Delhi District Court
Sh. Raunak Singh vs Smt. Sunita Wadhera on 29 February, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL
JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI.
Unique ID No. : 02401C0250432011
C.S No. : 202/11
Date of Institution : 31.05.2011
Date of reservation of judgment : 26.02.2016
Date of pronouncement of Judgment : 29.02.2016
Sh. Raunak Singh
S/o Late sh. Narain Singh
R/o W.Z29, Shadi Pur
New Delhi110008.
.................Plaintiff
vs.
1. Smt. Sunita Wadhera
W/o Late Sh. Vijay Kumar
R/o 2732, Gali No.13, Ranjit Nagar
New Delhi110008.
2. Sh. Vicky Wadhera
S/o Late Sh. Vijay Kumar
R/o 2732, Gali No.13, Ranjit Nagar
New Delhi110008.
3. Ms. Hitika Wadhera
D/o Late Sh. Vijay Kumar
R/o 2732, Gali No.13, Ranjit Nagar
New Delhi110008.
..............Defendants
SUIT FOR POSSESSION AND RECOVERY OF ARREARS OF
Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 1/18
RENT DAMAGES FOR USE AND OCCUPATION AND MESNE
PROFITS
JUDGMENT
1. Briefly stated the facts are that one Sh. Sarup Narain was the owner of plot falling in Khasra No. 310/21, situated in the revenue estate of village Shadi Pur, New Delhi, underneath the property bearing no. 3038/2D, Gali No.21, Ranjit Nagar, New Delhi. One Sh. Vijay Kumar, the deceased husband of defendant no.1 and also the father of defendant no.2 and 3, took the aforesaid open plot on rent/lease from Sh. Sarup Narain at a monthly rent of Rs. 55/ p.m in the year 1978 which was later increased to Rs.100/. Rent receipts were issued to Late Sh. Vijay Kumar at the time when rent was paid by him.
2. Further states that in the year 1985, Sh. Sarup Narain died but during his life time, he executed a registered Will dated 31.08.1970 bequeathing all his movable and immovable properties in favour of plaintiff and as such plaintiff became the owner of plot in question ( hereinafter referred to as the "suit property"). After becoming the owner of the suit property, plaintiff started collecting rent from Sh. Vijay Kumar and lastly received rent from him on 09.04.2003 for the period between 01.01.2003 to 31.12.2003. The rent receipts were duly issued by the plaintiff however since then, Sh. Vijay Kumar failed to pay any rent to the plaintiff.
3. Further states that as per terms and conditions of lease, in case of continuous default in payment of rent by lessee for a period of Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 2/18 one year continuous, the lessor had a right to recover the arrears of rent from the court of law and also to obtain the vacant possession of the plot from the licensee. Further submits that Sh. Vijay Kumar has since died and defendant no.1 to 3 being his LRs, are in occupation of the suit property and are liable to pay the arrears of rent. As per plaintiff, he sent a demand notice dated 27.12.2010 demanding arrears of rent from 01.01.2004 to 31.12.2010 from the defendants towards the use and occupation charges of the leased plot.
4. As per plaintiff, the leasehold or tenancy rights of Sh. Vijay Kumar automatically stand terminated due to default in payment of rent and hence plaintiff does not wish that the defendants be continued in his premises as his licensee any more. Further submits that through the notice dated 27.12.2010, the lease of defendant was also terminated w.e.f 31.01.2011 and defendants were called upon to hand over the peaceful possession of the suit property within fifteen days of the receipt of the notice. However defendants have continued to remain in illegal and unauthorized occupation of the suit property and hence are liable to pay damages @ Rs.7,500/ p.m. It is also submitted that the defendants have sent arrears of rent/damages towards use and occupation charges to the plaintiff on 25.04.2011 through cheques and the same has been received by the plaintiff without prejudice to his rights, however possession of the suit plot has not been handed over.
5. Hence this suit has been filed by the plaintiff seeking decree of possession in his favour and against the defendants directing Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 3/18 the defendants, their assignees, etc. to hand over the possession of the suit property in his favour. Further decree of Rs. 22,500/ is sought towards arrears of damages for the period between from 01.02.2011 to 30.04.2011. Plaintiff has also prayed for enquiry as per provisions of Order 20 Rule 12 CPC for determining the rate of mesne profits/ damages for use and occupation of suit property to which the plaintiff is entitled and for a decree to be passed towards damages with interest alongwith costs of the suit.
6. Written statement has not been filed on behalf of defendant no.1 to 3 and their defence was struck off vide Order dated 03.11.2011 of the Ld. Predecessor.
