Delhi District Court
Smt. Payal Bindra vs Smt. Harcharan Kaur on 27 August, 2014
1
IN THE COURT OF SH. SUNIL RANA
ADDL. DISTRICT JUDGE II(N/W): ROHINI: DELHI
CS NO. 58/12.
Unique Code No. 02404C0048562012.
Smt. Payal Bindra
W/o Sh. K. K. Bindra
R/o A2/90, Sector17,
Rohini, Delhi. .... Plaintiff
VERSUS
1. Smt. Harcharan Kaur
W/o Late Harbhajan Singh
R/o F19/83, Sector15,
Rohini, Delhi.
2. Smt. Preeti
W/o Shri Ajay
R/o Flate No. 72,
BlockG12,Sector15,
Rohini, Delhi .... Defendants
Date of Institution : 22.02.2012
Date of reserved for order : 02.08.2014
Date of Decision : 27.08.2014
JUDGMENT
Vide this judgment, I shall decide the suit for possession, CS no. 58/12 page no. 1 of 16 2 permanent injunction, recovery of arrears of rent and damages/mesne profits filed by the plaintiff against defendants.
1. Brief facts as stated in the plaint are that plaintiff is the absolute owner of suit property and defendant no.1 is the tenant under the landlord ship of plaintiff @ Rs. 3,600/ p.m. in respect of Flat no. 72, BlockG12, Sec15, Rohini as shown in red color in the site plan. It has been stated that defendant no1 is the mother in law of defendant no.2 and rent has not been paid since 01.01.2009 and there is an arrears of rent w.e.f 01.01.2009 to 31.12.2011( for 36 months) amounting to Rs.1,29,600/.
2. It has been further stated that plaintiff had also issued a legal notice dated 16.01.2012 to defendants to pay arrears of rent @ 3,600/ p.m. along with interest @ 24 % p.a. and to hand over vacant & peaceful possession of tenanted premises as the tenancy was terminated and the said legal notice was duly served upon defendants but they have failed to clear the arrears and to handover the possession after the termination of tenancy.
3. It has been further stated that defendants have no right to use & occupy the rented premises after the termination of tenancy and they are legally bound to hand over the vacant & peaceful possession of suit property and to pay the arrears of rent alongwith interest and hence, the CS no. 58/12 page no. 2 of 16 3 present suit was filed.
4. It has been prayed that a decree for a possession of suit property and recovery of arrears of rent of Rs. 1,29,600/ w.e.f. 01.01.2009 to 31.12.2011 @ Rs.3,600/ p.m. alongwith interest @ 24% p.a. be also passed in favour of the plaintiff and another decree of damages/mesne profit for use & occupation charges @ Rs. 7,000/ p.m. since Jan, 2012, till the handing over the possession of suit property be also passed in favour of the plaintiff and against the defendants and another decree of permanent injunction be also passed restraining the defendants from subletting or part with the possession or creating any third party interest in respect of the suit property.
5. In the present matter, summons were issued to the defendants and were served upon them and as per the report of process server, defendant no.1 had received the summons but defendant no.2 had refused to accept the summon on 20.10.2012. It is worthwhile to note here that none had appeared on behalf of the defendants despite knowledge of the proceedings and subsequently fresh summons were issued by the ld predecessor to the defendant no.2 but same was received back with the refusal report dt. 21.06.2013 filed on record by the process server. It is worthwhile to note here that despite knowledge of the proceedings, none CS no. 58/12 page no. 3 of 16 4 had appeared on behalf of the defendants and Ld. Predecessor had observed that they were deemed to be served and proceeded exparte vide order dated 16.07.2013 and the case was fixed for exparte evidence.
6. In the present case, the plaintiff has led an exparte evidence and examined herself as PW1 and closed the PE on 11.12.2013 and the matter was fixed for final arguments.
