Delhi District Court
Tis Hazari Courts Delhi vs Sh. Yashpal Mahajan on 7 September, 2015
IN THE COURT OF SH. SIDDHARTHA MALIK, CIVIL JUDGE (WEST) III
TIS HAZARI COURTS DELHI
SUIT NO. 84/12
DATE OF INSTITUTION : 23.03.2012
DATE ON WHICH RESERVED : 31.08.2015
DATE OF DISPOSAL : 07.09.2015
1 SH. HARBANS SINGH
2 SH. AJAY KUMAR
BOTH SONS OF
LATE SH. HARKESH SINGH
R/O H. NO. WZ-88, VILLAGE KHAMPUR
RAYA, NEW DELHI-110008
...... PLAINTIFFS
VS
SH. YASHPAL MAHAJAN
S/O LATE SH. BADRI NATH
R/O H. NO. WZ-70, VILLAGE KHAMPUR RAYA
NEW DELHI-110008
ALSO AT
COTTON SHOP NO. 2632/10
WEST PATEL NAGAR, MAIN PATEL NAGAR
NEW DELHI-110008
..... DEFENDANT
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 1/15
SUIT FOR POSSESSION & RECOVERY OF MESNE PROFIT / DAMAGES
JUDGMENT
1. The present suit has been filed by the plaintiffs seeking possession and recovery of mesne profit/damages with respect to one room, kitchen and bathroom on the ground floor and a kitchen on the first floor of H. No. WZ-70, Village Khampur Raya, New Delhi-110008 (hereinafter referred to as 'suit property').
2. Briefly stated the case of the plaintiffs is that Sh.Harkesh Singh, the late father of the plaintiffs, was the owner of the suit property. The plaintiff no.1 was the landlord under whom late Sh. Badri Nath i.e. father of the defendant was a statutory tenant in the suit property on a monthly rent of Rs.70/- besides electricity and water charges. The late father of the plaintiffs had bequeathed the entire suit property in favour of the plaintiffs vide a registered will dt. 14.07.1986.
3. Plaintiffs further submit that the plaintiff no.1 and his late father had instituted a suit against the father of the defendant and prior to the filing of the said suit a legal notice dt. 16.03.1982 was served upon Late Sh.Badri Nath and the tenancy was terminated w.e.f 30.04.1982. Thereafter, the late father of the defendant occupied the suit property as a statutory tenant under Delhi Rent Control Act.
4. It is submitted that Sh.Badri Nath expired on 02.05.2002 leaving behind Smt. Raj Kumari Mahajan as his widow and three sons including the defendant. The said Smt. Raj Kumari also expired on 30.10.2010. The defendant was not Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 2/15 financially dependent upon late Sh.Badri Nath and thus, after expiry of 1 year after the death of Sh.Badri Nath, the defendant had no protection under DRC Act to continue as tenant in the suit property. It is submitted that the defendant has not paid the rent after the death of Sh.Badri Nath. A legal notice dt. 05.01.2012 was issued to the defendant to vacate the suit property, but to no avail. Thus, the present suit.
5. Per contra defendant has filed his written statement stating that plaintiff has no locus standi to file the present suit as all the legal heirs of late Sh.Harkesh Singh have not been impleaded as party to the suit. It is submitted that the defendant was financially dependent upon his father Sh. Badri Nath and as such the defendant has become the lawful tenant by inheritance along with the other legal heirs of the deceased in the suit property after the death of Sh Badri Nath. It is submitted that the suit of the plaintiffs is barred under Section 50 of DRC Act.
6. Replication was filed by the plaintiff denying the contents of the written statement and reiterating the plaint. On completion of pleadings, issues were framed on 27.08.2012 which are as follows:-
1 Whether the plaintiff have no locus standi to institute the present suit?
OPD 2 Whether the suit is barred under Section 50 of DRC Act?OPD 3 Whether the suit is not maintainable for non joinder of necessary party?
OPD 4 Whether the suit is not property valued for the purpose of Court Fees and Jurisdiction?OPD 5 Whether the plaintiff is entitled to the relief of possession, as prayed?
