Delhi District Court
Smt. Gurbachan Kaur (Deceased) vs Sh. Rakesh Kumar Sharma on 27 March, 2018
IN THE COURT OF MS. DHANASHREE DEKA, CIVIL JUDGE05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CSSCJ No. 599732/1 6
Smt. Gurbachan Kaur (deceased)
through Son/LR Sh. Harpreet Singh Sehgal,
R/o 17/9, East Punjabi Bagh,
New Delhi. ...... Plaintiff
Versus
Sh. Rakesh Kumar Sharma
S/o Sh. Phool Chand,
R/o B1/25, New Moti Nagar,
New Delhi. ......Defendant
SUIT FOR RECOVERY OF RENT, POSSESSION AND PERMANENT
INJUNCTION
Date of institution : 18.12.2003
Date of judgment : 27.03.2018
JUDGMENT:
1. Vide this judgment, the present suit shall be disposed off.
2. The facts of the case, as per the plaint, are as under:
(i) Plaintiff is the ownerlandlady of the premises bearing no. B1/25, New Moti Nagar, New Delhi (hereinafter referred to as 'suit property').
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 1 of 26
(ii) Defendant is a tenant in the suit property at a monthly rent of Rs.5000/ besides other charges. The tenancy was commenced on 1994 at a monthly rent of Rs.2500/ p.m., besides other charges and subsequently, the verandah of the suit property was covered and converted into a big room, on request made by the defendant. The monthly rent was thereafter enhanced to Rs.5000/ p.m., which the defendant duly paid till 01.09.2000.
(iii) The defendant has not paid rent since 01.10.2000, despite repeated requests made by the plaintiff to pay the same.
(iv) The defendant issued cheque of Rs.16,400/ to the plaintiff in October, 2000, towards rent for August to October, 2000. However, he requested plaintiff not to encash the same and rather paid Rs.10,000/ in cash and validated the cheque for rent of October to December, 2000 by changing the date mentioned in the cheque. However, the said cheque was not presented on request made by the defendant not to present the same.
(v) The suit property was rented out to the defendant for residential purposes only but subsequently he started running a factory therein.
(vi) On 21.10.2003, plaintiff sent a legal notice to the defendant, terminating the tenancy of the defendant from midnight of 30.11.2003.
In this background, plaintiff has filed the present suit for possession, recovery of arrears of rent from 01.10.2000 to 30.11.2003 at the rate of Rs.5000/ per month. It is, however, stated that out of the CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 2 of 26 amount of Rs.1.9 lacs which is due towards arrears of rent for the aforesaid period, the plaintiff claims only Rs.1.8 lacs alongwith interest thereon at the rate of 15% p.a. The plaintiff also claims permanent injunction against the defendant, thereby restraining the defendant from making any addition, alteration or construction in the suit property.
3. The defendant filed his WS, wherein it is averred that the plaintiff purchased the suit property in the name of the defendant's wife, due to good relations between the parties. As a security, the plaintiff obtained the signatures of the defendant and his wife on blank stamp papers and also took two undated cheques of Rs.50,000/ each in the year 1994. In 199596, plaintiff informed the defendant and his wife that the stamp papers and undated cheques have been destroyed. However, defendant avers that plaintiff misused the aforesaid stamp papers and cheques. It is also averred that the suit property was let out to the defendant on monthly rent of Rs.500/ inclusive of all charges, which stood enhanced to Rs.1500/ p.m. In March, 2003, plaintiff refused to accept monthly rent of Rs.1500/ and asked defendant to pay monthly rent at the rate of Rs.5000/ which defendant refused to pay and then the plaintiff tried to get the suit property illegally and forcibly vacated. The defendant further avers that he had taken a loan of Rs.15,000/ from the plaintiff in June, 2000 for six months and had issued a post dated cheque for Rs.16,400/ inclusive of interest. It is further averred that the defendant has paid rent till CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 3 of 26 February, 2003 in cash and from March, 2003 to November, 2003, he sent money order for Rs.13,500/ on 14.11.2003 which the plaintiff refused to receive. It is further stated that thereafter he moved an application for deposit of rent in court. The defendant acknowledged the receipt of legal notice dated 31.10.2003 issued by the plaintiff and avers that he had replied to the same. The defendant avers that suit of the plaintiff is without merit and prays for dismissal of the suit.
