Delhi District Court
Sh. Meer Singh @ Meeru vs Sh. Raj Kumar on 30 May, 2014
IN THE COURT OF SHRI ARUN KUMAR, LD CIVIL JUDGE,
SOUTH WEST DISTRICT, DWARKA COURT NEW DELHI
Civil Suit No.255/11
Unique Case ID No. 02405C0073662010
Sh. Meer Singh @ Meeru
S/o. Sh. Sundu
R/o. Main Road, Jharoda Kalan
New Delhi110072 ... Plaintiff
Versus
Sh. Raj Kumar
S/o. Sh. Sukhbir Singh,
R/o. RZ38, Vinoba Enclave,
30 Feet Road, CRPF Camp,
Jharoda Kalan,
New Delhi110072 ... Defendant
Date of Institution : 24.04.2010
Date on which judgment was reserved : 24.05.2014
Date of pronouncing judgment : 30.05.2014
J U D G M E N T
1. Vide this judgment, I shall decide the present suit filed by the plaintiff/landlord against the defendant/tenant for recovery of Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 1 of 43 possession, arrears of rent, damages, mesne profit and for permanent injunction.
2. Case of the plaintiff as per plaint is that plaintiff is the owner of property bearing no.18, Vinoba Enclave, Main Bahadurgarh Road, CRPF Camp, Jharoda Kalan, New Delhi and the defendant was inducted by him as tenant in respect of one shop in the aforesaid property at the monthly rent of Rs.2000/ in January 2005.The aforesaid shop has been shown in the site plan Ex. PW1/1 in red colour (hereinafter referred to as the suit property/premises). According to the plaintiff, the rent was exclusive of electricity and other charges. Besides, according to him, tenancy of the defendant was oral and no document was executed between the parties. It is further stated in the plaint that rent of the suit property was enhanced from time to time and thus in January 2007 the rent was enhanced to Rs.2500/ and thereafter, with effect from 2010 the rent was enhanced to Rs.3500/ per month excluding electricity and other charges. According to the plaintiff, the defendant has Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 2 of 43 been irregular in payment of the rent since inception of the tenancy and since the month of February 2010 he has stopped paying monthly rent of the suit property to the plaintiff. According to him, defendant has also stopped paying electricity charges as per his consumption and in order to further harass the plaintiff, defendant has filed a suit for permanent injunction against the him, wherein, plaintiff gave the statement that he will not dispossess the defendant) from the suit property without due process of law. In view of aforesaid statement the said suit was disposed of vide order dated 16.04.2010. Thereafter, according to plaintiff, he has terminated the tenancy of the defendant by way of notice dated 03.03.2010 calling upon the defendant to pay the arrears of rent from February 2010 onwards as well as to hand over the vacant peaceful physical possession of the suit property to the plaintiff on or before 31.03.2010. However, according to him, defendant has failed to comply with the notice despite receipt of the same and accordingly, the present suit was filed by him on Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 3 of 43 24.04.2010 for possession of suit property and recovery of arrears of rent for the period of 2 months @ Rs.3500/ per month together with interest @ 18% per month and damages/mesne profit @ Rs. 5000/ per month for the month of April 2010 till the date of actual delivery of possession of the suit property to the plaintiff by the defendant. Plaintiff has also prayed for passing a decree for permanent injunction in his favour thereby restraining the defendant from creating any third party interest in the suit property.
3. Defendant was served with summons of the suit and he has filed his written statement and raised several objections to the maintainability of the present suit. In his written statement, defendant has not disputed the landlord tenant relationship between himself and the plaintiff, however, according to him he was inducted as a tenant in the suit property in the month of July 2001 and not in January 2005. Besides, according to him, the initial rate of rent agreed to between the parties was Rs. 600/ per Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 4 of 43 month including other charges and not Rs. 2000/ as alleged by the plaintiff. He has further stated that the plaintiff has also received refundable security of Rs. 40,000/ from the defendant for which no receipt was issued by him. According to the defendant, the rent was increased from time to time and the same was lastly increased to Rs. 950/ per month. He has further stated that despite the fact that he has been regularly paying the rent to plaintiff but plaintiff has not issued the receipt to him. The defendant has further denied that in January 2007, the rent was enhanced to Rs. 2500/ per month and that in January 2010, the same was increased to Rs. 3500/ per month. It has been further averred by him that he has even tendered the rent by way of money orders but the plaintiff has refused to receive it. He further denied that he has not been paying the rent since February 2010 and according to him the plaintiff has been pressurizing him to vacate the suit premises or else to pay the exorbitant rent of Rs. 1500/ per month. The defendant has also denied the receipt of legal notice dated Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 5 of 43 03.03.2010 purportedly terminating the tenancy. According to the defendant, he is entitled to continue to occupy the suit property and the plaintiff is not entitled to receive any damages/ means profit from the defendant. He has also denied that the property could fetch the monthly rent of Rs. 5000/ per month.
