Delhi District Court
Smt. Vidyawati vs Punjab Khadi Mandal on 18 October, 2016
IN THE COURT OF CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Presiding Officer: Ms. AANCHAL, DJS
Suit No. : 81/16
Case ID No. : 95937/16
Smt. Vidyawati
W/o Late Sh. Raj Singh
R/o 1000, Arya Samaj Road,
Karol Bagh, New Delhi110005. .......Plaintiff
Vs.
Punjab Khadi Mandal
Sultan Bhawan
1667/35, Abdul Rehman Road,
Karol Bagh, New Delhi110005.
Also at:
Adampur, Doaba,
Jullandhar District, Punjab. ....... Defendant
Date of Institution of suit : 07.07.2005
Date on which reserved for judgment : 29.09.2016
Date of Judgment : 18.10.2016
JUDGMENT
(1) Vide this judgment, this court shall decide the aforesaid suit originally filed by Smt. Shanti Devi, Smt. Kanta Devi, Smt. Kaushalya Devi and Smt. Shama Devi who are thereafter substituted by above named sole plaintiff vide order dt. 20.09.2011 passed by ld. Predecessor of this court Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 1 seeking following reliefs :
1. Decree for possession for the first floor portion of property no. 16/1667, Abdul Rehman Road, Karol Bagh, New Delhi (also known as Sultan Building), as shown in red colour in the Site Plan (hereinafter called as the "suit property").
2. Decree of recovery of Rs.53,790/ alongwith interest @ 15% per annum and pendentelite damages for use and occupation from the date of filing of the present suit @ Rs.7260/ per month.
Wherein it was pleaded that :
(a) Original plaintiffs and present plaintiff are the coowners of the suit property and entire first floor i.e. suit property was letout to the defendant vide lease agreement dated 05.12.1985 w.e.f. 05.12.1985 at a monthly rent of Rs.3,000/. Although, the said lease expired by efflux of time but because of provisions of DRC Act, the original lessor Shri Rao Jaswant Singh went on realizing and after his death on 26.02.1997, all the co owners started realizing rent from defendant. It has been stated that original plaintiffs intimated that they canceled the attorney of present plaintiff and Shri Ram Prakash Yadav is their attorney now and that no rent be paid to present plaintiff and in reply to the said communication, the defendant through his advocate demanded the attorney of Shri Ram Prakash Yadav vide communication dated 08.08.2000 and assured the original plaintiffs that no rent will be paid to Ms. Vidyawati for and on behalf of the plaintiffs. The plaintiffs vide their communication dated 19.08.2000 sent all the relevant documents including attorney to Sh. Ram Prakash Yadav. It has further been stated that plaintiffs through their attorney requested the defendant to send them rent and vide covering letter Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 2 dated 30.12.2000, the defendant sent rent of the suit property to the tune of Rs.2400/ (80% of the rent) to the plaintiffs vide cheque no. 933118 and they also sent the remaining 20% of the rent to Ms. Vidyawati. It has been stated that defendant is also a tenant under the plaintiffs and Ms. Vidyawati on the second floor (Barsati Floor) at a monthly rent of Rs.1,000/ and defendant also sent rent of the said Barsati Floor to the plaintiffs of their share to the extent of 80% vide cheque no. 933119, dated 28.12.2000, representing rent to the tune of 80% thereafter vide another letter, cheques for January, 2001 and July, 2000 were also sent by defendant to the attorney of plaintiffs. Thereafter also, the defendant continued to pay rent of the suit property as well as Barsati Floor due to the plaintiffs by way of cheque to the attorney plaintiffs. The plaintiffs got served a notice dated 02.03.2001 to defendant for enhancement of rent by 10% of the suit property and as per this notice, the defendant started