4. The plaintiff filed his replication to the WS of the defendant wherein he reiterated the averments in the plaint and denied the allegations made in the WS.
5. After the completion of pleadings, issues were framed by the Ld. Predecessor of this court vide order dated 07.07.2004 which are as under:
(i) Whether signatures of defendant was obtained on blank documents & stamp papers as alleged by defendant in preliminary objection1? If so, its effect? OPD.
(ii) Whether plaintiff is landlady of defendant in respect of suit property? OPP.
(iii) Whether rate of rent, if any, is Rs.5000/? OPP.
(iv) Whether plaintiff is entitled for decree of recovery of Rs.2,38,500/? OPP.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 4 of 26
(v) Whether plaintiff is entitled for interest, if so at what rate?
OPP.
(vi) Whether plaintiff is entitled for recovery of possession of suit property? OPP.
(vii) Whether plaintiff is entitled for decree of permanent injunction, as prayed? OPP.
(viii) Relief.
6. Plaintiff herself stepped into witness box as PW1. She filed her evidentiary affidavit and relied upon following documents:
(i) Ex. PW1/1 is rent agreement dated 01.08.1994.
(ii) Ex. PW1/2 is rent agreement dated 01.08.1998.
(iii) Ex. PW1/3 is original cheque dated 25.12.2000.
(iv) Ex. PW1/4 is copy of notice dated 31.10.2003.
(v) Ex. PW1/5 is postal receipt.
(vi) Ex. PW1/6 is UPC receipt.
(vii) Ex. PW1/7 is letter dated 27.11.2003.
(viii) Ex. PW1/8 is original site plan.
PW1 was cross examined by the Ld. Counsel for the
Defendant.
7. Summoned witness PW2 Sh. Amit Kumar Gupta,
Architect/draftsman, proved the site plan filed by the plaintiff which is CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 5 of 26 Ex.PW1/8. PW3 Sh. Swarn Singh filed his evidentiary affidavit which is Ex. PW3/A and was crossexamined by Ld. Counsel for the defendant.
Summoned witness PW4 Sh. Ashok Kumar, Patwari from SDM, Patel Nagar, New Delhi proved the letter which is Ex. PW4/1.
8. After conclusion of evidence of PW4, the matter was dismissed in default vide order dated 11.04.2012. Subsequently, the application of the plaintiff under order IX Rule 4 and 9 CPC was allowed and the suit of the plaintiff was restored and matter was put up for PE.
9. On failure of plaintiff to lead any further PE despite opportunity being given, vide order dated 25.07.2013 of the Ld. Predecessor Judge, PE was closed. Matter was then listed for DE.
10. Defendant stepped into witness box as DW1 and tendered his evidentiary affidavit as Ex. DW1/A and relied upon the following documents:
(i) Copy of rent receipt, which was exhibited as Ex. PW1/D1.
(ii) Copy of plaint of the earlier civil suit filed by the defendant herein as Ex. DW1/2, which was later deexhibited as the said document was not placed on judicial record.
DW1 was crossexamined by counsel for plaintiff.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 6 of 26
11. Subsequently, plaintiff moved an application under Section 151 CPC for referring certain documents to CFSL for their examination. The said application was allowed vide order dated 18.02.2015 of the Ld. Predecessor Judge and documents Ex. PW1/1 and Ex. PW1/2 as well as evidentiary affidavit of DW1 i.e. Ex. DW1/A were sent to the CFSL for comparison of the disputed signatures of DW1 on Ex. PW1/1 and Ex. PW1/2 to the admitted signatures of DW1 on Ex. DW1/A.
