Delhi District Court
Suit No. 84/ vs Indusind Bank Ltd. Reported As Air 2005 ... on 30 July, 2013
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)11,DELHI
Suit No. 84/10
Unique Case ID No. 02401C0602142010
Sh. Dinesh Kumar
S/o Late Sh. Moti Ram
Permanent R/o 248, Hari Nagar Ashram
New Delhi-110014
Through his colleague and General Attorney
Sh. Narender Kumar Saini
S/o Late Sh. Munshi Ram Saini
R/o 277, Hari Nagar Ashram
New Delhi-110014
Versus
Sh. Suraj Bhan
S/o Late Sh. Bhullan Mal
253, Hari Nagar Ashram
New Delhi-110014
Date of Institution of Suit : 24.01.2007
Date when reserved for orders : 26.07.2013
Date of Decision : 30.07.2013
JUGEMENT
1 Vide this judgment I shall decide a suit for ejectment, recovery and
mesne profit filed by the plaintiff against the defendant. The brief fact
necessitated in filing the present suit are given as under:-
2 That plaintiff is the owner of property bearing municipal No. 253, Hari
Nagar Ashram, New Delhi-110014. The defendant was in occupation of the
premises as a tenant since long. In view of rising cost of living and on
Suit No. 84/10 Page no. 1/25
extensive renovations carried out by the plaintiff in the said premises, the rent
of the tenanted premises was enhanced with the mutual consent of the parties
in the beginning of the year 2000. The defendant started paying rent @ Rs.
3525/- w.e.f 01.01.2000. It is further averred that the rent of the premises was
further enhanced to Rs.3878/- w.e.f 01.01.2003 with the mutual consent of the
parties. The plaintiff issued receipts qua payment of rent made after obtaining
the signatures of the defendant on the counter foil of the rent receipts. The
defendant has been paying rent @ Rs.3878/- since 01.01.2003 uptill
31.12.2005. It is further averred that defendant has not paid the rent after
01.01.2006 in spite of repeated requests. Having left no alternative and as per
the advise, plaintiff terminated the tenancy of the defendant vide legal notice
dated 29.07.2006 w.e.f 31.08.2006. Said notice has been duly served upon
the defendant who sent reply dated 08.08.2006 wherein defendant refuted the
contents of the notice and claimed himself to be a tenant in the said premises
on a monthly rent of Rs. 30 per month. As per the plaintiff tenancy of the
defendant has been terminated w.e.f. 31.08.2006 but defendant has failed to
vacate the suit premises and hand over the actual physical possession to the
plaintiff. The occupation of the defendant in the suit premises is thus illegal
and unauthorized for which he is liable to pay mesne profit at the market rate
of Rs. 60,000/- per month which is the prevalent market rent of similar
accommodation. On the basis of the aforesaid averment, present suit has
been filed for adjudication.
3 Pursuant to the summons, defendant appeared and filed his written
statement taking preliminary objection that plaint has not been signed, verified
by a duly authorized person; that the suit is barred under Section 50 of Delhi
Rent Control Act as the rent of the suit premises is Rs. 30 per month; that
Suit No. 84/10 Page no. 2/25
plaintiff has filed the present suit on the basis of fabricated and manipulated
document as alleged counter foils relied by the plaintiff do not bear the
signatures of defendant; that no cause of action has arisen in favour of the
plaintiff.
4 On merit it is averred that initially the suit premises was let out by Moti
Ram in favour of Bhullan Mal, father of the defendant, about five decades
ago. After the death of Bhullan Mal, the tenancy of the premises devolved
upon defendant and since then defendant has been regularly making payment
of rent @ Rs. 30 per month, and the rent of the premises has never
enhanced or agreed beyond Rs. 30 per month. It is denied that any
renovation were ever carried out in the shop in question. It is stated that shop
is old built up and is in the same condition as it was when let out to the
defendant. It is denied that defendant was paying the rent @ Rs. 3525/- per
month w.e.f. 01.01.2000 or from any other date. It is also denied that w.e.f.
01.10.2003, the rent of the shop in question was enhanced to Rs. 3878/- per
month. It is also denied that defendant paid the suit rent to the plaintiff against
the receipt or signed counter foil. It is stated that the rent up to 31.12.1999
stood paid and plaintiff also issued rent receipt to the defendant. It is denied
that prevalent rentals for similar accommodation in the locality is in the order
of Rs. 200 to Rs. 250 per sq. ft. per month. It is stated that plaintiff has no
right to terminate the tenancy of the defendant as defendant at no point of
time refused to pay the monthly rent to the plaintiff. All other averments have
been denied, it is prayed that suit be dismissed with cost.
