Delhi District Court
Major Vijay Singh Sandhu vs Chemons India Private Limited on 9 October, 2012
IN THE COURT OF SH. ANIL KUMAR SISODIA, ADDITIONAL
DISTRICT JUDGE06 (WEST DISTRICT) : TIS HAZARI COURTS:
DELHI.
CIVIL SUIT NO. 312 OF 2012
MAJOR VIJAY SINGH SANDHU
S/o Late Lt. Col. G.M.S. Sandhu
HQ 16(1) Armourd Brigade
C/o. 56 APO ............ PLAINTIFF
Versus
CHEMONS INDIA PRIVATE LIMITED
First Floor, No.1, Basant Lok,
New Delhi. ........... DEFENDANT
Date of institution : 24.07.1995
Order reserved on : 06.10.2012
Date of Decision : 09.10.2012
SUIT FOR RECOVERY OF POSSESSION AND ARREARS ON
RENT/ DAMAGES FOR USE AND OCCUPATION
J U D G M E N T :
1. The plaintiff has filed the present suit for recovery of Suit No.312/12 Page : 1/30 possession and arrears of rent/ damages for use and occupation against the defendant.
2. Briefly stated the case of the plaintiff is that he is the owner of first floor of building no. 1, Basant Lok, Vasant Vihar, New Delhi (hereinafter called as "suit property"), more specifically shown in red colour in the Site Plan annexed with the plaint. It has been submitted that an oral partition between the members of G.M.S. Sandhu, HUF was recorded in a memorandum of partition dated 24.03.1991 whereby from 01.03.1991 the suit property came to be vested exclusively in the plaintiff. The suit property was letout to the defendant by Lt. Col. G.M.S. Sandhu vide registered Lease Deed dated 16.08.1990 for a period of four years at the rent of Rs.15,000/ p.m. excluding other charges. It was agreed that the tenancy can be extended at the option of lessee but a fresh lease deed would have to be executed between the parties. It has been stated that during his lifetime, the father of the plaintiff Lt. Col. G.M.S. Sandhu, informed the defendant about the partition between the constituents of HUF and of the suit property having fallen to Suit No.312/12 Page : 2/30 the share of the plaintiff. Father of the plaintiff died on 14.08.1994. The defendant increased the rent of the suit property to Rs.18,000/ p.m. from 01.03.1994 but no fresh lease deed was executed and accordingly, the tenancy of the defendant had come to an end on 28.02.1994 and the tenancy had become month to month. The defendant had paid the rent @ Rs.18,000/ p.m. and receipts were issued to the defendant by the plaintiff. After the demise of plaintiff's father, the plaintiff asked the defendant to remit the rent directly in his saving bank account under intimation to him. The defendant asked for a copy of deed of partition and indemnity from the other heirs against any claim by them on the defendant. The plaintiff supplied the same on 02.11.1994 confirming vesting of the suit property in favour of the plaintiff by the other legal heirs and asked the defendant to pay the agreed rent to the plaintiff. However, the defendant neither paid the rent nor deposited the same in the account of the plaintiff. Accordingly, the plaintiff through his Counsel sent a legal notice dated 09.12.1994 to the defendant to pay the rent alongwith interest Suit No.312/12 Page : 3/30 @ 18% p.a. to him. Vide the same legal notice, the tenancy of the defendant was also determined. Further, a fresh notice dated 04.03.1995 was served by the plaintiff through his Counsel on the defendant determining his tenancy w.e.f. 30.04.1995 and the defendant was called upon to pay the entire arrears of rent for the period 01.08.1994 to 31.03.1995 amounting to Rs.1.44 Lacs within one week. The said notice was duly served upon the defendant but he did not comply with the said notice. Finding no other alternative, the plaintiff filed the present suit.
3. Summons of the suit were served on the defendant. Defendant has contested the suit by filing the Written Statement raising preliminary objections that the suit is misconceived; there is no cause of action against the defendant. The plaintiff cannot seek to take advantage of his own wrongs as the plaintiff as an alleged successor in interest of the owner landlord Lt. Col. G.M.S. Sandhu, is under a statutory duty to execute a fresh lease in terms of the lease deed dated 16.08.1990. The plaintiff has no locus standi to institute the present suit as he is neither Suit No.312/12 Page : 4/30 the owner nor the landlord of the suit property. The plaintiff has failed to file any document of title or ownership of the suit property. The defendant enhanced the rent of Rs.18,000/ p.m. honouring his commitment to execute a fresh lease at enhanced rates but despite frequent reminders, the owner Lt. Col. G.M.S. Sandhu failed to execute fresh lease deed.
