Delhi District Court
Mrs. Suman Makkad vs Sh. Manjeet Singh Kochar @ Dimple on 1 July, 2014
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE II(N/W): ROHINI: DELHI
CS NO. 312/2011
Unique Code No. 02404C0246492010
1. Mrs. Suman Makkad
W/o Sh. Ajeet Singh Makkad
2. Smt. Rakhi Makkad
W/o sh. Harvinder Singh Makkad
Both R/o 3, New Gandhi Nagar,
Adarsh Nagar, Ghaziabad, UP
....Plaintiff
VERSUS
Sh. Manjeet Singh Kochar @ Dimple
S/o Late Sh. Swarn Singh
R/o A166, Ground Floor,
Derawal Nagar, Delhi110009 ....Defendant
Date of Institution : 30.09.2010
Date of reserved for order : 31.05.2014
Date of Decision : 01.07.2014
J U D G M E N T
1. By this order/judgment, I shall decide the suit for possession, permanent injunction and recovery of damages/mesne CS no. 312/11 Page no. 1 of 33 profit filed by the plaintiffs against the defendant.
2. Brief facts as stated in plaint are that plaintiffs are the absolute owners of built up suit premises bearing no. A166, entire ground floor, land measuring 130 sq yds, situated in the residential colony known as Derawal Nagar, area of Village Malikpur Chhaoni & Rajpur Chhaoni, Delhi by virtue of registered Sale Deed dt. 01.05.2006 executed by the previous owners Smt. Neelam Arora & Smt. Gauri Arora in favour of the plaintiffs.
3. It has been stated that defendant's mother Smt. Satnam Kaur died on 13.04.2009 was the real aunt (Mausi) of the husbands of plaintiffs and due to their close relationship, she was permitted to live & use the suit premises. It has been further stated that subsequently defendant after the demise of his mother had requested to allow him to live in the suit premises for two months and he promised to vacate & hand over the possession to the plaintiffs by the end of June, 2009 but had failed to vacate even after the expiry of promised period and always gained time on one pretext or the other.
4. It has been further stated that plaintiffs had issued a legal notice dt. 23.07.2010 upon the defendant and canceled his license/permission to live in the suit premises w.e.f. 31.08.2010 and CS no. 312/11 Page no. 2 of 33 called upon to vacate & handover the possession and to pay damages for an unauthorized use & occupation @ Rs. 25,000/ p.m. w.e.f. 01.09.2010 and reply dt. 27.08.2010 to the notice was also received and defendant is in unauthorized occupation of the suit premises.
5. It has been prayed that a decree of possession be passed directing the defendant to vacate & handover the peaceful possession of the suit premises to the plaintiffs and another decree of permanent injunction be passed in favour of the plaintiffs and against the defendant; and another decree of mesne profit/damages @ Rs. 25,000/ p.m. for unauthorized use & occupation of the suit premises be also passed in favour of plaintiffs and against the defendant.
6. Summons of the suit was issued to the defendant, who has contested the suit with objections that there is no cause of action and suit is liable to be dismissed u/o VII Rule 11 CPC and is also barred u/s 50 of DRC Act and appropriate court fees has not been affixed and as such suit is liable to be dismissed.
7. On merits, it has been submitted that plaintiffs had purchased the suit property for more than Rs. 12 lacs and defendant had given a sum of Rs. 5 lacs to plaintiffs out of love & affection at CS no. 312/11 Page no. 3 of 33 the time of purchasing it and as he was in search of rental accommodation had agreed to take it on rent @ Rs. 2,500/ p.m. and amount of Rs. 5 lacs was agreed to be adjusted towards the collateral security to be refunded at the time of vacating the suit premises.
8. It has been further submitted that plaintiffs have never issued any receipt for the rent or collateral security of Rs. 5 lacs and the rent till April 2010 was paid and the suit is based on false averments and liable to be dismissed.