12. Thereafter, defendant had moved an application under section 151 CPC seeking either rejection of the CFSL report or alternately to crossexamine the concerned official of CFSL who had prepared the aforesaid report. This application of the defendant was allowed and accordingly Dr. Jiju, P.V. Assistant Director, CFSL was examined as PW5 who proved CFSL report which is Ex. PW5/1. He was crossexamined by Ld. Counsel for defendant.
13. Matter was then fixed for final arguments. Final arguments heard and record perused.
My issuewise findings are as follows:
Issue no. 1 "Whether signatures of defendant was obtained on blank documents & stamp papers as alleged by defendant in preliminary objection1? If CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 7 of 26 so, its effect? OPD."
14. The onus of proving this issue was upon the defendant. Defendant has taken the preliminary objection in his written statement that the suit property was purchased by the plaintiff in the name of the defendant's wife as the parties were in cordial relation. It is further averred that in 1994, the plaintiff had got blank stamp papers and two undated cheques of Rs.50,000/ each, signed by the defendant and his wife, as security.
15. From perusal of record, it is seen that the defendant has not placed any material on record to show that the suit property was purchased in the name of the defendant's wife. The defendant has neither placed the title documents of the suit property on record, nor has he tendered any oral evidence to prove the same. During the course of final arguments, it was argued on behalf of the defendant that the title deeds of the suit property are in the possession of the plaintiff and as such, defendant could not place the same on record. However, it is seen from judicial record that there is no mention of any notice being given to the plaintiff by the defendant under the provisions of CPC to produce the aforesaid title deeds on record. Thus, the averment of the defendant that the suit property was purchased in the name of his wife is bald and unsubstantiated by any material on record. Therefore, the same does not inspire the confidence of the court.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 8 of 26
16. Further, it is not stated in clear terms as to how the aforesaid stamp papers and cheques were allegedly misused by the plaintiff. In preliminary objection no.1, it is merely stated that "they (plaintiff and her husband) kept those cheques and documents with them with some hidden conspiracy and malafide intention and now they have filed the present suit as well as other suit on the basis of those undated cheques and blank documents by making manipulation therein." From this, it appears that defendant is referring to the two rent agreements filed by plaintiff which are Ex. PW1/1 and Ex. PW1/2. However, the same has nowhere been specifically stated in the WS. Nevertheless, court proceeds to examine Ex.PW1/1 and Ex. PW1/2 visavis the aforesaid averments of the defendant.
17. Perusal of the rent agreement which is Ex. PW1/1 shows that the stamp paper thereof was purchased in the name of the defendant himself.
18. As far as the rent agreement i.e. Ex. PW1/2 is concerned, counsel for defendant has argued that the same is for a period of two years but has not been registered. Thus, in view of Section 17(1)(d) r/w Section 49 of Indian Registration Act, the same is not admissible as evidence. The court is in agreement with Ld. Counsel for defendant as far as document Ex. PW1/2 is concerned. Section 17(1)(d) of Indian CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 9 of 26 Registration Act requires every lease deed which is for a period of one year or above to be registered. Section 49 of the said Act provides that any document which is mandatorily required to be registered under law but is not so registered, shall not be read in evidence. In view of the above, Ex. PW1/2 which is lease deed for a period of two years but is unregistered, is not admissible in evidence and therefore, the court shall not the read the same in evidence.
19. However, Ex. PW1/2 can be read for ancillary purposes. Ex. PW1/1 and Ex. PW1/2 were referred to the CFSL for comparison of disputed signatures of the defendant appearing therein to his admitted signatures on his evidentiary affidavit which is Ex. DW1/A. The CFSL report, duly proved by summoned witness PW5, states that there are similarities in the disputed signatures of the defendant in Ex. PW1/1 and Ex. PW1/2 and in the admitted signatures of the defendant in Ex. DW1/A and that "The aforesaid similarities are significant and sufficient and cannot be attributed to the accidental coincidence and when considered collectively they lead me to the opinion that the person who wrote the read initial signatures stamped & marked A1 to A4 also wrote red enclosed signatures similarly stamped & marked Q2 to Q4." For the sake of clarity, it is mentioned here that the signatures of the defendant at Mark Q1 to Q4 are his disputed signatures appearing in Ex. PW1/1 and Ex. PW1/2 whereas his signatures which are marked A1 to A4 are his CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 10 of 26 admitted signatures appearing in his evidentiary affidavit which Ex. DW1/A.
