Delhi District Court
Smt. Phool Wati vs Sh. Ramesh Chand on 27 July, 2011
IN THE COURT OF SH VIKRAMCIVIL JUDGE02, NORTH DISTRICT
TIS HAZARI COURT, DELHI
Suit No. 754/06
Unique ID No.02401C0103792002
Memo of Parties
1. Smt. Phool Wati
W/o Late Sh. Rahubir Saran
(Since deceased through its Legal heirs)
(a) Smt. Vedwati
D/o deceased petitioner no.1
W/o Late Sh. Chander Prakash
R/o Kyastha Vada Mohalla,
Dev Band District, Saharanpur, UP.
(b) Smt. Sharda Devi
D/o deceased petitioner no.1
W/o Sh. Ved Prakash
R/o Kyastha Vada Mohalla,
Dev Band District, Saharanpur, UP.
(c) Smt . Prabha Sharma
W/o Sh. Mahender Sharma
R/o Germany
(d) Sh. Dharamveer Verma
S/o Late Sh. Raghuvir Saran,
R/o 2096, Katra Gokul Shah
Bazar Sita Ram, Delhi110006
(e) Sh. Mahavir Prasad Verma
S/o Late Sh. Raghuvir Sara,
R/o 2720, Bazar Sita Ram,
Delhi110006
(f) Sh. B.S. Verma
S/o Late Sh. Raghuvir Saran
R/o 2720, Ward No.8, Gali Arya Samaj,
Bazar Sita Ram, Delhi110006
(g) Sh. R.S. Verma,
Suit No.754/06 1
S/o Late Sh. Raghubir Saran
R/o 2096, Katra Gokul Shah,
Bazar Sita Ram, Delhi110006.
2. Sh. B.S. Verma
S/o Late Sh. Raghuvir Saran
R/o 2720, Ward No.8, Gali Arya Samaj,
Bazar Sita Ram, Delhi110006
3. Sh. R.S. Verma,
S/o Late Sh. Raghubir Saran
R/o 2096, Katra Gokul Shah,
Bazar Sita Ram, Delhi110006.
............Plaintiffs
Versus
1. Sh. Ramesh Chand
S/o Late Sh. Kesho
R/o 2096, Katra Gokul Shah,
Bazar Sita Ram, Delhi110006.
(Since deceased through its legal heirs)
(a) Sh. Rakesh
S/o Late Sh. Ramesh Chand
R/o 2096, Katra Gokul Shah
Bazar Sita Ram, Delhi110006
(b) Sh. Ravi Kumar
S/o Late Sh. Ramesh Chand
R/o 2096, Katra Gokul Shah
Bazar Sita Ram, Delhi110006
(c) Smt. Munni Devi
W/o Sh. Pawan Kumar,
D/o Late Sh. Ramesh Chand
R/o 244/58/8,
School Block, Gali No.6,
Mandawali, Delhi110092
(d) Smt. Sunita
W/o Sh. Jitender Kumar
D/o Sh. Ramesh Chand
Suit No.754/06 2
R/o 2544/58/8,
School Block, Gali No.6,
Mandawali, Delhi110092
(e) Smt. Usha
W/o Sh. Kanhaiya
D/o Late Sh. Ramesh Chand
347, Ram Nagar, Near Hari Singh Gurudwara,
Krishan Nagar, Delhi.
2. Sh. Kedar
S/o Late Sh. Kesho
R/o 2096, Katra Gokul Shah,
Bazar Sita Ram, Delhi110006
................... Defendants
Date of institution of suit :08.09.2003
Date on which judgment was reserved :04.07.2011
Date of announcement of judgment :27.07.2011
SUIT FOR RECOVERY OF POSSESSION,
ARREARS OF DAMAGES AND MENSE PROFIT
JUDGMENT
1. By this judgment I shall dispose off a suit, filed for possession and mesne profits and damages, by plaintiffs against defendants.
