Delhi District Court
Saurabh Prakash vs Indian Farmers & Fertilizers ... on 23 January, 2010
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IN THE COURT OF SHRI D.C. ANAND
ADDITIONAL DISTRICT JUDGE (NORTH)-04 : DELHI
CS No.50/09
Saurabh Prakash
s/o Late Dr. Anand Prakash
r/o W-17, Greater Kailash,
Part-II, New Delhi-110048. ... Plaintiff
Versus
1. Indian Farmers & Fertilizers Co-operative Ltd.
Through its Chairman,
Flat No.402, 4th Floor, Goverdhan Building,
Plot No.53-54, Nehru Place,
New Delhi.
2. Samir Prakash
S/o Late Dr. Anand Prakash
r/o W-17, Greater Kailash,
Part-II, New Delhi-110048. ... Defendants
Date of institution : 1.9.1998
Date of Decision :
JUDGMENT
1. The plaintiff's case tersely as pleaded in the plaint is that the plaintiff is the owner of half share in the property bearing no.402, 4th Floor, Goverdhan Building, Plot No.53-54, Nehru Place, New Delhi, measuring about 663 sq. ft carpet area (herein after referred as suit property). The defendant no.2 is the owner of the half share of the suit property. The suit property was in the name of parents whose father was Karta thereof. The suit property was rented out to defendant 2 no.1 in or about January 1997 by Karta. In the year 1978, the Karta relinquished his share in the HUF properties and later on vide decree passed by Hon'ble High Court in suit no.626/80 dated 8.1.1981, the plaintiff and defendant no.2 got the suit property in their share upon a partition between plaintiff, defendant no.2 and their mother. The factum of partition was informed to defendant no.1 who was called upon to pay the rent to the plaintiff and defendant no.2 vide single cheque in the name of defendant no.2 who was to pay the plaintiff his half share therein. The defendant no.1 has been since paying the rent to defendant no.2 in the manner.
2. The rent in respect of the suit property stood revised w.e.f. April 1992 to a sum of Rs.3,494/- p.m. The plaintiff for and on behalf of himself and defendant no.2 vide notice dated 2.3.1995 called upon defendant no.1 to enhance the rent of the suit premises to a sum of Rs.3843.40p. w.e.f. April 1995 in accordance with the provisions of Section 6A of the Delhi Rent Control Act. The rent w.e.f. April 1995 as such stood at Rs.3843.40p. p.m. The plaintiff for himself and on behalf of defendant no.2 gave notice dated 12.3.1995 to defendant no.1 of termination of tenancy w.e.f. 30.4.1995 and called upon defendant no.1 to hand over the vacant and peaceful possession to the plaintiff w.e.f. 1.5.1995 failing 3 which proceedings would commence against them as per law. The defendant no.1 has not complied with the said notice.
3. The plaintiff further pleaded that it appears that defendant no.1 has also not complied with the first notice of the plaintiff vide which they were called upon to enhance the rent w.e.f. April 1995 to a sum of Rs.3843.40p. The plaintiff is however, reliably informed that w.e.f. some subsequent date, defendant no.1 has been tendering a sum in excess of Rs.3,500/- per month to defendant no.2. The plaintiff is however, unable to state the full facts in respect of these matters because the payments are being tendered by defendant no.1 to defendant no.2 and defendant no.2 has been refusing to provide any information to the plaintiff regarding the amounts tendered. However, since the tenancy stood terminated w.e.f. 30.4.1995 any amount paid by defendant no.1 was on account of damages for unauthorised use and occupation of the tenanted premises.