20. PW5 was duly crossexamined by counsel for defendant. No infirmity was found in the testimony of PW5 and it is found that he withstood with the test of cross examination. As such, court finds sufficient reasons to rely upon the CFSL report which is Ex. PW5/1.
21. As far as the two blank cheques are concerned, plaintiff has submitted that she had filed a civil suit against the defendant with respect to the two cheques issued in her favour by the defendant. In the said case, defendant herein had taken the plea that the two cheques of Rs.50,000/ each, were given by him to the plaintiff herein as security. In the aforesaid suit, Ld. Judge had observed that the defendant had no substantial defence to raise and had decreed the suit in favour of the plaintiff under Order XXXVII Rule 3(6)(a) CPC vide judgment dated 09.09.2010 which is exhibited as Ex.DW1/P4. Thus, the point regarding alleged blank cheques being signed by the defendant stands decided against the defendant vide the judgment which is Ex.DW1/ P4.
22. At this juncture, court refers to the testimony of PW1, who was cross examined at length on the point pertaining to this issue. PW1, during her cross examination, denied that the defendant had signed the rent agreements in question, when they were blank. Questions were put to CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 11 of 26 PW1 regarding the location of typing of the rent agreement Ex. PW1/1 and regarding when it was signed by the defendant and by their respective witnesses. PW1 stated that the said rent agreement was typed in her presence and she also described the location of the office where it was typed. She also stated that the defendant and his wife were present when Ex. PW1/1 was prepared and that the same was signed by the defendant in her presence. She, however, stated her inability to remember certain other details stating that 13 years had elapsed since the date of execution of Ex. PW1/1. To the court, this appears to be a logical explanation. PW1 has withstood the test of crossexamination on the points that defendant is a tenant and that defendant has signed Ex. PW1/1 after the same was typed and not when it was blank.
23. During her crossexamination, PW1 stated that the defendant and his family were earlier residing as tenants in property bearing no. 17/9, East Punjabi Bagh, New Delhi and that from there, they had directly shifted to the suit property as tenants. Counsel for defendant argued that the said testimony of PW1 is in contradiction to the address of the defendant mentioned in Ex. PW1/1 and Ex. PW1/2 wherein, defendant's address is mentioned as 568/33, Onkar Nagar, Tri Nagar, New Delhi. Based on this contradiction in the testimony of PW1 and the address of defendant mentioned in Ex. PW1/1 and Ex. PW1/2, it is argued on behalf of the defendant that the aforesaid contradiction proves that the documents CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 12 of 26 Ex.PW1/1 and Ex.PW1/2 were not executed by the defendant. However, court is of the finding that mere mentioning of a wrong address of the defendant on the aforesaid rent agreements, does not by itself lead to the inference that the same are forged. This is more so in light of the fact that the stamp papers upon which thje Ex. PW1/1 and Ex. PW1/2 are typed, have been purchased in the name of the defendant. Further, when the signatures of the defendant appearing on Ex. PW1/1 and Ex.PW1/2 are compared to his admitted signature on affidavit, even to the naked eye, they prima facie appear to be of the same person. This prima facie view of the court is further corroborated and strengthened by the CFSL report which is Ex. PW5/1.
24. As regards the testimony of PW3, although he stated his inability to depose as to when and where he had signed upon Ex. PW1/1 and Ex. PW1/2, but he too supported the case of the plaintiff by categorically stating that the defendant was the tenant of the plaintiff. He further stated that he had signed Ex. PW1/1 after it was typed and not when it was blank. From a wholesome reading of the crossexamination of PW3, court is unable to reach a finding that Ex. PW1/1 and Ex. PW1/2 are forged or that they were signed by the defendant when they were blank.