paying the enhanced rent @ Rs.3300/ per month and the cheques for 80% share of the plaintiffs sent in the name of their attorney. It has been stated that a similar notice was given for enhancing the rent by 10% for Barsati Floor, which was also enhanced by 10% and cheque to the tune of 80% of Rs.880/ by defendant in the name of attorney of original plaintiffs. Thereafter, plaintiffs served a notice sent by registered AD post and UPC, dated 05.07.2004 to defendant, which was duly served upon defendant, asking it to enhance the rent by 10% of the suit property as three years from the last enhancement had expired, however, the abovesaid notice was not complied by defendant no.1, who had become liable to pay enhanced rent @ 3630/ per month after 30 days of the receipt of said Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 3 notice or from 01.09.2004. It has been stated that a letter dated 19.08.2004 was received from defendant from Jalandhar alongwith which cheques for 20% share were offered instead of usual cheques 80% share of plaintiffs in the name of Shri Ram Prakash Yadav and the said letter was replied by the plaintiffs through their advocate vide reply dated 26.08.2004 and vide this reply, defendant was again informed that notice dated 05.07.2004 has already been issued to them for enhancement of rent and copies of earlier cheques were also sent showing 80% payment in the past to Shri Ram Prakash Yadav alongwith another copy of notice dated 05.07.2004 signed by Ld. Counsel for the plaintiffs. It has further been stated that the notice dated 26.08.2004 was replied on behalf of defendant through advocate vide reply dated 08.09.2004 containing all false defence and again vide letter dated 14.10.2004 the defendant no.1 sent rent for 20% share each in the name of individual plaintiff instead of sending cheque for 80% share of the plaintiffs in the name of Sh. Ram Prakash Yadav. On this, the plaintiffs got issued a legal notice of demand dated 29.11.2004 upon the defendant no.1 asking it to pay rent @ Rs.3630/ per month, as usual, to the extent of 80% share of the plaintiffs in the name of Shri Ram Prakash Yadav and this notice dated 29.11.2004 was replied by the Advocate vide reply dated 22.12.2004. It has been submitted that unnecessarily being harassed and tortured by defendant, the plaintiffs terminated the tenancy of defendant no.1 vide legal notice dated 23.02.2005 and the notice was duly served upon the defendant no.1 and was replied by them through advocate vide reply dated 12.03.2005 but legal notice dt. 23.02.05 is not complied with making defendant liable to hand over possession of the suit Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 4 property alongwith arrears of rent w.e.f. 01.07.04 to 31.08.04 @ 3,300/ pm and w.e.f 01.09.04 to 31.03.05 @ 3,630/ pm and mesne profits @ 7260/ pm w.e.f. 01.04.05. Hence, the present suit.
(2) Defendant filed the Written Statement wherein the suit of the plaintiff is preliminarily objected on the ground that the notice of termination of tenancy dated 23.02.2005 is illegal, invalid, inoperative and is not enforceable against the defendant and the suit is not maintainable and is liable to be dismissed; the plaint does not disclose any cause of action for the possession of arrears of rent as well as for claiming damages as alleged nor the allegation in the plaint constitutes any cause of action and hence, the plaint is liable to be rejected under Order 7 Rule 11 CPC; the suit is barred under Section 50 of Delhi Rent Control Act and the Civil Court has no jurisdiction to entertain and try the present suit; the rate of rent is Rs.660/ p.m. payable to individual sisters consisting of 4 sisters as plaintiffs and one sister is as defendant no.2.
