Delhi District Court
Ajay Gaur vs . Ashok Kumar on 18 August, 2020
Ajay Gaur vs. Ashok Kumar
Civil Suit No : 98070/16
IN THE COURT OF RAHUL VERMA, CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Civil Suit No :- 98070/16
CNR No. :- DLCT03-001462-2014
Date of Institution: 03.06.2014
Date of Decision: 18.08.2020
Shri Ajay Gaur
S/o Sh. S.P. Gaur
R/o Part of Property No. 7744,
Private No. 73-75, Fasih Building,
Clock Tower, Roshanara Road,
Delhi-110007.
......Plaintiff
Versus
Shri Ashok Kumar
S/o Sh. Narain Dass
R/o QU-140C, Uttari Pitampura, Delhi.
And
C/o 7744/73, Ground Floor, Fasih Building,
Clock Tower, Roshanara Road, Delhi-110007.
..... Defendant
SUIT FOR EJECTMENT AND DAMAGES/MESNE PROFITS
Present:- None.
JUDGMENT:-
1 Present suit has been filed by the plaintiff seeking a decree of ejectment and mesne profits against the defendant in respect of the premises bearing no. 7744/73, Fasih Building, Clock Tower, Roshanara Road, Delhi-110007 (hereinafter called as suit property).
AVERMENTS IN THE PLAINT
1. Smt. Salochana Kataria W/o Shri Narain Dass was a tenant of the plaintiff in respect of one room situated on the ground floor of property bearing No. 7744/73, Fasih Building, Block Tower, Roshanara Road, Delhi - 110007 at a monthly rent of Rs. 30/- excluding other charges. The month of tenancy used Page no. 1 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16 to be reckoned from 1st day of each English Calendar month to the last of that month.
2. The tenancy of Smt. Salochana Kataria was for residential purposes and the same was terminated by the plaintiff vide notice dated 06.09.2006. Smt. Salochana Kataria sent a reply dated 24.09.2006 through Sh. Manish Gandhi, Advocate. She became statutory tenant after the expiry of 15 days from the receipt of the notice dated 06.09.2006 and continued to occupy the same on account of protection granted to her under the provisions of the Delhi rent Control Act. However, Smt. Salochana Kataria died on 20.05.2013 leaving behind the defendant as her son.
3. As the tenancy of Smt. Salochana Kataria was for residential purposes and the same was duly terminated during the life time of Smt. Salochana Kataria. After the demise of Smt. Salochana Kataria on 20.05.2013, the tenancy devolved upon the defendant for a limited period of one year from the date of death of Smt. Salochana Kataria under the provisions of Section 2(l) of the Delhi Rent Control Act, as the defendant was neither living with the said Smt. Salochana Kataria nor was financially dependent upon Smt. Salochana Kataria.
4. After the expiry of one year on 20.05.2014, the possession of the defendant on the premises in dispute is that of the trespasser and the defendant is liable for ejectment. The defendant is liable to pay damages/ mesne profit after 20.05.2014 at the rate of Rs. 4,000/- per month which the premises in dispute can fetch if let out, from the date of filing of the suit till delivery of the possession. Hence the present suit.
AVERMENTS IN THE WRITTEN STATEMENT OF DEFENDANT
5. In the WS, the defendant has taken preliminary objection that suit is barred u/s 50 DRC Act, and that the cause of action is not disclosed in the plaint. In reply on merits, it is admitted that Smt. Salochana Kataria was tenant of the plaintiff in the suit property but it is submitted that her tenancy could not be terminated without any justifiable reason and the alleged termination notice served by the landlord was without any cause of action and the deceased mother of the defendant had already replied to the said notice. It is submitted that the Page no. 2 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16 defendant is statutory tenant in the suit property as the rent is less than Rs. 3,500/- per month and therefore, suit is barred u/s 50 DRC Act. It is further submitted that by virtue of order dt. 24.07.04 of Sh. Yashwant Kumar, Ld. ADJ in RCA no. 10/2001, the deceased mother of the defendant was held a tenant as being class 1 heir of the original pre-deceased son of the original tenant and therefore, she cannot be considered to be unauthorized occupant in the suit premises. It is denied that tenancy of Smt. Salochana was terminated. It is further denied that tenancy devolved on defendant for a limited period of one year after the death of Smt. Salochana Kataria u/s 2(l) of DRC Act. It is further denied that defendant was neither living with his deceased mother Smt. Salochana nor was financially dependent on her. It is submitted that defendant was completely dependent on her deceased mother for residence purposes and after her death the defendant is now occupying the tenanted premises in his own independent capacity as tenant under DRC Act. It is denied that after expiry of one year on 20.05.14, the possession of defendant in respect of tenanted premises is that of a trespasser. It is submitted that the defendant has been regularly paying rent @ Rs. 40/- per month. It is denied that defendant is liable to pay damages/ mesne profits @ Rs. 4,000/- per month after 20.05.13. It is submitted that the enhanced rate claimed by the plaintiff is contrary to the provisions of DRC Act. All the other averments of the plaint are denied with prayer to dismiss the suit.