25. Further, it is pertinent to mention here that the case of the defendant is that plaintiff had got blank stamp papers signed by him and CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 13 of 26 his wife. However, after perusal of Ex. PW1/1 and Ex. PW1/2, it is seen that the signature of his wife is nowhere appearing on the said documents. Thus, the case of the defendant that blank stamp papers were got signed by him and his wife and that those were later misused to prepare the rent agreements which are Ex. PW1/1 and Ex. PW1/2 itself suffers from serious inconsistencies, which remain unexplained by the defendant.
26. It may further be mentioned that the defendant categorically states himself to be tenant of the plaintiff in his written statement and in his evidentiary affidavit and as such, the factum of landlord tenant relationship between the plaintiff and the defendant remains an admitted fact and therefore, the same need not be proved.
27. In view of the combined reading of the aforesaid points, court reaches the conclusion that firstly, the averment that the suit property was purchased in the name of the defendant's wife is bald and uncorroborated. Secondly, the allegations of the defendant that his signatures were obtained on blank stamp papers is also unsubstantiated by any documentary or by any oral testimony. Thirdly, from bare perusal of the overleaf page of page no. 1 of rent agreement Ex. PW1/1 shows that it was purchased in the name of defendant himself. Fourthly, the CFSL report which is Ex. PW5/1 states that the signatures appearing on Ex. PW1/1 and PW1/2 is significantly similar to the signatures appearing on CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 14 of 26 the documents which is Ex. DW1/A. Fifthly, the testimony of PW1 has withstood the test of cross and has deposed that defendant had signed Ex. PW1/1 and Ex. PW1/2 after they were typed and not when blank.
Thus, this issue is accordingly decided against the defendant and in favour of plaintiff.
Issue no.2 "Whether plaintiff is landlady of defendant in respect of suit property? OPP."
28. Onus of proving this issue is upon plaintiff. In support of his contention, plaintiff has placed on record two rent agreements, one dated 01.08.1994 which is Ex. PW1/1 and the other dated 01.08.1998 which is Ex. PW1/2. In document Ex. PW1/1, the plaintiff is referred to as the landlady and defendant is referred to as the tenant with respect to the suit property. As far as Ex. PW1/2 is concerned, the same does not meet the requirement of Section 17(1)(d) of Indian Registration Act as already discussed above and therefore, the same cannot be read in evidence. Accordingly, court does not read Ex. PW1/1 in evidence.
29. Be that as it may. However, in the WS, the defendant admits that he is tenant in the suit property and that the plaintiff is the landlady thereof. It is further stated that he was initially inducted as a tenant in the suit property by the plaintiff at monthly rent of Rs.500/ which was CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 15 of 26 subsequently enhanced to Rs.1500/ p.m. Further, in his evidentiary affidavit which is Ex. DW1/A, the defendant again categorically stated that the plaintiff is the landlady and he is the tenant in the suit property. In view of these categorical admissions made by the defendant in his WS as well as in his evidentiary evidence, there remains no doubt that the defendant occupies the suit property in the capacity of a tenant of the plaintiff. As per Section 58 of Indian Evidence Act, this being an admitted fact by the defendant, need not be proved.
30. Here, reference may also be made to the rent receipt filed by the defendant himself which is referred to in the Ex.DW1/A as Ex. DW1/1 but later on was exhibited as Ex.PW1/D1. Perusal of aforesaid rent receipt/ Ex. PW1/D1 shows that the defendant's wife is mentioned as the tenant at monthly rent of Rs.500/. Said document is signed by the defendant on one side and by the plaintiff on the other. It is categorically stated in the evidentiary affidavit of DW1 that the rent receipt which is Ex. PW1/D1 was issued in his name by the plaintiff herself. At this juncture, the below mentioned extract of the crossexamination of DW1 becomes relevant: "It is correct that I am the tenant in respect of the tenanted premises". In view of this as well, there remains no doubt that it is an admitted case of the defendant that he is a tenant of the plaintiff in the suit property. Accordingly, this issue stands decided in favour of the plaintiff and against the defendant.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 16 of 26 Issue no. 3 "Whether rate of rent, if any, is Rs. 5000/? OPP."
