Delhi District Court
Sh. Dharamveer Mugrai vs Sh. Janardhan Prasad Goel on 2 June, 2014
IN THE COURT OF SHRI M. P. SINGH: SENIOR CIVIL JUDGE : RENT
CONTROLLER: KARKARDOOMA COURTS (EAST)
Suit No. 147/11
Unique Case ID No. 02402C0153452011
Sh. Dharamveer Mugrai
S/o Late Pramanand
R/o 439/111, Gali No.9, HS Block
Bhola Nath Nagar, Shahdara,
Delhi110032 ........... Plaintiff
Versus
1. Sh. Janardhan Prasad Goel
2. Lal Bahadur Shastri Shikshan Sansthan (Regd.)
Both at: Front portion of Basement
Property NO. 459/6, upon Plot No.30,
Bhola Nath Nagar, Shahdara,
Delhi110032 ......... Defendants
SUIT FOR RECOVERY OF POSSESSION, RENTAL ARREARS &
MESNE PROFITS
Case filed on - 20.05.2011
Arguments heard on 19.05.2014
Date of decision 02.06.2014
JUDGMENT
1. Ms. Kanak Prabha Gupta (for short 'KPG') wife of late Ram Nath Gupta let out front portion of the basement in property no. 459/6, Bhola Nath Nagar, Delhi (as shown bounded in red in the site plan Ex. PW1/C) to the defendants at monthly rental of Rs. 11,000/ excluding water and electricity charges.
CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 1 of 15
2. KPG sold out the aforesaid property, of which the tenanted portion in the basement forms a part, to the plaintiff vide registered sale deed dt. 20.05.2010 (Ex. PW1/B). KPG intimated the defendants vide letter dt. 21.05.2010 (Ex. PW1/D) about sale of the property thereby informing them that they should acknowledge the plaintiff as the landlord and henceforth pay the rentals to him. Defendants thereafter, acknowledged the plaintiff as their landlord and started paying rent at the rate of Rs. 11,000/ per month to him. Defendants continued to pay the rentals to plaintiff till 15.02.2011.
3. It is averred that tenancy is month to month, which commences on 16th day of each English calendar month and expires on 15th day of each succeeding English calender month. Plaintiff determined the tenancy vide notice dt. 22.03.2011 Ex. PW1/H (inadvertently typed as 22.03.2010). This notice was served upon the defendants through speed post, courier and registered post acknowledgment due. There was, however, no reply to it. Realizing the inadvertent mistake in the previous notice, plaintiff sent another legal notice dt. 20.04.2011 (Ex. PW1/S) by way of abundant caution thereby terminating the tenancy afresh, which notice was served upon the defendants through speed post, courier, registered post acknowledgment due. Despite termination of the tenancy, defendants did not hand over vacant and peaceful possession of the demised premises to the plaintiff. Plaintiff claims that the defendants are liable to pay use and occupation charges as per the rate prevailing in the market, which is not less than Rs. 40,000/ per month. Besides this plaintiff also claims interest @ 18% on the rental arrears and damages. It is thus that the present suit has been filed seeking the following CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 2 of 15 reliefs:
(a) A decree for recovery of possession in respect of front basement of property No. 459/6, upon Plot no. 30, Bhola Nath Nagar, Delhi, as shown in red colour in the site plan,
(b) A decree for recovery of Rs. 22,000/ rent for the period of 16.02.2011 to 15.04.2011,
(c) A decree for recovery of pendente lite and future damages @ Rs. 40,000/.