7. At this stage, it is pertinent to mention that an application U/o 1 Rule 10 CPC was moved by defendant no.1 to 3 subsequently stating that the suit property was in possession of Sh. Gulshan Wadhera, the brother of Late Sh. Vijay Kumar, after which defendant no. 4 was impleaded as defendant.
8. Written statement has been filed by defendant no.4 wherein he submits that the suit is barred by Section 50 of the Delhi Rent Control Act since the suit property was a built up building at the time of letting out and the same continues to exist in the same built up condition till date. The averment of plaintiff regarding having let out an open plot was false. The suit property was covered under the definition of term "building" as defined U/s 2 (i) of the Delhi Rent Control Act, 1954. Hence this court being a civil court does not have jurisdiction to Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 4/18 entertain the present suit.
9. Further states that initially built up property bearing no. 3038/2B, measuring 38 Sq. Yards and property bearing no. 3038/2D measuring 70 Sq. Yds. ("suit property") was jointly let out by Sh. Sarup Narain to Sh. Vijay Kumar ( the brother of defendant no.4 ) for commercial purposes in the year 1978. (A connected suit bearing no. 203/11 is also filed by plaintiff seeking possession of property bearing no. 3038/2B). At the time of letting out, the above properties jointly comprised of a built up office space admeasuring 22'x12', a kitchen, bathroom and a store covered with tin sheds and both the properties are in the same position till date. Hence the averment regarding the suit property being an open plot is false.
10. Furthermore, Sh. Vijay Kumar was jointly carrying out business of electrical contractors alongwith defendant no.4 from the suit property, however since 1998, the tenancy of both the properties was transferred in the exclusive name of defendant no.4 by the plaintiff himself but no written agreement was executed in this regard. The tenancy was oral. The present rate of rent of property bearing no. 3038/2B was Rs. 40/ p.m and that of property bearing no. 3038/2D was Rs. 100/ p.m. as is clearly depicted from the various rent receipts, issued by plaintiff in favour of defendant no.4. Further the rent receipts were issued by the plaintiff only till 10.06.2001 for property bearing no. 3038/2B and till 29.12.2001 for property bearing no. 3038/2D by the plaintiff despite the fact that he regularly received the rent even Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 5/18 thereafter and did not issue any rent receipt inspite of repeated requests of defendant no.4.
11. Defendant no.4 further states that he is carrying on the business of electrical contractors exclusively from the tenanted premises in his capacity being the sole proprietor of M/s M.K. Industries which is a duly licensed firm and also assessee of Value Added Tax vide due registration and is eligible for CPWD works in Delhi besides being registered with Central Excise Department. It is denied by defendant no.4 that defendant no.1 to 3 were in possession of any portion of the suit property at any point of time.
12. It has been further alleged by defendant no.4 that defendant no.1 to 3 are in collusion with plaintiff and despite them not being in possession of suit property, they have made false statement that they are tenant in common being LRs of Sh. Vijay Kumar qua the suit property as they have grudge against defendant no.4 and want him evicted from the suit property. Further states that the suit is bad for misjoinder of necessary parties as defendant no. 1 to 3 were never tenants qua the suit property and nor were in possession of the same or have any right, title or interest or any locus standi over the same.
13. Defendant further asserts that no statutory notice U/s 106 of Transfer of Property Act has been served upon him by the plaintiff. Hence he was a lawful tenant in possession of the suit property and he has paid rent to the plaintiff qua the suit property till 31.08.2012. Other averments made in the plaint were denied and prayer is made for Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 6/18 dismissal of the suit.
14. Replication was filed by the plaintiff wherein the contentions made in the WS were denied by the plaintiffs and contents of plaint were reaffirmed.