REPLICATION
6. By virtue of the replication, averments of the plaint have been reiterated, and contents of the written statement have been denied.
ISSUES
7. Subsequently, from the pleadings of the parties following issues were framed by Ld. predecessor of this court vide order dt. 13.01.2015 :-
1 Whether the suit is barred u/s 50 of Delhi Rent Control Act?
OPD 2 Whether the defendant is entitled to retain and protect the possession of the suit property under the provisions of the Delhi Page no. 3 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16 Rent Control Act and the Hindu Succession Act? OPD 3 Whether the plaintiff has enhanced the rent of the suit premises unlawfully? OPD 4 Whether the tenancy of Smt. Salochana Kataria was lawfully terminated during her lifetime by the plaintiff? OPP 5 Whether the plaintiff is entitled to a decree of eviction of the defendant from the suit premises? OPP 6 Whether the plaintiff is entitled to a preliminary decree for damages / mesne profits? OPP 7 Relief.
PLAINTIFF'S EVIDENCE :
8. To prove his case, the plaintiff examined himself as PW1 by tendering his evidence by way of affidavit Ex. PW1/A. He relied upon the following documents :-
Ex. PW1/1 Site plan
Ex. PW1/2 to Receipts dt. 15.06.12, 17.04.13 and 08.12.13
Ex. PW1/4
Ex. PW1/5 Notice dt. 06.09.06
Ex. PW1/6 Postal receipt
Ex. PW1/7 UPC
Ex. PW1/8 Reply dt. 24.09.06
Ex. PW1/9 Death certificate of Smt. Sulochana Kataria
9. During cross-examination following documents were put to PW1 by defendant:-
Ex. PW1/D1 Certified copy of judgment dt. 24.07.04
10. Sh. Vikram, JJA, Record Room (Civil), Tis Hazari Courts, Delhi was examined as summoned witness PW2. He has relied upon the following documents :
Ex. PW2/A Certified copy of statement of Smt. Sulochana Kataria in case file bearing no. 379/97 titled as "Ajay Gaur vs. Sulochana".
Page no. 4 of 11 (Rahul Verma)
CJ07(C)/THC/Delhi
Ajay Gaur vs. Ashok Kumar
Civil Suit No : 98070/16
11. Sh. Azad Singh, AERO, from the office of Voter's Center was examined as summoned witness PW3. He has relied upon the following documents:
Ex. PW3/A Electoral record of Sh. Ashok Kumar
(Colly)
12. PW1, PW2 and PW3 were duly cross examined by ld. Counsel for defendant.
Thereafter, the plaintiff's evidence was closed in affirmative vide order dt. 05.01.16.
DEFENDANT'S EVIDENCE :
13. The defendant examined himself as DW1 by tendering his evidence by way of affidavit Ex. DW1/A. He relied upon the following documents :-
Ex. DW1/1/ Certified copy of order dt. 24.07.04 Ex. PW1/D1 Ex. DW1/2 (OSR) Copy of ration card Ex. DW1/3 (OSR) Copy of driving licence Ex. DW1/4 Copy of complaint dt. 05.06.13 Ex. DW1/5 Certified copy of rent petition
14. DW1 was duly cross examined by ld. counsel for the plaintiff. Thereafter, the defendant closed his evidence vide statement dt. 05.06.18.
FINDINGS:
15. I have heard Ld. counsel for the plaintiff as well as Ld. counsel for the defendants and have perused the case file. My issue-wise findings with reasons thereof are as under:-
Issue no.1: Whether the suit is barred u/s 50 of Delhi Rent Control Act? OPD & Issue no.2: Whether the defendant is entitled to retain and protect the possession of the suit property under the provisions of the Delhi Rent Control Act and the Hindu Succession Act? OPD & Page no. 5 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16 Issue no. 4: Whether the tenancy of Smt. Salochana Kataria was lawfully terminated during her lifetime by the plaintiff? OPP
16. Since all these three issues are inter-connected, and can be disposed of on appreciation of common evidence, all are being taken up together.
17. The onus of proof of issue no. 1 and 2 was upon the defendant. The onus of proof of issue no. 4 was upon the plaintiff.
18. It is the case of the plaintiff that Smt. Salochana Kataria was his tenant in the suit property for residential purposes and her tenancy was terminated by the plaintiff vide notice dated 06.09.2006. Further, that upon expiry of 15 days from the receipt of the notice dated 06.09.2006, Smt. Salochana Kataria became statutory tenant. Further, that after her death on 20.05.2013, the tenancy devolved upon the defendant for a limited period of one year under the provisions of Section 2(l) of the Delhi Rent Control Act as the defendant was neither living with the Smt. Salochana Kataria nor was financially dependent upon her.