9. Replication to the WS was filed and contents of the plaint are reaffirmed.
10. From the pleadings of parties, vide order dt. 04.12.2010 passed by the Ld. Predecessor of this Court, the following issues were framed:
1. Whether the suit is valued properly for the purpose of court fees and jurisdiction and proper court fees is paid? OPP
2. Whether the sum of Rs. 5,00,000/ was given by the defendant to the plaintiff as collateral security for purchase of the suit property as alleged in para 1 WS on merit, if so to what effect ? OPD
3. Whether the plaintiff is entitled to the decree of possession as prayed? OPP
4. Whether the plaintiff is entitled for decree for permanent injunction as prayed ?OPP CS no. 312/11 Page no. 4 of 33
5. Relief.
11. It is worthwhile to mention here that during proceedings before the Ld. District Judge, Rohini, defendant was proceeded exparte vide order dt. 18.01.2011 and matter was fixed for exparte evidence and subsequently an application u/o 9 Rule 7 CPC was moved on behalf of the defendant to set aside the exparte proceedings, which was allowed by the Ld. District Judge (NW) Rohini vide order dt. 25.01.2011. It is also worthwhile to mention here that defendant was again proceeded exparte vide order dt. 12.07.2011 by the Ld. Distt. Judge Rohini and the said order was also set aside vide order dt. 16.11.11 and subsequently evidence were led on behalf of both the parties and arguments were advanced and matter was fixed for clarification/order on 03.05.2014.
12. It is worthwhile to note here that on 03.05.2014, parties have submitted that two additional issues are required to be framed for the proper adjudication of the case as per the pleadings of parties and separate statements of plaintiff no1 and defendant were recorded in this regard and two additional issues no 5 & 6 were framed on 03.05.2014, which are as follows:
Issue no5: Whether the suit of the plaintiffs is barred under the provision of Sec50 of DRC Act as per preliminary CS no. 312/11 Page no. 5 of 33 objection raised in the WS? OPD Issue no6. Whether the plaintiff is entitled for the recovery of damages/mesne profits as prayed in the plaint ? OPP
13. In order to prove its case, plaintiffs have examined plaintiff no. 1 Suman Makkad as PW1, Sh. Karan as PW2 and Sh. Amarjeet Sigh as PW3. On the other hand, defendant has examined himself as DW1, Sh. Parmod Kumar, Assistant, SubRegistrar, Pritam Pura, Delhi as DW2 and Sh. Ravi Khanna as DW3. Detailed testimonies of the witnesses shall be discussed in the later part of judgment.
14. 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 suit is valued properly for the purpose of court fees and jurisdiction and proper court fees is paid? OPP
15. The onus to prove this issue is upon the plaintiffs, who have filed a suit for recovery of possession, arrears of rent, mesne profits/damages and for injunction. Defendant has raised an objection in the WS that plaintiffs have not filed an appropriate court CS no. 312/11 Page no. 6 of 33 fees at time of filing the suit.
16. 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 the requisite stamp paper within a time to be fixed by the Court, fails to do so.
17. Order VII Rule 11 sub clause (c) of CPC specifically provides that when an insufficiently stamped plaint is presented, the court is bound to give some time to make up the deficiency before rejection.
18. Under this rule, the court is bound to grant some time to supply the deficient court fees 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 make the payment of balance court fees.
19. Plaintiffs have averred in the plaint that suit property was purchased by them and defendant was permitted to use it for two months and notice was issued to vacate & handover the possession and subsequently suit was filed against the defendant. It has been CS no. 312/11 Page no. 7 of 33 urged that requisite court fees of Rs. 5,760/ was affixed as mentioned in para 14 of the plaint and appropriate court fees on account of damages/mesne profits would be paid as determined by the court in accordance with law.
20. It is worthwhile to mention here that during the trial an application u/o 7 rule 11 CPC was also moved on behalf of the defendant that there is a deficiency of court fees and subsequently deficient court fees of Rs. 11,715/ was filed by the plaintiffs and in view of the said development, defendant did not press the said application u/o 7 rule 11 CPC and same was dismissed as not pressed vide order dt. 16.08.2013.