7. I have heard the counsel for plaintiff and perused the evidence brought on record by the plaintiff, who in order to prove the case had tendered her evidence by way of affidavit Exhibited PW1/A, which is identical on the line of averments made in the plaint. PW1 has proved the site plan of suit property, which is Exhibited PW1/1, documents of the suit property i.e. Agreement to sell & purchase and GPA executed in favour of the plaintiff is Exhibited PW1/2, copy of the legal notice dt. 16.01.2012 issued to the defendants is Ex. PW1/3 and the postal receipts are Ex. PW 1/4 colly.
8. The initial onus to prove its case is always on the plaintiffs and if it discharges that onus and makes out a case which entitles them to a relief, the onus shifts to the defendants to prove those circumstances, if any, which would disentitle the plaintiff of the same. Plaintiff has discharged the initial onus to show that she was the owner of suit property which was CS no. 58/12 page no. 4 of 16 5 given on rent to the defendants and the tenancy was terminated vide legal notice dt. 16.01.2012 and the onus thereafter shifted upon the defendants to show their right to remain in the suit property. However, in my opinion, this onus of proof has not been discharged by the defendants in as much as since the defendants had failed to set up any defence and further failed to lead any evidence as no oral or documentary evidence whatsoever has been filed by the defendants in order to establish their right to remain in the suit property. This court is of the view that one thing is evidence led, and the other thing is the weight required to be attached to the same. It is well settled that matter is decided after weighing the respective evidence which is led by both the parties.
9. 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 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 CS no. 58/12 page no. 5 of 16 6 sufficiently detailed pleading, particular and documents to support his/her claim in order to continue in possession.
11. 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, which are as under:
It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(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
(k) basis of his claim that not to deliver possession but continue in CS no. 58/12 page no. 6 of 16 7 possession.
12. 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.
13. I have gone through the testimony of the plaintiff i.e. PW1 as well as various documents proved on record. This court is of the opinion that plaintiff has proved the documents of the suit property Exhibited PW1/2 executed in her favour and proclaiming herself to be the owner of suit/rented property, which was given on rent @ Rs. 3,600/ p.m. It is worthwhile to note here that this fact has not been disputed by the defendants on record as they had neither filed any WS nor led any evidence in this regard. In these circumstances, it can be said that plaintiff has been able to prove on record that she is the owner/landlord of the suit property by virtue of documents i.e. Ex. PW1/2 and the defendants are in the unauthorized occupation of the rented premises after the termination of CS no. 58/12 page no. 7 of 16 8 tenancy vide legal notice dt. 16.01.2012 Exhibited PW1/3.
14. It is a well settled principle of law that in a suit for possession against the tenant in respect of the tenanted premises. Plaintiff is required to prove three ingredients : (1) Existence of relationship of landlord & tenant. (2) Valid termination of tenancy either by efflux of time or by service of notice to quit u/s 106 of Transfer of Property Act, 1882. (3) Failure of the tenant to vacate the demised premises despite termination of tenancy.
15. In the instant case, it is a matter of record that there is no written rent agreement executed between the parties and the tenancy remained oral and the legal notice dt.16.01.2012 to terminate the tenancy was issued and tenancy was terminated.
16. Section 106 of T.P. Act, to the extent, it is relevant, provides that in the absence of a contract or a local law or usage to the contrary, a lease of immovable property for any purpose other than agriculture or manufacturing purpose can be terminated by giving 15 days notice expiring with a month of tenancy. It is a well settled principle of law that the tenancy can be terminated by notice providing reasonable period to the tenant to surrender and deliver the possession to the landlord/landlady and the period mentioned in the notice relates to the surrendering of the possession.
CS no. 58/12 page no. 8 of 16 9
17. In the instant case, notice is not ambiguous and the plaintiff intended to give reasonable period to vacate the demise premises after terminating the tenancy vide legal notice dt.16.01.2012 Exhibited PW1/3. Thus the language of the notice is clearly suggestive of the fact that tenancy was terminated and defendants were called upon to surrender the possession after the period mentioned in the notice. Hence, the notice dt. 16.01.2012 was fully complied with the requirement laid down in section 106 of the Transfer of Property Act.