OPP 6 Whether the plaintiff is entitled to the relief of mesne profit / damages,as Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 3/15 prayed?OPP 7 Relief.
7. In PE plaintiffs examined Sh.Gajinder Pal Singh as PW-1 being a witness to the will of Late Sh.Harkesh Singh. The plaintiff no.1 has examined himself as PW-2 and tendered in evidence Ex.PW-2/1 to 2/34 consisting of the site plan, certain documents pertaining to the previous litigation mentioned in the plaint and the legal notices with dispatch proof issued to the defendant. An official witness from Record Room, Tis hazari has been examined as PW-3 with regard to the earlier suit mentioned in the plaint. One Sh.Rakesh Verma has been examined as PW-4 to depose regarding the financial independence of the defendant. In rebuttal evidence the plaintiff has examined Sh.Bhupesh Chaudhary who is the son of Late Sh.B.K.Chaudhary whos was the advocate of the late father of the plaintiff.
8. In DE, the defendant was examined as DW-1 and his brother Sh.Vijay Mahajan as DW-2. Both the witnesses deposed on the same lines as the written statement.
9. Final arguments were advanced by both the parties. I have heard the arguments and perused the record carefully. My issues wise findings are as follows:-
Issue No. 1 & 31 Whether the plaintiff have no locus standi to institute the present suit?
OPD & 3 Whether the suit is not maintainable for non joinder of necessary party?
OPD Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 4/15
10. The plaintiffs have relied upon Ex.PW-1/1 i.e. a registered will dt. 14.07.1986 vide which Late Sh.Harkesh Singh bequeathed the suit property in favour of his sons i.e. the present plaintiffs. The plaintiffs have examined Sh.Gajender Pal Singh as PW-1 who is the attesting witness to the will. The said witness has deposed that the executor of the will was mentally and physically fit at the time of execution of the will and executed the same with full knowledge of the contents of the will. The witness PW-1 has stood by his testimony during his cross examination and has refuted all the suggestions regarding undue pressure or the mental incapacity of Late Sh.Harkesh Singh at the time of execution of the will. The defendant has not been able to impeach the credibility of the attesting witness of the will Ex.PW-1/1.
11. Further, it is settled law that all the legal heirs of a deceased owner/landlord are at equal footing and any of the legal heir is legally competent in his individual capacity to institute a suit for eviction against the tenant, irrespective of the other legal heirs joining the proceedings or not.
12. The defendant has not disputed that the plaintiffs are the sons of Late Sh.Harkesh Singh. Thus, the plaintiffs are competent to institute the present suit for eviction and it is not necessary to implead all the legal heirs of the deceased.
13. Accordingly, the issue nos. 1 & 3 are decided in favour of the plaintiffs and against the defendant.
Issue No.4 4 Whether the suit is not property valued for the purpose of Court Fees and Jurisdiction?OPD Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 5/15
14. The plaintiff has valued the relief of possession at Rs.840/- being the annual rent of the premises as per the rent last paid. For the remaining relief of damages the suit has been valued at Rs.1,80,000/- as per prayer of Rs.5000/- per month and appropriate Court Fee has been paid.
15. The relationship of landlord-tenant has not been disputed by the defendant and therefore, the suit has to be valued as per the annual value of the last paid rent.
16. No counter evidence has been led by the defendant to dispute the valuation of the plaintiff. Thus, the issue no.4 is decided against the defendant.
Issue Nos.2 & 52 Whether the suit is barred under Section 50 of DRC Act?OPD & 5 Whether the plaintiff is entitled to the relief of possession, as prayed?
OPP
17. The case of the plaintiff is that the Late Sh.Badri Nath was a tenant protected under DRC Act and after his death on 02.05.2002 the tenancy devolved only upon his wife Smt. Raj Kumari under S.2 (L) of DRC Act, as the tenancy was terminated vide a notice dt. 16.03.1982 during the lifetime of Sh.Badrinath. It is submitted that Smt. Raj Kumari has also expired and the defendant was not financially dependent at the time of death of Late Sh.Badri Nath and is therefore liable to be evicted by the present proceedings.