5 On the basis of the pleadings of the parties, the ld. Predecessor of this
court vide order dated 12.04.2007 framed the following issues for
Suit No. 84/10 Page no. 3/25
adjudication:-
1.Whether suit is barred by provisions of Section 50 of DRC Act as alleged by the defendant? OPD
2. Whether last paid rent by the defendant was Rs.3878/- per month as alleged by the plaintiff? OPP
3. Whether the plaintiff has validly terminated the tenancy of the defendant as alleged by the plaintiff, if so, its effect? OPP
4. Whether plaintiff is entitled to recover possession of the suit premises from the defendant? OPP
5. Whether plaintiff is entitled to recover any amount on account of user charges/ mesne profit / arrears of rent, if so at what rate and for what period and to what amount? OPP
6. Relief.
6 In order to prove his case, plaintiff has examined Sh. Narender Kumar Saini, his General Power of Attorney as PW-1 who reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited General Power of Attorney as Ex.PW1/1 , Site Plan as Ex.PW1/2, Rent Receipt Ex.PW1/3 to Ex.PW1/67, Legal Notice dated 29.07.2006 as Ex.PW1/68, Reply dated 08.08.2006 as Ex.PW1/69. Re-joinder notice dated 15.08.2006 as Ex.PW1/70, sur re-joinder dated 14.09.2006 as Ex.PW1/71.
7 During cross examination, PW-1 briefly deposed that plaintiff is his friend and not a relative. The building bearing No. 253, Hari Nagar is two storied, ground as well as first. First floor was constructed 20 years ago. He has seen the ground floor in existence since he attained the age of discretion. The defendant was a tenant in respect of the hall. The entire ground floor is with the defendant except one room on the rear side of the premises which is in their occupation for self use. He had gone inside the premises about 2-3 months ago when he got prepared the site plan. He does not remember the name of the draftsman but he had taken him to the site from outside the court Suit No. 84/10 Page no. 4/25 complex. He does not remember either the date or the month on which he had gone with the draftsman to the site but it was in the year 2007. He further deposed that portion marked A to A on site plan Ex. PW1/2 is the partition wall referred to him earlier. He admitted that in the shop there is no wall mark A to A in the site plan Ex.PW1/2. He further deposed that the shop is about one step below the ground level of the road. The shop is in the same condition since beginning. However, with the re-laying of road from time to time there is a difference in the level. He denied that Ex.PW1/2 is not carry according to the site. He further stated that defendant did not carried out any repair or renovation shop. He volunteered that they had done it. Around the year 2000 the defendant had requested the plaintiff in his presence to re- model the door by raising its height. He further stated that accordingly, the level of the door was raised. This was in January, 2000. He further deposed that except for raising the level of the door, no other structural change was carried out inside the shop. He denied that plaintiff did not even raised the level of the door and the premises is in the same condition as was when it was let out. He further stated that earlier the door was made of wood. It is still made of wood. He further deposed that the door remained the same, it was re-installed at a higher level, therefore, bills for making of the door are not available. They did not obtain any bills from meason for raising the level of the door. He further deposed that at that point approximately Rs.35,000/- were expended on the repairs. The work continued for 10-20 days. This expenses of Rs. 35,000/- was for total repairs / renovations carried out in the whole building. He further stated that in the year 2000, defendant was paying rentals @ Rs.3525/- per month. He further deposed that earlier to that it was about Rs. 30 per month. He denied that rent was never increased nor any repair/ renovations were carried out. He also denied that the rent of the premises Suit No. 84/10 Page no. 5/25 continues to Rs. 30 per month. He further stated that at the time of negotiations as mentioned in Para-2D of his affidavit four persons including Sh. Ramesh Kumar present in court, were present. One Om Prakash Saini was also present but the names of other two persons he does not know. He cannot give the exact date on which the compromise or negotiations took place. He further deposed that he was present on many occasions (maximum time) when rentals were tendered and was paid by the defendant to the plaintiff. He volunteered that he was not present always. He further stated that there was no fixed date for payment on rent. It was payable in the first fortnight of the month. As and when defendant paid the rent, rent receipts were issued, be it before 2000 or after 2000 which was many a time in his presence. He denied that counter foils of receipt Ex.PW1/3 to 67 do not bears the signatures of defendant. He also denied that these receipts are forged and signatures of defendants have been forged by the plaintiff and him. He has seen the defendant reading and writing as he is having a ration shop in his locality. He further deposed that he has no business dealings or money