21. On the other hand defendant has not brought any cogent evidence in this regard to establish that proper court fee has not been affixed. No such arguments have been even advanced in this regard at the time of final argument. Pleading is no evidence, far less proof.
22. In view of the discussion made above, averments made in the plaint and evidence brought on record, it cannot be said that appropriate court fees has not been affixed. Hence, the present issue is decided in favour of plaintiffs and against the defendant. ISSUE NO. 2 : Whether the sum of Rs.5,00,000/ was given by CS no. 312/11 Page no. 8 of 33 the defendant to the plaintiffs as collateral security for purchase of the suit property as alleged in para 1 of WS on merit if so to what effect ? OPD
23. The onus to prove this issue is upon the defendant. DW1 has deposed on the line of pleadings that suit premises was taken on rent and the financial assistance of Rs. 5 lacs was given to the plaintiffs at the time of purchasing the suit property and amount of Rs. 5 lacs was adjusted towards interest free collateral security to be refunded at the time of vacating the rented premises.
24. Defendant has not brought any document or cogent evidence on record to establish that an amount of Rs.5 lacs was paid by him to the plaintiffs at the time of purchasing the suit property. It is worthwhile to note here that DW1 has stated in his deposition that he has not placed any document/receipt of Rs. 5 lacs as no receipt was issued by the plaintiffs and same was never demanded by him just to maintain the cordial relationship between the parties. Pleading is no evidence, far less proof.
25. In view of the discussion made above and evidence brought on record. It cannot be said that any such amount of Rs. 5 lacs towards interest free collateral security was given by the defendant to the plaintiffs at the time of purchasing the suit premises.
CS no. 312/11 Page no. 9 of 33 Accordingly, the present issue is decided against the defendant and in favour of plaintiffs.
ISSUE NO. 3 : Whether the plaintiff is entitled to the decree of possession as prayed? OPP
26. The onus to prove this issue is upon the plaintiffs. PW1 has deposed on the lines of pleadings that plaintiffs are the absolute owner of suit property by virtue of registered sale deed dt. 01.05.2006 executed in their favour, which is exhibited as PW1/B and the site plan is exhibited as PW1/A. PW1 has further deposed that defendant's mother Smt. Satnam Kaur died on 13.04.2009 was the real aunt of their husbands and due to close relationship and on humanitarian ground, she was permitted to live in the suit premises and subsequently after her death, defendant was permitted to live & use the suit premises for two months and he had promised to vacate & hand over the possession by the end of June, 2009 but failed to do so and is in the possession of suit premises till date.
27. PW1 has proved a legal notice dt. 23.07.10, which is exhibited as PW1/C issued upon the defendant to cancel his license/permission to live in the suit premises w.e.f 31.08.10 and he was called upon to vacate & hand over the possession and to pay damages @ 25,000/ p.m. w.e.f 01.09.10 and the postal receipts are exhibited as PW1/D, UPC as PW1/E and AD card as PW1/F. PW CS no. 312/11 Page no. 10 of 33 1 has also proved the income tax return for the year 2005 to 2008, which is exhibited as PW1/G (colly) and the income tax return of her husband Sh. Ajeet Singh Makkad is exhibited as PW1/H, the income tax return of plaintiff no. 2 is Ex. PW1/I (colly) and the income tax return of the husband of plaintiff no. 2, Sh. Harvinder Singh Makkad is Ex. PW1/J (colly) and the income tax return of fatherinlaw Sh. Harbhajan Singh is Ex. PW1/K and income tax return of motherin law, Smt. Amarjeet Kaur is Ex. PW1/L.