4. After completion of the pleadings, the statement of both the parties were recorded by the Ld. Predecessor of this court under Order 10 CPC on 01.10.2010 wherein they had reiterated the stand taken by them in their pleadings respectively. ISSUES
5. On the basis of pleadings of parties, the following issues were framed by the court vide order dated 22.03.2011:
(i) Whether the plaintiff is entitled to recovery of possession as prayed for? OPP.
(ii) Whether the plaintiff is entitled to recovery of arrears of rent as prayed for? OPP.
(iii) Whether the plaintiff is entitled to damages/mesne profit as Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 6 of 43 prayed for? OPP.
(iv) Whether the plaintiff is entitled to permanent injunction as prayed for? OPP.
(v) Relief.
PLAINTIFF'S EVIDENCE
6. The plaintiff has examined two witnesses in support of his case including himself. He has tendered his affidavit Ex PW 1/A in evidence on 29.03.2011 wherein he has relied upon the following documents:
(i) Ex PW 1/1 : Site plan of the suit property.
(ii) Ex PW 1/2 : Legal notice dated 03.03.2010.
(iii) Ex PW 1/3 : postal receipt regarding dispatch of legal notice.
(iv) Ex PW 1/4 : UPC regarding dispatch of legal notice. The plaintiff was duly cross examined by learned counsel for defendant and during the cross examination it was admitted by the plaintiff that the tenancy was oral and no rent receipt was ever issued by him in favour of the defendant. He has denied that Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 7 of 43 defendant was inducted in the suit property during the month of July 2001 or that he has received security of Rs. 40,000/ at the time of inception of the tenancy. He has also denied the monthly rent being Rs. 600/ per month at the time of inception of the tenancy and the last rate of rent being Rs. 950/ per month as alleged by the defendant. He stated that monthly rate of rent though enhanced from time to time however the same has never been enhanced in writing. He admitted payment of rent by defendant up to January 2010, however, he denied that defendant had ever offered to pay the monthly rent to him for the month of February 2010. The plaintiff has also denied the averment of the defendant regarding sending the rent after February 2010 through money order or that he has been refusing to accept the same. He further stated that the monthly rent of suit property was Rs. 3500/.
7. One Mr. Ranbir was examined by the plaintiff in support of his case as PW2 who has tendered his affidavit in evidence on Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 8 of 43 29.03.2011 as Ex PW 2/A. According to the aforesaid witness, he was running shop adjacent to the suit property wherein he was inducted as a tenant in April 2000 at a monthly rent of Rs. 1500/. According to PW2, the defendant was inducted as tenant in the suit property in January 2005 at a monthly rent of Rs. 2000/. He further deposed that he was paying the rent at the rate of Rs. 5000/ per month to his landlord at the time of deposing which, according to him, was the market rate of rent prevailing in the locality. The witness was duly cross examined by the learned counsel for the defendant. During his cross examination, it was stated by him that plaintiff is his landlord and his tenancy was also oral . He has also stated that no rent receipt has ever been issued by the plaintiff in his favour. He admitted that he had come to depose at the instance of the plaintiff and that he had no receipt to show that he is paying the rent at the rate of Rs. 5000/ per month. He expressed his inability to produce any written proof to show that market rate of rent was Rs.5000/ per month though he had Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 9 of 43 reiterated his stand about market rate of rent even during his cross examination. On demand he could not produce any document to show that the defendant was inducted as a tenant in the suit property in January 2005 and that the agreed rate of rent between the plaintiff and the defendant at the time of inception of the tenancy was Rs. 2000/ per month. Admittedly, the rent has never been enhanced by the plaintiff in writing. After crossexamination of both the witnesses, PE was closed and the matter was fixed for defendant's evidence.
DEFENDANT'S EVIDENCE
8. The defendant has examined two witnesses in support of his case including himself. He has examined himself as PW1 and tendered his affidavit Ex DW1/A in evidence on 14.05.2011. In his affidavit he had reiterated all the averments made in the written statement on oath and has relied upon the following documents:
a) Money order receipt for the month of February, 2010 as Ex.