4. The plaintiff also pleaded that upon notices having been given by the plaintiff as aforesaid, it had been agreed between the plaintiff and defendant no.2 that any payments tendered by defendant no.1 thereafter would not be encashed by defendant no.2 lest it be presumed to amount to 4 consenting to the continued occupation of the suit premises by defendant no.1. The plaintiff and defendant no.2 had also agreed to commence proceedings against defendant no.1 for eviction and damages. The plaintiff is given to understand by defendant no.2 that he has not deposited any such cheques and defendant no.2 has also not tendered any amount in respect of the said premises to the plaintiff for the period 1st May, 1995 till date. However, defendant no.2 has not been cooperating with the plaintiff in the matter of filing a suit for eviction and damages against defendant no.1 and accordingly, the plaintiff has cause to believe that defendant no.2 may not be acting honestly and may have been, for some reason unknown to the plaintiff, encashing such cheques. Accordingly, it is submitted that in the event that it is found that defendant no.2 has been encashing the amounts as tendered by defendant no.1, then the fact of such acceptance may not be read against the plaintiff. However, in the event that it is held that the action of defendant no.2 would bind the plaintiff vis-a-vis defendant no.1, it is submitted that defendant no.2 would be liable towards the plaintiff for damages.
5. The plaintiff accordingly pleaded that defendant no.1 is liable for eviction forthwith from the suit property and 5 to pay damages/mesne profits to the plaintiff for the loss suffered by him for the period that they have continued to illegally occupy the said premises.
6. The plaintiff also pleaded that the rent in respect of comparable premises in the Nehru Place area in the year 1995 was about Rs.25 per square ft. per month which, for an area of 663 square ft., comes to about Rs.16575/-per month. In addition, any party that takes premises on rent also gives a security and/or advance amounting to about two years of rent which the owner is easily able to put on interest bearing securities @18% per annum. The plaintiff has thus also lost interest that he would have earned on such security-cum- advance to the tune of another approximately Rs. 5.40 per square ft. per month which comes to another sum of Rs.3580.20p. per month for the suit property. The damages/mesne profits that defendant no.1 is liable towards the plaintiff is accordingly about Rs. 10,077.60p. per month (half of Rs. 20,155.20p.) The defendant no.1 is also liable towards the plaintiff for interest on each such amount @18% p.a w.e.f. each date that the amounts fell due. Calculated thus, the plaintiff is entitled to a sum of Rs. 4,73,560.90p. till the date of filing of the present suit as per calculations contained in Annexure A. The plaintiff is also entitled to 6 damages/mesne profits pendente lite as well as interest thereon. However, the plaintiff is claiming an amount of Rs.4,52,000/- as damages from defendant no.1.
7. The plaintiff also pleaded that the defendant no.2 is liable to make up the loss caused to the plaintiff as a result of action/inaction of the defendant no.2 and pleaded that claim for the period of 1.5.1995 to 31.7.1995 is barred by limitation.
8. The defendant no.1 has also failed to hand over the possession of the suit premises even after expiry of the notice period and as such, continued to remain in illegal and unauthorized occupation of the tenanted premises. The plaintiff further pleaded that vide judgment and decree dated 31.1.2005 passed in suit No.1628/97, the plaintiff has become exclusive owner of the suit property w.e.f. 31.1.2005 and as such w.e.f. 1.2.2005 the plaintiff is entitled to the full amount due towards damages/mesne profits. The plaintiff as such has prayed for a decree for possession of the suit premises and a decree of Rs.4,52,000/- by way of damages/mesne profits for the period 1.8.1995 till 31.8.1998 for the unauthorized use and occupation of the premises by the defendant no.1 with pendente lite interest on the amount claimed and till realization thereof from the defendant no.1 with costs.