4. Defendants entered the contest and filed their written statement. The main plank of their defence is that the suit is barred by section 50, Delhi Rent Control Act. This defence, as set out on written statement, is reproduced as follows:
It is submitted that the true fact is that the defendant was inducted as tenant by Sh. Ram Nath Gupta who is the owner of the said property @ monthly rent of Rs. 1,500/ per month excluding electricity and water charges and at the time of letting out the property in dispute, the said Shri Ram Nath Gupta has also taken security amount of Rs. 2,00,000/ from the defendant and as the rate of rent was fixed at the lower side. Sh. Ram Nath Gupta also assured to the defendant that the security amount of Rs. 2,00,000/ shall be refundable at the time of vacation of the premises in dispute. After the death of Sh. Ram Nath Gupta, his wife Smt. Kanak Prabha Gupta started collecting the rent from the defendant. After the death of Sh. Ram Nath Gupta she requested the defendant to increase the rate of rent to the tune of Rs. 2,000/ per month which the defendant had agreed and started paying rent at the rate of Rs. 2,000/ per month. The defendant had been regularly paying rent to Smt. Kanak Prabha Gupta @ 2,000/ per month and paid the rent up to May, 2010 to Smt. Kanak Prabha Gupta. Thereafter Shri Dharamveer Mugrai on behalf of Smt. Kanak Prabha Gupta started harassing the defendant and demanding increase of rent to the tune of Rs. 4,000/ per month to which the plaintiff refused. However, it has agreed and settled that the defendant shall pay rent at the rate of Rs. 2,500/ per month w.e.f. June 2010 and shall also pay an additional security amount of Rs. 1,02,000/ which shall be paid during the period of one year in equal installments i.e. 8,500/ x 12 = 1,02,000/. The defendant started paying the rent as CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 3 of 15 well as security amount to the plaintiff w.e.f. june 2010 to the plaintiff as per the instruction of Smt. Kanak Prabha Gupta and has paid a total sum of Rs. 99,000/ which includes the rent at the rate of Rs. 2,500/ per month X 9 month = 22,500/ and balance as security in tune of 8,500 p.m. X 9 month = 76,500/ to the plaintiff. The plaintiff also assured to the defendant that the security amount of Rs. 3,02,000/ shall be refundable at the time of vacating the suit property. With the above said under standing the defendant paid a sum of Rs. 99,000/ to the plaintiff which includes the rents @ 2500 per month w.e.f. June 2010 to feb. 2011 amounting to Rs. 22,500/ and security amount of Rs. 76,500/, thereafter the plaintiff stop taking rent as well as security amount to fulfill his ulterior motive despite the various request of the defendant. No rent receipts were ever issued by the plaintiff as well as Smt. Kanak Prabha Gupta.
5. Besides the aforesaid, suit is stated to be not maintainable on the plea that the relief of declaration is being sought without paying ad valorem court fee. In addition thereto, suit is sought to be rejected on the claim that mandatory notice under section 106, Transfer of Property Act was not served. Plaintiff's ownership of the suit property is also questioned. Besides this, suit is stated to be barred under section 41(h), Specific Relief Act. Letter dt. 21.05.2010 (Ex. PW1/D) issued by KPG is denied to have been received. It is alleged that counter foils of rent receipts filed by plaintiff are forged and fabricated and that they do not bear the signatures of the defendant. It is also claimed that the defendant never admitted the plaintiff to be the landlord. The tenancy being month to month is also denied. Denying other averments, defendant seek dismissal of the suit.
6. In the replication, plaintiff reiterated and reaffirmed his stand as set out in the plaint and refuted those made by defendants in written statement.
7. Issues, framed on 06.01.2012, are as follows:
CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 4 of 15
1. Whether plaintiff is owner/landlord of suit property and defendants can be said to be tenant under the plaintiff qua suit property? OPP
2. Whether rate of rent payable by defendant to plaintiff is Rs. 11,000/ per month and the same has been paid up till 15.02.2011? OPP
3. Whether tenancy of defendant stands duly terminated vide notice dated 22.03.2011 (inadvertently typed as 22.03.2010) and subsequent notice dated 20.04.2011? OPP
4. Whether plaintiff is entitled to decree for possession as prayed for?
5. Whether plaintiff is entitled to decree for arrears of rent for Rs.22,000/ for a period from 16.02.2011 to 15.04.2011? OPP
6. Whether plaintiff is entitled to pendente lite and future damages? If so, at what rate and for what period? OPP
7. Whether rate of rent is Rs.2,500/ per month and defendant paid Rs.8,500/ per month as security in terms of averments made in para 3 of preliminary objection of defendant No. 1 and 2? OPD
8. Whether suit is barred by provisions of DRC Act? OPD
9. Whether defendant has paid a sum of Rs.2,00,000/ as security as alleged in para 1 of the reply on merits to the previous landlord. OPD?