DW1/1;
b) Money order receipt for the month of March, 2011 as Ex. Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 10 of 43 DW1/2;
c) Acknowledgment receipt as Ex. DW1/3;
d) Report of Post Master as Ex. DW1/4;
e) Money order receipt for the month of February, March and April 2010 as Ex. DW1/5;
f) Money order acknowledgment receipt as Ex. DW1/6;
g) Money order receipt for the month of May as Ex. DW1/7;
h) Money order acknowledgment receipt as Ex. DW1/8; I) Money order receipts for the months of June and July as Ex. DW1/9;
j) Electricity bill for the month of March 2010 as Ex. DW1/10;
k) Electricity bill for the month of May 2010 as Ex. DW1/11;
l) Money order receipt for the month of August and September, 2010 as Ex. DW1/12;
m) Money order receipt for the month of October, 2010 as Ex. DW1/13;
n) Money order receipt for the month of November, 2010 as Ex. DW1/14;
o) Acknowledgment as Ex. DW1/15;
p) Money order receipt for the month of December, 2010 as Ex. DW1/16;
q) Money order receipt for the month of January, February, 2010 as Ex. DW1/17;
Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 11 of 43
r) Money order receipt for the month of March, 2010 as Ex. DW1/18;
s) Electricity bill for the month of September as Ex. DW1/20; and
t) Complaint dated 11.01.2010 as Ex. DW1/21.
9. DW1 was duly cross examined by the learned counsel for the plaintiff. In his crossexamination, he has admitted that the address mentioned in his affidavit is the permanent address and he had received the summons of the suit from this court on the same address, however, the witness has denied the receipt of any notice on the said address in the month of March 2010. He admitted that in the vicinity of the suit property other shops are located and a hotel is also situated around the said shop. He has further admitted that there is market around the said shop and CRPF Camp is situated at the distance of 2025 ft. from the suit property. DW1 denied that he had no savings in the year 2001 and that he was not having Rs. 40,000/ to pay as security to plaintiff during the aforesaid year. He has further denied that monthly rent of the shops in the locality is Rs. 5000/ per month. According to him, Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 12 of 43 the monthly rent should have been approximately Rs. 1000/ to Rs. 1200/ per month. According to him, he had paid refundable security of Rs. 40,000/ to the plaintiff in presence of one Sh. Harish and the aforesaid sum was borrowed by him from one Mr. Ram Kumar for an indefinite period which was repaid by him to Mr. Ram Kumar in the year 2010. He has further denied the suggestion given by learned counsel for the plaintiff that he had paid Rs. 4000/ as monthly rent to plaintiff in January 2010. He stated that the monthly rent was increased from time to time and the rent which was sent by him to the plaintiff through money order has been returned.
10. One Mr. Hoshiyar Singh @ Harish was examined by the defendant as DW2, who tendered his affidavit Ex DW 2/A in evidence on 28.05.2011. In his affidavit he has deposed that the defendant had paid a refundable security of Rs. 40,000/ to the plaintiff at the time of inception of the tenancy. According to him, the monthly rate of rent was Rs. 600/ per month exclusive of Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 13 of 43 other charges which was increased from time to time and the last rate of rent was Rs. 950/ per month. According to him, there is tendency of landlords in the locality to issue no rent receipts to their tenants. According to DW2, the defendant had been regularly paying the rent and other charges. The witness had further deposed that the suit property is situated in an unauthorized colony and the prevailing rate of rent in the locality may be between Rs. 1000/ to Rs. 1200/ per month. The witness was duly cross examined by learned counsel for the plaintiff. During cross examination, it was stated by him that he started working in Khoka Market at the age of 1012 years where there were only 1012 shops in the market. The witness further stated that at the time of deposition he was 38 years old. He further deposed that he has started his own shop which he had taken on rent at the rate of Rs. 600/ per month and the annual increment of rent of the shop was Rs. 50/. According to him, last rate of rent of the shop was Rs. 1200/ and he had vacated the said shop 1 ½ Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 14 of 43 years prior to his deposition. According to him, he was knowing the defendant since 198586 and the defendant is his neighbour. He further stated that there had been no transaction between him and the plaintiff. He further deposed that his shop was situated near the shop of the defendant. Witness had also given a sum of Rs. 40,000/ as security to his landlord. He further deposed that the aforesaid sum has been received by him from his parents though he had no documents to show that he had given the said sum as security. He further stated that he was not aware whether other tenants in the locality had given the security amount to their landlord. According to him, the defendant had taken the shop on rent in the month of July 2001 and the present rent of shop is around Rs. 1200/ per month. He denied the suggestion that the present market rent is Rs. 5000/ per month.
11. After examination of the defendant's witnesses, DE was closed and the matter was fixed for final arguments and after hearing the final arguments, vide a detailed judgment dated 24.12.2011 the suit Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 15 of 43 of the plaintiff was decreed by Ld. Predecessor of this Court in favour of the plaintiff and against the defendant.
12. The aforesaid judgment passed by Ld Predecessor of this court was challenged by the plaintiff by way of Regular Civil appeal in the court of Shri Vinod Kumar, Ld ADJIV, South West District, Dwarka Courts, New Delhi. The aforesaid appeal bearing RCA No.01/12 was disposed of by Ld Appellate Court vide order dated 05.09.2012 whereby the aforesaid judgment and decree passed by Ld Predecessor of this court was set aside with directions to this court to frame appropriate issue with regard to its jurisdiction in view of the provisions of Section 50 of Delhi Rent Control Act, 1958.