On merits, it has been submitted that Late Shri G.M.S. Sandhu was the owner of the suit property and after his death, the ownership is not yet determined in any one's favour. It has been submitted that the other members of the HUF are necessary and proper parties and any partition of the property has to be by a registered deed in terms of Section 17 and 49 of the Indian Registration Act. It has been submitted that Lt. Col. G.M.S. Sandhu was acting to the contrary as he was accepting the rent in his own right and not on behalf of the plaintiff. It has been submitted that the alleged deed of partition having not been acted upon, cannot be relied upon by the plaintiff. The defendant has not disputed that he was inducted as a tenant in the suit property vide registered lease deed executed by father Suit No.312/12 Page : 5/30 of the plaintiff at the rent of Rs.15000/ p.m. It has been submitted that Lt. Col. G.M.S. Sandhu signed the lease deed in his individual capacity and not as the Karta of HUF and rent receipts were being issued in his individual capacity. The defendant has denied having received any letter dated 02.11.1994. It has been submitted that at no point of time, the plaintiff confirmed nor supplied any document of title or any other document from the other legal heirs of the deceased. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. The plaintiff filed replication denying the contents of the WS in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
5. On 06.03.1996, Ld. Predecessor of this Court framed the following issues :
1) Whether the plaintiff is entitled to a decree of possession of the suit property as prayed for? OPP
2) Whether the plaintiff is entitled to a decree in the sum of Rs.
2,12,850/ if so, the rate of interest which the plaintiff is Suit No.312/12 Page : 6/30 entitled? OPP
3) Whether the plaintiff is not the owner/ landlord of the suit property if so, its effect? OPD
4) Whether the plaintiff was under an obligation to create a fresh lease deed dated 1.3.1994 and its effect? OPD
5) Whether the suit is bad for misjoinder of the necessary parties? OPD
6) Whether the tenancy of the defendant has not been legally and validly terminated? OPD
7) Relief.
6. Thereafter, the parties were directed to lead their evidence. In support of his case, the plaintiff has examined himself as PW1 and filed his examination in chief by way of affidavit Ex.PW1/A1. Earlier, the plaintiff had also examined himself when the defendant was exparte on 01.08.1997. PW1 has also proved on record the certified copy of the lease deed as Ex.PW1/1; certified copy of Memorandum of Family Settlement as Ex.PW1/X1; copy of Memorandum of Partition as Ex.PW1/2; copy of the Special Army Order as Ex.PW1/3;
Suit No.312/12 Page : 7/30 copy of Income Tax Return as Ex.PW1/4; photocopy of the assessment order as Ex.PW1/5; copy of letter dated 27.08.1994 as Ex.PW1/6; copy of letter dated 29.08.1994 as Ex.PW1/7; letter dated 02.11.1994 as Ex.PW1/8; notice dated 08.03.1995 as Ex.PW1/9; postal receipt as Ex.PW1/10; AD card as Ex.PW1/11 and site plan as Ex.PW1/12. The plaintiff also examined PW2 Smt. Usha Ahluwalia who proved the certified copy of the Lease Deed dated 01.03.2000 as Ex.PW2/A which was executed between M.C. Chaudhary and United India Insurance Company for the period w.e.f. 01.03.2000 to 28.02.2003 and PW3 Sh. Rohit Marwaha who proved Lease Deed dated 08.11.2001 as Ex.PW3/A and thereafter, plaintiff closed his evidence.
7. Defendant, on the other hand, has examined DW1 Shri Chetan Seth who filed his examination in chief by way of affidavit Ex.DW1/A. DW1 in his affidavit has also proved the extract of minutes of meeting dated 14.06.1991 as Ex.DW1/B; Copy of lease deed 16.08.1990 as Ex.DW1/C;
Suit No.312/12 Page : 8/30 copy of letter dated 29.08.1994 as Ex.DW1/D and copy of the letter dated 08.09.1994 as Ex.DW1/E. Defendant also examined DW2 Shri S.K. Seth who has filed his examination in chief by way of affidavit Exs.DW2/A and closed its evidence.
8. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendant and have perused the record carefully. My findings on the issues are as under : ISSUES NO.3 AND 5:
Whether the plaintiff is not the owner/ landlord of the suit property if so, its effect? OPD Whether the suit is bad for misjoinder of the necessary parties? OPD
9. Both these issues are takenup together as they require common discussion. The onus of proving these issues was on the defendant. Counsel for the defendant has argued that the plaintiff has no locus standi to file the present suit as he is not the owner of the suit property. It has been argued that the plaintiff is merely one of the coowners of the suit property and Suit No.312/12 Page : 9/30 he cannot file the present suit without impleading the other co owners i.e. the remaining LRs of Late Shri G.M.S. Sandhu. It has been argued that the plaintiff has also not approached the Court with clean hands and has taken a stand that there was a HUF in the name of G.M.S. Sandhu, HUF and an oral partition had takenplace in the year 1991 vide Memorandum of Partition Ex.PW1/2, dated 24.03.1991 whereby plaintiff had become owner of the suit property from 01.03.1991. It has been further argued that the plaintiff also filed another Memorandum of family Settlement/ MOU Ex.PW1/X1, dated 11.02.2004 wherein it was mentioned that the parties have settled their disputes in a meeting held on 17.01.2004 and have divided their shares. It has further been argued that the Memorandum of Settlement as well as Memorandum of Partition are unregistered documents and they are inadmissible in evidence. It has also been argued that the plaintiff in his statement dated 01.08.1997 has testified that there was an HUF of which his father was the Karta and the said HUF was the owner of the whole building i.e. 1, Vasant Lok, Vasant Vihar, Suit No.312/12 Page : 10/30 new Delhi. He further testified that all the constituents of the said HUF entered into an oral agreement and the suit property came to his share. It has also been argued that in the cross examination, PW1 admitted that the lease was executed by his father in his personal capacity and he was receiving the rent till Memorandum was executed. He further admitted that in the revenue records his father was shown as owner in the individual capacity. He further admitted that his father died intestate leaving behind his mother and two brothers besides the plaintiff. The plaintiff has also admitted that he has not made his mother and brothers as party to the suit and he also admitted that pages no. 1, 2 and 3 of the Memorandum of Partition Ex.PW1/2 is not signed by the other legal heirs. He also admitted that in DDA records, his father is the owner in his own rights. Thus, the counsel for defendant has argued that the plaintiff has not been able to prove the partition between the legal heirs of Late Shri G.M.S. Sandhu and hence, the plaintiff cannot file the present suit without impleading the other LRs as he is not the owner/ landlord of the suit property. Ld. Counsel Suit No.312/12 Page : 11/30 for the defendant has also relied upon (2000) 1 SCC 74; 1995 Supp. (3) SCC 196; (1996) 6 SCC 373 and (2009) 10 SCC 654 to argue that without impleading the other coowners, the suit of the plaintiff is bad for nonjoinder of necessary parties. The Counsel for the defendant further relied upon the judgments of CIT Vs. Keshav Lal Lallu Bhai Patel AIR 1965 SC 866 to argue that oral partition between the members of joint Hindu family cannot be treated to be partitioned within the meaning of Section 16(3)(a)(iii) and (iv) of the Income Tax Act, 1922. He has also argued that the unregistered memorandum of partition filed by the plaintiff are inadmissible in evidence and the suit is liable to be defeated by the reason of misjoinder and non joinder of necessary parties and has placed reliance upon the judgment of AIR 1965 SC 271 in this regard.
10.Ld. counsel for the plaintiff, on the other hand, had argued that the plaintiff became the owner of the suit property in March, 1991 by virtue of Memorandum of Partition dated 24.03.1991 Ex.PW1/2. He also argued that the defendant also accepted the plaintiff as owner/ lessor of the suit property by paying rent Suit No.312/12 Page : 12/30 to him against proper rent receipt issued by the plaintiff. The plaintiff also informed the defendant about the partition and vide letter dated 02.11.1994 Ex.PW1/8, all the other legal heirs of Late Shri G.M.S. Sandhu informed the defendant that the suit property has vested in the plaintiff and also enclosed a copy of Memorandum of Partition. It has been argued that the plaintiff has, thus, become the owner of the suit property and is entitled to file the present suit for ejectment of the defendant and there is no necessity for impleading the other LRs of Late Shri G.M.S. Sandhu who have even otherwise not raised any objection at any point of time regarding the filing of the suit by the plaintiff. Ld. Counsel for the plaintiff has also argued that the judgments relied upon by the counsel for the defendant are not applicable to the facts of the present case and no reliance can be placed on these judgments.