lending transactions with the defendant. He denied that his deposition to the effort that Suraj Bhan signed many a counter foils in his presence is a wrong statement deliberately made by him to help the plaintiff. He further stated that he cannot specify which of these counter foils was signed by the defendant in his absence and which was signed by his presence. He volunteered that maximum number of them were signed by him in his presence. He further stated that the counter foils are filled in the hand writing of the plaintiff himself. The rent earlier was Rs.3525/- per month w.e.f 2000. He volunteered that in 2003 it was increased to Rs.3878/- per month. It was increased from 01.01.2003 to Rs. 3878/-. At that time no rent note or fresh agreement was executed. He denied that rent was never Suit No. 84/10 Page no. 6/25 increased and remained static as Rs. 30 per month. He further stated that receipt Ex.D1 to Ex.D5 bears the signatures of Dinesh Kumar. He admitted that plaintiff had once changed his signatures. He cannot give the year. He denied that Ex.PW1/1 does not bears signatures of plaintiff. He admitted that defendant had paid rentals to the plaintiff up to 31.12.1999. He denied that thereafter defendant tendered the rent @ Rs. 30 per month, but plaintiff refused the tender. He further stated that 4-5 years ago one shop in property No. 258, Hari Nagar Ashram ad-measuring 10x10 ft. was let out at a rental of Rs. 10000/- per month by Babu Lal Jain to one tenant whose name he does not know. He has heard about rent of Rs. 10000/- per month in respect of shop in property No. 258 but he has not seen any documents in this regard. He denied that he is deposing falsely with respect to prevailing rate of Rs. 200/- to Rs. 250/- per sq. ft. per month. He further stated that the roof of the shop is made of wooden ballis and Agra slabs. The fittings and fixtures means tube lights and fans. The fans belongs to the plaintiff. There was only one fan installed in the premises by them. This is old fittings. He further state that defendants had been in occupation of the premises since the date he had attained the age of discretion. He admitted that once the police had to intervene because of some dispute between the parties. He did not accompany the plaintiff to the police station. He admitted that first dispute took place in January, 2000 and then in May, 2000. He admitted that it is in his knowledge that the matter was amicably settled between the parties in the police station. He further stated that plaintiff never told him that the defendant has been sending the rent to him by money order or that he is not accepting the same. He does not remember when was the rent disclosed to the MCD in the year 2000 and thereafter.
Suit No. 84/10 Page no. 7/258 In order to answer the claim of the plaintiff, defendant has examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief. DW-1 exhibited the rent receipts Ex.DW1/1(Colly), complaints dated 11.01.2000 and 17.05.2000 as Ex. DW1/2 and Ex.DW1/3. Letter dated 27.05.2000 as Ex.DW1/4, money order receipts as Ex.DW1/5 and Ex.DW1/6. Money order receipt dated 22.08.2006 as Ex.DW1/7 and Ex.DW1/8. Money order receipt dated 05.01.2007 and refusal report as Ex.DW1/9 and Ex.DW1/10.
9 During cross examination, DW-1 briefly deposed that he has sent rent for 79 months by way of money order to the plaintiff on 23.07.2006. He has not sent or try to tender rent to the plaintiff prior to that. He again said that on 5-6 occasions he has asked the plaintiff to come and collect the rent. No notice was sent to the plaintiff in writing by him or through advocate asking him to come and collect rent prior to 23.07.2006. He has not tried to deposit the rent before the court of Rent Controller under Section 27 Delhi Rent Control Act, at any point of time. He admitted that notice Ex. PW1/68 was received by him and same was replied vide Ex.PW1/69. He further stated that the compromise Ex.DW1/4 was effected in his presence, in the presence of Sh. O.P. Saini, Swatantra Bhushan, Dinesh Kumar and the police. He admitted that Sh. Swatantra Bhushan is his son and is present beside him during his deposition. He denied that he has paid rent every month regularly after 01.01.2000 or that receipts were issued by the plaintiff in this regard. He also denied that counter foils Ex.PW1/3 to Ex.PW1/67 bears his signatures or were signed by him. He volunteered that they are forged and fabricated. He denied that w.e.f 01.01.2003 rental in respect of suit premises was being paid by him @ Rs. 3,878/- per month. He also denied that rentals was increased Suit No. 84/10 Page no. 8/25 by mutual compromise w.e.f 01.01.2000 after renovations were carried out in the premises so as to make them fit for business of fair price shop. He also denied that rentals were payable @ Rs. 30 only till 31.12.1999. He also denied that he has deliberately denying his signatures. He stated that originals of Ex.DW1/2 and Ex.DW1/3 have been handed over to him by the police and Ex.DW1/2 and Ex.DW1/3 are the receiving copies. He further stated that no compromise was ever effected between him and Dinesh Kumar in this case but compromise was effected with regard to the complaints made to the police in May, 2007.