13. In view of the aforesaid order of Ld Appellate Court, an additional issue was framed vide order dated 30.05.2013 as follows:
(i) Whether this Civil Court has subject matter jurisdiction regarding the suit in question or whether the present suit be tried under provisions of Delhi Rent Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 16 of 43 Control Act?OPP.
14. It was submitted by counsel for the plaintiff that he does not want to lead any evidence on the aforesaid issue and accordingly matter was fixed for defendant's evidence on the additional issue. Defendant examined two witnesses in addition to the witnesses examined by him during earlier trial of the present suit. Mr Bijender Singh, Halka Patwari was examined by him as DW3 whereas Shri Anil Kumar from Planning Department, MCD, Delhi was examined as DW4. DW3 was summoned for production of notification under Section 507 Delhi Municipal Corporation Act with respect to Village Jharoda Kalan, Najafgarh. However, he could not produce the same and it was stated by him that no such notification could be found by him despite search and according to him, Jharoda Kalan and Jharoda Village are the same place. During cross examination by counsel for the plaintiff, DW3 stated that Village Jharoda Kalan is still a rural village as per records of SDM office, Najafgarh, New Delhi.
Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 17 of 43
15. DW4 i.e. AssistantcumPlanner from Planing Department, Civic Centre, Minto Road, New Delhi had brought a list of 135 villages located in the urbanisable limits of master plan 1981 which have been declared as urbanised by notifications. According to the aforesaid witness, as per records available in the Town Planning Department of MCD village Jharoda Kalan is not listed in the urbanised village and as per MPD21 village Jharoda Kalan falls in green belt area. The testimony of the aforesaid witness remained uncontroverted as he was not cross examined.
16. Defendant failed to lead further evidence on the additional issue despite repeated opportunities and accordingly, vide order dated 30.11.2013, DE was closed. Parties have relied upon the evidence led by them earlier during trial by Ld Predecessor of this court in support of their case on merits and on other issues framed by Ld. Predecessor of this court vide order dated 22.03.2011. Accordingly, matter was fixed for final arguments. Final arguments were heard from the parties on several dates. Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 18 of 43 Considering the nature of additional issue, I would like to deal with the aforesaid issue first.
17. It is submitted by counsel for the defendant that suit property falls within the area of Village Jharoda Kalan which has already been urbanized by virtue of notification under Section 507 (a) of Delhi Municipal Corporation Act, 1957. However, despite repeated opportunities no such notification could be produced by counsel for the defendant. Even the witnesses examined on behalf of the defendant in support of his case i.e. DW3 and DW4 have also failed to support the case of the defendant in this regard. Finally, defendant has relied upon the notification No.F11/45/92 LSG/15422 dated 30.12.1993 issued by Shri P K Dave, Administrator of NCT of Delhi in exercise of powers conferred by Section 5(2) of Delhi Municipal Corporation Act, 1957. A bare perusal of the aforesaid notification shows that by virtue of the aforesaid notification entire Delhi has been divided into wards irrespective of the fact as to whether a particular area is rural or Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 19 of 43 urban. As per aforesaid notification, Village Jharoda Kalan falls in Ward no. 50 i.e. village Issapur, Municipal Ward. On the basis of aforesaid notification it has been sought to be argued by ld counsel for the defendant that since village Jharoda Kalan falls within jurisdiction of MCD and in ward no.50, the same shall be deemed to have been urbanized and as such the suit property is governed by the provisions of Delhi Rent Control Act, 1958. On the other hand, it was submitted on behalf of plaintiff that delimitation of wards by MCD has nothing to do with the urbanization of any particular area in terms of Section 507 (a) of the Delhi Municipal Corporation Act 1957. According to Ld. Counsel for the plaintiff, since the year 1993, the elections of gram pradhans in the villages are not being conducted in Delhi and entire Delhi has been divided into wards irrespective of the fact whether a particular area is rural,semi urban or urban for the purposes of elections. I find myself in complete agreement with counsel for the plaintiff. By virtue of the provisions of Section 5 Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 20 of 43 (2) of Delhi Municipal Act 1957 read with notification issued by Government of India, Ministry of Home Affairs No.F.3/6/66Delhi dated 23.04.1968, Central Government has been authorised to divide the entire Delhi into wards and delimitation of Wards has nothing to do with the urbanization of any area in as much as the wards exist even in rural areas. In fact, the purpose of notification under Section 5 of the DMC Act to divide the entire population of Delhi in wards for the purposes of election only irrespective of the fact whether they are residing in the rural or urban area. Otherwise also, even if the case of the defendant is accepted that the village Jharoda Kalan stood urbanized by virtue of the aforesaid notification, it being not the case of the defendant that aforesaid village was urbanized as on the date of commencement of Delhi Rent Control Act, 1957, in the absence of notification under Section1(2) of Delhi Rent Control Act, suit property in question can not be said to be governed by the provision of Delhi Rent Control Act. The law is well settled in this regard by Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 21 of 43 celebrated judgment of Hon'ble Supreme Court of India in Mittar Sen Jain Vs Shakuntala Devi (2000) 9 SCC 720. No such notification under Section1 (2) of the Delhi Rent Control Act has been brought to the notice of this Court by Ld counsel for the defendant despite repeated opportunities and as such jurisdiction of this court is not barred by Section 50 of Delhi Rent Control Act as alleged by Ld. counsel for the defendant. In view of the aforesaid discussions, additional issue as framed vide order dated 30.05.2013 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 1: Whether the plaintiff is entitled to recover the possession as prayed? OPP.
