Delhi District Court
Sh. Ashok Tyagi vs Sh. S. K. Lall on 11 November, 2014
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 03
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 39/2012
Unique ID No. 01241C0107442012
1. Sh. Ashok Tyagi
2. Sh. Dushyant Tyagi
3. Sh. Harsh Tyagi
All S/o Sh. Surender Pal Singh Tyagi
4. Sh. Surender Pal Singh Tyagi
All R/o Village & P.O. Niwari
District Ghaziabad (UP)
.......... Plaintiffs
VERSUS
1. Sh. S. K. Lall
2. Sh. Vimal Kumar Srivastava
3. Sh. Raj Kamal Srivastava
4. Sh. Sunil Kumar Lall
All sons of Late Sh. M. B. Lall
All at 2G, Jawahar Nagar,
Delhi110007.
ALSO AT
12/7331 Prem Nagar,
G.T Road, Delhi110007
.........Defendants
SUIT FOR POSSESSION AND DAMAGES/MESNE PROFITS
Date of institution : 07.03.2012
Date for reserving for orders : 15.10.2014
Date of decision : 11.11.2014
Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 1/16
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiffs against the defendants seeking following reliefs: a. Recovery of possession of two rooms, verandah, kitchen, bathroom, latrine and W.C. in the rear portion at first floor of property bearing no. 2G, Jawahar Nagar, Delhi110 007 as shown in red color in the site plan annexed with the plaint (herein after wards referred as suit property).
b. Recovery of pendentlite and future damages/mesne profits @ Rs. 25,000/ per month with interest @ 15% p. a.
c. Cost.
2. Briefly stated the facts as averred by the plaintiffs in the plaint and which are necessary for the disposal of the present suit are as follows: a. The plaintiffs are the owner of the first floor with roof forming part of property bearing no. 2G, Jawahar Nagar, Delhi110007 and the erstwhile owner of the suit property has let out the suit property to the father of the defendant namely Dr. M. B. Lall at monthly rent of Rs. 115/ exclusive of other charges.
b. The contractual tenancy of Dr. M. B. Lall was terminated by legal notice dated 17.07.1996 and he has become statutory tenant in the suit property. Dr. M. B. Lall has also sent a reply dated 05.08.1996 to the said legal notice.
c. The defendants were not residing in the suit property even prior to the death of Dr. M. B. Lall and only his one servant was using the same. Dr. Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 2/16 M. B. Lall expired on 18.12.2004 leaving behind his wife Smt. Raj Dulari and his sons i.e the defendants as his LRs and since Smt. Raj Dulari was financially dependent on her husband therefore, she has right to occupy the suit property till her death. Smt. Raj Dulari was occupying the suit property through their servant though, she was residing along with the defendants in their house. Smt. Raj Dulari also expired on 15.01.2011 but, the defendants are still occupying the suit property illegally and unlawfully through their servants. None of the defendants were financially dependent on Dr. M. B. Lall.
d. The defendants have filed frivolous suit against the plaintiffs for mandatory and permanent injunction which is still pending and has also filed petition U/s 27 of Delhi Rent Control Act,1958 (herein after wards referred as DRCA).
e. The plaintiffs has also filed petition under section 14 (1) (a) of DRCA against Dr. M. B. Lall on the ground of non payment of rent. However, the said petition was dismissed and since the defendants are in possession of the suit property as unauthorized occupant, therefore, they are liable to pay Rs. 25,000/ which may be prevailing market rental of similar property in the area in which the suit property is situated.
3. The defendants have contested the suit of the plaintiffs by filing joint written statement (herein after wards referred as WS) wherein they had taken following preliminary objections : a. The suit of the plaintiffs is barred by section 50 of DRCA as there is relationship of landlord and tenant between the parties with monthly rent of Rs. 115/ p.m besides electricity and water charges.
Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 3/16 b. The suit property was let out to Dr. M. B. Lall in 1962 for residential cum non residential purpose and it was so used for the said purpose since its inception and consequently, all the LRs of late Dr. M. B. Lall has inherited the tenancy rights of Dr. M. B. Lall whereby they became tenant in the suit property in their own rights and the defendants are making the payment regularly to the plaintiffs in their own rights as tenant.