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9. The defendant no.1 contested the suit and assailed the same as plaintiff has no locus standi to file the same being neither landlord nor at any point of time dealt with the defendant no.1 which is also liable to be stayed in view of the earlier suit pending between the plaintiff and defendant no.2. Jurisdiction of this court is also challenged as barred under the provisions of Delhi Rent Control Act as the defendant no.1 is protected under the provisions thereof. The suit is also stated to be otherwise legally not maintainable for want of notice u/s 106 of the Transfer of Property Act as well as notice u/s 115 of the Multistate Co-operative Societies Act being defendant a registered co-operative Society who has not been served with such notice. The pecuniary jurisdiction of this court is also challenged as also the suit has been wrongly valued for the purposes of court fee and jurisdiction. The defendant no.2 is stated to be only competent person to deal with the defendant no.1 as owner/landlord whereas plaintiff has become exclusive owner of the suit property only w.e.f. 31.1.2005. The plaintiff had also filed another suit no.372/01 before another court for possession and damages after claiming to have served the notice of termination dated 28.8.2001 wherein use and occupation charges have been claimed w.e.f. 1.11.2001. The plaintiff accordingly stated to 8 be infructuous as also plaintiff is estopped to file present suit by his conduct, latches and acquiescence. The subsequent suit is also stated to have been stayed as the plaintiff wanted to continue the present suit. The defendant stated to be a contractual tenant at a monthly rent of Rs.3,494/- in perpetuity in the suit premises. The defendant denied the factum and validity of the notices dated 2.3.1995 and 12.3.1995 and enhancement of the rent to Rs.3,843.40p as pleaded. The defendant also pleaded that by filing suit no.372/01 on the basis of subsequent notice dated 28.8.2001, the plaintiff has waived the earlier notice also of which possession has also been handed over to the plaintiff. The rent @Rs.3,494/- has been regularly tendered to the defendant no.2. The defendant also denied any understanding between the plaintiff and defendant no.2 as also plaintiff has no right to make any reservation as made in the suit. The defendant no.1 also denied any liability for payment of damages. The defendant also denied liability to pay interest on sum of Rs.4,73,560.90p. as nothing is due against the defendant no.1. The calculation of the amount is pleaded as wrong and denied being defendant no.1 the contractual tenant at the monthly rent of Rs.3,494/- paid regularly by registered post and as such not liable to pay 9 interest or any damages. The defendant denied liability of payment of the rent or damages for the last three years who had been paying the rent regularly and accordingly denied cause of action against him. All other averments as made in the plaint were denied by the defendant.
10. The plaintiff filed the replication to the amended written statement of the defendant no.1 wherein the allegations as made in the written statement were denied whereas the averments as made in the plaint were reaffirmed in toto.
11. On the pleadings and the documents of the parties, the following issues were framed on 14.8.02 whereas suit was held to be properly valued for the purposes of court fee and jurisdiction vide order dated 31.10.2001:
1. Whether the suit is maintainable and this court has jurisdiction to entertain the suit?
2. Whether there is privity of contract between the plaintiff and defendant no.1?
3. Whether the plaintiff is the owner of half of the suit property and is entitled to the relief of possession?
4. To what amount if any is the plaintiff entitled by way of rent/damages?
5. Relief.
12. It is pertinent to mention that plaintiff's suit in 10 respect of relief of possession of the suit property was disposed of as the vacant possession of the suit property was handed over by the defendant no.1 to the plaintiff vide order dated 22.9.2006 whereas defendant no.2 was recorded as already proceeded ex parte when also the following additional issues were also framed on 23.4.2007. ADDITIONAL ISSUES
1. Whether the first notice dated 2.3.1995 amounts waiver on the issues of second issue dated 28.8.2001, consequent to that subsequent suit filed by the plaintiff, if so its effect?OPD-1
2. Relief.
13. Thereafter vide order dated 30.7.2008 the relief in respect of pendente lite and future damages/mesne profits was withdrawn by the plaintiff against the defendant no.1 for unauthorized occupation and use of the suit premises and the statement of the plaintiff was also recorded to that effect on 30.7.2008.
14. The plaintiff examined himself as PW1 whereas the defendant no.1 filed an affidavit in evidence U/o 18 CPC and also examined himself as DW1.