18.The onus to prove this issue was upon the plaintiff. According to the plaintiff, the defendant was inducted as tenant in the suit property by an oral agreement in January 2005 and his tenancy was terminated by service of legal notice dated 03.03.2010. Though the defendant has admitted that he was inducted as tenant Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 22 of 43 in the suit property, however, he has denied the receipt of legal notice and the date of inception of his tenancy. Thus the relationship of landlord and tenant between the plaintiff and the defendant stands established. The dispute regarding the rate of rent and the date of inception of tenancy are not germane to the decision of the present issue and the only thing which need to be examined is whether the notice dated 03.03.2010 was served upon the defendant or not.
19. In view of the admitted position that the tenancy was oral and the suit property was given to the defendant for running his business of stitching clothes, the tenancy shall be deemed to be month to month tenancy terminable with 15 days notice as per the provisions of Section 106 of Transfer of Property Act, 1882. According to the plaintiff, the tenancy has been duly terminated by service of notice in conformity with the aforesaid provision. The plaintiff has placed reliance on his testimony by way of affidavit Ex PW 1/A alongwith copy of legal notice Ex PW 1/2 Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 23 of 43 and postal receipts Ex PW 1/3 and Ex PW ¼ in support of his submission that the notice was duly served upon the defendant. Genuineness of the aforesaid receipts Ex PW 1/3 and Ex PW 1/4 has not been questioned by the defendant either in cross examination of PW1 or in his defence evidence. There is nothing on record which could cast doubt on the genuineness of the aforesaid documents. Besides, it is admitted by the defendant that the address mentioned in the notice as well as the receipt was his correct address where the defendant had been residing during the relevant period. Thus it is clear that the legal notice was sent to the correct address of the defendant and hence in terms of provisions of Section 114 illustration (f) of the Evidence Act read with Section 27 of the General Clauses Act, 1897, service of legal notice upon the defendant may be presumed since the defendant has failed to disclose any reason which could have prevented the service of notice upon him. The bald denial by the defendant of service of notice is not sufficient to rebut the presumptions under Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 24 of 43 Section 114 illustration (f) of the Evidence Act and 27 of the General Clauses Act. In the aforesaid notice it has been categorically stated by the plaintiff that the defendant shall vacate the suit premises by the night of 31.03.2010. The aforesaid notice was dispatched by the plaintiff on 06.03.2010 and thus in the ordinary course of nature, the same is presumed to have been duly served upon the defendant on 15.03.2010. Thus, the notice has clearly offered 15 days time to the defendant to vacate the suit property and on 31.03.2010 the defendant became liable to hand over the possession of the suit property to the plaintiff's.
20. Even if, it is assumed for the sake of arguments that notice terminating the tenancy has not been duly served upon the defendant, the tenancy had even otherwise stood terminated by deeming the institution of suit as notice under Section 106 of the Transfer of Property Act. While taking the aforesaid view, I am supported by the decision of the Hon'ble Supreme Court in case of M/s Nopani Investment (P) Ltd. Vs. Santokh Singh AIR 2008 Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 25 of 43 SC 673 wherein it was observed as under:
" That in view of the matter it is well settled that filing of eviction suit under the general law itself is a notice to quit on the tenant"
21. Thus, in view of the aforesaid discussion, the plaintiff has successfully proved that he is entitled to recover the possession of suit property and as such the present issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2: Whether the plaintiff is entitled to recovery of arrears of rent as prayed for? OPP
22. The onus to prove the aforesaid issue was also upon the plaintiff.
Plaintiff has claimed the arrears of rent of Rs. 7000/ since, according to him, the defendant defaulted in payment of rent for the month of February 2010 and March 2010. On the other hand, according to the defendant, rate of rent was Rs. 900/ per month in the year 2010. It is further the case of the defendant that though he has tendered the rent for the month of February 2010 and March 2010 but the plaintiff has refused to accept the same. In Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 26 of 43 view of the aforesaid stand taken by the parties, it is not in dispute that plaintiff has not received rent for the month of February 2010 and March 2010 and as such the plaintiff is entitled to recovery of arrears of rent for the month of February 2010 and March 2010 from the defendant.