4. On merits, the defendants had denied the extent of the tenanted portion stating that besides the suit property, passage on the first floor with open terrace and parapet wall on the second wall was also let out to Dr. M. B. Lall and thus, it is stated that the tenanted portion has been wrongly described by the plaintiffs in the plaint. The defendants has further stated that the tenancy of Dr. M. B. Lall was never legally terminated as the notice dated 17.07.1996 stood waived as the plaintiffs has exhausted the remedy by filing petition under section 14 (1) (a) of DRCA, which was dismissed vide judgment dated 05.12.2001. The defendants had denied that they were not residing in the suit property prior to the death of Dr. M. B. Lall. The defendants have further denied financial dependency of Smt. Raj Dulari on her husband and it is stated that after the death of Dr. M. B. Lall, the plaintiffs has been accepting the rent and recognizing the defendants as their tenants in the suit property in their own rights.
5. The plaintiffs has filed replication to the WS of the defendants wherein they had denied the contents of the WS and reiterated the averments made in the plaint. The plaintiffs has denied that the tenancy was for residential cum nonresidential purposes.
Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 4/16
6. On completion of the pleadings of the parties, following issues were framed on 01.06.2012, namely:
1.Whether the suit of the plaintiff is barred u/s 50 of DRC Act? OPD
2.Whether the notice dated 17.07.1996 stands exhausted, if so, its effect? OPD.
3.Whether the plaintiff is entitled for the relief of possession as prayed for with respect to the suit property as shown in the red colour in the site plan attached? OPP.
4.Whether the plaintiff is entitled to damages if so at what rate and for which period? OPP.
5. Relief.
7. On behalf of the plaintiffs, the plaintiff no.1 has got himself examined as PW1 and PW1 has placed reliance on the documents exhibited as Ex. PW1/1 to Ex. PW1/4.
8. The defendant no.3 has got himself examined as DW1 and DW1 was duly cross examined by the plaintiffs.
9. Final arguments were addressed by Ld. Counsels for both the parties.
10. After careful perusal of the records of the case in the light of rival submissions of both the parties and relevant provision of law, issue wise findings of this court are as follows:
ISSUE NO. 1"Whether the suit of the plaintiff is barred u/s 50 of DRC Act? OPD"
11. The onus of proving the present issue is on the defendants. The defendants had raised the objection as to bar of Section 50 of DRCA stating Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 5/16 that after the death of their father, Dr. M.B.Lall, the defendants had inherited the tenancy rights of their father on the following grounds :
(a) The contractual tenancy of Late Dr. M.B.Lall was not terminated by notice dated 17.07.1996 as after the service of the said notice, a petition was filed by the plaintiffs against the father of the defendants U/s 14 (1)
(a) DRCA which was dismissed and subsequently the appeal against the said dismissal order was also dismissed, thus the notice dated 17.07.1996 stands exhausted and as a result of which the statutory tenancy of Dr. M.B.Lall reverted back to the contractual tenancy.
(b) Even otherwise, the tenancy of Dr. M.B.Lall was for residential and nonresidential purposes, thus the same was inherited by all the legal heirs of deceased Dr. M.B. Lall without any restriction and the same does not devolved merely on the widow of Dr. M.B. Lall as per the provisions of Sec 2 (l) of DRCA.
12. Now, firstly this court will deal with the contention of the defendants as to the question whether the notice dated 17.07.1996 was exhausted due to dismissal of petition and appeal of the plaintiffs u/s 14 (1) (a) of DRCA. It is worthwhile to mention here that the notice dated 17.07.1996 (Ex. PW1/3) was not merely notice of demand of rent from Dr. M. B Lall, but it further terminates the contractual tenancy of Dr. M. B Lall as per clause 5.
13. In support of their contention, the defendants had placed reliance on the following two decisions:
(a) Mec India Pvt. Ltd. Vs. Lt. Col. Inder Maira & Ors. 80 (1999) DLT 679
(b) Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd, 115 (2004) DLT 531 (SC) Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 6/16
14. In Mec India (Supra), Para no.60, Hon'ble High Court of Delhi dealt with one of the circumstances in which after service of legal notice to quit, there was waiver of the said notice by virtue of which tenancy by sufferance was relegated back to tenancy by month to month which was the position prior to the service of earlier notice.
15. In the said case, firstly the landlord terminates the tenancy of the tenant by service of notice of termination and subsequently, he has filed an ejectment suit which the landlord allowed to be dismissed in default, then it was observed that the said act of abandoning the suit on the part of landlord amounts to waiver within the meaning of Section 113 of Transfer of Property Act,1882 (herein after wards referred as TPA) thereby restoring the tenant's status to month to month tenant and consequently further notice to quit is required to terminate the tenancy. Ld. Counsel for the defendants has laid emphasis on para no.62 of the said judgment wherein it was observed that for termination of said month to month tenancy, a fresh notice to quit is a must as the earlier notice stands waived, but the said para cannot be read in isolation and the said observation is on the peculiar facts and circumstances of the said case which is in fact a case of abandonment of the ejectment suit by the landlord.
