Delhi District Court
Raj Kumar vs . Kishan Kumar on 27 November, 2019
Raj Kumar vs. Kishan Kumar
Civil Suit No. 94072/16
IN THE COURT OF RAHUL VERMA, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No: 94072/16
CNR no. : DLCT030002322013
Date of Institution: 19.09.2013
Date of Decision: 27.11.2019
Sh. Raj Kumar
S/o Sh. Chander Bhan
R/o 85A, Model Basti,
Master Prithvi Nath Marg,
New Delhi110005.
...............Plaintiff.
Versus
Sh. Kishan Kumar
S/o Sh. Om Prakash
Part of Shop No. 8602
(Adjacent to Shop No. 8603),
85A, Ground Floor, Model Basti,
Master Prithvi Nath Marg, New Delhi110005.
.........Defendant.
Suit for ejectment and for arrears of rent and mesne profits
Present: None.
JUDGMENT (EXPARTE) :
1. The present suit has been filed by the plaintiff seeking decree for ejectment and arrears of recovery of rent and mesne profits against defendant in respect of portion of shop bearing no. 8602 (Adjacent to shop no. 8603) of property bearing no. 85A, Model Basti, Master Prithvi Nath Marg, New Delhi110005 (hereinafter called as suit property) more specifically shown red in the plan.
Page 1 of 6 (Rahul Verma)CJ07(C)/THC/Delhi Raj Kumar vs. Kishan Kumar Civil Suit No. 94072/16 AVERMENTS IN THE PLAINT
2. It is the case of the plaintiff that the defendant was inducted as a tenant in respect of shop bearing no.8602 (Adjacent to shop no. 8603) of property bearing no. 85A Model Basti, Master Prithvi Nath Marg, Nev Delhi110005 at a monthly rental of Rs. 4,000/ excluding other charges. The month of tenancy used to be reckoned from 1 st day of each English Calendar month to the last of that month. The defendant failed to pay rent since 01.03.2012 inspite of repeated demands and requests. A notice dated 11.08.2013 was served upon the defendant calling upon the defendant to pay arrears of rent w.e.f. 01.03.2012. As the tenancy of the defendant was for the rent of more than Rs.3500/ per month, which is not protected under the DRC Act, by the said notice, the tenancy of the defendant was terminated. The said notice was duly served upon the defendant on 26.08.2013. The possession of the defendant after 15 days of the receipt of the notice is that of the trespasser and the defendant is liable for ejectment. The defendant is also liable to pay the arrears of rent w.e.f. 01.03.2012 to 10.09.2013 when the tenancy of the defendant came to an end after the expiry of 15 days from the service of the notice totalling to Rs.73,300/. The defendant is also liable to pay damages mesne profit w.e.f. 11.09.2013 to 16.09.2013 at the rate of Rs.300/ per day, which the premises in dispute can fetch and he is liable to pay the damages/mesne profit amounting to Rs. 1800/ and as such, the defendant is liable to pay in all Rs.75,100/ to the plaintiff. The defendant failed to comply with the notice, hence the present suit.
AVERMENTS IN THE WRITTEN STATEMENT OF DEFENDANTS
3. Upon notice being issued, the defendant appeared and filed his WS. In the WS, defendant has taken preliminary objection that suit is not maintainable and plaintiff has no locus standi to file the present suit. It is pleaded by the defendant that the plaintiff had inducted the defendant as a tenant in the suit property on 12.04.07 for 11 months at a monthly rent of Rs. 4,000/ per month. Further that plaintiff was paid a sum of Rs. 70,000/ as interest free security amount at the time of execution of lease agreement. Suit premises were again let out to defendant for the period of 33 months w.e.f. 01.06.09 to 29.02.12 at a monthly rent of Rs. 4,000/. Thereafter, with the consent of the parties fresh agreement was executed for Page 2 of 6 (Rahul Verma) CJ07(C)/THC/Delhi Raj Kumar vs. Kishan Kumar Civil Suit No. 94072/16 further period of 33 months starting from 01.04.12 to 31.12.14 at monthly rent of Rs. 4,500/ excluding electricity charges. However, the plaintiff never gave copy of the said fresh agreement to the defendant. Further at the time of execution of aforesaid afresh agreement also took Rs. 30,000/ from the defendant thereby making total amount of Rs. 1,00,000/. Defendant has further submitted that he has paid rent up to May 2013 and is further ready to make payment of rent from June 2013 till date. It is further submitted that the plaintiff has refused to accept the rent for the month June 2013 onwards. All the other averments of the plaint are denied and it is prayed that the suit of the plaintiff may be dismissed.
REPLICATION
4. By virtue of the replication, averments of the plaint have been reiterated, and contents of the written statement have been denied.
ISSUES
5. From the pleadings of the parties, following issues were framed vide order dt. 20.05.14 :
1. Whether the plaintiff is entitled to decree of ejectment of portion of shop bearing no. 8602 (Adjacent to shop no. 8603) of property bearing no. 85A, Model Basti, Master Prithvi Nath Marg, New Delhi110005? OPP
2. Whether the plaintiff is entitled to decree of recovery of Rs. 75,100/ with interest @ 15% p.a. alongwith decree for future damages/mesne profits at the rate of Rs. 300/ per day till delivery of possession? OPP
3. Whether a fresh agreement had been executed between the parties in the month of April 2012 for a period of 33 months started from 01.04.12 to 31.12.14? OPD
4. Whether the suit of the plaintiff is bad for want of cause of action and liable to be dismissed under order 7 Rule 11 CPC? OPD
5. Whether the suit of the plaintiff has not approached the court with clean hands and has suppressed the material facts? OPD