23. The only point which remains to be decided is the quantum of rent which was agreed to between the parties during the relevant period. Admittedly, the tenancy in the present case was oral and no rent receipt has ever been issued by the plaintiff in favour of the defendant. Thus the rate of rent is to be decided on the basis of oral testimony of the witnesses. According to the testimony of PW1, the rate of rent for the months of February 2010 and March 2010 was Rs. 3500/. Though, PW2 has deposed that the defendant was inducted as tenant in the month of January 2005 at a monthly rent of Rs. 2000/, however, he had failed to depose about the rate of rent agreed to between the parties during the month of February 2010 and March 2010. On the other hand, Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 27 of 43 defendant/ DW1 has deposed in his affidavit that monthly rate of rent agreed between the parties during the relevant period was Rs. 950/. Similar is the testimony of DW2 who has confirmed the assertion of defendant.
24. Since the onus to prove the rate of rent was upon the plaintiff, in order to affirmatively prove the rate of rent, the evidence of the plaintiff must outweigh the evidence of the defendant when the testimony of the plaintiff is pitted against the testimony of the defendant. In my considered opinion, both the parties have maintained their stand during cross examination. However, there are few facts which renders the testimony of plaintiff as to the rate of rent as unreliable which are as follows:
a) Though the plaintiff throughout in his plaint and in his affidavit has maintained the stand that the rate of rent was Rs.
3500/ per month during the aforesaid two months, however, in cross examination of DW1 a suggestion was put by him to the defendant that the defendant had paid Rs. 4000/ to the plaintiff as Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 28 of 43 rent in January 2010. The aforesaid suggestion was denied by the defendant, however, it indicates that the plaintiff is unsure of precise rate of rent and if the rate of rent was Rs. 3500/ per month then why the defendant would have paid Rs. 4000/ to the plaintiff during that period. Thus the stand of the plaintiff as to the quantum of rent appears to be inconsistent.
b) Though the plaintiff has examined PW2 to depose about the quantum of rent, the said witness has not deposed about the agreed rate of rent after enhancement. PW2 has deposed about the market rate of rent and the rate at which he himself is paying the rent to his landlord, however, none of the aforesaid facts are relevant for the determination of arrears of rent since for determining the arrears of rent it is only the agreed rate during the relevant period and not the market rate of rent which is required to be taken into consideration. Even if the market rate of rent of a premises is higher, a tenant can be directed to pay arrears of rent only at the agreed rate. Further the rate at which PW2 is paying Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 29 of 43 the rent to his landlord is irrelevant for determining the arrears of rent payable by the defendant to the plaintiff. The rate of rent which the defendant can be asked to pay shall be the rate prevailing during the months of February 2010 and March 2010 and not the initial rate of rent agreed to between the parties at the time of commencement of tenancy. PW2 has not deposed as to the rate of rent agreed to between the parties during the period of February 2010 and March 2010. Thus the testimony of PW2 as to rate of rent is wholly inconsequential for the purposes of determination of present issue.
c) Moreover, the version of plaintiff as to rate of rent prevailing as on February 2010 and March 2010 is not supported by any document or other witness. On the other hand, the stand of the defendant is duly supported and corroborated by the testimony of an independent witness namely Sh. Hoshiyar Singh @ Harish Kumar, who was examined by the defendant as DW2. DW2 has deposed about the rate of rent after enhancement being Rs. 950/ Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 30 of 43 per month. Nothing could be brought out during the cross examination of DW2 which could render his testimony doubtful. The testimony of DW1 as well as DW2 have withstood the test of cross examination.
25. In view of the aforesaid discussion, though, in my considered opinion, the plaintiff has failed to prove by preponderance of probabilities that the agreed rate of rent for the months of February 2010 and March 2010 was Rs. 3500/ per month but the defendant has been able to probablize his defence that the rent during the aforesaid period was Rs. 950/ per month. Thus the plaintiff is held entitled to recover a sum of Rs. 1900/ from the defendant as arrears of rent alongwith pendente lite and future interest at the rate of 6 per cent per annum in terms of Section 34 of CPC. Thus the issue is partly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3: Whether the plaintiff is entitled the damages/ mesne profits as prayed? OPP.
Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 31 of 43
26. The onus to prove this issue was also upon the plaintiff. It has already been observed hereinabove that the tenancy of the defendant stood terminated by service of notice dated 03.03.2010. Since, despite termination of the tenancy, the defendant has continued to occupy the suit property, in my considered opinion, the plaintiff is entitled to the damages/mesne profits. While taking the aforesaid view, I am supported by the judgment of Hon'ble Supreme Court in Shyam Sharan Vs. Sheoji Bhai and Another in AIR 1977 SC 2270 wherein it was held that the occupant of a premises is liable to pay mesne profits/ damages with effect from the date on which the tenancy was terminated. As has already been observed the tenancy of the defendant was terminated by the plaintiff by service of legal notice dated 03.03.2010 Ex PW 1/2 which was dispatched by Registered Post on 06.03.2010 as is evident from receipt Ex PW 1/3. Having regard to the ordinary course of business, it is reasonable to presume that the notice (which was dispatched and was destined for Delhi) reached the Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 32 of 43 defendant on or before 15.03.2010. The defendant was asked to vacate the suit premises by the midnight of 31.03.2010. The notice thus granted clear 15 days period to the defendant to vacate the property in compliance with the provisions of Section 106 of the Transfer of Property Act. The defendant thus became liable to vacate the premises on 31.03.2010. Since the defendant had failed to vacate the premises, he has become liable to pay damages for the said unauthorized occupation with effect from 01.04.2010 till the recovery of possession by the plaintiff from him.
27. The next issue which is to be determined by this Court is as to the quantum of damages/mesne profits. As per the provisions of Section 2 (12) of CPC, mesne profits are profits which the wrongful occupant actually received or might have with ordinary diligence received. It is well settled legal position that mesne profits must be awarded on the basis of prevailing market rate of rent.
28.According to the plaintiff the suit property could easily fetch a Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 33 of 43 rent of Rs. 5000/ per month. Though the defendant has denied the said averment in his written statement, however, the defendant has failed to indicate as to what is the market rate of rent. He has simply stated contractual rate of rent as Rs. 950/ per month in his affidavit.
29.The plaintiff has examined himself as PW1. In para no. 14 and 15 of his affidavit Ex PW 1/A, he deposed that the suit property can easily fetch a rent of Rs. 5000/ per month. Despite the fact that PW1 was duly cross examined by the defendant, the aforesaid testimony of the plaintiff has remained uncontroverted. The defendant has merely asked PW1 whether the property is situated in a regularized area or an unauthorized colony. How this has affected the market rate of rent has not been suggested to the witness. Defendant has further asked the witness whether the defendant is paying the rent which is less than the rent prevailing in the locality. The quantum of rent being paid by the defendant and its comparison with the prevalent rate of rent does not indicate Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 34 of 43 the extent of market rent. There is nothing in the entire cross examination of the PW1 which could cast doubt on the assertion of the plaintiff as to fair market rate of rent. The testimony of the plaintiff as to the market rate of rent is further strengthened by testimony of PW2 who has stated in his affidavit that his shop is adjacent to the suit property and he is paying the rent at the rate of Rs. 5,000/ per month which is as per prevailing market rate. Though a suggestion was given to PW2 that Rs.5000/ per month is not the market rate of rent but the same was denied by PW2. The testimony of PW2 stood the test of cross examination and there is nothing on record to suggest that the testimony of PW2 as to the market rate of rent was not reliable. The defendant has failed to impeach the credit of PW 1 and PW2 so as to indicate the market rate of rent as less than Rs. 5000/ per month. The defendant has also failed to depose as to what, according to him, is the market rate of rent or the rent that the suit property could fetch. He has simply stated that the property cannot fetch the rent Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 35 of 43 of Rs. 5000/ per month. Even otherwise, the aforesaid statement does not appear to be believable in view of the admissions of the defendant that there are other shops in the vicinity including a hotel in front of the shop and there is a market all around the suit property. The aforesaid admission clearly shows that the shop is situated in a market place and is commercially viable. Though DW1 has stated in his affidavit that prevailing rate of rent may be Rs. 1000/ and Rs. 1200/ per month since the suit property is situated in rural area and in an unauthorized colony, however, in view of the fact that it has already been admitted that the shop is situated in a commercial area the mere fact that the colony is unauthorized or earmarked for rural purposes alone is not of much consequence. The court can always take judicial notice of the phenomenal rise of rent in Delhi as has been held by Hon'ble Delhi High Court in Bakshi Sachdev (deceased of LRs) Vs. Concorde 1993 SLR 563 and Vinod Khanna Vs. Bakshi Sachdev AIR 1996 Delhi 3. DW2 has failed to explain the basis of his Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 36 of 43 opinion about market rate of rent. The witness has failed to depose about the rent which other tenants in the locality are paying. In view of the aforesaid discussion, having regard to the testimony of witnesses, the location and extent of the suit property, it can safely be inferred that the fair market rate of rent could be Rs. 5000/ per month. Admittedly no charges have been received by the plaintiff for usage of the suit property from the defendant after termination of tenancy. The plaintiff is therefore entitled to recovery of mesne profits/ damages at the rate of Rs. 5000/ per month w.e.f. 01.04.2010 till the date the defendant hands over the actual, physical possession of the suit property to the plaintiff. The plaintiff is also held entitled to pendent lite and future interest at the rate of 6 per cent per annum in terms of Section 34 of CPC.