16. In the present case, as per the admitted fact, the landlord/plaintiffs after service of notice U/s 106 of TPA on Dr. M. B.Lall has filed an eviction petition U/s 14 (1) (a) DRCA which was contested by them and the said petition was dismissed on merits. The plaintiffs has further filed an appeal against the said decision which was also dismissed, thus the said conduct on the part of landlords reflects that the landlords had no intention to continue the contractual tenancy of Dr. M. B. Lall and thus, dismissal of the Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 7/16 petition and appeal does not in the fact and circumstances of the present case tantamount to waiver of notice dated 17.07.1996.
17. Further, Atma Ram (Supra) is also distinguishable from the facts of the present case as the said decision was with respect to the fact as to when the claim of landlord to claim mesne profits crystallized which was decided to have crystallized after the termination of tenancy by passing of decree of eviction, but it was nowhere held in the said case, that the notice of termination of contractual tenancy stood waived if no eviction order was passed.
18. The plaintiff in the present case has placed reliance on the decision of Hon'ble High Court of Delhi in Mohan Lal Goela and others vs. Siri Krishan and Others AIR 1978 Delhi 92, in the said case also, the legal heirs of the deceased tenant took the same defence as taken by the defendants in the present case, that with the dismissal of the eviction petition filed against the tenant, legal notice terminating the tenant's contractual interest stood waived, but it was observed that once a valid legal notice is served, it is never exhausted even if the proceedings end in failure. Though, after that the landlord and the tenant may come together and continue their relationship, thus the said notice is withdrawn by the consent of both.
19. The only distinguishable fact between Mohan Lal Goela (Supra) and the present case is that in the said case the tenant expired during the pendency of the appeal and instead of continuing the appeal against the legal heirs, the landlord vide separate statement withdrawn the appeal stating that the cause of action for eviction does not survives against the legal heirs as they have no right to inherit the tenancy of their father but, in Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 8/16 the present case, the tenant expired almost two years after the dismissal of the appeal, but, the said distinction appears to be merely ancilliary, as the principle of law enunciated in the said judgment is squarely applicable to the facts of the present case.
20. In the present case, the defendants had contended that after the dismissal of the appeal of the plaintiffs, Dr. M. B. Lall and after his death, the defendant no.1 was regularly tendering the rent to the plaintiffs through money order which was duly received by the plaintiffs, thus fresh tenancy came into existence. But, as per settled proposition of law, mere acceptance of rent does not amounts to waiver of notice and proof of creation of fresh contractual tenancy. For the purpose of waiver of notice, thereby reviving the contractual tenancy, the defendants are required to plead as well as prove that the plaintiffs had allowed Dr. M. B. Lall to remain in the possession of the suit property as a contractual tenant and has also accepted the amount tendered by him not as statutory rent but as legal rent as observed in Bhawanji Lakhamsi and Ors. Vs. Himatlal Jamnadas Dani and Ors. AIR 1972 SC 819.
21. Similar view was taken in Bhuneshwar Prasad and Anr. Vs. United Commercial Bank And Ors. AIR 2000 SC 2796, wherein it was further observed that to bring a new tenancy into existence within the meaning of section 116 of TPA, there should be an offer by the lessee who is continuing in possession of the tenanted premise and definite assent by the landlord and such an assent of the landlord cannot be assumed in cases of tenancies to which the Rent Restrictions Act apply merely by acceptance of rent, as a landlord has no option to eject the tenant except on the specific grounds available to him under the Rent Act. Thus, a lessor cannot be expected not Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 9/16 to accept the rent and consequently, there would be no question of creation of new tenancy.
22. But, the defendants had failed to plead or prove the same as to any agreement either between the plaintiffs and Dr. M.B Lall or between the plaintiffs and the defendants, thus the notice dated 17.07.1996 does not stood exhausted and fresh contractual tenancy does not came into existence. Thus, it is duly proved that Dr. M. B. Lall died in the suit property as a statutory tenant.
23. The defendants had further pleaded that the suit property was let out to Dr. M. B. Lall for residential cum non residential purposes and he was using the suit property for the said purpose since its inception. The defendants had neither pleaded in their written statement nor in their evidence for what purpose Dr. M. B. Lall was using the suit property. During the course of cross examination, DW1 for the first time volunteered that the suit property was being used by his father to run his clinic. The said fact was volunteered by DW1 in response to the question put by the plaintiffs as to the address of the clinic of their father to which DW1 deposed that his father was running his clinic in the property bearing no. 12/7331, GT Road, Delhi110007 but, he further volunteered that Dr. M. B. Lall was running his clinic in the suit property also.