28. PW1 has further deposed that plaintiffs had purchased the suit premises for a consideration amount of Rs. 3,50,000/ paid through cheques all drawn on Bank of Baroda, Clock Tower, Ghaziabad, U.P. vide receipt dt. 01.05.06, which is exhibited as PW1/M and the pass books showing the entries of said cheques is Ex. PW1/N and the statement of account showing the encashment of said cheques is Ex. PW1/O and plaintiffs are entitled to recover the possession of suit premises from the defendant.
29. Let us see the cross examination of PW1, wherein it has been stated that no writing work was done between the plaintiffs and Smt. Satnam Kaur. Witness was asked a specific question in the QuestionAnswer form and the same is reproduced here as under:
"Q: At the time of your claim that the property was given to Late Smt. CS no. 312/11 Page no. 11 of 33 Satnam Kaur whether any period was granted to her? A. Late Smt. Satnam Kaur has sought it one year or six months or within one year whenever she will have alternative accommodation, she will vacate the suit property."
PW1 has denied the suggestion that Rs. 5 lacs was paid to the plaintiffs at the time of purchasing the suit property or that Rs. 2,500/ p.m. was fixed as rent.
PW2 has deposed that defendant is known to him and his mother Smt. Satnam Kaur was earlier permitted to live in the suit premises and subsequently defendant was allowed to live temporarily for two months after the demise of his mother Satnam Kaur on 13.04.2009. PW2 has further deposed that defendant has no concern with the suit property as he was only allowed to live temporarily by the plaintiffs and he had promised to vacate the suit premises in the month of June, 2009 but he failed to so.
30. Let us see the crossexamination of PW2, wherein it has been stated that suit premises was given to the mother of the defendant and now the entire suit premises i.e. ground floor of A 166 is under the occupation/possession of defendant and his family. PW2 has denied the suggestion that any interest free loan of Rs. 5 lacs was taken by the plaintiffs from the defendant at the time of CS no. 312/11 Page no. 12 of 33 purchasing the suit property.
31. PW3, Amarjeet Singh has deposed that plaintiffs are the owners of suit property and Satnam Kaur (Buaji) was permitted to live in the suit premises and subsequent to her death on 13.04.2009, defendant was allowed to live in the suit premises for two months and he had promised to vacate & hand over the suit premises.
32. Let us see the crossexamination of PW3, wherein he has denied the suggestion that suit premises was let out and rent was fixed Rs. 2,000/ to Rs. 3,000/ p.m. in the year 2006. PW3 has further denied the suggestion that rent was regularly paid by the defendant to the plaintiffs.
33. On the other hand, defendant has examined himself as DW1 and deposed on the line of pleadings that suit premises was taken on rent @ Rs. 2,500/ p.m. and is protected u/s 50 of Delhi Rent Control Act. DW1 has further deposed that a financial assistance of Rs. 5 lacs was given to the plaintiffs at the time of purchasing the suit property and since he was in search of rental accommodation, the plaintiffs have let out the ground floor of suit property on rent and amount of Rs. 5 lakhs paid by him was adjusted towards interest free collateral security to be refunded at the time of vacating the suit premises. DW1 has further deposed that no rent CS no. 312/11 Page no. 13 of 33 receipt was issued by the plaintiffs and the same was never demanded by him and the receipt for collateral security of Rs.5 lakhs was neither given by plaintiffs nor demanded by the defendant just to maintain the cordial relationship between them.
34. In the instant case, it is a matter of record that there is no written rent agreement executed between the parties.
35. Section 106 of Transfer of Property Act 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 and the legal notice dt. 23.07.2010 (Ex. PW1/C) was issued and defendant was called upon to vacate the suit premises.
36. 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 ".
37. The purpose of giving notice is to make it known to the defendant that plaintiff does not want him to continue in possession and should vacate and hand over the possession to the plaintiff.