10. Relief.
8. In plaintiff's evidence, Yogender Mugrai, plaintiff's attorney, was examined as PW1. He exhibited Special Power of Attorney in his favour as Ex. PW1/A, certified copy of the Sale Deed in plaintiff's favour executed by KPG as Ex. PW1/B, the site plan as Ex. PW1/C, copy of the letter dt. 21.05.2010 issued by KPG to defendants as Ex. PW1/D, counterfoils of rent receipts as Ex. PW1/E to Ex. PW1/G; legal notice dt. 22.03.2011 CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 5 of 15 (inadvertently typed as 22.03.2010) as Ex.PW1/H and postal and courier receipts thereof as Ex. PW1/I to Ex. PW1/N and the downloaded copy of speed post and courier delivery reports as Ex. PW1/O to Ex. PW1/R, copy of legal notice dt. 20.04.2011 as Ex. PW1/S and postal and courier receipts thereof as Ex.PW1/T to Ex. PW1/Y and downloaded copy of delivery reports as Ex. PW1/Z to Ex. PW1/AA. The AD cards as Ex. PW1/AB and Ex. PW1/AC. Plaintiff further examined Sh. Jitender Kumar, LDC, Sub Registrar VIII as PW2. He proved the certified copy of the sale deed Ex.PW1/B in plaintiff's favour executed by KPG.
9. Defendant no. 1 examined himself as DW1. He relied upon documents already exhibit as PW1/E (colly).
10. I have heard the arguments at Bar and perused the record.
11. Issuewise findings are as under:
12. Issue no. 1 - The issue is whether the plaintiff proves that he is owner/landlord of suit property and defendants are his tenants. KPG purchased the property in question from one Daulat Ram Khanna. The copy of the sale deed in this regard is on record and the same is Ex. PW1/AD. KPG thereafter transferred the property to the plaintiff vide sale deed Ex.PW1/B. The sale deed has been proved on record by PW2. In view thereof, the plaintiff is the owner of the property in question.
13. The other limb of this issue is whether the plaintiff is the landlord. DW1 in his crossexamination admitted KPG to be owner of the premises. In view of section 109, Transfer of Property Act, all the rights of the lessor vis avis the tenanted premises in question shall vest with the plaintiff after its CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 6 of 15 purchase by him from KPG. That apart, KPG had intimated the defendants vide letter Ex. PW1/D dated 21.05.2010 that plaintiff is the new landlord. DW1 in his crossexamination admits that he had received one notice in 2010. In view thereof, there can be no manner of doubt that plaintiff is the landlord.
14. The last limb of this issue is whether the defendants are the tenants. It is an admitted position that defendants are in occupation of the premises as tenant.
15. This issue is concluded by holding that plaintiff is the owner/landlord of the premises and that the defendants are the tenants.
16. Issue no. 7 - The issue is whether the defendants prove that monthly rental is Rs. 2,500/ and Rs. 8,500/ per month was being paid as security. It is quite evidence that in order to claim the protection of DRC Act, such a plea has been raised. However, this plea is without any basis. The rent receipts Ex. PW1/E, Ex. PW1/F and Ex. PW1/G categorically establish that monthly rental of the premises is Rs. 11,000/. The plea of the defendants to the contrary is barred by sections 91 and 92, Evidence Act. Besides this, DW1 in his crossexamination admitted his signatures on rent receipts Ex. PW1/E, Ex. PW1/F and Ex. PW1/G. He however stated that he was not much educated and used to simply sign on the counterfoils of the rent receipts. This plea does not impress this Court. A person who is a supervisor of an educational training institute, cannot to my mind, would not know about the rent receipts which he was signing after payment of the monthly rentals. The rent receipts categorically establish that defendants used to pay monthly rental of Rs. 11,000/ per month to the plaintiff. Moreover, the defendants CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 7 of 15 have not placed on record anything to even remotely suggest that rent was a paltry sum of Rs. 2,500/ per month. In view of these reasons, I hold that this issue stands not proved by the defendants. This issue is answered against the defendants.