2. Brief facts as per the plaint are that plaintiffs are the owners/landlords of property bearing house no.2096 ward no. VIII, Katra Gokul Shah, Bazar Sita Ram Delhi6 (herein after referred to as 'suit property'). Late Sh. Kesho Ram was inducted as tenant in the suit property by erstwhile owner in respect of one room on the ground floor and one tin shed (Barsati) on the first floor at a monthly rent of Rs. 18/ per month excluding other charges. Due to old age and physical inability Sh. Kesho Ram was not working prior to his death and he was dependent upon his sons who are present defendants. Since the plaintiffs required premises for their residence, plaintiff no. 1 terminated the tenancy of Sh. Kesho Ram vide legal Suit No.754/06 3 notice dated 17.02.1984 and he was called upon to hand over actual, physical and vacant possession of the suit premises upto midnight of 31st march 1984. The legal notice was served upon Sh. Kesho Ram and he replied to the notice through his advocate Sh. Om Prakash Khanna vide reply dated 25.02.1984. It is stated in the plaint that after the notice dated 17.02.1984 the tenancy of Sh. Kesho Ram was terminated and and since he failed to vacate the premises on 31.02.1984, the occupation of suit premises by Sh. Kesho Ram was as a statutory tenant.
3. Sh. Kesho Ram expired in March,2000 and thereafter the defendants continued to be in occupation of the suit premises and upon expiry of one year of the death of Sh. Kesho Ram, plaintiff requested the defendants to vacate the premises but defendant refused to do so. Therefore, on 11.07.2002 defendants were served with the notice calling them to hand over the vacant and peaceful possession of the suit premises on or before 31.07.2002. But, despite notice dated 11.02.2002, plaintiff did not vacated the suit premises, rather sent a false and concocted reply dated 31.07.2002.
4. It is alleged in the plaint that the rent for the suit premises has been paid up to December 1999 and after the death of father of defendants Sh. Kesho Ram, defendants have not paid rent. Therefore defendants are liable to pay rent @ Rs. 18 per month from January 2000 till expiry of one year period from the date of death of Sh. Kesho Ram, and further the defendants are also liable to pay damages towards illegal use and occupation of suit premises @ Rs. 500 per month till filing of suit which as per calculation of plaintiff is Rs. 9'572/. It is also alleged that defendants are also liable to pay mesne profit @ Rs. 500/ per month from the date of filing of suit till vacation of suit premises. Plaintiff has also claimed interest @ 24% p.a. on mesne profit.
Suit No.754/06 4
5. On these grounds this suit is filed and plaintiff has sought relieves of possession of suit property, recovery of Rs 252/ towards arrears of rent @ Rs. 18/ p.m. w.e.f. January 2000 to February 2001, recovery of Rs. 9,500/ towards damages for use and occupation w.e.f. March 2001 to September, 2002 @ Rs. 500/ p.m., pendentlite and future mesne profit @ Rs. 500/ p.m., and pendent lite and future interest @ 24% p.a. on amount recoverable.
6. Defendants filed their written statement. In their written statement they took preliminary objection that the suit of plaintiff does not disclose cause of action, the allegations leveled are vague, concocted and after thought as earlier also a suit for permanent injunction was filed by plaintiff, Phoolwati against father of defendant Sh. Kesho Ram, titled Phoolwati V. Kesho Ram (Suit No. 181/93) which was decided on 07.01.1994.Therefore it is submitted that allegation of serving legal notice dated 01.02.1984 is baseless. It is also stated that even if it is presumed that legal notice was served, the plaintiff contested the suit for injunction and in that suit plaintiff was given permission to repair the floor and walls, therefore the notice dated 17.02.1984 loses its relevance. Defendants also took objection of bar of Section 50 of Delhi Rent Control Act. It is also stated that the suit premises in dispute was let out to defendant for residential cum commercial purpose since inception of tenancy. Defendants also stated in written statement that the suit property falls with in the ambit of Slum ares and the suit is filed without taking prior permission under Slum Area Act.