CS no. 312/11 Page no. 14 of 33
38. In the instant matter, case of the plaintiffs is that suit premises was earlier given to Smt. Satnam Kaur who was the mother of defendant and after her demise on 13.04.2009, defendant was permitted to live in the suit premises for a period of two months and he had promised to vacate by the end of June, 2009 and subsequently notice dt. 23.07.2010 was issued by the plaintiffs but despite that defendant has failed to vacate & hand over the suit premises and became an unauthorized occupant w.e.f 31.08.2010.
39. On the other hand, defence as set up by the defendant is that he is a tenant in respect of the suit premises @ 2,500/ p.m and the present suit is barred u/s 50 of DRC Act.
40. On perusal of the evidence, it is worthwhile to mention here that DW1 has admitted the fact that no written rent agreement was executed between the parties. No document or evidence has been brought on record to substantiate that he is a tenant in the suit premises @ Rs. 2,500/ p.m.
41. Even in the facts of the present case, there is no dispute that there is no written RentAgreement executed between the parties and the notice dt. 23.07.2010 was issued, which is Ex. PW 1/C. Accordingly, the argument on behalf of the defendant in the absence of any cogent evidence to substantiate his defence that that CS no. 312/11 Page no. 15 of 33 rent of the premises was Rs. 2,500/ p.m. and he is entitled to continue in the tenanted premises is solely by virtue of alleged oral understanding without there existing a registered rent agreement 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, the tenancy continues as a month to month tenancy and such monthly tenancy can always be terminated by giving a notice. 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.
42. 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 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 in the said judgment that along with the suit, the notice by which the tenancy was terminated is filed as a document and was served upon the defendant.
CS no. 312/11 Page no. 16 of 33
43. It is well settled that the possession is important when there are no title documents and other relevant record before the court, but, once the documents and record of title documents come before the court, it is the title which has to be looked at first and due weightage be given to it. It is well settled that in a suit for possession, it has two parts, first, adjudication of title, and second, adjudication of possession. If the title is established, then, in effect, plaintiffs become entitled for a relief of possession. To put it differently, whenever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleading, particular and documents to support his claim in order to continue in possession.
44. The Hon'ble Supreme Court in the case titled as Maria Margarida Sequeria Fernandes and Others v/s Erasmo Jack de Sequeria(Dead) through LRs. 2012 III AD (SC) has given the guidelines with regard to the claim of possession and same has been reproduced herein for reference:
It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
CS no. 312/11 Page no. 17 of 33
(a) who is or are the owners of the property;
(b) title of the property;
(c) who is in the possession of the title documents (d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) if taken on rent, license fee or lease then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity;
as family members, friends or servant etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and CS no. 312/11 Page no. 18 of 33
(k) basis of his claim that not to deliver possession but continue in possession.
45. The Hon'ble Supreme Court has further observed that apart from the pleadings, the court must insist on documentary proof in support of the pleadings. All those documents would be relevant which comes into existence after the transfer of title or possession or the encumbrances as is claimed. It has been further observed that in dealing with a civil case, pleadings, title documents and relevant record play a vital role and that would ordinarily decide the fate of the case.
46. In view of the discussion made above and relying upon the judgment M/s Jeevan Diesels & Electricals Ltd vs. M/s Jasbir Singh Chaddha (HUF) & Anrs. (supra). it can be said that defendant is in unauthorized occupation after receiving the termination notice Ex. PW1/C and is liable to handover the possession of suit premises to the plaintiffs. Accordingly, it can be concluded that plaintiffs are entitled to a decree of possession, being the owner of the suit premises by virtue of registered sale deed PW1/B, hence this issue is decided in favour of the plaintiffs and against the defendant.
CS no. 312/11 Page no. 19 of 33 ISSUE NO. 4 : Whether the plaintiff is entitled for decree for permanent injunction ?OPP
47. The onus to prove this issue is upon the plaintiffs. PW1 has deposed that plaintiffs are the absolute owner of suit property by virtue of registered sale deed dt. 01.05.2006 executed in their favour, which is exhibited as PW1/B. PW1 has further deposed that defendant's mother Smt. Satnam Kaur was permitted to live in the suit premises and after her death on 13.04.2009, defendant was permitted to live for two months and he is in the occupation of suit premises till date.