18. The only counter of the defendant is that he was financially dependent upon Late Sh.Badri Nath and therefore, his tenancy is protected under the Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 6/15 provisions of DRC Act. The notice dt. 16.03.1982 has been denied for want of knowledge by the defendant.
19. The S.2(L) of DRC Act requires that the tenancy of the original tenant must have been terminated before his death. In such an event, the tenancy would devolve upon only one of the legal heirs of the deceased as per the order of succession provided. Further, if the successor is not financially dependent upon the decease tenant, the right of tenancy would be limited to a period of one year only. The section further provides that the right of succession is personal in nature and upon the death of the successor would not devolve upon any other legal heirs.
20. To prove the first requirement of termination of tenancy of Sh.Badrinath before his death, the plaintiffs have relied upon the testimony of plaintiff no.1 as PW-2. The plaintiff has deposed that the tenancy of Sh.Badrinath was terminated during his lifetime vide notice dt. 16.03.1982.
21. PW-2 has further deposed that a suit no.1203/82 was filed against Sh.Badrinath by him alongwith his father and the same was decreed vide judgment dt. 01.08.1984 for recovery of arrears of rent. It is deposed that the legal notice finds mention in the pleadings of the aforesaid suit and that Sh.Badrinath had replied to the notice dt. 16.03.1982 vide reply dt. 11.06.1982. it is submitted that the legal notice dt. 16.03.1982 formed part of the suit proceedings of 1982.
22. PW-2 has deposed that the record of the suit no.1203/82 has now been destroyed. An official witness from the concerned record room has been examined as PW-3, who has deposed in affirmative in this regard alongwith E.PW-3/1 i.e. the excerpt of the official record containing the entires of the Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 7/15 destroyed record. The relevant entries in Ex.PW-3/1 clearly show that a suit titled 'Harbans Singh v. Badri Nath' with No.1203/82 was decreed vide order dt. 01.08.1984.
23. As the record of the aforesaid suit was destroyed, the plaintiffs sought to prove the same, including the legal notice dt. 16.03.1982, by way of secondary evidence.
24. The Hon'ble High Court of Delhi has held in Prem Chandra Jain (Deceased) v. Sri Ram (Deceased) CM (M) 1764-66/2005 that a party seeking to prove a document by secondary evidence is to lead evidence of the existence of circumstances/situations in which secondary evidence is permissible, during leading its evidence, whether by way of examination of witnesses or cross examination of opponents witnesses, in the suit itself. It will be decided at the stage of disposal of suit only, whether case for leading secondary evidence has been made out or not and if so, whether document stands proved by secondary evidence.
25. The plaintiff had disclosed the fact of the Suit No.1203/82 in the plaint itself and a copy of the plaint, written statement & judgment dt. 01.08.1984 was placed with the plaint on 23.03.2012 itself. The plaintiff also filed the carbon copy of the notice dt. 16.03.1982 & reply dt. 11.06.1982 with plaint alongwith the certified copy of the entry from Record Room, Civil, Tis Hazari to show that the relevant record has been destroyed. Therefore, the necessary pleadings for leading secondary evidence were contained in the plaint originally filed.
26. By the testimony of PW-3 i.e. the witness from Record Room, the plaintiff has been able to prove that the record relating to Suit No.1203/82 has been destroyed. Thus, the plaintiff has established his entitlement to lead secondary Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 8/15 evidence to prove the documents on record of Suit No.1203/82 which cannot be proved by primary evidence as the record has been destroyed.
27. The plaintiff no.1 has deposed as PW-2 that he was one of the plaintiffs in the Suit No.1203/82 against the father of the defendant. This fact is established from the Ex.PW-3/1 which shows that the Suit No.1203/82 was titled 'Harbans Singh v. Badri Nath'. PW-2 has further deposed that Ex.PW-2/4, 2/5 & 2/6 are the true copies of the plaint, WS and judgment in the aforesaid suit. Plaintiff has further relied upon Ex.PW-2/7, 2/8 & 2/9 i.e. the copy of legal notice dt. 16.03.1982 and its reply with envelope. During his cross examination PW-2 has denied all the suggestions of the defendant that the aforesaid suit was not filed and the documents purporting to the said suit are forged.