7. On merits defendants admitted the relationship of tenancy between plaintiffs and their father. Defendants also admitted that their father died in March 2000. But, it is stated that property was let out to the father of defendants for residential cum commercial purpose and since the inception of tenancy from Suit No.754/06 5 original owner defendants along with their father were carrying out their day to day work of washing the cloths and ironing etc. Defendants also denied that due to old age and physical incapacity, father of defendants was not working for several years prior to his death and he had no independent source of income. Defendants also denied the service of notice to their father and its reply by their father. Therefore they denied the allegation of termination of tenancy of their father vide notice dated 01.02.1984. Defendants also submitted that they have tendered rent till 01.02.01 and have deposited the rent of the suit property till march 2002 before ARC. Defendants have admitted that their father died in March 2000. Rest of the contents of plaint and claim of plaintiff are also denied by the defendants.
8. In replication to the written statement plaintiff denied the objections as wrong. Plaintiff did not denied that Suit no. 181/93 was filed but stated that but stated that in that suit no finding was given regarding the notice dated 17.02.1984. Plaintiff also denied that suit property falls in slum area and sated that property in question does not fall under the ambit of Slum Area (Improvement & Clearance) Act 1956. It is also stated that Ld. ARC disposed off the petition of the defendant for depositing the rent on 11.10.02 on the ground that there is dispute regarding the period of tenancy, period of rent due and extent of tenancy. Before Ld. ARC, it was held that the issue of termination of tenancy of late father of defendants or issue of status of the defendants as unauthorised occupant could not be decided there so the plaintiffs were given opportunity to withdraw the rent without prejudice to their rights and contentions. Plaintiff has not withdrawn that rent till date. For rest of the written statement plaintiffs reiterated the contentions made in plaint.
Suit No.754/06 6
9. After completion of pleadings following issues were framed:
1.Whether the present suit is barred under section 50 of DRC Act? OPD.
2.Whether the present suit is barred under Slum Clearance Act? OPD
3.whether the plaintiff is entitled to decree of possession as prayed for? OPP.
4.Whether the plaintiff is entitled to the arrears of rent/mesne profits? If so, at what rate and for what period? OPP.
5.Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP.
6.Relief.
10. To prove their case plaintiffs examined 3 witnesses in PE. Plaintiff no.2 himself appeared as Pw1 and filed his affidavit which is exhibited as ExPw1/A in evidence. ExPw1/A is reproduction of plait. Pw1 also placed reliance upon documents Ex Pw1/1 to Ex.Pw1/18. Plaintiff also examined one Sh. O.P. Khanna Advocate (Pw2) to prove notice ExPw1/8 and Sh. A.P. Aggarwal Advocate (Pw3) to prove notice Ex.Pw1/4, postal receipt Ex.Pw1/5, Ex.Pw1/7, 8 and 9.
11. Defendants in defense evidence filed their respective affidavits. Ex.Dw1/A is affidavit if defendant no. 1 Sh. Ramesh Chand who also produced some documents Ex.Dw1/1 to 5. Ex.Dw2/A is affidavit of defendant no.2 Sh. Kedar. The contents of both defendants affidavit are ditto except for identity and they are again reproduction of written statement.
12. I have heard the counsels and perused the records. After hearing the arguments and perusal of record, my issue wise finding on each issue is as follows: ISSUE No. 1:Whether the present suit is barred under section 50 of DRC Act? OPD.
Suit No.754/06 7
13. The onus to prove this issue was on defendant. Ld. Counsel for defendant argued that from the plaint itself the suit is barred under provisions of DRC Act as the rent of suit property is below 3500. On the contrary, Ld. Counsel for plaintiff contended that as per the definition of 'tenant' provided under DRC Act, in its explanation, for the purpose of protection of DRC Act, meaning of "tenant" has certain limitation. Ld. Counsel referred to clause (b) of explanation II to the section 2 (l) of DRC ACT, 1958. Section 2 (l) of DRC Act gives definition of "tenant". Explanation II of the definition reads:
EXPLANATION II. If the person, who acquires, by succession, the right to continue in possession after termination of the tenancy, was not financially dependent upon deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of tenancy shall be extinguished.
