period of 10 years and he is not liable to vacate the suit premises.
84. A perpetual injunction is an injunction granted by the judgment, which finally disposes of the suit. It forms a part of the CS no. 63/12 (old No.457/10 ) Page no. 37 of 42 judgment, upon a hearing on the merits, and it can be properly ordered only upon the final judgment. The grant of a perpetual injunction should advance the cause of justice and injunction will be granted if it will restore or tend to restore the plaintiff, to the position in which she stood previous to the commission of the acts complaint of, and in which she had a right to stand.
85. Section 37 of the Specific Relief Act of 1963, provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit : the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act which would be contrary to the rights of the plaintiff.
86. A permanent injunction is only granted when (1) some established right has been invaded, and (2) when damage has occurred or must necessarily accrue from the act or omission complaint of, and there must have been a clear legal right. Section 38 to 41 of the Specific Relief Act, defines the circumstances where perpetual injunction can be granted and where they cannot.
87. In view of the discussion made above and the evidence placed on record, I am of the view that defendant has not brought any cogent evidence to prove that the plaintiff is not entitled to CS no. 63/12 (old No.457/10 ) Page no. 38 of 42 decree for permanent injunction.
88. On the other hand, the plaintiff has been able to prove that she is an owner of the suit property, which was given on rent to the defendant. Plaintiff has also been able to prove that the tenancy of the defendant was terminated vide termination notice dt. 19.04.2010, EX PW1/3 and despite the service of the notice upon the defendant, he has failed to handover the possession of the tenanted premises to the plaintiff. It is worthwhile to mention here that it is an undisputed fact that defendant is still in the possession/occupation of the tenanted premises even after the termination of tenancy. I find force in the argument advanced on behalf of the plaintiff that there is an apprehension that defendant might create third party interest or hand over the possession of the suit premises to some third party and need to be restrained and plaintiff is entitled for a relief of permanent injunction.
89. In view of the discussion made above and the evidence brought on record, it can be said that the plaintiff admittedly, being the owner/landlady of the tenanted/suit premises is entitled for a permanent injunction. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. It is held that plaintiff is entitled for a decree of permanent injunction.
CS no. 63/12 (old No.457/10 ) Page no. 39 of 42
RELIEF:
90. The initial onus to prove its case is always on the plaintiff and if it discharges that onus and makes out a case which entitles her to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
(i) In view of the finding given on the issues and especially on the issue no.4 which has been decided in favor of the plaintiff, a decree for possession of suit premises i.e. flat bearing no. 226, Pocket A3, Sector 8, Rohini, Delhi110085 is passed in favour of the plaintiff with a direction to the defendant to handover the vacant & peaceful possession of above said rented premises to the plaintiff within two months from the date of decree.
(ii) And in view of the findings given on the issues no.5 & 6 which has been partly decided in favour of the plaintiff and against the defendant, a money decree is passed towards the arrears of rent for a period of three years @ Rs.5000/ p.m. which comes to Rs.1,80,000/ and of Rs.2,87,000/ towards mense profit/damages along with interest @ 9% p.a. from the date of filing of the suit till the realization of a decreetal CS no. 63/12 (old No.457/10 ) Page no. 40 of 42 amount. However, plaintiff is hereby directed to file the appropriate court fees towards the money decree in accordance with law and the decree sheet be prepared only after taking the court fees on record. It is clarified that in case, any amount has already been paid for the aforesaid period by the defendant to the plaintiff, the defendant will be entitled on proof if any to be adjusted qua the money decree passed.
(iii) In view of the findings given on the issue no.7, a decree for permanent injunction is also passed in favour of the plaintiff and against the defendant, restraining the defendant not to create any third party interest or part with the possession of suit premises till the handing over of the vacant & peaceful possession of the suit/tenanted premises to the plaintiff.
91. Cost of the suit is also awarded to the plaintiff. With the above said observations, the suit is hereby decreed and stands disposed of accordingly. Decree sheet be prepared after filing the requisite court fees on behalf of the plaintiff. After compliance, file be consigned to record room.
Announced in the Open Court (SUNIL RANA) Today i.e..15.02.2014. ADJII(N/W): ROHINI : DELHI CS no. 63/12 (old No.457/10 ) Page no. 41 of 42 CS no. 63/12 (old No.457/10 ) Page no. 42 of 42