48. PW1 has proved a legal notice dt. 23.07.2010, which is exhibited as PW1/C issued upon the defendant to vacate & handover the possession of the suit premises and deposed that there is an apprehension that defendant may handover the possession to third person and is required to be restrained by way of an injunction.
49. On the other hand, defence as set up by the defendant is that he is a tenant in respect of suit premises @ Rs. 2,500/ p.m. and the suit is barred u/s 50 of DRC Act.
50. A permanent injunction is an injunction granted by the judgment, which finally dispose of the suit and grant of a permanent injunction should advance the cause of justice and will be granted if it will restore or tend to restore the plaintiff to the position in which she CS no. 312/11 Page no. 20 of 33 stood previous to the commission of the acts complained.
51. 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 complained of and there must have been a clear legal right. Section 38 to 41 of the Specific Relief Act, defines the circumstances where permanent injunction can be granted and where they cannot.
52. In view of the discussion made above and the evidence placed on record, this court is of the view that defendant has not brought any cogent evidence to prove that the plaintiff is not entitled to decree for permanent injunction. Pleading is no evidence, far less proof.
53. On the other hand, plaintiffs have been able to prove that they are the absolute owner of suit premises and the defendant was permitted to use it for a period of two months and legal notice dt. 23.07.2010, Ex. PW1/C was issued and defendant was called upon to vacate & handover the suit premises to the plaintiffs. It is worthwhile to mention here that it is an undisputed fact that defendant is still in the possession/occupation of the suit premises even after the service of legal notice dt. 23.07.2010. I find force in the argument advanced on behalf of the plaintiffs that there is an CS no. 312/11 Page no. 21 of 33 apprehension that defendant might create third party interest or hand over the possession of suit premises to some third party and he needs to be restrained and plaintiffs are entitled for a relief of permanent injunction.
54. Therefore, in these circumstances, plaintiffs admittedly, being the owners/landladies of the suit premises by virtue of sale deed Ex. PW1/B are entitled for a decree of permanent injunction. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant.
Issue no5: Whether the suit of the plaintiffs is barred under the provision of Sec50 of DRC Act as per preliminary objections no 2 & 3 raised in the WS ? OPD.
55. The onus to prove this issue is upon the defendant, who has testified as DW1 on the line of pleadings that he is a tenant in the suit premises @ Rs. 2,500/ p.m. and suit is barred u/s 50 of Delhi Rent Control Act.
56. On the other hand, plaintiff no.1 has examined herself as PW1 and deposed that plaintiffs are the absolute owner of suit property by virtue of registered sale deed dated 01.05.2006 executed in their favour, which is Ex. PW1/B. PW1 has further deposed that defendant's mother Smt. Satnam Kaur was permitted to live in the CS no. 312/11 Page no. 22 of 33 suit premises on humanitarian ground and after her death, defendant was permitted to live in the suit premises for a period of two months and he had promised to vacate & hand over the possession by the end of June, 2009 but failed to do so and is in an unauthorized occupation of suit premises till date.
57. PW1 has further deposed that a legal notice dt. 23.07.10 Ex. PW1/C was issued upon the defendant to cancel his license/permission to live in the suit premise w.e.f 31.08.10 and he was called upon to vacate & hand over the possession.
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."
58. Order VII Rule 11, sub clause (d) of CPC specifically provides that when it appears from the averments made in the plaint to be barred by any law. Clause (d) applies to those cases only where the averments made in the plaint without any doubt or dispute shows that suit is barred by any law in force as held in Popat and Kotecha Property vs State Bank Of India Staff Assn. (2005) 7 SCC 510. It is a well settled that where a court is in doubt or the CS no. 312/11 Page no. 23 of 33 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 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).