24. But, the said fact as deposed by DW1 is falsified by the examination of DW1 himself who during the course of his cross examination has admitted Ex. DW1/X1 as the certified copy of petition U/s 9 of DRCA filed by his father, Dr. M.B Lall and in clause 4 of the said petition, the father of the defendants had himself mentioned the nature of tenancy as tenancy for residential purposes.
Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 10/16
25. Furthermore, the money orders as placed on record by DW1 also reflects the address of clinic of Dr. M. B. Lall as 12/7331, GT Road, Delhi110 007 and not that of the suit property. The defendants further failed to examine any independent witness so as to prove the factum that the suit property was being used by Dr. M. B. Lall for non residential purposes as his clinic. Thus, the defendants had failed to prove that the suit premises was let out to Dr. M. B. Lall for residential cum non residential purposes.
26. Now, as admitted by DW1 that at the time of his death, Dr. M. B. Lall has surviving spouse who was financially dependent on Dr. M. B. Lall, thus, as per the provision of section 2(l) of DRCA, she has inherited the statutory tenancy of her husband after the death of Dr. M.B Lall for her lifetime and since Smt. Raj Dulari has also expired prior to the filing of the suit, thus, the defendants had no right to retain the suit property and their exists no relationship of landlord and tenant between the parties so as to attract the provisions of DRCA.
27. Lastly, this court shall deal with the contention of the defendants that during the lifetime of Smt. Raj Dulari, it was defendants who were tendering rent to the plaintiffs by money orders, but merely because money orders were sent by the defendant no. 1, the same does not create fresh tenancy between the plaintiffs and the defendants and consequently, this issue is decided against the defendants.
ISSUE NO. 2"Whether the notice dated 17.07.1996 stands exhausted, if so, its effect? OPD"
Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 11/16
28. The onus of proving the present issue is on the defendants. But, as already discussed in detail while deciding issue no.1 above, that the notice dated 17.07.1996 does not stood exhausted and Dr. M.B.Lall has died in the suit property as a statutory tenant, thus the effect of the same is that the said statutory tenancy of Dr. M.B. Lall has devolved on his widow Smt. Raj Dulari exclusively and there is no relationship of landlord and tenant between the plaintiffs and the defendants so as to attract bar of Section 50 DRCA.
This issue is decided accordingly.
ISSUE NO.3 "Whether the plaintiff is entitled for the relief of possession as prayed for with respect to the suit property as shown in the red colour in the site plan attached? OPP"
29. The onus of proving this issue is on the plaintiffs. Against the claim of the plaintiffs to claim recovery of possession of the suit property, the defendants had raised two defences:
a. The suit of the plaintiff is barred by Section 50 DRCA. b. The tenanted property has not been described properly by the plaintiffs and the tenanted property also includes open terrace with parapet wall on 2nd floor in addition to the area as described by the plaintiffs in red color in the site plan annexed with the plaint (Ex. PW1/1).
30. With regards to the first defence of the defendants, the same has already been decided against the defendants while deciding issue no. 1 and 2 above, consequently the same is not reiterated again.
Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 12/16
31. The defendants has secondly raised the defence as to wrong description of the suit property by the plaintiffs. The plaintiffs has described the suit property as two rooms, verandah, bath, latrine and WC on the first floor more specifically shown in red color in Ex. PW1/1. The defendants without filing their site plan has averred that the suit property also includes open terrace with parapet wall on the 2nd floor, but during the course of cross examination of DW1, DW1 has admitted Ex. DW1/XI as the certified copy of petition U/s 9 of DRCA filed by his father and in clause 8 of the said petition, the suit property was described exactly in the same manner as described by the plaintiffs in the present case which negativates the contention of the defendants that open terrace with parapet wall on the 2nd floor was also part of the tenanted property. Thus, both the defences of the defendants are decided against the defendants.
32. Thus, by the cross examination of DW1 and by the evidence of PW1, the plaintiffs have duly proved that the defendants have no right to retain the possession of the suit property in the capacity of tenant after the death of Dr. M.B.Lall and Smt. Raj Dulari, consequently the plaintiffs are entitled for recovery of the possession of the suit property from the defendants being unauthorized occupants of the same .
This issue is decided in favour of the plaintiffs.
ISSUE NO.4 "Whether the plaintiff is entitled to damages if so at what rate and for which period? OPP"
33. The onus of proving the present issue is on the plaintiffs. The plaintiffs have claimed pendentlite and future mesne profits from the Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 13/16 defendants @ Rs.25,000/ p.m. along with interest @ 15% p.a.