On merits, the relationship of landlords and tenant is not denied but remaining contents of the plaint have been denied and it is stated that the alleged notice dated 05.07.2004 was neither served nor received by the defendant nor was refused by the defendant at any time. It has been stated that the alleged notice is even otherwise illegal, invalid, unlawful and is not binding upon the defendant. It has further been stated that Sh. Ram Prakash Yadav has no locus standi to receive the rent in his name on behalf of plaintiffs, he being merely a Rent Collector could not receive and had no authority to receive the rent in his name and the defendant had sent the rent Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 5 through cheques to the plaintiffs in their names according to their shares of rent. It has been stated that it was a bonafide mistake on the part of defendant to have issued a cheque in the name of so called attorney for payment of rent to the plaintiffs and on realizing the mistake that the so called attorney of the plaintiffs had no right or authority to receive the rent in his name, the defendant started sending the rent through cheques in the name of individual plaintiffs as the rent receipts issued to the defendant clearly indicate the names of the four plaintiffs as coowners of the suit property. It has been submitted that the rent for the month of July, 2004 sent by cheques to each of the plaintiffs in their individual names stands paid against receipt no. 46, dated 01.07.2004 and the rent for the month of August, 2004 to each of the plaintiffs was sent by cheques bearing no. 984296, 984294, 984299 and 984292 for Rs.660/ each dated 02.08.2004 drawn at Punjab National Bank, Bank Street, Karol Bagh, New Delhi. Thereafter, again rent from August 2004 to October 2004 in respect of the share of plaintiffs alongwith letter dated 14.10.2004 was sent through regd. AD cover to Sh. Ram Prakash Yadav at the given address of the plaintiffs but they have retained the cheques with them and had not presented the same for payment with ulterior motives and thereafter, the defendant had sent the rent for the period from November, 2004 to January, 2005 alongwith letter dated 22.12.2004 but the plaintiffs did not present the cheques for payment with ulterior motives and hence, the rent stands tendered and paid up to January, 2005. Finally, the suit of the plaintiff is prayed to be dismissed with heavy costs.
Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 6 (3) Original plaintiffs filed replication to the Written Statement filed by the defendant wherein all the averments made by the defendant in its written statement are denied and averments made by the plaintiffs into the plaint are reiterated.
(4) After being substantiated vide order dt. 20.09.2011 in place of original plaintiffs, present plaintiff filed the amended memo of parties and thereafter from the pleadings of the parties and hearing, issues were framed vide order dated 13.12.2011 passed by Ld. Predecessor of this Court and on application u/o 14 Rule 5 CPC filed by plaintiff, the issues were amended and rewritten as under by order dt. 19.05.02 passed by ld. Predecessor of this court.
ISSUES
1. Whether the plaintiffs have validly terminated the tenancy of defendant no.1? OPP
2. Whether the suit of the plaintiff is barred under section 50 of the Delhi Rent Control Act 1958? OPD
3. Whether the suit of the plaintiff is without any cause of action? OPD
4. Whether the plaintiff is entitled to the decree of possession as claimed in the plaint? OPP
5. Whether the plaintiff is entitled to the recovery of Rs.53,790/ for the defendant no.1? OPP
6. Whether the plaintiff is entitled to recover interest on the abovesaid amount, if yes, at what rate? OPP
7. Whether plaintiff is entitled for recovery of mesne profit/damages from the date of filing of the suit till handing over the possession of the property at the rate of Rs. 7,260/ per month? OPP Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 7 (5) Vide order dt. 23.11.2012, ld. Predecessor of this court allowed the application u/o 12 Rule 6 CPC for passing judgment on admission for relief of recovery of possession of property and directed for evidence for remaining issues.
(6) In order to substantiate her case, plaintiff examined herself as PW1 and she relied upon the following documents :
1. Release Deed dated 27.04.2006 executed by Smt. Shanti Devi as Ex.PW1/1.
2. Release Deed dated 27.04.2006 executed by Smt. Kanta Devi as Ex.PW1/2.
3. Sale Deed dated 27.04.2006 executed by Smt. Kaushalya Devi as Ex.PW1/3.
4. Release deed dated 27.04.2006 executed by smt. Shama Devi as Ex.PW1/4.
5. Certified copy of Special Power of Attorney executed by Smt. Shama Devi, Smt. Kaushalya Devi and Smt. Kanta Devi in favour of Shri Ram Parkash Yadav as Ex.PW1/5.
6. Certified copy of Special Power of Attorney executed by Smt. Shanti Devi in favour of Shri Ram Parkash Yadav as Ex.PW1/6.