28. The defendant has not been able to impeach the testimony of the plaintiff/PW-2 on the aspect of the earlier suit of the year 1982, legal notice to the father of the defendant and the reply sent by the father of the defendant through his advocate.
29. Further, the testimony of PW-2 regarding issuance of notice dt. 16.03.1982 to the father of the defendant also constitutes secondary evidence within the meaning of S.63(5) of Evidence Act being oral account of the contents of the document by the plaintiff who had himself issued the notice.
30. The Hon'ble Supreme Court has held in M.Chandra v. M.Thangamuthu & Anr, (2010) 9 SCC 712 that secondary evidence may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. It is further held that the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 9/15
31. The plaintiff has been able to prove the documents Ex.PW-2/4 to Ex.PW-2/9 by way of secondary evidence including duplicate copy and oral evidence of the contents of the documents. From the aforesaid documents it is clear that the tenancy of the father of the defendant was terminated in the year 1982 itself. This fact finds mention even in the pleadings of the Suit No.1203/82 between the plaintiff and father of the defendant.
32. The defendant has relied upon certain judgments of Hon'ble Superior Courts but a respectful perusal of the said judgments shows that they do not advance the case of the defendant in any manner. The judgment in Hindustan Construction Company Ltd. v. Union of India, 1967 AIR (SC) 526 provides the interpretation of the various sections of Evidence Act relating to secondary evidence. The judgment in Ashok Dulichand v. Madhavlal Dube, AIR 1975 SC 1748 provides that a person relying on a secondary evidence must also explain the circumstances in which the secondary evidence is to be led and the absence of the primary evidence. The other judgments referred to by the defendant also emphasize upon the law as laid down by the Hon'ble Supreme Court in the judgments referred by the defendant.
33. Infact, the plaintiff has complied with the conditions for leading secondary evidence as laid down by the Hon'ble Supreme Court in the aforesaid judgments. The plaintiff has explained the circumstances for leading secondary evidence and the absence of the primary evidence.
34. The plaintiff has examined one Sh.Bhupesh Chaudhary to prove the fact that Late Sh.B.K.Chaudhary was the advocate of Sh.Badrinath in the year 1982 and had replied to the notice dt. 16.03.1982. However, this testimony is not required as the plaintiff has otherwise succeeded in proving the legal notice dt.
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 10/15 16.03.1982 by way of secondary evidence.
35. Coming to the second aspect whether the defendant was financially dependent upon the deceased Sh. Badrinath at the time of the death of Sh.Badrinath.
36. Admittedly, the defendant is presently around 65 years old. Thus, at the time of death of Sh.Badrinath in 2002, the defendant must be more than 50 years of age. The defendant has not pleaded any physical or mental infirmity which could prevent him from having a job or business.
37. Thus, it cannot be believed by any stretch of imagination that the defendant was financially dependent on his father at the time of death of Sh.Badrinath. The defendant was an able bodied male at the time of death of Sh.Badrinath and could have held any employment. If a person does not take up any vocation only for defeating the purpose of a statute, he cannot be given benefit of law.
38. The provision of S.2 (L) of Delhi Rent Control Act provides for protection of financially dependent family members of a deceased tenant but does not envisage the said protection to a person who willfully avoids to be financially independent only for the purpose of availing the benefit of the said section.
39. The defendant himself has referred to a judgment of Hon'ble High Court of Delhi in Krishna Prakash v. Shanta Sinha, 1980 RLR 258(N), which provides that a distinction has to be made between a legal heir who is in a position to maintain himself without financial help from the deceased tenant and another heir who may not be in such position without financial assistance.
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 11/15
40. In the present case, the defendant who is an able bodied male who can easily maintain himself without any financial assistance from the deceased. If the defendant choses to depend on the deceased father, it is his wish but the same does not entitle him to any legal protection. The other judgment referred by the defendant is Lachhmi Devi v. Hira Lal, 1989(1) RCR 29, which relates to a lady who had to take up menial jobs as her husband was incapacitated. This judgment also has not application to the facts of the present case.