18. In the case titled as M/s Jeevan Diesels & Electricals Ltd vs. M/s Jasbir Singh Chaddha (HUF) & Anrs. 2011 (182) DLT 402, it has been held that the service of the summons in a suit filed by a landlord accompanied by the plaint can always be treated as notice under section 106 of the Transfer of Property Act, 1882.
19. 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 defendants after the termination of tenancy vide notice dt. 16.01.2012 are in an unauthorized occupation of the rented premises and are liable to handover the possession of suit premises to the plaintiff. Accordingly, it is held that plaintiff is entitled to a decree of possession.
CS no. 58/12 page no. 9 of 16 10
20. In view of the facts & circumstances of the case and evidence brought on record by the plaintiff, which has remained unrebutted & unchallenged, it can be said that case of the plaintiff stands proved against the defendants. Accordingly, suit is decreed in favour of the plaintiff and against the defendants. Suit of the plaintiff is for possession & permanent injunction and recovery of arrears of rent and damages/mesne profit.
21. The entitlement of a landlord is to claim mesne profits from a tenant, who is in illegal possession of the premises after the tenancy is terminated, is governed by Section 2 (12) of Code of Civil Procedure and which defines mesne profits as under: "Section 2(12) "mesne profits" of property means 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."
22. The above provision has been interpreted in various judgments that ordinarily the mesne profits which a landlord/landlady is entitled against a tenant who continues to stay in the tenanted premises after the termination of the tenancy is the amount which the premises can fetch if let CS no. 58/12 page no. 10 of 16 11 out on rent during the period of its illegal occupation by the tenant.
23. What is the rent, which the premises can fetch during the period of the illegal occupation by the erstwhile tenant is a fact which can be proved in a suit for possession and mesne profits against the tenant by leading evidence with respect to rent of similar premises within the locality and the Court, on considering such evidence, with respect to rent of similar premises thereafter awards mesne profits to the landlord/landlady.
24. Section 74 of Indian Contract Act boldly cuts the most troublesome knot in common law of doctrine of damage. Whether actual loss or damages is proved or not the court is entitled to award reasonable damages not exceeding the stipulated amount. The Section confers very wide powers on the court and only restriction is that the court can not decree damages exceeding the amount previously agreed upon by the parties. The discretion of the court in the matter of reducing amount of damages agreed upon is left unqualified by any specific limitation, though, of course, the expression "reasonable compensation used in the Section necessarily implies that the discretion so vested must be exercised with care, caution and on sound principles.
25. Considering the facts & circumstances of the matter and the evidence placed on record, it is an undisputed fact that there is no written CS no. 58/12 page no. 11 of 16 12 rent agreement executed between the parties and the tenancy remained oral. Plaintiff is claiming that initial rent of the suit premises was Rs. 3,600/ p.m. and the defendant is liable to pay damages/mesne profits @ Rs. 7,000/ p.m. after the termination of tenancy.
26. On the other hand, no defence has been taken by the defendants as they have neither filed any WS nor led any evidence on record.
27. Now the point for discussion here is what should be an amount for use & occupation charges and which factor should be taken into consideration to calculate the mesne profit to be paid by the tenant/defendants for the rented premises and is concerned with the mesne profit/damages not during the period of tenancy but after the expiry of tenancy period which was terminated vide legal notice dt. 16.01.2012 exhibited PW1/3.
28. In the instant case, it is an undisputed fact that defendants are in the occupation/possession of the suit/rented premises till today and as such liable to pay the use & occupation charges. Therefore, considering the facts & circumstances of the case and evidence placed on record, which has remained unrebutted and unchallenged. This court is of the view that plaintiff/landlady is entitled to mesne profit for the period during which landlady was deprived of the possession of the tenanted premises, because CS no. 58/12 page no. 12 of 16 13 the defendants are still in the possession of tenanted premises after the termination of tenancy and continues to stay in the premises, not because of any relationship of landlord & tenant but only as an unauthorized occupant after the termination of tenancy.