19. In order to prove that the tenancy of Smt. Salochana Kataria was lawfully terminated during her life time, the plaintiff has relied upon Ex. PW1/5 notice of termination of tenancy dt. 06.09.06, postal receipt Ex. PW1/6, under postal certificate Ex. PW1/7, and reply to notice dt. 06.09.06 by Smt. Sulochana Kataria Ex. PW1/8.
20. It is clear from these evidence that the notice of termination of tenancy was duly served upon Smt. Sulochana Kataria and she had replied to the said notice as well. In fact, the defendant has also admitted the factum of receiving notice of termination of tenancy and giving reply to the same in Para 2 of his written statement. Though, the defendant has claimed that the said tenancy was not lawfully terminated, no explanation or evidence has been led by the defendant to prove that termination of the said tenancy was unlawful.
21. Accordingly, I am of the opinion that the tenancy of Smt. Salochana Kataria was lawfully terminated during her lifetime by the plaintiff. There is nothing on record to suggest otherwise.
22. Moving further, once it is clear that the tenancy of Smt. Salochana Kataria was lawfully terminated and she continued in the suit property as statutory tenant, the Page no. 6 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16 question arises whether the said statutory tenancy devolved upon her legal heirs after her death. While it is the case of the plaintiff that such tenancy devolved upon the defendant for a limited period of one year only, it is the defence of the defendant that devolution of tenancy on him was not restricted to limited period of one year only as he was residing with her at the time of her death and was completely dependent on her deceased mother for residence purposes.
23. It is clear from the rival claims that the question to be determined here is whether the statutory tenancy of the suit property was devolved upon the defendant for a limited period of one year only or not. If the statutory tenancy was devolved upon the defendant for a limited period of one year only then the suit would not be barred by the Delhi Rent Control Act. In order to answer this question, it is pertinent to refer to Explanation II of Section 2 (l) of DRC Act, which is read as under:
Explanation II.--If the person, who acquires by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.
24. Bare reading of Section 2(l) read with its Explanation II shows that where the contractual tenancy of residential premises of a tenant is terminated in his lifetime, the tenancy rights are not inherited by all the legal heirs specified under the Hindu Succession Act but only by such family members who are specified in Section 2(l). Also such persons specified under Section 2(l) must be those who were residing with the deceased tenant at the time of his death and who must be financially dependent upon him. In case the persons are financially independent, such persons have right only for staying up to one year in the premises after the death of the original tenant whose contractual tenancy was terminated in his lifetime.
25. In order to substantiate his claim that the statutory tenancy had devolved upon the defendant, the defendant examined himself as DW1 and reiterated his plea in his evidence by way of affidavit Ex. DW1/A. He relied upon Certified copy of order Page no. 7 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16 dt. 24.07.04 Ex. PW1/D1, Copy of ration card Ex. DW1/2 (OSR), Copy of driving license Ex. DW1/3 (OSR), Copy of complaint dt. 05.06.13 Ex. DW1/4, Certified copy of rent petition Ex. DW1/5.
26. However, none of these evidence relied upon by the defendant helps in deciding whether the defendant was financially dependent on her deceased mother on the date of her death. In fact, the deposition of the defendant in his cross-
examination goes contrary to his defence. The defendant has admitted in his cross-examination that "I was earning Rs. 4,000-5,0000/- per month at the time when my mother was alive. I used to pay Rs. 1,000/- excluding the daily ration per month to my mother. It is wrong to suggest that my sister used to maintain my mother and not me." It shows that the defendant was not dependent upon her mother, rather his mother was dependent upon him. There is no evidence on record to even remotely suggest that the defendant was financially dependent upon his mother at the time of her death.
27. Therefore, it is clear that by virtue of Explanation II of Section 2 (l) of DRC Act, the defendant acquired right to continue in possession of the suit property for a limited period of one year only; and, on the expiry of that period, the right of the defendant to continue in possession after the termination of the tenancy become extinguished.
28. In view of the aforesaid discussion, I conclude that the defendant is not entitled to retain and protect the possession of the suit property as he does not have the status of statutory tenant qua the suit property and therefore cannot claim protection under DRC Act. DRC Act is not applicable in the present case and hence the jurisdiction of this court is not barred by Section 50 DRC Act.