10 The defendant has also examined Sh. Bhagwat Prasad as DW-2 who deposed in his examination in chief that all the tenants in the surrounding area are paying rent in the range of Rs. 15 to Rs.75 to their landlords. Being the immediate neighbour of the defendant he deposed that since 1965 he is seeing the defendant's shop in the same condition as it stands today. No renovation had been carried out in the said shop since past more than 45 years.
11 During cross examination, DW-2 deposed that Aggarwal Sweets by the side of petrol pump opposite his shop is not paying rent but has purchased the property. He denied that Aggarwal Sweets is paying rent @ 11,000/- per month. He does not know the rate of rent of the shop let out after 01.01.2000. He volunteered that in the market in which his shop is situated, no property has been let out after 01.01.2000 and it is only a newly constructed market, shops have been let out after 01.01.2000. He denied that present rental value of the shop at main Ashram Chowk is more than Rs. 10,000/- per month. He is not aware about rental value of the shop at the main Ashram Chowk and as Suit No. 84/10 Page no. 9/25 such cannot tell as to what rent they could fetch. He denied that in the year 2000 there was a compromise between plaintiff and defendant as a consequence of which rentals were enhanced to Rs.3525/- per month in respect of the premises in suit. He also denied that plaintiff had carried out required renovations to the premises in suit.
12 The defendant has also examined Sh. Madan Kishore, Zonal Inspector from MCD as DW-3. He brought the record of House Tax pertaining to the suit property. He deposed that in the year 1996-97, the house tax paid by Sh. Moti Ram in respect of the entire property was Rs. 390/- and Dinesh Kumar paid the house tax in the year 2001-02 of Rs. 390. He paid the house tax at the same rate for the year 2002-03 and 2003-04. He further deposed that in case rent is increased by hundred and twenty times, the owner is required to inform the MCD in this regard. No such intimation was sent by Dinesh Kumar as per the record.
13 During cross examination, DW-3 briefly deposed that he cannot say whether it is necessary for the owner to inform the MCD in case rent is increased. He further deposed that the record brought by him did not contain the noting sheet with regard to site inspection made by Zonal Inspector or Assistant Zonal Inspector. He was posted in the Central Zone in January, 2008. He never inspected the suit property. He further deposed that as per the unit area method only the owner has to file the self assessment return.