31. The onus of proving this issue is placed upon plaintiff. In support of its contention, plaintiff has placed on record two rent agreements which are Ex. PW1/1 and PW1/2. Ex. PW1/1 is dated 01.08.1994 which mentions the rate of rent of the suit property as Rs.2500/ p.m. Ex. PW1/2 is the subsequent rent agreement which is dated 01.08.1998. However, the same was executed for a period of two years but was not registered as required under Section 17(1)(d) of Indian Registration Act as already discussed under Issue No.1. Accordingly, court does not read the document Ex. PW1/2 in evidence.
32. However, it is seen from the perusal of the WS that defendant has admitted that rent of the suit property was enhanced to Rs.5000/ p.m in the month of March, 2003. Relevant extract of WS in this regard reads as under:
"The defendant came to know of the malafide intention of the plaintiff in the month of March,2003 when plaintiff and her son refused to receive the rent for the month of March, 2003 from the defendant when it was tendered to them in cash and the defendant was told by them to pay the monthly rent of Rs.5000/. When the CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 17 of 26 defendant refused to pay Rs.5000/ p.m., plaintiff and her son started harassing the defendant on one pretext or the other and tried to get vacated the tenanted premises illegally and forcibly".
33. Thus, it is a case of categorical admission of defendant in his WS that in the month of March, 2003, monthly rent of suit property was enhanced to Rs.5000/ and that he had refused to pay the said enhanced rent. However, mere refusal of tenant to pay the enhanced rent of a tenanted premises, by no stretch of imagination, leads to the inference that the monthly rent was not so enhanced. Thus, no merit found in the contention of the defendant that monthly rent of the suit property was not Rs.5000/ as claimed by the plaintiff. Further, it being an admitted fact in the WS, need not be proved by the plaintiff, as per the provision under Section 58 of Indian Evidence Act.
34. Thus, in view of the above, even without placing reliance on document Ex. PW1/2 of the plaintiff, which was found inadmissible in evidence, the court reaches the finding on basis of the admission of the defendant in his WS that the monthly rent of suit property stood enhanced to Rs.5000/ from March, 2003 onwards. Accordingly, present issue is decided in favour of plaintiff and against the defendant.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 18 of 26
35. Since, the decision of Issue No.4 & 5 are conditional upon the decision on Issue No.6 which deals with possession of the suit property, Issue No.6 is taken up prior to the other remaining issues.
Issue no. 6 "Whether plaintiff is entitled for recovery of possession of suit property? OPP."
36. Onus of proving this issue was placed upon the plaintiff.
37. From the detailed discussion made in Issue no. 2 above, court had reached the finding that the defendant is the tenant of the plaintiff with respect to the suit property. Again from the discussion detailed in Issue no. 3 above, the court had reached the finding that the monthly rent of the suit property stood enhanced to Rs.5000/ from March, 2003 onwards. Further, plaintiff has filed on record Ex. PW1/4 which is the legal notice issued by him to the defendant, thereby terminating the tenancy of the defendant. Ex.PW1/5 to Ex.PW1/7 are the postal receipts with respect to dispatch of the legal notice dated 31.10.2003 which is Ex. PW1/4.
38. Defendant, in para9 of his WS admits that the legal notice was duly served upon him. Thus, dispatch of the aforesaid legal notice which is Ex. PW1/4 or the receipt thereof is not in question as the same stands admitted by the defendant.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 19 of 26
39. Now, perusal of legal notice Ex. PW1/4 reveals that it was issued on 31.10.2003 and it mentions that the tenancy of the defendant stood terminated by the midnight of 30.11.2003.