17. Issue no. 8 The issue is whether the defendants prove that the suit is barred by section 50, DRC Act. It is already held hereinabove that defendants have failed to establish their claim that monthly rental was Rs. 2,500/ only. As already stated, the rent receipts Ex. PW1/E, Ex.PW1/F and Ex.PW1/G (which documents are admitted to contain the signatures of DW1) clearly show that monthly rental was Rs. 11,000/ per month. In view thereof, it is held that the defendants do not have the protection of Delhi Rent Control Act and the suit is not barred by Delhi Rent Control Act. This issue is answered against the defendants and in plaintiff's favour.
18. Issue no. 9 The issue is whether the defendants prove that Rs. 2,00,000/ was paid as security to KPG. However, besides the self serving ipse dixit of the defendants, there is nothing on record in the form of any receipt or any bank record to show that a sum of Rs. 2,00,000/ was indeed paid as security to KPG. There is neither any evidence to show that defendants had withdrawn Rs. 2,00,000/ from bank just prior to handing over the same to KPG as security. In short, there is no document whatsoever to evidence transfer of Rs. 2,00,000/ from defendants' side to that of the plaintiff. It is indeed surprising that the defendant no. 1, who is running an institute, did not obtain any receipt in lieu of security of Rs. 2 lacs. DW1 in his crossexamination states that he had raised the amount of Rs. 2 lacs CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 8 of 15 through 'his sources'. However, what were 'his sources' from where he claims to have raised Rs. 2 lacs has neither been brought on record nor any particulars thereof furnished. In a nutshell, there is no evidence to prove that Rs. 2 lacs was given to KPG as security. It appears that this is a figment of the own wild imagination of the defendants. This issue stands not proved by the defendants. This issue is accordingly answered against the defendants and in plaintiff's favour.
19. Issue no. 2 The issue is whether the plaintiff proves that monthly rental of the premises was Rs. 11,000/ and that the same stands paid till 15.02.2011. It has been held hereinabove that monthly rental of the premises is Rs. 11,000/ and not Rs. 2,500/. The other limb of this issue is whether or not rent has been paid till 15.02.2011. Plaintiff has proved this aspect through the rent receipt Ex.PW1/E which shows that the rent has been paid till 15.02.2011. Defendants had not shown any rent receipt or any document to show that rent of Rs. 11,000/ for the period after 15.11.2011 was paid. In any case, it is the own assertion of the plaintiff that rent stands paid till 15.02.2011 and plaintiff cannot back out from the same. This issue is answered by holding that monthly rental of the premises is Rs. 11,000/ and that the same stands paid till 15.02.2011.
20. Issue no. 3 The issue is whether the plaintiff proves that tenancy stands terminated vide notice dt. 22.03.2011 Ex. PW1/H (inadvertently typed as 22.03.2010) and the subsequent notice dt. 20.04.2011 (Ex. PW1/S). In the written statement, defendants claimed that both the notices were not received. However, in his crossexamination DW1 improved his stand by asserting vis CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 9 of 15 avis notice Ex. PW1/H that he had only received a blank envelope. However, He, however, in his crossexamination, flatly refused to have received the notice Ex. PW1/S.