14 The defendant has also examined Dr. S.C.Mittal, Handwriting Expert as DW-4 who examined the signatures of the defendant over the rent receipt Ex.PW1/3 to Ex.PW1/67 with the signatures of the defendant and submitted Suit No. 84/10 Page no. 10/25 his report dated 20.05.2009 Ex.DW4/A. 15 During cross examination, DW-4 briefly deposed that he inspected the judicial file along with one advocate on the direction of the defendant. He only used a measuring scale by taking photographs of the signatures from the judicial file and no other geometrical appliances used by him. He does not remember how many admitted signatures were for the relevant period as shown to him as specimen signatures. He volunteered that he has mentioned the same in his report. He deposed that he had taken 8 admitted signatures for the period of 2000-05 as mentioned in para 9 to 16 of his report at page 1 & 2. He admitted that the admitted signatures as mentioned in para 9 to 16 in his report pertains to 12.04.2007 which were done at the time of carrying out Admission / Denial at the back of the rent receipt. He admitted that the admitted signatures do not relate to the period commencing from 2000-05. He admitted that signatures as mentioned in para-8 of his report as A14 are signatures in carbon copy and not the original. He admitted that if one person put five signature simultaneous natural variations occurs if genuine. He did not try to locate the original document A-14 Ex.DW1/2. He denied that it is a cardinal principal of detention of forgery that a forger put 1-2 forged signatures and not in bulk. He stated that the word Highbrid means the mixtures of characteristic of genuine writer and the forger. He had not obtained any specimen signatures from the defendant before or at the time of comparing the signatures. He further stated that there are basic difference in the signatures appearing at place Q1 and signatures appearing on an affidavit dated 12.11.2007 filed by defendant no. 1. The signatures appearing in the written statement and affidavit are showing natural variation and not showing the dis-similarity. He denied that signatures appearing in the written statement Suit No. 84/10 Page no. 11/25 are camouflaged. He also denied that his report Ex.DW4/A is merely his opinion and not more than that. He further stated that at the time of inspecting the original document he was having magnifying glass, ultra violet light and magnifying glass with different lights. He admitted that he has not mentioned in record regarding the ultra violet light and magnifying glass with different lights. He admitted that while formulating his report in his lab original documents were not before him. He volunteered that he has already examined the original document from the judicial file. He prepared the rough notes after inspecting file and before preparing his report Ex.DW4/A, however, same were destroyed after converting the report. He has not mentioned the fact regarding preparing the rough notes in his report. He also denied that there is no fundamental difference between the admitted signatures and the disputed signatures. He also denied that purported highbrid characteristic appearing in his report goes to show that signatures are the original signatures. He denied that he had only examined the counter foil on the back and not all. He also denied that his opinion is based on instructions by the person who engaged him. He also denied that there is no copied cum practice forgery in the disputed signatures.
16 I have heard ld. counsels for the parties and perused the pleadings, evidence and other material placed on record. My issue wise findings is given as under:-
17 ISSUE NO. 1 Whether suit is barred by provisions of Section 50 of DRC Act as alleged by the defendant? OPD ISSUE NO. 2 Whether last paid rent by the defendant was Rs.
3878/- per month as alleged by the plaintiff? OPP Issue No. 1 & 2 are taken together as they are interconnected. The Suit No. 84/10 Page no. 12/25 plaintiff has taken a plea that he is the owner/ landlord of suit property bearing No. 253, Hari Nagar Ashram (being one shop admeasuring 20ft.x15ft). The defendant was in occupation of suit premises as tenant since long. The rent of the premises was mutually enhanced in the beginning of the year 2000 @ Rs. 3,525/- per month on account of rising cost of living and extensive renovation being carried out in the said premises. The rent was further enhanced w.e.f. 01.01.2003 from Rs. 3525/- to Rs. 3878/- per month. The defendant had regularly paid rent vide receipt upto early December 2005 but has not paid the rent w.e.f. 01.01.2006. As per the plaintiff, the rent of the suit premises is Rs.3878/- per month thus the suit premises is not within the purview of Delhi Rent Control Act and the present suit is not barred under Section 50 of the said act.
18 The defendant has taken a plea that suit premises was initially let out by Sh. Moti Ram to the father of the defendant about 5 decades ago and the said tenancy has devolved upon defendant after the death of his father. The defendant have been regularly making payment of rent of the suit premises @ Rs. 30/- per month. The rent of the premises in question has never enhanced beyond Rs.30/- per month. As per the defendant, the jurisdiction of this court is barred under Section 50 of Delhi Rent Control Act 1988 because the rent of the suit premises is Rs.30/- per month and said rent has never been enhanced and defendant has never paid any rent to the plaintiff either @ Rs. 3525/- per month or @ Rs.3878/- as alleged by the plaintiff. 19 In order to prove their plea, both the parties have led their respective evidence.
20 An examination of the pleadings and evidence led on record shows that Suit No. 84/10 Page no. 13/25 plaintiff has taken a plea that defendant had been occupying the suit premises as tenant since long. But plaintiff has very conveniently not mentioned in the entire plaint as to what was the rent of the tenanted premises prior to the year 2000. The plaintiff has sought to raise a plea that on account of rising cost of living and extensive renovation being carried out by him in the suit premises, the rent of the suit premises was mutually enhanced in the beginning of the year 2000 and defendant started paying rent @ Rs. 3525/- w.e.f. 01.01.2000. The said rent was further enhanced to Rs. 3878/- w.e.f. 01.01.2003 and defendant has paid the said rent up till the end of 2005. Necessary tent receipt Ex.PW1/3 to Ex.PW1/67 has been placed on record in this regard. The defendant, however, has controverted the said plea and pleaded that the rent of the suit premises is Rs.30/- per month and the said rent has never been enhanced at any point of time.