15. Vide order dated 06.03.2013, the following issues were framed by the Ld. predecessor of this court :
1. Whether the plaintiff is entitled to decree of possession as prayed for ?
2. Whether the plaintiff is entitled to decree of Rs.22,500/ as arrears of damages ?
3. Whether the plaintiff is entitled to mesne profits, if any, at what rate and for what period ?
4. Whether the plaintiff is guilty of suggestio falsi or suppresio veri ?
5. Whether the suit of the plaintiff is bad for misjoinder of parties ? OPD4
16. Further vide Order dated 19.08.2013, an additional issue was framed as under :
" Whether the suit is barred U/s 50 of Delhi Rent Control Act ? OPD4 "
17. In order to prove his case, plaintiff examined only one witness i.e plaintiff himself as PW1. In his testimony, following documents were exhibited :
Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 7/18 " Affidavit of PW1 is Ex PW 1/A wherein the averments of plaint have been reproduced, the site plan is Ex. PW 1/1, jamabandi is Ex. PW 1/ 2, copy of notice dated 27.12.2010 is Ex. PW 1/3, the registry receipts are Ex. PW 1/ 4 to Ex. PW 1/9, the UPC receipts are Ex. PW 1/10 and Ex. PW 1/11, the AD cards are Ex. PW 1/12 to Ex. PW 1/17, the original letter of defendant no.1 dated 25.04.2011 is Ex. PW 1/18, the photocopy of cheque is Ex. PW 1/19, the counterfoil of some rent receipts are Ex. PW 1/20 to Ex. PW 1/26, the copy of Will dated 31.8.1970 is Mark A. During crossexamination of this witness, certain other rent receipts were exhibited as Ex. PW 1/D1 to Ex. PW 1/D6. "
The plaintiff was crossexamined and thereafter PE was closed.
18. In defendant evidence, defendant no.4 examined one witness i.e himself as D4W1. In his testimony, following documents were relief :
" The affidavit of D4W1 is Ex. D4W1/A, the rent receipts which are already exhibited as Ex. PW 1/D1 to Ex. PW 1/D4, copy of duplicate license of electrical contractor issued to D4W1 by Govt. of NCT Delhi vide EC No. 3279 is Ex. D4W1/1, letter dated 24.02.2006 is mark A, the Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 8/18 letter no.31 (269)CE (E) DR/EIII/397 dated 17.09.2010 from the office of Chief Engineer CPWD is Mark B, Form DVAT 06 vide registration No. 07900384485 is Ex. D4W 1/2, Form ST2 is Ex. D4W1/3, Copy of challan for DVAT is Mark C, tax payer's identification pin issued by Sales Tax Department is Mark D, the acknowledgments issued by VAT Department is Mark E (colly.), Water bill is Mark F and telephone bills are Mark G (colly), Water bill dated 31.10.2013 is Ex. D4W1/4 and telephone bill for the month of May, 2014 is Ex. D4W1/5. "
The witness was crossexamined and thereafter DE was closed. Final arguments were addressed on behalf of both parties.
19. I have considered final arguments of both sides and perused evidence on record. My issuewise findings are as under :
20. ISSUE NO.5
5. Whether the suit of the plaintiff is bad for mis joinder of parties ?
I will decide this issue firstly. The onus to prove this issue was upon the defendant no.4.
21. It is contended by defendant no.4 that the suit is bad for misjoinder of parties as defendant no.1 to 3 being the LRs of erstwhile tenant Sh. Vijay Kumar had no concern with the suit property and he is tenant of plaintiff since year 1998. On the other hand, the contention of plaintiff is that he had let out the suit property to Sh. Vijay Kumar and Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 9/18 the tenancy was inherited by his LRs i.e. defendant no.1 to 3 herein and has no concern with defendant no.4. Hence, the suit was not bad for misjoinder of parties since they were necessary parties.
22. As far as the above contentions are concerned, plaintiff has not filed any proof that Sh. Vijay Kumar remained his tenant till year 2008 when he expired and thereafter defendant no.1 to 3 came into the possession of suit property. Infact, defendant no. 1 to 3 themselves deny this fact and contend that Sh. Vijay Kumar had left the suit property even much prior to his death as mentioned in their application U/o 1 Rule 10 CPC. In this regard, plaintiff has relied upon one letter Ex. PW 1/18, as per which defendants no.1 to 3 had paid rent of suit property from 01.01.2002 till 30.04.2011 @ Rs.100/ p.m. by way of cheque as proof that defendant no.1 to 3 were his tenants after death of Sh. Vijay Kumar. However this anomaly has been explained by defendant no.1 to 3 who contend in their above application u/o 1 Rule 10 CPC that they had told the plaintiff after receiving legal notice from him that suit property was not in their possession. Further state that they were compelled to pay the rent since plaintiff had assured them that upon making payment of rent, he will not bother them in future. More over, defendant no.1 to 3 have not even filed any WS on their behalf and had infact moved the above application u/o 1 Rule 10 CPC for impleadment of defendant no.4 on the ground that suit property was in possession of defendant no.4. This application was allowed by Ld. Predecessor of this Court but plaintiff has not challenged the said order. Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 10/18 Infact, there is nothing on record to show any connection of LRs of Vijay Kumar i.e. defendant no.1 to 3 with the suit property.