11.Perusal of the record shows that the defendant has admitted that he was inducted as a tenant by the father of the plaintiff Sh. G.M.S. Sandhu vide registered Lease Deed Ex.PW1/1. It is also an admitted fact that the plaintiff is one of the legal heirs Suit No.312/12 Page : 13/30 of Late Sh. G.M.S. Sandhu and thus, one of the coowners of the suit property. It is settled proposition of law that a deed of partition of immovable property is compulsorily registrable u/S. 17 of the Indian Registration Act, however, a memorandum of partition which has been drawn after the partition of the property had already taken place is not compulsorily registrable. Hence, the argument advanced by the counsel for plaintiff that Memorandum of Family Settlement/ partition cannot be looked into is without any merits.
Even if for the sake of arguments, it is presumed that there was no partition between the legal heirs of the original lessor, there is no bar to the plaintiff for filing the present suit without impleading other legal heirs. I am supported in my views by the judgment of Hon'ble Supreme Court in Kanta Udheram Jagasia Vs. C.K.S. Rao AIR 1998 SC 569 wherein it was held that one coowner can maintain an eviction suit against the tenant in the absence of any objection from the other coowner. In case the tenant was paying rents to the said coowner, he cannot raise objection in the eviction suit that the said co Suit No.312/12 Page : 14/30 owner was not his landlord.
12.Further, perusal of the judgments relied upon by the counsel for the defendant show that these judgments are on entirely different proposition of law. The judgments deal with the proposition that where a premises is letout by several co owners or joint owners, one of them cannot sue the tenant either for his share of rent or for partial eviction. Similarly, the judgment relied upon by the counsel for the defendant regarding oral partition i.e. AIR 1965 SC 866 and AIR 1965 SC 271 are not applicable to the facts of the present case as the said cases were dealing with Income Tax Act and Hon'ble Supreme Court itself had observed that the word "transfer" has been interpreted differently by the Hon'ble Supreme Court in the context of different statutory provisions.
13.Hence, in view of the aforesaid discussion, I am of the considered opinion that the suit filed by the plaintiff is very much maintainable and there is no need for impleading other LRs who have never objected to the filing of the present suit by the plaintiff. Thus, the defendant has failed to discharge the Suit No.312/12 Page : 15/30 onus cast on it. The issues are accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.4 :
Whether the plaintiff was under an obligation to create a fresh lease deed dated 1.3.1994 and its effect? OPD
14.The onus of proving this issue was on the defendant. It is an admitted case of the parties that defendant was inducted as a tenant by Late Sh. G.M.S. Sandhu by registered Lease Deed Ex.PW1/1. Ld. Counsel for the defendant has argued that the lease executed in favour of the defendant was a perpetual lease and Clause4 of the Lease gave an option to the lessee to extend the lease for a period of four years by enhancing the rent by 20%. It has been argued that the defendant exercised the option of extension of the lease by enhancing the rent to Rs.18,000/ p.m., w.e.f. 01.03.1994. The plaintiff, however, did not execute the lease deed, as required in Clause 4 of the Lease Deed.
15.Ld. Counsel for the plaintiff, on the other hand, has argued that no doubt, the lease was extendable at the option of the lessee but the lessee was required to give notice before the expiry of Suit No.312/12 Page : 16/30 the lease deed and thereafter, a fresh lease deed was to be executed by the parties if they agreed to extend the tenure of the Lease Deed. It has been argued that mere unilateral enhancement of the rent by the defendant without fresh lease deed being executed between the parties will not amount to extension of the lease. It has also been argued that the defendant also filed a suit for specific performance against the LRs of Late Sh. G.M.S. Sandhu bearing suit no. 139/96 which was dismissed after full contest by Ms. Pratibha Rani, the the Ld. ADJ vide his judgment dated 25.01.2001 Ex.PW1/X1. It has been submitted that the said judgment was not challenged in appeal by the defendant and it has attained finality and operates as resjudicata and the defendant cannot reagitate the same question in the present suit.