21. Both the notices were addressed to the address 459/6, Plot no. 30, Bholanath Nagar, Shahdara, Delhi. DW1 in his crossexamination admits that this is the correct address of the tenanted premises. The notice Ex. PW1/H was sent by registered post (postal receipts Ex. PW1/I and Ex. PW1/J), speed post (speed post receipts Ex. PW1/K and Ex. PW1/L) and courier (courier receipts Ex. PW1/M and Ex. PW1/N). The speed post tracking reports Ex. PW1/O and Ex. PW1/P clearly establish that the notice Ex. PW1/H was served on 23.03.2011. Courier tracking reports Ex. PW1/Q and Ex. PW1/R clearly establish that the notice Ex. PW1/H was served on 28.03.2011 and 24.03.2011 respectively. The claim that a blank envelope as received and that the notice Ex. PW1/H was there inside the envelope. This is once again a wild imagination of the defendants. When defendants received the blank envelope, did it not strike them that they should get back to the sender as to why a blank envelope had been sent. It seems to be entirely against the course of human conduct and beyond the relam of reality that a tenant would not get back to the person to whom he pays the rent on receiving a blank envelope from him and ask him as to why he had done so. The stand that DW1 was illiterate (as stated in crossexamination) hardly impresses this court. It may be that DW1 is and was illiterate, but not the persons who run the training institute. And particularly Sh. Vinod Goel, authorised representative (AR) of D2 is not illiterate. Secondly, it cannot be believed for even a moment that a landlord CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 10 of 15 who wishes to get his premises evicted through the process of law would to his own peril send a blank envelope despite the fact that he has with him a notice for termination of tenancy prepared by his counsel.
22. Insofar as notice Ex. PW1/S dated 20.04.2011 is concerned, DW1 deposed that he has not received the same. This notice was sent through registered post (postal receipts Ex. PW1/T and Ex. PW1/U) speed post (speed post receipts Ex. PW1/V and Ex. PW1/W) and through courier (courier receipts Ex.PW1/X and Ex.PW1/Y). The internet tracking reports of the postal department Ex. PW1/Z and Ex. PW1/AA clearly reflect that the notice Ex. PW1/S was served on 21.04.2011. In any event of the matter, the AD cards Ex.PW1/AB and Ex.PW1/AC clearly show that the notice Ex. PW1/S was served through registered post also. Therefore, there is no manner of the doubt at all that notice Ex. PW1/S dated 20.04.2011 was served upon the defendants. In any event of the matter, in view of section 27, General Clauses Act, there is a presumption of service of the notices and this binds the defendants and it is for the defendants to rebut the same. The defendants are not successful in rebutting this presumption. It is therefore held that tenancy stood terminated by legal notice Ex. PW1/H and Ex. PW1/S also.
23. The typographical error in the notice Ex. PW1/H is not of much consequence. This is for the reason that all the postal/speed post/courier receipts clearly reflect that the notice was sent in March, 2011. The contents of the legal notice also makes a reference of payment of rental till 15.02.2011 and therefore the tenant would have very well known that the notice was not sent on 22.03.2010 but it was rather sent in 2011 itself. Furthermore, this CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 11 of 15 typographical error causes no prejudice to the defendants inasmuch as the tenancy as per the law stands terminated after 15 days of receipt of notice.
24. In any event of the matter, this question is not of much relevance in view of ratio decidendi of Apex Court in Nopany Investments (P) Ltd. vs. Santokh Singh (2008)2 SCC 728 and followed by Shrif Ram Pistons & Rings Vs. C.B. Agarwal, MANU/DE/2381/2008, Jeevan Diesels & Electricals Ltd. vs. M/s Jasbir Singh Chaddha (HUF) 182 (2011) DLT 402, Rabindra Nath Saha vs. Sushma Jain 182 (2011) DLT 456, Shri Radhakrishan Temple Trust Maithan, Agra vs. M/s Hindalco Rotatron Pvt. Ltd. (2012)II AD (Delhi) 429 and Sky Land International Pvt. Ltd. vs. Kavita P. Lalwani 191 (2012) DLT 594 .
25. This issue is answered by holding that tenancy of the defendants stands terminated not only by notices Ex. PW1/H and Ex.PW1/S but also by the ratio of Nopany Investments (supra).
26. Issue no. 4 The issue is whether the plaintiff proves that he is entitled to the relief of possession.
27. The parties are in relationship of landlordtenant. The tenancy is not protected by DRC Act. The tenancy stands determined. And therefore the plaintiff is entitled to recover possession of the tenanted premises from the defendants.