59. In the instant case, it is an undisputed fact that there is no written Rent Agreement executed between the parties. It is worthwhile to note here that defendant has raised an objection in the WS that rent of suit premises was Rs 2,500/ p.m. but has failed to prove this fact on record to establish that rent was Rs. 2,500/ p.m and the suit is barred under Section 50 of DRC Act. Admittedly, there is no written Rent Agreement and no rent receipt or other document has been brought on record to substantiate the defence that rent of the suit premises was Rs. 2,500/ p.m. and suit is barred u/s 50 of DRC Act.
60. It is worthwhile to note here that DW1 has stated in his deposition that plaintiffs have never issued any rent receipts and the same was not demanded by the defendant just to maintain the CS no. 312/11 Page no. 24 of 33 cordial relationship between the parties. In the absence of any evidence brought on record to establish that rent of the suit premises was Rs. 2,500/ p.m. It can be said that pleading is no evidence, far less proof.
61. In view of the discussion made above and evidence brought on record it cannot be said that rent of the suit premises was Rs. 2,500/ and suit is barred under section 50 of Delhi Rent Control Act. Hence the present issue is decided against the defendant and in favour of the plaintiffs.
Issue no6: Whether the plaintiff is entitled for the recovery of damages/mesne profits as prayed in the plaint ? OPP
63. The onus to prove this issue is upon the plaintiffs. PW1 has deposed on the line of pleadings that plaintiffs are the owner of suit property by virtue of registered sale deed dated 01.05.2006 executed in their favour, which is exhibited as Ex. PW1/B. PW1 has further deposed that defendant's mother Smt. Satnam Kaur was permitted to live in the suit premises on humanitarian ground and after her death on 13.04.2009, defendant was permitted to live in the suit premises for about two months and he had promised to vacate & hand over the CS no. 312/11 Page no. 25 of 33 possession by the end of June, 2009 but failed to handover the possession of suit premises till date.
64. PW1 has further deposed that a legal notice dt.
23.07.2010, Ex PW1/C was issued upon the defendant and was called upon to vacate & handover the possession of suit premises and to pay charges/damages for an unauthorized use & occupation @ Rs. 25,000/ p.m. w.e.f. 01.09.2010.
65. On the other hand, the stand taken by the defendant is that he is a tenant in the suit premises @ Rs. 2,500/ p.m. besides other charges and is protected u/s 50 of Delhi Rent Control Act.
66. The entitlement of a landlord is to claim mesne profits from a person, who is in illegal possession of the premises. Section 2 (12) of Code of Civil Procedure defines mesne profits as under: "Section 2(12) "mesne profits" of property means 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."
67. The above provision has been interpreted in various judgments that ordinarily the mesne profits which a landlord/landlady is entitled against a defendant who continues to CS no. 312/11 Page no. 26 of 33 stay in the premises after the termination is an amount which the premises can fetch if let out on rent during the period of its illegal occupation by the defendant.
68. What is the rent, which the premises can fetch during the period of an illegal occupation is a fact which can be proved in a suit for possession and mesne profits by leading evidence with respect to rent of similar premises within the locality and on considering such evidence, the court can thereafter awards mesne profits.
69. Section 74 of the Indian Contract Act 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.
70. 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. No CS no. 312/11 Page no. 27 of 33 rent receipt or documents have been brought on record to show the last paid rent by the defendant to the plaintiffs.
71. 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 defendant. The present issue is concerned with the mesne profit/damages after the revocation of the licence/permission to live in the suit premises w.e.f. 01.09.2010.
72. In the instant case, it is an undisputed fact that tenancy remained oral. In the absence of any rent agreement between the parties, tenancy remained month to month tenancy and the notice dt. 23.07.2010 Ex. PW1/C was issued upon the defendant and permission to live in the suit premises was revoked w.e.f. 31.08.2010. Admittedly, the defendant is in the occupation/possession of the suit/rented premises till today and as such liable to pay the use & occupation charges w.e.f. 01.09.2010. The only defence as set up by the defendant is that tenancy has not been terminated as per law. However, the defendant has failed to prove on record to substantiate the same. Pleading is no evidence, far less proof. In the absence of any cogent evidence led on behalf of the defendant in this regard, CS no. 312/11 Page no. 28 of 33 plea of the defendant can not be accepted as the same is not tenable in the eyes of law.