41. At this stage it is important to note that as per S.2(L) of DRC Act the right of succession is personal in nature and upon the death of the successor would not devolve upon any other legal heirs. Admittedly, the wife of Sh.Badrinath was alive at the time of his death in 2002. Thus, as per the order of succession only the wife would inherit the tenancy to the exclusion of the sons including the defendant. Further, it is admitted fact that the said wife of Sh.Badrinath has expired in 2010. Thereafter, the tenancy is not heritable upon any other legal heir of the deceased and thus, the defendant cannot take the plea that the tenancy has devolved upon him after the death of his mother.
42. Irrespective of the aforesaid, the record clearly shows that the defendant was not financially dependent on his father at the time of death of Sh.Badrinath. Sh.Vijay Mahajan, the brother of the defendant has been examined as DW-2 and he has admitted during his cross examination that the defendant was working in the family firm of M/s Badrinath Vijay Kumar and the late father of the defendant was being paid his share from the business income. He has further admitted that the defendant was being paid in addition to the profit of the business. A categoric admission has been made by the witness DW-2 that he and the defendant were not financially dependent on their father.
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 12/15
43. Even the defendant himself has admitted during his cross examination as DW-1 that he used to work at the family shop even during the life time of his father. Both the defendant witnesses have admitted that their late father used to visit the shop occasionally before his death and was mostly confined to home.
44. The plaintiff's evidence in this regard need not be looked into as the defendant's witnesses have made ample admissions to demolish the case of the defendant.
45. From the aforesaid, it is clear that the defendant was not financially dependent on his father at the time of death of Sh.Badrinath in 2002. Thus, the defendant does not draw any benefit from S.2(L) of DRC Act.
46. As the defendant was not accorded any protection by DRC Act, the only means to evict the defendant is through a civil suit for eviction and the said suit is not barred under the provisions of DRC Act.
47. The plaintiff has succeeded in proving that the defendant is a tenant who has no statutory protection and his tenancy has been validly terminated vide legal notice dt. 05.01.2012. Even otherwise, the institution of a suit for eviction is ample notice upon the tenant by virtue of judgment of Hon'ble Supreme court in Nopany Investments (P) Ltd. Vs. Santokh Singh ( HUF), I 2008 SLT
195.
48. Thus, the defendant is liable to be evicted from the suit property. Issue nos.2 & 5 are decided in favour of the plaintiffs.
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 13/15 Issue No.6 6 Whether the plaintiff is entitled to the relief of mesne profit / damages,as prayed?OPP
49. The plaintiff has claimed mesne profits for the unauthorized use of the suit property by the defendant at the rate of Rs.5,000/- per month. The plaintiff has not tendered any evidence to show that the rate of rent of similarly situated properties in the same vicinity is around Rs.5,000/- per month. Further, the defendant has denied the suggestions of the rate claimed by the plaintiff.
50. Moreover, it is admitted fact that the suit property was constructed in 1950 and is in very bad condition. The properties adjacent to the suit property have already been demolished. In the circumstances, there is no rationale for the claim of the plaintiff.
51. However, the defendant has admitted during his cross examination that the properties in the locality can fetch a rent of Rs.4000-5000/- per month but the same would be applicable to properties in good condition. At the same time, the defendant is not voluntarily vacating the suit property and is preventing the plaintiff from putting his property to more beneficial use.
52. In the circumstances, the mesne profits @ Rs.1000/- per month would serve the interest of justice in the present suit. The issue no.6 is decided accordingly.
Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 14/15 Issue No.7 Relief
53. In view of the aforesaid discussion, the suit of the plaintiffs is decreed with costs. The plaintiffs are entitled to recover possession of one room, kitchen and bathroom on the ground floor and a kitchen on the first floor of H. No. WZ-70, Village Khampur Raya, New Delhi-110008. The plaintiffs are also entitled to recover Rs.1000/- per month from the date of filing of the present suit till recovery of possession of the property. Decree sheet be prepared. File be consigned to record room.
Announced in the Open Court Today i.e. 07.09.2015 (Siddhartha Malik) CJ(West)III,THC/Delhi 07.09.2015 Suit No. 84/12 Harbans Singh Vs. Yashpal Mahajan 15/15