28. It was the contention of defendants that in absence of Chairman of defendant no. 2 being joined in the proceedings, the reliefs prayed for can not be granted. This contention is meritless. Firstly, this stand was not taken in CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 12 of 15 the written statement. Secondly, defendant no. 2 Lal Bahadur Shastri Shikshan Sansthan has very much been joined. And therefore the responsible officer of defendant no. 2 could have pursued the case on its behalf. And indeed Sh. Vinod Kumar Goel was very much pursuing the case on its behalf as its AR. Sh. Vinod is none else but the son of defendant no. 1. If the defendants were of the view that Chairman of D2 ought to have been brought in the loop, then its AR could have very well informed its Chairman about the case and the course of action to be adopted. It suffices for the plaintiff to have impleaded D2 without bringing in its Chairman in the loop. That apart, this hair splitting technicality cannot and ought not come in the way of substantive justice.
29. This issue is answered by holding that plaintiff is entitled to the relief of possession of tenanted premises from the defendants. This issue is accordingly answered in plaintiffs' favour and against the defendants.
30. Issue no. 5 The issue is whether the plaintiff proves that he is entitled to decree of rental arrears of Rs. 22,000/ for the period from 16.02.2011 to 15.04.2011.
31. It stands proved that the defendants paid rent till 15.02.2011. The tenancy stood terminated in terms of notice Ex. PW1/H which was served on 23.03.2011 upon the defendants. In view thereof, the plaintiff is entitled to rental arrears of Rs. 22,000/ for the period between 16.02.2011 to 15.04.2011. This issue is answered by holding that defendants are liable to pay rental arrears of Rs. 22,000/ for the period between 16.02.2011 to 15.04.2011.
32. Issue no. 6 The issue is whether the plaintiff proves that he is entitled CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 13 of 15 to pendente lite and future damages, and if so at what rate and for what period. Plaintiff has led no positive evidence on this point. He did not bring on record rent deed of any similarly situated property in the locality. He led no evidence to show as to what would a similarly situated rented premises in the locality have fetched for the period after termination of the tenancy. However, there are catena of decisions that have held that while determining mesne profits the Courts are well entitled to take judicial notice of the increase in rentals of the area where the property is situated. Decisions reported as (i) State Bank of Bikaner and Jaipur Vs. I. S. Ratta & Ors. 120 (2005) DLT 407 (ii) National Radio & Electrical Co. Ltd. vs. Motion Pictures Association 122 (2005) DLT 629, and (iii) Motor & General Finance Ltd. vs. Nirulas & Ors. 92 (2001) DLT 97 can be referred.
33. Accordingly, considering the facts and circumstances of the case, it is my view that it would be fit and appropriate if plaintiff is awarded mesne profits/damages @ Rs. 13,000/ per month for the period from 16.04.2012 till the actual vacation of the premises in question.
34. Relief - In view of findings on the aforesaid issues, this suit stands decreed in the following terms. Plaintiff is entitled to possession of the tenanted premises which is, front portion of the basement in property no. 459/6, Bhola Nath Nagar, Delhi (as shown bounded in red in the site plan Ex. PW1/C). Defendants are also liable to pay rental arrears of Rs. 22,000/ to the plaintiff for the period between 16.02.2011 to 15.04.2011. Besides this, defendants shall also pay mesne profits of Rs. 13,000/ per month to the plaintiff from 16.04.2011 till the date of actual vacation of the premises. It is CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 14 of 15 clarified here that the amount deposited by the defendants in the court under Order XXXIX Rule 10 CPC would be adjusted in the execution proceedings. It appears from the record that defendants have deposited Rs. 92,500/ in the court under Order XXXIX Rule 10 CPC. Costs of the suit awarded to the plaintiff. Decree sheet be prepared. File be consigned to record room. Announced in the open court on 02.06.2014. (M. P. Singh) SCJ/RC(EAST) Karkardooma Court, Delhi CS no. 147/11 Dharamveer Mugrai v. Janardhan Parsad & Anr. Page 15 of 15