15. I have heard Ld. Counsels for the plaintiff and defendant no. 1 and have perused the evidence, documents as well as the written submissions as placed on the record 11 carefully. My findings on the issues are as follows:
Issues NO. 1, 2 and 3 as well as issue no.1 framed on 23.4.2007
16. All the four issues are taken up together as inter connected one for disposal. For maintainability of the suit Ld. Counsel for the defendant referred to Section 115 of the Multi-State Co-operative Societies Act, 2002 in term of Section 101 of the Act 1984 which required a notice in writing to be delivered to the Central Registrar or left at his office of 90 days before filing the suit against a Multi-State Co- operative Society or any of its officers in respect of any act touching the constitution, management or the business of the Society. In the present case the suit has been filed by the plaintiff admittedly without any notice which does not at all touching the constitution, management or the business of the Society as the suit was filed for recovery of possession and mesne profits against a tenant whose tenancy was terminated which suit according to the plaintiff is maintainable against the defendant without notice as contemplated under Section 115 of the Multi-State Co-operative Societies Act, 2002. With reference to notice u/s 115 of the Societies Act, 2002 the defendant not only proved the certificate of incorporation under the Multi-State Co-operative Societies Act of the 12 defendant no.1 as Ex.DW1/1 but also proved the bye laws of the defendant no.1 as Ex.DW1/2. Ld. Counsel for the defendant also referred to the case law in the case of M/s Krishan Lal Ajit Kumar Vs. Indian Farmers Fertilizers Coop Ltd. and Ors. in writ petition no. CR 2/01 of which copy of the judgment placed on record decided by Hon'ble High Court of Jammu and Kashmir wherein reference was also made to the case of All India Handloom Fabric Marketing Cooperative Society Ltd. Vs. M/s Phelps & Co. Pvt. Ltd reported as 84 (2000) DLT 570 and the observations of their lordship in that case were also reproduced as under:
"The use of the expression "any act" in Section 101 of the Act and also the use of the expression "touching the business"
occurring the said section also include any legal act or illegal omission.
Observations made by the Supreme Deccan Merchants case (supra) are fully applicable to the facts of this case. The nature of the society and the bye-laws governing it suggest that one of the functions of the Society is to make handloom goods. To take on hire a building or premises is likewise a function of the Society - Admittedly the premises were hired for its showroom by the Society. As such the suit for eviction from the said premises could not be instituted against the appellant society without serving a notice as provided under Section 80 of the Code of Civil Procedure, 190B; Section 101 of the Act is mandatory in nature. In the absence of notice under Section 101 suit could not be filed against a Society registered under 13 the Act. In this case no such notice was served by the respondent/plaintiff on the Central Registrar before the filing of the suit. The learned Trial Court while dealing with this aspect of the case failed to correctly appreciate that one of the objects of the Society, as per its bye-laws is to open showrooms, emporia etc for sales of handloom in India and abroad.
Findings recorded by Trial Court in this regard are not sustainable in law and are set aside."
17. Ld. Counsel for the defendant also referred to the case of Krishak Bharti Co-operative Ltd. Vs. Iffco Tokio General Insurance C. Ltd. reported as 125 (2005) DLT 45 and M.S. Madhav Rao Vs. D.V.K Surya Rao reported as AIR 1954 Madras 103 as well as All India Handloom Fabric Marketing Cooperative Society Ltd. Vs. M/s Phelps & Co. Pvt. Ltd reported as 84 (2000) DLT 570 (Supra) wherein their lordship were of the view that in case premises are hired for showroom by the society the suit for eviction from the said premises could not be instituted against society without serving them notice u/s 101 of the Act of which provisions are the same as contained in Section 115 of the Societies Act, 2002. Ld. Counsel for the plaintiff however submitted that none of the authorities as referred to by the Ld. Counsel for the defendant are applicable to the facts and circumstances of the present case. Perusal of the authorities reveals that in case of M/s Krishan Lal Ajit Kumar Vs. Indian Farmers 14 Fertilizers Coop Ltd. and Ors. (Supra) the findings were that a contract of transportation of the fertilizer would be a part of that activity which would fall within the term "business of the society" as was in existence between the plaintiff and defendant in that case. So far as reference to the case of All India Handloom Fabric (Supra) is concerned in the cited authority also their lordship were of the view after going through the bye laws of the Society that notice u/s 101 of the Act is must as the bye-laws were with regard to purchase or take on hire or otherwise acquire land or building or premises and construct of building was the object of the society. In the present case there is nothing like it as the bye laws of the society Ex.DW1/1 speaks of object of the society to promote economic interest etc etc and has nothing to do with purchase or take on hire or otherwise acquire land or building and as such both the authorities are not applicable to the facts of the case in hand. In case of Krishak Bharti Co- operative (Supra) it was dispute relating to the election of the society and in that case their lordship were of the view that notice is must u/s 115 of the Societies Act 2002 before filing the suit. Similar was the view in the case of M.S Madhava Rao (Supra). The ratio of the judgment as referred to above by the Ld. Counsel for the defendant leads me to the conclusion 15 that notice u/s 115 of the Act or u/s 110 in the old Act is not required for filing the present suit filed by plaintiff against the society for possession and mesne profits being the dispute between landlord and tenant and provisions as contained U/s 115 of the Act are not attracted as also the submissions as made by Ld. counsel for the defendant are not at all tenable so as to say that suit is not maintainable.