23. On the other hand, defendant no.4 has proved his possession over the suit property by way of various documents filed by him. Some of the documents are however not admissible in evidence as they have not proved as per law. In order to prove the payment of rent by him, defendant no.4 has filed certain rent receipts Ex. PW 1/D1 to Ex. PW 1/D6, which are admitted by plaintiff to be in his hand writing (except rent receipt Ex. PW1/D5) and also bears his signature on all of them. Defendant no.4 has filed copy of duplicate license of electrical contractor issued to him by Govt. of NCT, Delhi vide EC No. 3279 Ex. D4W 1/1 which bears the address of suit property. Some other documents relied by him are Form DVAT 06 vide registration No. 07900384485 Ex. D4W 1/2, Form ST2 Ex. D4W 1/3, Water bill dated 31.10.2013 Ex. D4W1/4 and telephone bill for the month of May, 2014 Ex. D4W1/5 which does show the possession of defendant over the suit property.
24. In view of same, it is apparent that defendant no.1 to 3 have no concern with the suit property and they have been wrongly arrayed as party in this suit. This issue is decided against the plaintiff and in favour of the defendant no.1 to 3.
25. ISSUE NO.1 & 4 AND ADDITIONAL ISSUE AS FRAMED ON 19.08.2013 Issue No.1 Whether the plaintiff is entitled to decree of Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 11/18 possession as prayed for ?
Issue No. 4 Whether the plaintiff is guilty of suggestio falsi or suppresio veri ?
Additional Issue: Whether the suit is barred U/s 50 of Delhi Rent Control Act ?
All the issues are based on the same facts and hence are being taken up together. Though the Order framing charge does not state in express terms, but since plaintiff is seeking relief of possession, the onus ought to be on him to prove issue no.1 and the onus to prove issue no.4 and additional issue is upon defendant no.4.
26. From the evidence on record and from contentions of both the parties, it is apparent that there are three bone of contentions between plaintiff and defendant no.4. The first is regarding whether the suit property as originally let out, was an open plot of land or was a built up structure. Secondly, whether defendant no.4 was the tenant of plaintiff or not since year 1998. Thirdly, the rent of the suit property has been paid or not ?
27. As far as physical status of the property as on date of letting out is concerned, the plaintiff contends that same was an open plot of land, hence even though the rate of rent is less than Rs.3,500/ p.m., the provisions of Delhi Rent Control Act are not attracted, which is only with respect to "premises" as defined u/s 2 (i) of the Act. On the other hand, defendant no.4 has contended that when he entered into the tenancy, the suit property was a built up structure. However at the Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 12/18 outset itself, it is worth noting that defendant no.4 has failed to prove the existence of structure in the suit property as contended in his written statement.
28. As far as the above contentions are concerned, admittedly the suit property was not let out by plaintiff to the original tenant Sh. Vijay Kumar but by one Sh. Sarup Narain, who was the owner at that time and he executed a Will in favour of plaintiff through which plaintiff became owner and landlord of the suit property subsequently. As per plaintiff, the suit property was given on lease to Sh. Vijay Kumar in the year 1978, however, there is no lease agreement as no written document was prepared. So, none of the terms and conditions of the alleged original lease agreement are within the notice of Court. Hence it cannot be concluded merely from the Oral submissions on the part of the plaintiff that the property as originally let out was an open plot of land. Moreover the present physical condition of the suit property is not relevant evenif it is a plot with four side boundary wall without roof as on date, as the physical condition of the original suit property as let out by landlord is relevant and not any alteration/changes made in the suit property by the tenant subsequently. Since there is no documentary proof regarding its physical status, under such circumstances, rent receipt issued by the previous owner and thereafter by the present landlord i.e. plaintiff herein become relevant to determine the nature of the property as let out. It is also worth emphasizing that since there is no contention of either side that there Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 13/18 has been a break as such in the tenancy or the suit property remained vacant at any point of time after its initial letting out, hence I will draw a presumption that if at all, defendant no.4 came into the suit property in the same physical shape as it was initially let out, except the usual wear and tear in the property with efflux of time.
29. A careful perusal of rent receipt Ex. PW1/20 to Ex. PW1/25 shows that the suit property has been referred to as a "Factory" by the original landlord. Had the suit property been an open plot of land, it would not have been referred as a Factory in the rent receipts issued by the original landlord and that too by overwriting the word "Factory" with pen, over the printed portion of the receipt at the place where "house number" is mentioned. These rent receipts are not disputed by the plaintiff as rent receipts Ex. PW1/20 to Ex. PW1/25 are his own documents. In fact, the plaintiff has also admitted that he does not have any proof to prove his contention about suit property being an open plot of land. So there is nothing on record to prove that suit property as originally let out, was an open plot of land but on the contrary, the above rent receipts prove that it was not an open plot of land but a "Factory".