14. Counsel for plaintiff took aid of this section and contended that tenancy of father of defendants was terminated during his life time by giving legal notice dated 17.02.1984 ExPw1/4 to which father of defendants replied vide legal notice dated 25.02.1984 Ex.Pw1/8. Hence, it is contended on behalf of plaintiff that since tenancy of father of defendants was terminated during his life time, the right of successor to live in the tenanted premises was restricted to one year from the date of the death of original tenant. Original tenant, father of defendants, died in March 2000 and the suit is filed on October 2002 when, after service of legal notice (dated 11.07.2002) to vacate, defendants did not hand over the vacant possession of premises.
15. Ld. counsel for defendant contended that said legal notice ExPw1/4 is a Suit No.754/06 8 false document and father of defendants was never served with any legal notice. He placed reliance on VIII (2008) SLT 55 where it was held by Hon'ble Supreme court that "the presumption under section 114(f) of Evidence Act is a rebuttable presumption and on denial of receipt of the registered letter from DDA appellant discharged its onus and onus reverted back to respondent to prove such service by either examining the postal authorities or obtaining a certificate from them showing that the registered article had been delivered to and had been received by appellant".
16. Ld. Counsel for defendants contended that defendants denied the service of notice dated 17.02.1984, thereafter plaintiffs did not examined postal authority, neither filed any certificate of delivery. Hence plaintiff has not proved the service of notice. The authority cited by the defendants is a case where notice was alleged to be served upon answering defendant and he denies the service of notice. Same is not the case here. In this case contention of plaintiff is that he served legal notice upon father of defendants and he replied with legal notice. Plaintiff has produced proof of service viz. postal receipts acknowledgment card received back, ExPw1/5 to 7. Plaintiff also produced the envelop in which he received the reply of legal notice (ExPw1/9). Plaintiffs examined the advocate who sent the legal notice to father of defendants. Plaintiffs also examined the advocate who drafted reply, on instructions of father of defendants, to legal notice of plaintiff.
17. These two witnesses of plaintiff are cross examined by the counsel of defendants. Pw2 Sh. O.P. Khanna, has drafted reply of legal notice ExPw1/8 on behalf of father of defendants. The cross examination of Pw2 is centered to the memory of witness. There is no suggestion to any fact which could show that he Suit No.754/06 9 appeared in PE to favour plaintiff illegally, adverse to defendants. Further in cross examination of Pw3, who drafted and sent legal notice ExPw1/4 to, and received its reply ExPw1/8 in envelop ExPw1/9 from, father of defendants nothing material is extracted to show that the legal notice ExPw1/4 was not served upon defendants or he did not received any reply. Only one suggestion of forging Ex Pw1/8 in collusion with plaintiff is given. Just because one suggestion of collusion and forgery is given, same is not a sufficient ground for discarding the testimonies of witnesses, who testified on oath. It is not the case where the plaintiff has produced the legal notice only, plaintiff has also produced its reply from the notice. As per the authority cited by defendant the presumption of service of notice is rebutted when the person named in the notice says that he did not received the notice. The denial from a person to whom notice was not sent or who was not named in notice has no effect on the presumption of service. This is also a case where plaintiff has produced the reply of the notice from father of defendants. Simply because it is sent within a week from the date of notice, and because the witness (who drafted reply) is not able to recollect the events, when he is examined after 20 years of its drafting, his testimony as to his identification of the draft reply ExPw1/8 cannot be disbelieved. Hence it is proved that legal notice ExPw1/4 was served upon father of defendants and he replied to that notice by ExPw1/8.
18. There is one more requirement for application of Explanation II of Sec.2 (l) of DRC Act that successor should not be dependent on deceased person (the tenant) on the date of his death. Pw1 has stated on oath that defendants were not financially dependent on the deceased tenants. Father of defendants died on 2000/2001. Dw1 is examined in the year 2005. At the time of examination of Dw1 Suit No.754/06 10 Sh. Ramesh Chand, who is defendant no.1 in this case, stated that his age is 58 years. That means that on the date when father of defendants died, defendant no. 1 was more than 50 years old. Although defendant no. 2 has nowhere mentioned his age but it can be presumed that at the time of death of his father he was major.