21 The onus to prove the fact that the rent was enhanced in the beginning of year 2000 from the previous rent to Rs.3525/- per month and further to Rs. 3878/- per month is upon the plaintiff. To substantiate the said plea, plaintiff has examined his attorney Sh. Narender Kumar Saini as his sole witness. It is relevant to point out that plaintiff has not appeared as a witness in the instant suit and has only examined his attorney who has deposed in this case on behalf of the plaintiff.
22 The relevant question which arises for consideration is as to whether the attorney of the plaintiff can depose on behalf of the principle as per the law. The word 'acts' in Order 3 Rule 2 & 3 of CPC does not include the act of power of attorney holder to appear as a witness on behalf of the party. Power of attorney holder of the plaintiff can appear only as a witness in his personal capacity as per the law and whatever he has knowledge about the case, he Suit No. 84/10 Page no. 14/25 can state on oath but he cannot appear as a witness on behalf of the plaintiff.
23 The Hon'ble Supreme Court of India in Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. reported as AIR 2005 Supreme Court 439 has held that "Order, 3 Rule 1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order 3 Rule 1 and 2 confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined. "
24 The aforesaid preposition has been reiterated by the Hon'ble Supreme Court of India in Man Kaur (Dead) By LRs. vs. Hartar Singh Sangha reported as 2010 (SCC) 512.
25 The above legal preposition thus makes it absolutely clear that a power of attorney holder cannot examine himself as a witness in place of his principle. He can examine himself as a witness to depose with respect to acts which he has performed pursuant to such power of attorney. The plaintiff, however, has examined PW-1 as sole witness in support of his case. The PW-1 sought to prove the fact by examining himself as attorney which were within the exclusive knowledge of the plaintiff and only plaintiff could have Suit No. 84/10 Page no. 15/25 prove their facts. But plaintiff has not examined himself for the reason best known to him. The testimony of PW-1 is thus of no help to the plaintiff because he could have depose only qua their acts which he has performed as G.P.A. of plaintiff and cannot appear as witness in place of plaintiff himself.
26 The plaintiff has taken a plea that rent of the suit property was enhanced w.e.f. 01.01.2000 on account of rising cost of living as well as due to extensive renovation being carried out by the plaintiff in the suit premises. A perusal of the material placed on record clearly shows that plaintiff has not placed any material whatsoever on record which can show or suggest that any renovation, what to talk about extensive renovation, was carried out by the plaintiff in the suit premises in or around the year 2000.
27 The PW-1 has though reiterated the said plea in para-B of his examination in chief but during cross examination the said witness has deposed that the building bearing No. 253, Hari Nagar, is two storied, ground as well as first. First floor was constructed some time 20 years ago. He has further deposed that the shop is about one step below the ground level of the road. The shop is in the same condition since beginning. However, with the re-laying of road from time to time there is a difference in the level. He further deposed that around the year 2000, the defendant had requested that he was facing difficulties not only with rain water but also with people easing themselves at night which caused immense problem to him inside the shop. He further deposed that accordingly the level of the door was raised this was in January, 2000. He further deposed that except for raising the level of the door no other structural change was carried out inside the shop. He denied that plaintiff do not ever raised the level of the door and the suit premises is in Suit No. 84/10 Page no. 16/25 the same conditions as was when it was let out. He further deposed that earlier the door made of wood it is still made of wood. The door remained the same it was re-installed at a higher level, therefore, bills for making of the door are not available.
28 The testimony of PW-1 made by him during his cross-examination falsify the claim of the plaintiff that the rate of rent was enhanced to Rs. 3525/- w.e.f. from 01.01.2000 on account of extensive renovation being carried out by the plaintiff in the suit premises. The PW-1, during cross examination has categorically admitted that except the re-installation of the gate at the higher level no further renovation or construction was carried out by the plaintiff in the suit premises. Moreover, plaintiff has not placed any material whatsoever on record justifying his claim that extensive renovation was being carried out by him in the suit premises in the year 2000 due to which the rent was enhanced with the mutual consent of the parties w.e.f. 01.01.2000 @ Rs. 3525/-.