30. Though the defendant has claimed that he has paid Rs. 40,000/ as refundable security to the plaintiff, however, he has failed to prove the aforesaid payment by producing any receipt or other Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 37 of 43 written acknowledgment. He has also failed to satisfactorily explain the source of such funds particularly in view of his admission that he had not received any sum from his parents. Though, he had tried to explain the source by deposing that he had borrowed the said sum from one Sh. Ram Kumar for indefinite period at an interest rate of 2% p.m. However, the aforesaid testimony could not be believed for more than one reason. It is hard to believe that such a huge sum could have been advanced by alleged Sh. Ramkumar to the defendant without execution of any document in writing or without any security and for an unlimited period. The defendant has failed to examine the aforesaid Sh. Ram Kumar in support of his case. The defendant has further failed to issue any letter or notice to the plaintiff for recovery of the aforesaid sum. The defendant has not filed any suit for recovery of the same despite the fact that the plaintiff was allegedly trying to dispossess him. Though, DW2 has also deposed that the defendant paid the security amount of Rs. 40,000/ to the plaintiff Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 38 of 43 at the time of inception of tenancy, however, his testimony can also not be believed for the reasons stated hereinabove. Besides, the plaintiff has controverted the said deposition during cross examination of DW2. For the aforesaid reasons, the defendant has failed to prove that he has given refundable security to the plaintiff. Hence, he is not entitled to set it off against the sum payable to the plaintiff. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.4 : Whether the plaintiff is entitled to permanent injunction, as prayed? OPP.
31. The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendant and his family members, attorneys and successors from creating third party interest in the suit property. According to the plaintiff, he had inducted the defendant as his tenant and the defendant is trying to create third party interest in the suit property. This has been reiterated by the plaintiff in his affidavit Ex. PW1/A. The Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 39 of 43 defendant has, in the written statement, admitted that he is a tenant in the suit property and that the plaintiff is the landlord. This has been maintained by the defendant in his defence evidence i.e. in his own testimony as well as that of DW2 Hoshiyar Singh @ Harish Kumar.
32. It is the admitted case of the parties that the plaintiff is the landlord and the defendant is tenant in the suit property. As such, the defendant has no right to create third party interest in the suit property. He can, and is bound to, surrender possession to the plaintiff alone. This obligation of the defendant can be enforced by the plaintiff by injunction. The plaintiff is therefore entitled to permanent injunction restraining the defendant and his representatives from creating third party interest in the suit property. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.5 RELIEF
33. In the aforesaid facts and circumstances of the case, Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 40 of 43 the suit is decreed in favour of the plaintiff and against the defendant. A decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant possession of the suit property comprising of the shop at property no. 18, Vinoba Enclave, Main Bahadurgarh Road, CRPF Camp, Jharoda Kalan, New Delhi as shown in red colour in the site plan Ex. PW1/1 to the plaintiff forthwith.
34. A decree for recovery of a sum of Rs. 1900/ as arrears of rent is also passed in favour of plaintiff and against the defendant. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6 percent per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6 percent per annum from the date of decree till realization.
35. A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff mesne Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 41 of 43 profits/damages computed at the rate of Rs. 5000/ per month from, and including, the month of April, 2010 till the date of decree. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6 percent per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6 percent per annum from the date of decree till realization. This direction shall be executable only after payment of appropriate court fee thereon after setting off the court fee paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
36. A further decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff future mesne profits/damages computed at the rate of Rs. 5000/ per month from the date of decree till the date on which vacant possession is handed over by the defendant to the plaintiff. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 6 percent per annum Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 42 of 43 from the date of institution of the suit till the date of decree and future interest thereon at the rate of 6 percent per annum from the date of decree till realization.
37. A further decree of permanent injunction is passed in favour of the plaintiff restraining the defendant, his family members, attorneys and successors from creating third party interest in the aforementioned suit property.
38. The plaintiff is entitled to recover costs of the suit from the defendant.
39. Decree sheet shall be prepared accordingly.
40. Ordered accordingly.
Announced in the open court on this 30th day of May, 2014. This judgment consists of 43 signed pages.
(Arun Kumar) Civil Judge(SW)/Dwarka Courts New Delhi Meer Singh @ Meeru Vs Raj Kumar Civil Suit No. 255/11 Judgment dated 30.05.2014 Page 43 of 43