19. The purpose for enactment of the DRC Act was to benefit the tenants and his successors from forceful dispossession from the tenanted premises. Therefore, in section 2 Cl.(l) S.Cl (iii) tenant includes; in the event of the death of the persons continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in explanation I and Explanation II to this clause, such of the aforesaid person's
a) Spouse,
b) son or daughter, or, where there are both son and daughter, both of them,
c) parents,
d) daughter in law, being a widow of his predeceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include x x x x x x x.
20. Inclusion of these persons in the definition has the purpose of social justice. Therefore DRC Act, 1958 was enacted as a social legislation. But the purpose of this enactment was to protect the destitute not to give a tool in the hands of able to deprive an owner from his property. This is why the extended protection to these persons was made limited by Explanation II.
21. The defendants, at the time of death of their father, were major. The father Suit No.754/06 11 on the date of his death was more than 75 years. By no logic, it can be assumed that defendants were financially dependent on their father, on the date of his death. Hence, the Explanation II of Section 2 (l) applies with full force. As per the explanation defendant's right to live in the tenanted premises was for a limited period of one year and that has expired. Hence, after one year of death of their father defendants right to protection under DRC Act is extinguished. Thereafter, no new tenancy is created in favour of defendant.
22. The counsel for defendants also submitted that defendants filed petition for depositing rent before ARC in respect of suit property, and contended that since defendants have deposited the rent before ARC, they continue to reside in suit property as tenant. The Counsel for plaintiff on the other hand referred to the order of Ld. ARC wherein the issue of application of Explanation II of section 2 (l) was left open.
23. One more question arises here. Section 50 of DRC Act provides that no civil court shall entertain any suit or proceedings in so far as it relates to the fixation of standard rent to nay premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the controller under this Act shall be granted by any civil court or other authority.
24. The question is that in a case like this where the premises was initially covered under DRC Act, and by the provisions of the same Act tenancy has been extinguished, now, can a civil court entertain suit for eviction? In Chapter III of DRC Act under section 14 it has provided 13 grounds on which an application for eviction of tenant can be moved. None of these grounds give right to a landlord to Suit No.754/06 12 file eviction petition in case of extinguishment of tenancy. When no such ground is provided in DRC Act then the jurisdiction lies with civil court.
25. In view of foregoing discussion the issue no.1 is decided against defendants and in favour of plaintiff.
ISSUE No. 2:whether present suit is barred under Slum Clearance Act? OPD.
26. Onus to prove this issue was on defendants. Defendants took this objection that the suit property falls in Slum Area and since plaintiffs have not taken leave under the Slum Clearance Act before filing this suit, it is barred under section 19 of the Act.
27. Section 19 of The Slum Areas (Improvement and Clearance) Act, 1956 reads:
19. Proceedings for eviction of tenants not to be taken without permission of the competent authority.(1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority,
a) institute, after the commencement of the Slum Areas (Improvement and clearance), Amendment Act, 1964 (43 of 1964) any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or
b) x x x x x x x.
28. The application of this Act comes only when the area is declared and notified as a slum area under section 3 of the Act. Plaintiff has denied the applicability of this Act and submitted that the suit property is not situated in Slum Area. In evidence defendants did not brought any copy of Official Gazette where Suit No.754/06 13 the area of suit property is notified as Slum Area. The onus is on defendants and defendants failed to discharge this onus. Hence, the issue is decided against defendants and in favour of plaintiff.
ISSUE No. 3:whether the plaintiff is entitled to decree of possession as prayed for?
29. Few facts are admitted i.e the plaintiffs are owners of suit property, father of defendants was the tenant in the suit property, father of defendants died in March 2000, plaintiff issued notice dated 11.07.2002 to defendants for handing over the possession of property ExPw1/10, this notice was served, defendants replied via ExPw1/16.