16.In order to decide this controversy, it would be beneficial to reproduce the relevant part of clause4 of the Lease Deed Ex.PW1/2 as under: 4(i) 4(ii) The term and condition of this lease is extendable at the Suit No.312/12 Page : 17/30 option of the lessee for such period or periods of time not exceeding 4 years each as may be specified by the lessee in the notice of extension except the term relating to the rent which will be calculated as under:
At the time of each extension the rent will be increased by twenty percent and the parties will execute a fresh Lease deed. 4(iii)
17.Perusal of this Clause shows that the lease deed could have been extended only on two conditions, firstly, by enhancing the rent by 20% and secondly, by execution of a fresh lease deed by both the parties. Although, the defendant has enhanced the rent by 20% but no fresh lease deed was executed between the parties. In the absence of fresh lease deed being executed between the parties, it cannot be said that the lease deed Ex.PW1/1 was extended for a further period of four years.
18.So far as the contention of the counsel for the defendant that lease deed was perpetual is concerned, the judgment of the Court of Justice Smt. Pratibha Rani (the then Ld. ADJ) in suit no. 139/96 operates as resjudicata against the defendant. In her Suit No.312/12 Page : 18/30 findings on issue no.4, it was observed on page 10 of the judgment that there is nothing in the lease agreement which makes the lease as perpetual. It was further observed that the defendant failed to prove notice of extension on record and further the suit has been filed after the expiry of the lease and hence, defendant has no right to claim for extension of lease deed for period infinity as it is not a case of perpetual lease. This finding has never been challenged by the defendant and hence, the same operates as resjudicata against the defendant.
19.Thus, in view of the aforesaid discussion, I am of the considered opinion that the defendant has failed to discharge the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.6 :
Whether the tenancy of the defendant has not been legally and validly terminated? OPD
20.The onus of proving this issue was on the defendant. The defendant has argued that the tenancy of the defendant has not been legally and validly terminated. It has been argued that Suit No.312/12 Page : 19/30 after the termination of lease, plaintiff had been accepting the enhanced rent and hence, a fresh lease came into existence. Ld. Counsel for the plaintiff has argued that the plaintiff terminated the tenancy vide legal notice dated 08.03.1995 Ex.PW1/9 which was duly received by the defendant and the AD card Ex.PW1/11 has been proved on record by the plaintiff which has not been disputed by the defendant. It has been argued that the defendant has not shown as to how and in what manner the notice in question is illegal. No evidence has been led by the defendant in this regard. The only objection raised by the defendant is that notice in question is bad because the plaintiff has no locus standi to issue the said notice.
21.Perusal of the record shows that the plaintiff has proved on record the legal notice Ex.PW1/9 vide which the tenancy of the defendant was terminated w.e.f. 30.04.1995. The plaintiff has also proved on record the postal receipts as Ex.PW1/10 and AD card as Ex.PW1/11. The defendant has not disputed the receipt of the legal notice but has only raised the question of entitlement of the plaintiff to issue such notice. However, in Suit No.312/12 Page : 20/30 view of my findings on issues no. 3 and 5 hereinabove, the plaintiff was well within his rights to issue such notice. Thus, in view of the aforesaid discussion, I am of the considered opinion that the tenancy of the defendant has been validly terminated by the plaintiff and the defendant has failed to discharge the onus cast on him. The issue is accordingly decided in favour of the plaintiff and against the defendant. ISSUE NO.1 :
Whether the plaintiff is entitled to a decree of possession of the suit property as prayed for? OPP
22.The onus of proving this issue was on the plaintiff. The plaintiff has examined himself as PW1 and has testified that defendant was inducted as a tenant by his father Late Shri G.M.S. Sandhu vide registered lease deed Ex.PW1/1. He has also proved on record that the tenancy of the defendant was terminated vide legal notice Ex.PW1/9. It is not in dispute that the rate of rent of the tenanted premises was Rs.15,000/ p.m. and hence, the provisions of DRC Act were not applicable to the suit property and the plaintiff was entitled for possession of Suit No.312/12 Page : 21/30 the suit property after termination of the tenancy.
23.The defendant had taken a plea that plaintiff was not owner of the suit property and that the suit was bad for misjoinder of parties as other legal heirs of Late Shri G.M.S. Sandhu were not made party to the suit. However, these defence taken by the defendant have been disbelieved in view of the findings given in issues no. 3 and 5 and the plaintiff has been held to be a lessor/ owner of the suit property and in any circumstance, a coowner of the suit property.