6. Relief.
Page 3 of 6 (Rahul Verma)CJ07(C)/THC/Delhi Raj Kumar vs. Kishan Kumar Civil Suit No. 94072/16 PLAINTIFF's EVIDENCE
6. To prove its case, the plaintiff has examined himself as PW1 by tendering his evidence by way of affidavit Ex. PW1/A. He has relied upon following documents : Ex. PW1/1 Rent agreement dt. 12.04.07 Ex. PW1/2 Lease Agreement dt. 12.06.09 Ex. PW1/3 Legal notice dt. 11.08.13, postal receipts and acknowledgement (Colly) Mark A Photocopy of rent receipt dt. 13.04.07 Mark B Photocopy of rent receipt dt. Nil
7. Due to non appearance, the defendant was proceeded exparte vide order dt. 29.11.16. The plaintiff's evidence was closed by way of separate statement dt. 29.11.16. Thereafter, application u/o 9 Rule 7 CPC was filed by the defendant which was allowed by Ld. Predecessor of this court, subject to cost of Rs. 10,000/ and the defendant was also allowed to cross examine the plaintiff. However, the cost was not paid and accordingly, the right of the defendant to crossexamine the plaintiff was closed and the defendant was again proceeded exparte vide order dt. 05.02.2019.
FINDINGS :
8. I have heard Ld. Counsel for the plaintiff and have perused the case file.
9. In the present case, the application u/o 12 Rule 6 CPC was allowed vide order dt. 07.10.15, and decree of possession was granted in favour of plaintiff and against the defendant in respect of the suit property. In execution of the said decree, possession of the suit property was received by the plaintiff from the defendant on 04.01.2016. Therefore, issue no. 1,3,4 and 5 have become infructuous and no longer requires adjudication. After receiving of the possession of the suit property, the suit continued only for the purposes of ascertaining arrears of rent and damages / mesne profits i.e. issue no.2. My finding on the issue no.2 with reasons thereof is as under: Issue No.2: Whether the plaintiff is entitled to decree of recovery of Rs. 75,100/ with interest @ 15% p.a. alongwith decree for future damages/mesne profits at the rate of Rs. 300/ per day till delivery of possession? OPP Page 4 of 6 (Rahul Verma) CJ07(C)/THC/Delhi Raj Kumar vs. Kishan Kumar Civil Suit No. 94072/16
10. The onus of proof of this issue was on the plaintiff.
11. It is the case of the plaintiff that the defendant was the tenant of the plaintiff in the suit property and he has not paid the rent since 01.03.2012. In order to substantiate his case, the plaintiff examined himself as PW1 and reiterated his plea in his evidence by way of affidavit. He deposed in his evidence by way of affidavit that the defendant failed to pay monthly rent of Rs. 4,000/ since 01.03.12 and is therefore liable to pay arrears of rent w.e.f. 01.03.12 to 10.09.13 amounting or Rs. 73,000/. The testimony of the PW1 has gone unchallenged, uncontroverted and unrebutted. Since the defendant was proceeded exparte and no evidence was led by the defendant, there is nothing on record which casts any doubt on the testimony of PW1.
12. However, the plaintiff admitted in his replication that he had received interest free security amount of Rs. 70,000/ from the defendant. Further, it was noted by Ld. Predecessor of this court vide order dt. 31.01.15 that the defendant had handed over a demand draft of Rs. 28,000/ to the plaintiff as monthly rent for 7 months. Therefore, as per the material available on the record, the plaintiff has already received total Rs. 98,000/ from the defendant. The said amount of Rs. 98,000/ is therefore liable to be adjusted against the arrears of rent of Rs. 73,000/. Therefore, after adjusting the same, it is clear that the plaintiff is liable to refund total Rs. 25,000/ to the defendant.
13. The Plaintiff has further claimed that the defendant is also liable to pay damages /mesne profits w.e.f. 11.09.13 till delivery of possession of the suit property @ Rs. 300/ per day. However, since the admitted monthly rent was Rs. 4,000/ only, the claim of Rs. 300/ per day as mesne profits is exorbitant and excessive and accordingly cannot be awarded. In the facts and circumstances of the case, in my opinion, it is reasonable to fix the rental value of the suit property at Rs. 5000/ per month for the purposes of damages/mesne profits. Accordingly, the defendant is held liable to pay the damages / mesne profits @ Rs. 5000/ per month w.e.f. 11.09.13 till 04.01.16 i.e. the date of receiving the possession by the plaintiff.
Issue No.6: Relief Page 5 of 6 (Rahul Verma) CJ07(C)/THC/Delhi Raj Kumar vs. Kishan Kumar Civil Suit No. 94072/16
14. In view of the findings on the aforesaid issue, the suit of the plaintiff is hereby decreed and the plaintiff is entitled to the following reliefs:
(a) The defendant is directed to pay damages/mesne profits @ Rs. 5000/ per month w.e.f. 11.09.13 till 04.01.16 less the amount of Rs. 25,000/ which the plaintiff is liable to refund to the defendant.
(b) Costs of the suit are also awarded to the plaintiff.
15. Decree sheet be prepared accordingly.
16. File be consigned to the record room after necessary compliance.
Pronounced in open court: (Rahul Verma)
Dated: 27.11.2019. Civil Judge07, Central,
Tis Hazari Courts, Delhi
Note : This Judgment contains three pages and all the pages have been checked and signed by me.
Digitally
(Rahul Verma)
signed by
RAHUL Civil Judge07, Central,
RAHUL VERMA Tis Hazari Courts, Delhi
VERMA Date:
2019.11.28
16:31:32
+0530
Page 6 of 6 (Rahul Verma)
CJ07(C)/THC/Delhi