18. Another point raised by Ld. counsel for the defendant is that the notice of termination of tenancy as proved on record by the plaintiff as Ex.PW1/5 of which registration slip is also proved as Ex.PW1/6 as was sent along with Ex.PW1/4 which was notice to the defendant no.1 to increase the rent sent by one and the same registered cover which was not received back by the plaintiff as well, is no service of notice of termination of tenancy as contemplated u/s 6 of the Transfer of Property Act, 1982. In support of the submissions Ld. counsel for the defendant submitted that in the absence of receipt and recognition of notice of enhancement of rent sent along with notice of termination, the plaintiff is not within his rights to terminate the tenancy and to file the suit on the basis of such termination so as to deprive the defendant of protection of provisions of DRC Act. Further Ld. counsel for the defendant referred to Section 8 of the Delhi Rent Control 16 Act so as to submit that it does not speak of enhancement of the rent suomoto on issue of notice as Section 8 contemplate that the increase in the rent if lawful under the Act, it shall be due and recoverable only in respect of the period of tenancy after the expiry of 30 days from the date on which the notice is given. In the present case admittedly both the notices were sent in the same envelope vide registration slip Ex.PW1/6 which according to Ld. counsel for the defendant does not bear the date. The perusal of Ex.PW1/6 reveals that it bears the stamp which contains date but the same is not legible. Besides, the increase of the amount in rent has been challenged by the defendant whereas notice of termination bears the date as March 12, 1995. In this connection Ld. counsel for the defendant submitted that after filing of another suit of which certified copy proved on record as Ex.PW1/3, wherein the plaintiff relied upon notice dated 28.8.2001 Ex.DW1/7 whereby the defendant was called upon to increase the rent w.e.f. next month of tenancy after expiry of the current month of tenancy as well as to vacate the premises upon the expiry of period of one month after the expiry of current month of tenancy as the plaintiff does not accept the defendant no.1 as tenant as of date but shall continue to pursue the proceedings commenced by him. 17 Notice Ex.DW1/7 dated 28.8.2001 was issued by the plaintiff as mentioned in the notice itself as a matter of abundant caution so as to seek eviction of the defendant as well as damages upon expiry of the period as prescribed therein in the notice. On the strength of Ex.DW1/7 Ld. counsel for the defendant submitted that after issuance of notice Ex.DW1/7 the plaintiff has waived the earlier notice Ex.PW1/5 as contemplated u/s 113 r/w illustration (b) thereof. The illustration (b) reads as under:
"A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived."
19. The submissions made by Ld. counsel for the plaintiff that subsequent notice was in keeping in view the earlier notice issued as a abundant precaution is of no consequence on the face of law read with illustration as contained in Section 113 of the Transfer of Property Act. It is not so because their Lordship in the similar facts and circumstances observed as under in case of Neera Raina Bhagat Vs. Doctor D.P. Singh reported as 2004 RLR 456 :
"In some measure the third issue overlaps the second issue which has been decided in favour of the Plaintiff/Landlord. If a Landlord choses to 18 issue a notice to quit during the pendency of any proceedings the logical consequence that would follow would be that all previous litigation on the same cause of action would be rendered ineffective and infructuous. The acceptance of rent from a tenant, whether a statutory tenant or a tenant 'holding over' would be the creation of a fresh tenancy. The issuance of a second notice to quit has the effect of nullifying the previous notice to quit. In the present case the tenant could have legitimately argued before the court hearing the first suit that once a second notice to quit had been issued the first proceedings had been rendered infructuous. This situation does not occur for the reason that the prior suit had been disposed of by that time. The findings of the Learned ADJ are entirely correct."