24.Ld. counsel for the defendant also argued that the present suit is liable to be thrown out as the defendant has played fraud upon the Court as well as the opposite party and he is not entitled for any relief from the Court. Reliance has been placed on (2008) 12 SCC 353 and (2003) 9 SCC 151 and (1994) 1 SCC 1 in support of his arguments. However, perusal of these judgments would show that the fraud must be nondisclosure of relevant and material documents with a view to obtain undue advantage. In the present case, the plaintiff has not concealed any material facts rather he has placed on record the documents i.e. Suit No.312/12 Page : 22/30 Memorandum of Partition as well as Memorandum of Family Settlement/ MOU which was available with him or which became available to him during the pendency of the suit. None of the other coowners have disputed the genuineness of these documents. The defendant being a tenant in the suit property cannot challenge the validity of these documents.
25.Hence, in view of the aforesaid discussion, the plaintiff is entitled for the relief of possession of the suit property, as prayed by him. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.2 :
Whether the plaintiff is entitled to a decree in the sum of Rs. 2,12,850/ if so, the rate of interest which the plaintiff is entitled? OPP
26.The onus of proving this issue was on the plaintiff. The plaintiff has prayed for recovery of Rs.2,12,850/ being the arrears of rent w.e.f. 01.08.1994 till 31.03.1995, amounting to Rs.1,44,000/. It has further been stated that a sum of Rs. 1,62,000/ became due as on 30.04.1995 and from 01.05.1995, Suit No.312/12 Page : 23/30 defendant is liable to pay damages for use and occupation. The plaintiff also claimed damages @ Rs.50,000/ p.m. and submitted that a sum of Rs.2,12,850/ has become due including simple interest @ 18% p.a. from 01.09.1994 to 30.06.1995.
27.In support of his case, the plaintiff has examined himself as PW1 and has testified that the property in question could fetch the rent of Rs.50,000/ p.m. when he filed the suit but he has claimed damages since 01.05.1995 @ Rs.18,000/ only which was the last payable rent prior to the termination of tenancy and at the time of filing of the suit, a sum of Rs.1,62,000/ was due towards rent from 01.08.1994 till 30.04.1995 and damages from 01.05.1995 to 30.06.1995 amounting to Rs.36,000/ and in all he claimed Rs.1,98,000/ towards rent and damages upto 30.06.1995 and a sum of Rs.14,850/ towards interest @ 18% p.a. The defendant has not crossexamined the plaintiff on this aspect at all and hence, his testimony remains unchallenged and unrebutted and has to be accepted as correct. Hence, the plaintiff is entitled for arrears of rent amounting to Rs.
Suit No.312/12 Page : 24/30 2,12,850/ alongwith simple interest @ 15% p.a.
28.The plaintiff, during the pendency of the suit, amended the suit and prayed for award of damages. The amendment was allowed and the plaintiff has examined PW2 Smt. Usha Ahluwalia who proved the lease deed Ex.PW2/A executed between Shri M.C. Chaudhary and United India Insurance Company in respect of property situated on the second floor of 46, Basant Lok, New Delhi. She testified that the rent was Rs. 70/ per square feet and the lease was effected from 01.03.2000 to 28.02.2003. Plaintiff also examined PW3 Rohit Marwah who proved the lease deed Ex.PW3/1 executed between him and M/s. Spize Hospitality in respect of the first floor of 5, Community Centre, Vasant Lok, Vasant Vihar, New Delhi. This witness was not crossexamined by the defendant. Later on, an application filed by the defendant seeking cross examination of this witness was also dismissed and hence, testimony of this witness has remained unrebutted and unassailed.
29.Ld. counsel for the defendant has argued that the lease deeds Suit No.312/12 Page : 25/30 proved by the plaintiff cannot be taken into consideration as there is no pleadings in this regard. It has also been argued that mere exhibiting the documents cannot prove the same unless the parties to the deed are examined in proof of the documents to establish passing of real consideration under the documents. Reliance has been placed on (1996) 10 SCC 607 and (1999) 4 SCC 403.
30.Ld. counsel for the plaintiff, on the other hand, has argued that the lease deeds Exs.PW2/A and PW3/A have been duly proved by the witnesses and there is no reason why the same should not be taken into consideration.