34. It is averred in para no. 11 of the plaint that the similar property as that of the suit property may easily fetch rental income of Rs.15,000/ p.m but, the said contradiction appears to be merely typographical error because in his affidavit also, PW1 deposed that the similar property as that of the suit property may easily fetch a rental income of Rs.25,000/pm.
35. In the present matter, it has been duly proved in issue no. 3 that the defendants are in unauthorized possession of the suit property, thus the plaintiffs are entitled for recovery of mesne profits from the defendants.
36. The plaintiffs had claimed pendentlite and future mesne profits @ 25,000/ p.m but, in order to claim the same, the plaintiffs are required to prove the basis of arriving at the figure of Rs.25,000/ pm and the said deposition as to market rate of rent appears to be merely arbitrary guess work.
37. The plaintiffs have placed reliance on the decision of Hon'ble High Court of Delhi in Roshan Lal Vegetable Products Pvt. Ltd. Vs. Param International and Anr. (2011) ILR 2 Delhi 350 , but perusal of the said decision reveals that in the said case, the plaintiffs have claimed Rs.1,52,000/ p.m as mesne profits i.e. double the amount of last paid license charges as agreed between the parties, but Hon'ble High Court of Delhi has denied the same and granted mesne profits as per agreed rate of last paid license charges observing that no evidence has been adduced by the plaintiffs to prove the basis of enhancement, not even a newspaper report of abnormal increase in the rentals in the said period of which judicial notice can be taken. But, in the said case it was also observed that since the period of Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 14/16 license was too small, thus the principle of taking judicial notice of rise in the rents is not applicable.
38. In the present case, though the defendants had not lead any evidence so as to contradict that the market rent of similarly situated property is less than as claimed by the plaintiffs, but for the purpose of claiming mesne profits as claimed, the plaintiffs are required to prove by leading positive evidence that due to wrongful occupation of the defendants in the suit property, the plaintiffs have suffered loss of profits to the extent of Rs. 25,000/ p.m and merely on the basis of arbitrary guess work, the rate at which the plaintiffs have claimed mesne profits cannot be granted in favour of the plaintiffs.
39. But, at the same time, it has to be taken into consideration as admitted by the defendants in their WS, that the rent of Rs. 115/ p.m was fixed way back in the year 1962. Thus, taking judicial notice of the fact that the suit property is situated in Jawahar Nagar, Sabzi Mandi comprising of two rooms, verandah, kitchen, bath, latrine and W.C in rear portion on first floor and since over the last few decades there has been phenomenal increase in the market rental of the properties in Delhi and further taking into consideration the defence of the defendants as to use of the suit property by them for residential cum non residential purpose as a clinic as deposed by DW1 in his cross examination which at least can be read against the defendants, this Court is of the opinion that grant of pendent lite and future mesne profits @ Rs. 7,000/ p.m will be reasonable and same is granted accordingly.
40. The plaintiffs have further claimed pendentlite and future interest Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 15/16 on the mesne profits @ 15% p.a, but the same appears to be exorbitant and consequently same is granted @ 8% p.a. This issue is decided accordingly.
RELIEF
41. In view of the findings of this court on the aforesaid issues, the suit of the plaintiffs is decreed in favour of the plaintiffs and against the defendants for the following reliefs:
a. Recovery of possession of the suit property from the defendants as shown in red color in the site plan Ex. PW1/1. b. Recovery of pendentlite and future mesne profits @ 7,000/ p.m. c. Recovery of pendentlite and future interest @ 8% p.a on the mesne profits as decreed.
Parties to bear their own cost. Decree Sheet be prepared accordingly, however, the decree will become executable on the payment of court fee on the pendentlite mesne profits as decreed. File be consigned to record room after necessary compliance.
Announced in the open court today i. e. on 11.11.2014.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /11.11.2014 Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 16/16 CS No.39/2012 Ashok Tyagi Vs. S. K. Lal 11.11.2014 Present: None.
Vide separate judgment of even date, the suit of the plaintiffs is decreed in favour of the plaintiffs and against the defendants for the following reliefs:
a. Recovery of possession of the suit property from the defendants as shown in red color in the site plan Ex. PW1/1. b. Recovery of pendentlite and future mesne profits @ 7,000/ p.m. c. Recovery of pendentlite and future interest @ 8% p.a on the mesne profits as decreed.
Parties to bear their own cost. Decree Sheet be prepared accordingly, however, the decree will become executable on the payment of court fee on the pendentlite mesne profits as decreed. File be consigned to record room after necessary compliance.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /11.11.2014 Suit no. 39/2012 Ashok Tyagi & Ors. Vs. S. K. Lall & Ors. 17/16