Ld. Counsel for the plaintiff also referred to the case of Tayapali Jaffarbhai Tankiwala Vs. Messrs Asha & Co. and another reported in 1970(1) SCC 46, and submitted that their Lordship in the cited authority observed that :
"Under Section113 of Transfer of Property Act all that has to be seen is whether any act has been proved on the part of the present appellant which shows an intention to treat the lease as subsisting, provided there is an express or implied consent of the person to whom the notice is given of termination of tenancy on the ground of non- payment of rent.
Their Lordship has further observed as under :19
"In the present case, there can be no doubt that the serving of the second notice and what was stated therein together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice by showing an intention to treat the tenancy as subsisting and that this was with the express or implied consent of the tenant to whom the first notice had been given, because he had even made payment of the rent which had been demanded, though it was after the expiration of the period of one month given in the notice."
The plaintiff also relied upon the case law as was decided by Hon'ble Apex Court in the case of Ranjit Chandra Chowdhary Vs. Mohitosh Mukherjee reported in 1969(1) SCC 699, P. Dasa Muni Reddy Vs. P. Appa Rao reported in (1974) 2 SCC 725, Provash Chandra Dalui and another Vs. Biswanath Banerjee and another reported in 1989 Supp.(1) SCC 487, Krishna Bahdur Vs. Purna Theatre and others reported in AIR 2004 SC 4282 so as to submit that there is distinction between the waiver under Section 113 of Transfer of Property Act and estoppel under Section 115 of Indian Evidence Act besides there was no intention to create tenancy after termination of tenancy by notice Ex. DW1/7 or to subsist the tenancy as was determined by way of second notice. Ld. counsel for the defendant however submitted that intention of the plaintiff is crystal clear from the second notice of termination of tenancy as also referred to by their lordship in the case of Tayafali Jafarbhai Taniwala Vs Messrs Asha & Co. and 20 another reported as 1970 (1) SCC 46 as relied upon by the plaintiff himself. Similarly, their lordship in the case of P. Dasa Muni Reddy & P. Appa Rao reported as (974) SCC 725 define the doctrine of waiver wherein his lordship observed that voluntary choice is the essence of the waiver. Reference is also made by the Ld. Counsel for the plaintiff to the case of Provash Chandra Dalui and another Vs. Biswanath Banerjee and another reported as 1989 Supp (1) SCC 487 to say that the plaintiff has no intention to subsist the tenancy which was terminated by the plaintiff vide first notice of termination as was sent with notice of enhancement of the rent to the defendant.
20. The evidence as brought on record and the authorities referred to by the Ld. counsel for the plaintiff and as countered by the Ld. Counsel for the defendant, there exist sufficient intention on the part of the plaintiff not to rely upon the first notice of termination of tenancy and as such to continue the tenancy with the defendant till issue of second notice of termination of tenancy on which basis the plaintiff also filed a separate suit for possession as well as mesne profits knowing well that present suit is pending. The explanation as also referred to in the second termination notice that it was issued as abundant precaution is not 21 acceptable in law so as to ascertain the intention of the plaintiff. The intention of the plaintiff is crystal clear that he has lost his own confidence with regard to the termination of tenancy and enhancement of the rent which were issued by him vide registration slip Ex. PW1/6 which bears no date as the date is not legible and also no date deposed or proved by the plaintiff when the envelop was sent. Otherwise also the notice of termination of the tenancy sent along with enhancement notice of rent cannot be done by the plaintiff so as to have the cake and eat too also as such notice of enhancement of rent is infact a show of intention of enhancement of rent u/s 8 of the DRC Act which has to be lawful under the Act and the rent should be due and recoverable in respect of the period of tenancy after expiry of 30 days from the date on which the notice is given. The words "recoverable" in Section 8 of the DRC Act is very material. The plaintiff in fact based the termination of tenancy on the basis of intention to make the increase in term of notice as