7. The notice of termination dated 23.02.2005 as Ex.PW1/7.
8. Reply of defendant dated 12.03.2005 as Ex.PW1/8.
(7) On the other hand, defendant examined Sh. Dalbir Singh as DW1 and he relied upon the following document :
1. Authority Letter dated 17.11.2015 executed in favour of Sh.
Dalbir Singh as Ex.DW1/1.
(8) Final arguments are heard and record is perused carefully. Now, before proceeding to give issuewise findings, it is necessary that the contention of Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 8 ld. Counsel for defendant be dealt with as it is emphatically argued on behalf of defeated that despite the decision of application u/o 12 Rule 6 CPC leading to part decree of the suit qua the relief of possession, the issue no. 2 would subsist and it needs adjudication. In the opinion of this court, this contention is fallacious and has no merits in itself. An issue arises and subsists when parties are at dispute on the material facts. When the proof of one fact is dependent upon the proof of some other facts and the last mentioned facts are admitted, inference from those admitted facts can be drawn regarding the first mentioned fact and if it forms basis of an issue, it needs no trial and decision based upon evidence. The issue no. 2 had been primarily based upon the rate of rent payable by defendant to plaintiffs for tenanted premises as on the date of institution of suit. In order dt. 23.11.12 passed on application u/o 12 Rule 6 CPC filed by plaintiff, Ld. Predecessor of this court observed that in the present case one of the aspect which was required to examined is rent of premises and in para no. 11 and 12 of its order extensively dealt with the same and finally concluded in clear words that "there remain no doubt that rent of tenanted premises was Rs. 3,630/ pm at the time of service of notice of termination of tenancy". Hence, it can be safely said that the issue no. 2 was also decided by ld. Predecessor on the basis of admission and based upon the finding of this issue, decreed the suit qua relief of possession. Therefore, the issues now remaining for decision are none but issues no. 5,6 and 6. Now, issuewise findings of this court are as under : ISSUE No. 5, 6 and 7 "Whether the plaintiff is entitled to the recovery of Rs.53,790/ for the Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 9 defendant no.1? OPP"
And "Whether the plaintiff is entitled to recover interest on the abovesaid amount, if yes, at what rate? OPP"
And "Whether plaintiff is entitled for recovery of mesne profit/damages from the date of filing of the suit till handing over the possession of the property at the rate of Rs. 7,260/ per month? OPP"
The onus to prove these issues lies upon the plaintiff. The sum of Rs. 53,790/ is claimed by the plaintiff as sum total of the amount on following accounts :
a) Arrears of rent w.e.f. 01.07.04 to 31.08.04 @ Rs. 3,300/ pm.
b) Rent w.e.f 01.09.04 to 31.03.05 @ Rs. 3,630/ pm.
c) Damages @ Rs. 7,260/ pm for the period 01.04.05 to 30.06.05.
Arrear of rents was claimed by the original plaintiffs Shanti Devi, Kanta Devi, Kaushyala Devi and Smt. Shama Devi as their share of rent and it was excluding the share of Ms. Vidyawati who was also one of the coowner and landlady. The present plaintiff Ms. Vidyawati has been substituted as plaintiff in the present suit vide order dt. 20.09.11 passed by ld. Predecessor of this court as Ms. Shanti Devi, Kanta Devi and Shama Devi had executed the three separate release deeds qua their shares also in respect of the present suit property in favour of present plaintiff Ms. Vidyawati on 27.04.06 and Ms. Kaushyala Devi had executed the sale deed dt. 27.04.06 in favour of Ms. Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 10 Vidyawati qua her share. The perusal of the three release deeds and one sale deed which are Ex. PW1/1 to Ex. PW1/4 show that none of the executant had authorized/ transferred the right to the present plaintiff Ms. Vidyawati to recover the rent due against the property in question from the defendant for any period before the execution of release/sale deed. Not only this, the plaintiff has at no point of time had amended the original plaint after being substituted making the averments about her entitlement to seek recovery of the shares of rent due towards earlier plaintiffs or the averment that her share of rent is ever due. Similarly, no such fact has been deposed by the plaintiff in her evidence given by way of affidavit. She has simplicitor affirmed the accounts towards which the defendant is liable to pay as per the claim in the suit filed by the original plaintiffs which is insufficient to prove her right, authority and entitlement to seek the recovery of the rent which was neither due against her nor relates to the period when she had acquired the interest in whole of the property. Therefore, it is held that plaintiff has been unable to prove that she is entitled for recovery of rent w.e.f 01.07.04 to 30.03.05 or any interest thereon from the defendant.