73. Therefore, considering the facts & circumstances of the case and evidence placed on record, this court is of the opinion that plaintiffs are entitled to mesne profit for the period during which they have been deprived of the possession of suit premises because the defendant is still in the possession of the premises after the revocation of permission to live and continues to stay in the premises, not because of any relationship of landlord & tenant but only as an unauthorized occupant w.e.f. 31.08.2010.
74. In the absence of any evidence having been led by the plaintiffs with respect to the prevailing rate of rents in the locality 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.
75. In the present case, there is no written Rent Agreement and no document has been placed on record about the last paid CS no. 312/11 Page no. 29 of 33 rent of the suit premises. It is worthwhile to note here that DW1 has stated in his deposition that plaintiffs have never issued any rent receipts and the same was not demanded by the defendant just to maintain the cordial relationship between them.
76. In these circumstances, considering the area of the suit premises consisting of two bed rooms, drawing room, kitchen, toilet and with lobby and in the absence of any evidence with respect to the prevailing rate of rents in the locality for the similar premises in question, where the suit premises is situated. This court has come to the conclusion that interest of justice would be met if a sum of Rs. 7,000/ p.m. towards the mesne profit is granted to the plaintiffs for use & occupation charges of the suit premises by the defendant w.e.f. 1.09.2010.
77. Hence, the plaintiff is entitled to recover the use & occupation charges of the rented premises @ Rs 7,000/ p.m. w.e.f. 01.09.2010 till the handing over of vacant & peaceful possession to the plaintiffs.
78. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant holding that plaintiff is entitled to recover the mesne profit/damages @ 7,000/ p.m. for the period w.e.f. 1.09.2010 upto 30.06.2014 to the tune of Rs. 3,22,000/ CS no. 312/11 Page no. 30 of 33 along with future charges @ 7,000/ p.m. till the handing over of vacant & peaceful possession of suit premises to the plaintiffs. RELIEF:
79. 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 them 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.3 which has been decided in favor of the plaintiffs, a decree for possession of suit premises i.e. ground floor of suit premises bearing no. A166, situated in the colony known as Derawal Nagar Delhi as per site plan Ex PW1/A is passed in favour of the plaintiffs with a direction to the defendant to handover vacant & peaceful possession of above said premises to the plaintiffs within two months from the date of decree.
(ii) And in view of the findings given on the issues no.6, a money decree of Rs. 3,22,000/ with interest @ 9% p.a is passed towards the damages/mesne profits along with future charges @ Rs. 7,000/ p.m. till the handing over of vacant & CS no. 312/11 Page no. 31 of 33 peaceful possession of the suit premises to the plaintiffs. However, plaintiffs are hereby directed to file the appropriate court fees towards the money decree in accordance with law. It is clarified that the decree sheet be prepared only after taking the court fees on record and in case any amount has already been paid for the aforesaid period by the defendant to the plaintiffs, the defendant shall 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.4, a decree for permanent injunction is also passed in favour of the plaintiffs 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 vacant & peaceful possession of the suit premises to the plaintiffs.
80. Cost of the suit is also awarded to the plaintiffs. With the above said observations, the suit is hereby decreed in favour of the plain tiffs and against the defendant. Decree sheet be prepared after filing the requisite court fees on behalf of the plaintiffs. With the above said observations, suit stands disposed of accordingly. After compliance, file be consigned to record room.
CS no. 312/11 Page no. 32 of 33 Announced in the Open Court (SUNIL RANA)
Today i.e. 01.07.2014. ADJII(N/W): ROHINI : DELHI CS no. 312/11 Page no. 33 of 33