contemplated u/s 8 of the Act without waiting that the same is recoverable after 30 days and terminating the tenancy of the defendant as if rent stood enhanced so as to make the provisions of DRC Act inapplicable on account of enhancement of the rent for more 22 than Rs.3500/- p.m. The intention behind issue of second notice may be the understanding of law by the plaintiff of enhancement of the rent and termination of tenancy of the tenant in the given facts as discussed above. This fact further ascertain the intention of the plaintiff to subsist the tenancy as also the rent @ Rs.3,494/- stood paid by the defendant till the date in respect of the premises of which possession was handed over by him to the plaintiff as on 22.9.2006. Further it was the plaintiff who got deleted the prayer of pendente lite and future damages/mesne profits in the present case as he has relied upon the second notice of termination as was filed so as to sue the defendant to take possession of the suit premises with damages and mesne profits afresh despite knowledge that the present suit for the purpose is pending in this court. The rent has also been accepted during pendency of the suit @ Rs.3,494/- by the plaintiff. The conduct of the plaintiff as discussed above as well as the facts and circumstances of the case leads to the only conclusion that it was the plaintiff who by issue of notice of termination afresh waived the notice of termination Ex.PW1/5 as was sent along with enhancement of the rent notice of which receipt by the defendant is not at all proved by the plaintiff also on record and hence the intention of the plaintiff was to subsist 23 tenancy on rent of Rs.3,494/- which stand paid even for the period claimed in the suit.
21. In view of my findings as above and no compliance of Section 8 of the DRC Act till date by the parties, the suit is held to be barred u/s 50 of the DRC Act as the plaintiff is governed by the provisions of DRC Act being defendant a tenant protected in the absence of receipt of notice of enhancement of rent by the defendant and compliance of the same by the parties as contemplated u/s 8 of the DRC Act. In this regard the plaintiff has also submitted in the written submissions that defendant has taken the objection with regard to jurisdiction of this court in which context issue of jurisdiction was framed with regard to the objections that Rent Controller and not the civil courts has got jurisdiction. As already observed and not disputed by the plaintiff, the plaintiff has already received rent as was deposited to the extent of his half share for the period as claimed in the suit and in that case the plaintiff after termination of tenancy remained a statutory tenant and as such the suit as filed for possession and for damages does not lie. Accordingly, I decide the issue no.1 in favour of the defendant and against the plaintiff whereas in the facts and circumstances including that possession of the property already vacated and handed 24 over by the defendant to the plaintiff the issues no.2 and 3 are decided in favour of the plaintiff and against the defendant whereas additional issue stands decided holding that the first notice dated 2.3.1995 Ex. PW1/5 amounts waiver on the issue of second notice dated 28.1.2001 Ex. DW1/7. ISSUE NO.4
22. Since the plaintiff is not entitled for the damages and rent already stand paid for the period till the day the plaintiff was handed over vacant possession of the suit premises by the defendant, the issue is decided in favour of the plaintiff and against the defendant holding thereby that plaintiff is not entitled for the damages as claimed considering the findings on issue no1, 2 3 and additional issue no. 1.
RELIEF
23. In the given facts and the findings on the issues as above, the plaintiff is held not entitled for the relief claimed in the suit i.e. the damages and mesne profit for the period 1.8.1995 till 31.8.1998. The suit of the plaintiff is accordingly dismissed. However, no orders as to costs. File be consigned to Record Room.
Announced in open court (D.C. ANAND)
on 23.1.2010 Addl. Distt. Judge (North)-IV/
Delhi
25
CS No. 50/09
23.1.2010
Present : None.
Vide separate judgment dictated and anounced, the suit of the plaintiff is dismissed. No orders as to costs. Decree be drawn accordingly. File be consigned to Record Room (D.C. ANAND) Addl. Distt. Judge (North)-IV/ Delhi 26 The suit of the plaintiff is accordingly dismissed. However, no orders as to costs. File be consigned to Record Room