29. In these circumstances, this court is of the opinion that considering the rate of rent of the premises which was initially @ Rs. 3,600/ p.m. and in the absence of any evidence having been led by the plaintiff with respect to the prevailing rate of rents in the locality 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.
30. Hence, in view of the discussion made above, This court is of the opinion that interest of justice would be met if an amount of Rs. 5,000/ p.m. towards the damages/mesne profit is granted to the plaintiff for use & occupation charges of the tenanted premises to be paid by the defendants after the termination of tenancy vide legal notice dt. 16.01.2012 exhibited PW1/3.
CS no. 58/12 page no. 13 of 16 14
31. Hence, the plaintiff is entitled to recover the damages/mesne profits for the use and occupation charges of the rented premises @ Rs. 5,000/ p.m. w.e.f. 01.02.2012 till August' 2014 which comes to as under:
01.02.2012 to 31.12.2012 for 11 months @ Rs. 5,000/ = 55,000/ 01.01.2013 to 31.12.2013 for 12 months @ Rs. 5,000/ = 60,000/ 01.01.2014 to 31.08.2014 for 08 months @ Rs. 5,000/ = 40,000/ Total= 1,55,000/
32. Accordingly, plaintiff is entitled to recover the damages/mesne profits to the tune of Rs.1,55,000/ upto 31.08.2014 along with future charges @ 5,000/ p.m. till the handing over of vacant & peaceful possession of suit/rented premises to the plaintiff.
33. In view of the facts & circumstances of the case and evidence brought on record, it can be safely concluded that case of the plaintiff stands proved against the defendants. Accordingly, suit is decided/decreed in favour of the plaintiff and against the defendants. Plaintiff has claimed the pendentelite and future interest @ 24% in the plaint, however, no evidence has been led in this regard to show that she is entitled for a interest @ 24% towards the arrears of rent and damages/mesne profits. Hon'ble Supreme Court in the recent chain of judgments titled as "Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority & Ors. 2005 (6) CS no. 58/12 page no. 14 of 16 15 SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and Others 2006(11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd. (2006) 7 SCC 700, and Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra 2007 (2) SCC 720" has mandated that courts must reduce the high rate of interest on account of the consistent fall in the rates of interest in the changed economic scenario. Relying upon the above mentioned judgments, it can be easily concluded that interest claimed @ 24% p.a. by the plaintiff is on the higher side and in the absence of any evidence cannot be granted. Hence, plaintiff will be thus entitled to interest @ 9% p.a. Suit of the plaintiff is accordingly decreed.
34. Hence, a decree of possession of the suit property i.e. Flat no. 72, BlockG12, Sec15, Rohini, Delhi as per site plan Ex. PW1/1 is passed in favour of plaintiff and against the defendants with a direction to hand over the vacant & peaceful possession of suit property to the plaintiff within two months from the date of decree. Another decree of permanent injunction is also passed in favour of plaintiff and against the defendants restraining them not to create any third party interest or part with the possession of suit property till the handing over of vacant & peaceful possession of suit property to the plaintiff. Another decree for recovery of arrears for a sum of Rs. 1,29,600/ w.e.f. 01.01.2009 to 31.12.2011( for a period of 36 months @ CS no. 58/12 page no. 15 of 16 16 Rs. 3,600/ p.m.) alongwith interest @ 9% till the realization of a decreetal amount is also passed in favour of the plaintiff and against the defendants. And another decree towards the damages/mense profits for a sum of Rs. 1,55,000/ (w.e.f. 01.02.2012 to 31.08.2014 @ Rs.5,000/ p.m.) alongwith interest @ 9% till the realization of a decreetal amount is also passed in favour of the plaintiff and against the defendants.
35. Cost of the suit is also awarded in favour of plaintiff. Decree sheet be prepared accordingly after filing of requisite court fees by the plaintiff in terms of money decree as mentioned above. With these observations, the suit stands disposed of accordingly. After compliance, file be consigned to Record Room.
Announced in the Open Court (SUNIL RANA) On 27.08.2014 ADJII (N/W): ROHINI: DELHI CS no. 58/12 page no. 16 of 16