Asserting the fact that notice terminating the tenancy was issued and the same was served upon the defendant, the plaintiff has also relied upon the original notice dt. 23.02.05 terminating the tenancy of the defendant and reply dt. 12.03.05 sent by the defendant. The deposition of the plaintiff to this extent is not rebutted at all by the defendant during the cross examination. Thus, it is deemed admitted that the notice dt. 23.02.05 was served upon the defendant and from the further fact as categorically admitted by Sh. Dalbir Singh, DW1 during his cross examination that the vacant possession of the Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 11 suit property has been delivered by the defendant only 31.08.14 and not by 31.03.05, it is held proved that the defendant maintained the occupation and possession of the suit property despite the termination of the tenancy after 31.03.05, hence it is held liable to pay the mesne profit/damages qua this unauthorized occupation.
Now, the question arises what should be the quantum of damage payable by defendant. Plaintiff is claiming the damages @ 20,000/ per month from the date of the filing of the suit till realization deposing that the suit property could have easily fetched the same as per the prevalent market rate but she has not produced any evidence to prove the fact that the prevalent market rate is that where property could have fetched the claimed sum. So, it is the case where there is no evidence on the quantum of damaged. But it is settled proportion of law that even in such cases, the court is not powerless and court may decide the quantum of damages having regard to the situation of the property, its likely use its age and escalation of price of property and rent. In the case in hand, the suit propriety is situated with in the heart of Delhi at Karol Bagh where commercial activities bloom and prices of property and rent is escalating day by day. The rent of the premises had been Rs. 3,000/ in the year 2000 and at last on the date of termination of tenancy in March 2005, it was Rs. 3,630/ only. The escalation of rent of Rs. 630/ only during 5 years can be easily expected only due to the provisions of Delhi Rent Control Act but it can not be ignored that in the premises not governed by Delhi Rent Control Act, the rent is rising at high rate. Considering these facts, this court is of the opinion that it would not be inappropriate to award the damage to the tune of double the monthly rent payable by the defendant w.e.f 01.04.05 with 10% Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 12 annual increase till realization of the suit property i.e. 31.08.14. But considering the fact that the plaintiff was not the owner of whole of the rented premises till the date of sale deed/release i.e. 27.04.06, the plaintiff is held entitled for 1/5th of such damages w.e.f 01.04.05 till 27.04.06 and she is held entitled for full quantum of damages till the realization of property i.e. 31.08.14 thereafter.
Hence, the issues under consideration are decided accordingly.
RELIEF In view of the decision of aforementioned issues, the suit of the plaintiff qua the relief of damages is decreed and the plaintiff is held entitled for 1/5th of damages at a rate which is double the monthly rent, i.e. Rs. 3,630/ with 10% annual increase w.e.f 01.04.05 till 27.04.06 and she is held entitled for full quantum of damages @ Rs. 7,260/ per month with 10% annual increase since 28.04.06 till the realization of property i.e. 31.08.14.
Plaintiff is directed to file the appropriate requisite court fees on the damages awarded. Thereafter, decree Sheet be prepared file be consigned to Record Room.
Announced in Open Court on this 18th day of October, 2016 at 3:30 p.m. (AANCHAL) CIVIL JUDGE07(CENTRAL) DELHI/18.10.2016 Vidyawati Vs. Punjab Khadi Mandal Case ID No. 95937/16 Page 13