29 The plaintiff has further taken a plea that the rent was enhanced in the year 2000 as well as in the year 2003 and the defendant had paid rent against counter foils of receipt Ex.PW1/3 to Ex.PW1/67 which bears his signatures. The defendant, however, has taken a plea that the rent of the suit premises has never been increased beyond Rs. 30 per month and he has never paid any such increased rent to the plaintiff and counter foils of rent receipt Ex. PW1/3 to Ex.PW1/67 relied upon by the plaintiff are forged and fabricated and none of the rent receipt bears his signatures.
30 In order to prove the above plea plaintiff has examined Sh. Narender Kumar Saini as PW-1. During cross examination, the said witness reiterated Suit No. 84/10 Page no. 17/25 the above averment in para-C & D of his examination in chief. During cross examination, PW-1 deposed that "at the time of negotiations four persons including Sh. Ramesh Kumar present in court were present. He further deposed that one Om Prakash Saini was also present but the name of other two persons he does not remember. He further deposed that he cannot give the date on which the compromise or negotiations took place. He further deposed that he was present on maximum time when the rentals were tendered and paid by the defendant to the plaintiff. He volunteered that he was not present always. He further stated that there was no fix date for payment of rent. It was payable in the first fortnight of the month. He further stated that as and when defendant paid rent, rent receipt issued, be it, before 2000 or after 2000 which was many a times in his presence. He denied that counter foils of receipt Ex.PW1/3 to Ex.PW1/67 do not bears the signatures of defendant. He also denied that all the receipts are forged and signatures of the defendant have been forged by the plaintiff and him. He has further deposed that he cannot specify which of these counter foils is signed by the defendant in his presence and in his absence. He volunteered that maximum number of them was signed by him in his presence. The counter foils are filled in the handwriting of the plaintiff himself. He further stated that the rent earlier was Rs. 3525/- w.e.f 2000. He volunteered that in the year 2003, it was increased to Rs. 3878/- per month. He has further deposed that it was increased from 01.01.2003 to Rs. 3878/- at that time no rent receipt or fresh agreement was executed."
31 The PW-1 has thus deposed that counter foils of the rent receipts Ex.PW1/3 to Ex.PW1/67 were signed by the defendant in his presence but when a question was put to him to point out any specific counter foil got Suit No. 84/10 Page no. 18/25 signed by defendant in his presence, the PW-1 failed to specify any counter foil signed by the defendant in his presence. He has also deposed that all the counter foils were filled by the plaintiff in his own handwriting. The plaintiff has not examined any other witness who can prove that counter foil of the rent receipt Ex.PW1/3 to Ex.PW1/67 bears the signatures of defendant.
32 As per PW-1, rent receipt and its counter foil were filled by plaintiff and same were signed by the defendant. The defendant has categorically denied his signatures over these counter foils. In that case, the signatures of the defendant could be proved only by the plaintiff by examining himself in this case who could have proved his handwriting over the counter foils filled by him. He could have also deposed to the extent that these counter foils were signed by the defendant in his presence. But plaintiff has not examined himself for the reason best known to him. The plaintiff has also not examined any expert witness who could have examined the admitted handwriting of the defendant with the handwriting appearing over the counter foils of rent receipt Ex.PW1/3 to Ex.PW1/67.
33 It is also relevant to mention that PW-1 has deposed that negotiations with respect to enhancement of the rent had taken place in the presence of Sh. Ramesh Kumar, Sh. Om Prakash Saini and two other persons whose names he does not remember. The plaintiff has not placed any documents of such negotiations. In that eventuality the above person namely Sh. Ramesh Kumar and Sh. Om Prakash Saini could have been examined by the plaintiff to substantiate his case that said negotiations had taken place between plaintiff and defendant pursuant to which rent was enhanced from Rs. 30 per month to Rs. 3525/- per month but plaintiff has not made any such endeavour Suit No. 84/10 Page no. 19/25 to examine these persons for the reason best known to him.
34 The plaintiff has taken a plea that with the mutual consent of the parties, the rent was enhanced to Rs. 30 to Rs. 3525/- per month and further to Rs. 3878/- which was paid by the defendant uptill December 2005. The said fact was required to be proved by the plaintiff by leading cogent evidence in the court, however, plaintiff has not placed any material whatsoever on record which can show or suggest that any such negotiations for enhancement of the rent from Rs. 30 per month to Rs. 3525/- or Rs. 3878/- had taken place between the plaintiff or the defendant. The plaintiff has also failed to prove that the counter foil of the rent receipt Ex.PW1/3 to Ex.PW1/67 bears the signatures of the defendant or that defendant had ever paid the rent vide these counter receipts to the plaintiff.