29. Issue no.1 and 2 are accordingly decided against the defendant and in favour of the plaintiff.
30. Issue no. 4 is decided in favour of the plaintiff and against the defendant.
Issue no. 5: Whether the plaintiff is entitled to a decree of eviction of the defendant from the suit premises? OPP Page no. 8 of 11 (Rahul Verma) CJ07(C)/THC/Delhi Ajay Gaur vs. Ashok Kumar Civil Suit No : 98070/16
31. The onus of proof of this issue was upon the plaintiff.
32. It has already been decided in issue no. 1 and 2 that by virtue of Explanation II of Section 2 (l) of DRC Act, the defendant acquired right to continue in possession of the suit property for a limited period of one year only. Therefore, on the expiry of such period, the right of the defendant to continue in possession after the termination of the tenancy become extinguished. Clearly, the defendant is no longer statutory tenant and has no right to remain in possession of the suit property. Accordingly, I come to the conclusion that the plaintiff is well within his rights to claim the possession of the suit property from the defendant.
33. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue no. 6: Whether the plaintiff is entitled to a preliminary decree for damages / mesne profits? OPP
34. The onus of proof of this issue was upon the plaintiff.
35. Though, the plaintiff has averred in the plaint that he is entitled to damages/mesne profits @ Rs. 4,000/per month, said amount has not been claimed in the prayer, rather only a preliminary decree has been sought for determining damages/mesne profits. Though the issue was framed regarding preliminary decree for damages/mesne profits, it appears from record that the plaintiff did not press the said issue of preliminary decree during the trial and no such preliminary decree was passed. However, at the stage of judgment when the evidence has already been led by both the parties, I am of the opinion that the issue of damages / mesne profits can be decided finally considering the evidence on record.
36. It has already been decided that the defendant acquired right to continue in possession of the suit property for a limited period of one year only and on the expiry of such period i.e. from 20.05.2014, the right of the defendant to continue in possession become extinguished. As a necessary corollary, the plaintiff also becomes entitled to recover damages/mesne profits from the defendant for the duration of unauthorized occupation of the suit property by him.
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Ajay Gaur vs. Ashok Kumar
Civil Suit No : 98070/16
37. With regard to the rate of damages/mesne profits, the plaintiff has claimed that he is entitled to damages/mesne profits @ Rs. 4,000/per month. In order to substantiate this claim, the plaintiff examined himself as PW1 and reiterated this claim in his evidence by way of affidavit. No other witness was examined by the plaintiff on this aspect. Also, no documentary evidence was adduced regarding the prevailing rental value for such property.
38. Since the suit property consist of one room only and considering the locality in which the suit property is situated, the claim of damages/mesne profits @ Rs. 4,000/- per month appears to be exaggerated. In my opinion, in view of the facts and circumstances of the case, it is reasonable to fix the rental value for the suit property at Rs. 1,000/- per month for the purposes of damages/mesne profits.
39. This issue is accordingly decided in favour of the plaintiff and against the defendant in aforesaid terms.
Issue no. 3: Whether the plaintiff has enhanced the rent of the suit premises unlawfully? OPD
40. The onus of proof of this issue was on the defendant.
41. Perusal of pleadings shows that in the plaint, the plaintiff claimed the damages/mesne profits at the rate of Rs. 4,000/- per month. It appears that the defendant has termed the same in the written statement 'enhanced rate of rent.' It is clear from the record that Rs. 4,000/- per month is being claimed as damages/mesne profits and not as enhanced rate of rent. Therefore, since the rent was never enhanced by the plaintiff, no question arises of enhancing the rent unlawfully.
42. This issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE No. 7: RELIEF
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Ajay Gaur vs. Ashok Kumar
Civil Suit No : 98070/16
43. In view of the findings on the aforesaid issues, the suit of the plaintiff is hereby decreed and the plaintiff is entitled to the following reliefs:
(a) Plaintiff is entitled to recover possession of one room situated on the ground floor of property bearing No. 7744/73, Fasih Building, Block Tower, Roshanara Road, Delhi - 110007 as marked in Red colour in the site plan from the defendant. The defendant is hereby directed to vacate the suit property and hand over the vacant and peaceful possession of the same within 6 weeks from the date of this judgment;
(b) The defendant is directed to pay mesne profits @ Rs. 1,000/- per month from the date of filing of the suit till the date of handing over of vacant, physical possession of the suit property to the plaintiff.
44. No order as to costs.
45. Decree sheet be prepared accordingly and file be consigned to Record Room after Digitally signed by due compliance. RAHUL RAHUL VERMA VERMA Date:
2020.08.18 05:00:51 +0530 Pronounced in open court: (Rahul Verma) Dated: 18.08.2020 Civil Judge-07, Central, Tis Hazari Courts, Delhi Note :- This Judgment contains eleven pages and all the pages have been checked and Digitally signed signed by me. by RAHUL RAHUL VERMA VERMA Date:
2020.08.18 05:01:35 +0530 (Rahul Verma) Civil Judge-07, Central, Tis Hazari Courts, Delhi Page no. 11 of 11 (Rahul Verma) CJ07(C)/THC/Delhi