31.Perusal of the record shows that the plaintiff had amended the suit to include the claim for enquiry into the mesne profits by the Court and after amendment of the plaint, the plaintiff has examined these witnesses to prove the quantum of mesne profits. The contention of Ld. Counsel for the defendant that plaintiff has not pleaded these documents in his pleadings, is without any merits as these documents neither belong to the plaintiff nor had been filed by him. These documents were Suit No.312/12 Page : 26/30 produced by the witnesses who were summoned by the plaintiff to prove the prevalent rate of rent in the area. So far as the argument that the lease deeds cannot be looked into as the parties to the lease deed have not been examined is concerned, it is pertinent to note here that the lease deed Ex.PW3/A has been duly proved by PW3 Shri Rohit Marwah who is also a party to the said lease deed. Perusal of the said lease shows that the prevalent rate of rent in the area was Rs.1,12,000/ p.m. and the same was to be enhanced by 10% every year. It is also pertinent to note here that the testimony of this witness has remained unrebutted and unchallenged and there is no reason to disbelieve his testimony. Hence, the arguments of the defendant that the lease deeds cannot be looked into is devoid of any merits.
32.Even if for the sake of arguments, it is assumed that the plaintiff has not been able to prove the prevailing market rent, the Courts can always grant damages to the plaintiff by taking judicial notice of increase in rent of metropolitan cities, more so, in commercial areas. This was so held in the judgment in Suit No.312/12 Page : 27/30 RFA No. 568/2011 titled as Shri Ram Pistons & Rings Ltd. Vs. Basant Khatri, decided on 19.12.2011.
33.Even going by the rent mentioned in the lease deed Ex.PW3/A relied upon by the plaintiff, it is apparent that the prevailing market rate of rent in the area of Basant Lok in respect of commercial properties in the year 20002001 was Rs.70/ per sq. feet whereas, the defendant had only been paying the rent @ Rs.18,000/ p.m. in respect of the suit property which is also measuring approximately 1568 sq. feet. Hence, the suit property could have easily fetched a rent of Rs.40,000/ p.m. in the year 1995. Therefore, the plaintiff is entitled to claim damages @ Rs.40,000/ p.m., w.e.f. 01.07.1995.
34.Thus, in view of the aforesaid discussion, the plaintiff is awarded damages/mesne profits @ Rs.40,000/ p.m., w.e.f. 01.07.1995 till the handing over of the vacant possession of the suit property by the defendant. The plaintiff shall also be entitled to simple interest @ 15% p.a. from the end of each illegal month of occupation and till the payment of arrears by the defendant. The defendant shall be entitled to adjust the Suit No.312/12 Page : 28/30 amount, if any, paid to the plaintiff for the aforesaid period. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.7 (RELIEF) :
35.Thus, in view of the aforesaid discussion, the suit of the plaintiff is decreed. A decree of possession is passed in favour of the plaintiff and against the defendant in respect of the suit property i.e. the entire first floor of building no. 1, Basant Lok, Vasant Vihar, New Delhi, as shown in red colour in the Site Plan Ex.PW1/12.
The plaintiff shall also be entitled to arrears of rent amounting to Rs.2,12,850/ for a period of 01.08.1994 to 30.06.1995 alongwith simple interest @ 15% p.a. The plaintiff shall also be entitled to mesne profits/ damages @ Rs.40,000/ p.m., w.e.f. 01.07.1995 till the handing over of the vacant possession of the suit property by defendant to the plaintiff. The plaintiff shall also be entitled to simple interest on the arrears of mesne profits @ 15% p.a. from the end of each month of illegal occupation and till payment of Suit No.312/12 Page : 29/30 arrears alongwith interest to the plaintiff. The defendant shall be entitled to adjust the amount, if any, paid to the plaintiff for the aforesaid period.
The plaintiff shall also be entitled to the cost of the suit. The plaintiff is directed to deposit the deficient Court Fees within two weeks from today. Decree sheet be drawn on the payment of deficient Court Fees by the plaintiff.
File be consigned to record room after completion of necessary formalities.
Announced in the open Court Dated : 9th October, 2012. (ANIL KUMAR SISODIA) ADJ06 (WEST DISTRICT) Tis Hazari Courts, Delhi.
Suit No.312/12 Page : 30/30