30. Few facts are proved. Father of plaintiff was served with legal notice dated 17.02.1984 ExPw1/4. Defendants were not financially dependent on their father on the date of his death. The tenancy right of defendants got extinguished. Since tenancy right of defendants was extinguished, in absence of any new contract of tenancy, the occupation of defendants over the suit premises is not more than that of a trespasser. This occupation also is terminated by plaintiff by issuing legal notice ExPw1/10. By ExPw1/10 plaintiff demanded defendant to vacate the premises, but despite service of notice they did not vacate the premises. Therefore this issue is decided in favour of plaintiff and against defendant. ISSUE No. 4:Whether the plaintiff is entitled to the arrears of rent/mesne profits? If so, at what rate and for what period? OPP.
31. Plaintiff has submitted that defendants had not paid rent from December 1999 and claimed use and occupation charges @ Rs.18/ per month w.e.f. January 2000 till expiry of one year of death of father of defendants and thereafter Rs.500/ per month towards mesne profits. Plaintiff has put total valuation of Rs. Suit No.754/06 14 9,572/ till filing of suit. Pw1 deposed this fact on oath. In crossexamination of Pw1 defendants did not brought any thing from witness to show that he is deposing wrong. Defendants in defense evidence deposed that they have paid rent upto 31.01.2001, and from 01.02.2001 to 31.03.2002 the rent was deposited with ARC Delhi Vide order dated 24.04.2002 as per treasury challan on 10.05.2002 ExDw1/1.
32. Plaintiff has stated that father of defendant expired on March 2000. Defendant no. 1 in his cross examination says that his father expired in the year 2001. Defendant no. 2 in his crossexamination denies that his father expired in 2001 rather says that his father paid rent till march 2002. But in para 8 of written statement in reply on merits defendants have admitted the date of death of their father. Other evidences when looked into also show that father of defendant died in march 2000. ExDw1/1 is challan form where defendant no.1 deposited rent and ExPw1/18 is the certified copy from Ld. ARC which shows that on February 2002 defendant no.1 filed application for depositing rent. These documents show that rent was not paid on 01.02.2001. Then rent from February 2001 to 31st March 2003 was deposited in treasury of rent controller on 10.05.2002. However defendants have not produced any receipt to show that rent was paid to plaintiff up to January 2001. On the other hand plaintiff has produced copy of last paid rent receipt for the month November and December 1999 dated 06.01.2000.
33. When there was practice of issuing rent receipts, non production of receipts of rent paid goes against defendants. Further it can not be accepted that the rent was paid in cash and plaintiff did not issued receipts because defendant no. 1 filed application for depositing rent before Ld. ARC in the year 2002 and deposited rent. The silence of the defendants for not agitating the not paying Suit No.754/06 15 receipt for this period goes against them. Hence this issue is decided in favour of plaintiffs and against defendants and it is held that plaintiffs are entitled to Rs. 9,572/ as arrears of rent and mesne profit till institution of suit, and plaintiffs are also entitled to pendentlite mesne profits as claimed @ Rs. 500/ per month amounting to Rs. (XXXXXXXXXX) and future mesne profits @ Rs, 500/ till the delivery of actual possession.
ISSUE No. 5: Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP.
34. No evidence is required to decide this issue. This is not a case of commercial transaction. This is a case where the right of defendants to continue with the possession is extinguished by operation of law. Therefore plaintiff can not claim interest on the arrears of rent. Its not a case where plaintiff is seeking money decree for a fixed sum of money became due at one point of time. Rent and mesne profits are monthly dues and its highly difficult to give any particular rate of interest. Hence this issue is decided against plaintiff. RELIEF:
35. Form the discussion above held plaintiff is held entitled to vacant possession of suit property from defendants. Plaintiffs are also entitled to damages/mesne profits of Rs. 9,752/ plus pendentlite and future mesne profits @ Rs.500/ per month till the delivery of possession of suit property. Defendants are directed to hand over vacant physical possession of suit property and pay the mesne profits within one month. No order as to interest and cost.
Announced in open court on 27.07.2011 (VIKRAM)
CJ02/North/Delhi
27.07.2011
Suit No.754/06 16
27.07.2011 Suit No. 754/06
Present: None.
Vide separate judgment suit is decreed in favour of plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room.
(VIKRAM) CJ02 (North)/Delhi 27.07.2011 Suit No.754/06 17