30. As far as the second point of consideration regarding defendant no.4 being the tenant of plaintiff is concerned, I have already come to the conclusion while deciding issue no.5 that defendant no.4 is tenant of plaintiff. However to reemphasise, the rent receipts Ex. PW1/D1 to Ex. PW1/D4 can be referred which have been issued in the Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 14/18 name of defendant himself for the period between 01.12.1995 to 31.12.1999. Further rent receipt Ex. PW1/D5 and Ex. PW1/D6 are in the name of "M.K. Industries" which is a firm of defendant no.4 as per evidence on record. The plaintiff's contention is that defendant no.4 was merely agent of original tenant Sh. Vijay Kumar. However, the rent receipts Ex. PW1/D1 to Ex. PW1/D6 do not bear testimony to the above contention as it is no where stated that rent was being collected from defendant no.4 on behalf of Sh. Vijay Kumar.
31. Moreover, it is also worth stating that the earlier rent receipts Ex. PW1/20 to Ex. PW1/26 are in the name of Sh. Vijay Kumar himself. So there is no reason for the plaintiff to issue rent receipts in favour of defendant no.4 or his firm, without him having any concern with the suit property. Moreover I have already concluded above that there are some other documents in favour of defendant no.4 which bear the address of the suit property. So in view of documentary evidence on record, it is concluded that defendant no.4 did become the tenant in the suit property during the life time itself of original tenant Sh. Vijay Kumar and came in its possession before the death of Sh. Vijay Kumar, as contended by the LRs of Sh. Vijay Kumar i.e. defendant no.1 to 3.
32. The third and last bone of contention is regarding arrears of rent. As per plaintiff, the rent of the suit property remained unpaid for several years, hence, he has terminated the tenancy of defendant no.1 to 3 in view of the term of oral lease agreement that if the tenant failed to pay rent for a period of one year continuous, the lease agreement would Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 15/18 automatically stand cancelled.
33. At the outset, it is worth stating that there cannot be a valid oral lease agreement for a period of one year or more and the same has to be in writing and duly registered. Even the above term of lease agreement is also not proved. Secondly, even if this contention is taken as true, the plaintiff has himself admitted in his cross examination recorded on 19.8.2013 that he did not demand rent from Sh. Vijay Kumar from year 1998 till his death nor did he file any suit against him nor issued any legal notice asking for payment of rent. So by own admission of plaintiff, it is clear that he took no steps for recovery of rent evenif Sh. Vijay Kumar is deemed to be his tenant.
34. Furthermore, I have already concluded above that defendant no.4 had become the tenant of plaintiff subsquently as plaintiff had issued rent receipts in the name of defendant no.4 and his firm. So, plaintiff ought to have demanded rent from defendant no.4 and not Sh. Vijay Kumar or his LRs. Further, legal notice Ex. PW1/3 has been issued to defendant no.1 to 3 and not to defendant no.4. Though defendant no.4 has contended that he had paid rent till 31.08.2012 but he has no supporting rent receipts in this regard as the rent receipts were allegedly not issued by the plaintiff. However, this being a suit of plaintiff, it was for him to have proved sufficiently the period of nonpayment of rent by defendant no.4 but he has failed to do so.
Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 16/18
35. Accordingly, in view of my aforesaid discussions, it is found that suit property as originally let out, was not an open plot of land but was a Factory as per the rent receipts and tenancy of defendant no.4 who subsequently became tenant in the suit property, was covered under the provisions of Delhi Rent Control Act and the relief as sought by the plaintiff cannot be granted being beyond the jurisdiction of civil court.
All the above issues are accordingly decided against the plaintiff and in favour of defendant no.4.
36. ISSUE NO.2 & 3 :
2. Whether the plaintiff is entitled to decree of Rs.22,500/ as arrears of damages ?
3. Whether the plaintiff is entitled to mesne profits, if any, at what rate and for what period ?
The onus to prove these issues are upon the plaintiff. In view of my findings qua issue no.1 and additional issue, as plaintiff is not found to be entitled to decree of possession and defendant no.4 continues to be statutory tenant, no arrears of damages or mesne profits can be awarded to him. Plaintiff can only claim the admitted rent for the period for which the rent has remained unpaid.
These issues are also decided in favour of defendant no.4 and against the plaintiff.
Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 17/18
37. RELIEF In view of my above mentioned observations and findings, the suit of plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 29.02.2016 Civil Judge 01 ( West)/Delhi Suit No202/11 Raunak Singh vs Sunita Wadhera & Ors. 18/18