40. At this juncture, it is also important to examine the nature of the tenancy. In this regard, court makes reference to rent agreement Ex. PW1/1 and Ex. PW1/2 filed by the plaintiff. Ex. PW1/1 is a rent agreement executed between the parties to the suit for a period of eleven months from 01.08.1994. Ex. PW1/2 is a rent agreement executed for a period of two years but the same is unregistered. In view of the discussion made in Issue no.1 with respect to the admissibility of Ex. PW1/2, court does not read the aforesaid document in evidence as the same does not meet the requirements of Section 17(1)(d) of Indian Registration Act. However, question before the court is what would be the consequence of inadmissibility of the rent agreement which is Ex. PW1/2. Since Ex. PW 1/2 is not being read into evidence, the only rent agreement before the court is Ex. PW1/1 which is dated 01.08.1994. Said rent agreement expired on expiry of eleven months from 01.08.1994. Thereafter, the tenancy of the defendant would stand converted to a month to month tenancy, in absence of any other rent agreement executed by the parties for the purpose of tenancy. Section 106 of the Transfer of Property Act,1882 contemplates that a month to month tenancy may be terminated without assigning any reason, by giving 15 days' notice.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 20 of 26 Thus, period of fifteen days calculated from the date of notice expires on 15.11.2003. However, the legal notice, in para5 thereof, mentions that the tenancy would stand terminated from midnight of 30.11.2003 and as such, the court reaches the finding that vide legal notice Ex. PW1/4, the tenancy of the defendant stood duly terminated on the midnight of 30.11.2003.
41. In nutshell, what can be summarized from above discussions are that firstly, defendant is tenant of the plaintiff with respect to the suit property at the rate of Rs.5000/ per month. Secondly, since the said rental amount is found to be more than Rs.3500/, defendant is not entitled to any protection available under Delhi Rent Control Act, 1958. Thirdly, tenancy of the defendant stood duly terminated by the midnight of 30.11.2003.
In view of the above, plaintiff is found to be entitled to possession of the suit property. Accordingly, present issue stands decided in favour of plaintiff and against the defendant.
Issue no.4 "Whether plaintiff is entitled for decree of recovery of Rs.2,38,500/? OPP."
42. Onus of proving this issue is upon plaintiff. The plaintiff has averred that the defendant has not paid the monthly rent for the suit property since 01.10.2000.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 21 of 26
43. First question before the court is for what period of time, the plaintiff is entitled to arrears of rent. Plaintiff has claimed arrears of rent from 01.10.2000 till date of termination of tenancy i.e. till 30.11.2003 at the rate of Rs.5,000/ per month. The present suit was filed by the plaintiff on 18.12.2003. Thus, as per the law of limitation, plaintiff is found entitled to arrears of rent for a period of three years immediately preceding the date of institution of the suit i.e. 18.12.2003. Thus, the plaintiff is found to entitled to arrears of rent from 18.12.2000.
44. As regards the amount of rent, plaintiff relies upon Ex.PW1/2 in support of his claim that the monthly rent stood enhanced to Rs.5000/ per month. However, Ex.PW1/2 cannot be read in evidence as the said agreement which is for a period of two years, is not duly registered as required by Section 17(1)(d) of the Indian Registration Act. The plaintiff has not placed on record any other document to show as to when and how the monthly rent for the suit property stood enhanced to Rs.5000/. As such, court falls back upon the rent agreement which is Ex.PW1/1 dated 01.08.1994 wherein the monthly rent of the suit property is mentioned as Rs.2500/ and upon the admission of the defendant made in his WS wherein he has stated that monthly rent was enhanced to Rs.5000/ from March, 2003.
45. Thus, plaintiff is found entitled to arrears of rent for the period CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 22 of 26 from 18.12.2000 till 28.02.2003 at the rate of Rs.2500/ per month on the basis of Ex.PW1/1 and for the period from 01.03.2003 till 30.11.2003 at the rate of admitted rent of Rs.5000/ per month. However, during the course of the arguments, plaintiff has submitted that the defendant has paid rent at the rate of Rs.1500 p.m. till date. As such, the amount of rent payable to the plaintiff would be calculated after deducting Rs.1500/ p.m from the monthly rent found due to the plaintiff.
46. After deducting the amount of Rs.1500/ p.m., which admittedly has been received by the plaintiff from the defendant till date, the plaintiff is found entitled to arrears of rent for the period from 18.12.2000 till 28.02.2003 at the rate of Rs.1000/ per month (i.e. Rs.2500/p.m minus Rs.1500/ p.m.). It is an admitted case of the defendant that he is still in possession of the suit property. Thus, for the period from 01.03.2003 till date, the plaintiff is found entitled to monthly rent at the rate of Rs.3500/ per month (i.e. Rs.5000/p.m minus Rs.1500/ p.m.).
47. Considering that the defendant is in the possession of the suit property even as on date, the plaintiff is also held entitled to monthly rent at the rate of Rs.5000/p.m. from the date of this judgment till the date the defendant hands over the vacant possession of the suit property to the plaintiff.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 23 of 26 Accordingly, this issue is decided in favour of the plaintiff and against the defendant, in the aforesaid terms.
Issue no. 5 "Whether plaintiff is entitled for interest, if so at what rate? OPP."
48. Onus of proving this issue is upon plaintiff. The plaintiff has sought interest @ 15% p.a on the recovery amount from the date of filing of the suit till its realization. But no evidence has been placed on record by the plaintiff to show that he is entitled to the aforesaid rate of interest. However, Section 34 CPC empowers the court to award interest at such rate as the court deems reasonable. Exercising the power under Section 34 CPC, court deems it fit and accordingly holds the plaintiff entitled to pendente lite and future interest at the rate of 6% per annum on the arrears of rent found payable to the plaintiff.
This issue stands decided in favour of the plaintiff in the aforesaid terms.
Issue no. 7 "Whether plaintiff is entitled for decree of permanent injunction, as prayed? OPP."
49. Onus of proving this issue is upon plaintiff. The plaintiff has prayed for permanent injunction against the defendant, thereby restraining CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 24 of 26 the defendant from making any alteration, addition or construction. The plaintiff has already been found entitled to possession of the suit property as per detailed discussion made under Issue No.6 above, and the plaintiff has also been found to be the landlord of the defendant with respect to the suit property, as per discussion made under Issue No.2 above. Further, being a tenant in the suit property, the defendant has no inherent right to make any alteration, addition or construction in the suit property without the consent of the plaintiff. In view of the above, permanent injunction is granted in favour of the plaintiff and against the defendant, thereby restraining the defendant from making any alteration, addition or construction in the suit property.
The present issue is accordingly decided in favour of the plaintiff and against the defendant.
Relief.
50. In view of the discussion and decision of the issues, the suit of the plaintiff is hereby decreed. The plaintiff is held entitled to recovery of peaceful and vacant possession of the suit premises i.e. B1/25, New Moti Nagar, New Delhi as shown in site plan annexed with plaint. Defendant is accordingly directed to handover vacant and peaceful possession of the aforesaid property to the plaintiff with immediate effect.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 25 of 26 The plaintiff is further held entitled to recovery of arrears of rent at the rate of Rs.1000/ per month for the period from 18.12.2000 till 28.02.2003 and at the rate of Rs.3500/ p.m. for the period from 01.03.2003 till date of this judgment. Considering that the defendant is in the possession of the suit property even as on date, the plaintiff is also held entitled to monthly rent at the rate of Rs.5000/p.m. from the date of this judgment till the date the defendant hands over the vacant possession of the suit property to the plaintiff. As per Section 34 of CPC, plaintiff is held entitled to pendente lite and future interest at the rate of 6% per annum on the arrears of rent found payable to the plaintiff.
51. Plaintiff is also held entitled to the cost of suit. Decree sheet be prepared, on filing of deficient court fee, if any by the plaintiff.
52. File be consigned to record room after due compliance.
Digitally signed by DHANASHREE DHANASHREE DEKA DEKA Announced in the open court Date: 2018.03.27 on 27th March, 2018. 17:10:15 +0530 (Dhanashree Deka) Civil Judge05/Central Tis Hazari, Delhi
Present judgment consists of 26 pages and each page is signed by me.
CS No. 599732/16 Smt. Gurbachan Kaur Sehgal v. Rakesh Kr. Sharma P.No. 26 of 26