35 The defendant has taken a plea in his written statement that rent of the suit premises has always remained Rs. 30 per month and has never been enhanced. He has further stated that counter foils of the rent receipts has been forged by the plaintiff and same do not bears his signatures. To substantiate the above plea, defendant has examined himself as DW-1 and reiterated the said fact in para-4, 5 and 6 of his examination in chief. The defendant has been thoroughly cross examined by the counsel for the plaintiff but no incriminating material has come out of the testimony of DW-1 and he reiterated during cross examination that the rent of the premises was never enhanced from Rs. 30 per month to Rs. 3525/- and further to Rs. 3878/- at any point of time. He has also reiterated that counter foil Ex.PW1/3 to Ex.PW1/67 do not bears his signatures and were not signed by him and are forged and fabricated documents.
Suit No. 84/10 Page no. 20/2536 The defendant has also examined Dr. S. C. Mittal, handwriting as DW-4 who has examined the signature over the counter foil of the rent receipts Ex.PW1/3 to Ex.PW1/67 and compared the same with the admitted signatures of the defendant and submitted his report Ex.DW4/A. The said expert has opined that the questioned signatures mark Q1 to Q34, Q34 to Q36 to Q65 are forged signatures and they are not written by the same persons who wrote the admitted signatures Mark-A1 to A22 attributed to Suraj Bhan. The said witness has been extensively cross examined by the counsel for the plaintiff but he has reiterated his opinion expressed by him vide his report Ex.PW4/A. No incriminating material has been come out during his cross examination and the said witness has successfully passed the acid test of cross examination.
37 The defendant has categorically deposed in his evidence that the counter foils of the rent receipts Ex.PW1/3 to Ex.PW1/67 do not bears his signatures. He also examined an expert witness, DW-4 who examined the admitted handwriting of the defendant with the handwriting appearing over the counter foils Ex.PW1/3 to Ex.PW1/67 and has opined that these signatures do not belong to defendant. The defendant has thus proved on record that the counter foil Ex.PW1/3 to Ex.PW1/67 do not bears his signatures. He has also proved on record that the defendant has not paid rent @ Rs. 3525/- or @ 3878/- at any time.
38 It is also relevant to mention that up till December 1999, the rent of the suit premises was admittedly Rs.30 per month. The defendant has placed on record the rent receipt Ex.D1 to D5 in this regard. The rent receipt Ex.D5 which is admitted by the attorney of the plaintiff during admission/ denial Suit No. 84/10 Page no. 21/25 shows that on 14.12.1999, the rent was paid by the defendant for the period commencing on 01.10.21998 till 31.12.1999 @ Rs. 30 per month. When the rent of the suit premises was Rs. 30 per month up till December 1999 as per rent receipt Ex.D5 then how and on what basis such a huge enhancement was made in the rent payable with respect to the suit premises remained un- explained.
39 The plaintiff has sought to take a plea that the rent was enhanced with the mutual consent of the parties on account of extensive renovation being carried out by the plaintiff in the suit premises. But plaintiff has not placed any material on record which can show or suggest that any such renovation was being carried out by him in the suit premises due to which rent was enhanced from Rs. 30 to Rs. 3525/-. The plaintiff has also failed to prove on record that any such negotiations had taken place between the plaintiff and the defendant or that the rent was ever revised with their mutual consent. It is also relevant to mention that the defendant has placed on record certain complaint made by him to the SHO, PS-Shri Niwas Puri, Ex.DW1/3 dated 17.05.2000 as well as complaint dated 11.01.2000 Ex.DW1/2. The said complaints suggest that a dispute was there between the plaintiff and the defendant which was reported by the defendant to the police when the parties were fighting with each other and complaint with that regard were lodged to the police station then how and in what manner the parties revised the rent with their mutual consent remained un-explained.
40 The aforesaid fact thus clearly shows that plaintiff sought to raise a plea that the rent of the premises was enhanced from Rs. 30 to Rs. 3525/- and suit premises is thus beyond the purview of Delhi Rent Control Act but plaintiff has Suit No. 84/10 Page no. 22/25 failed to substantiate the said averment by leading cogent evidence on record. The plaintiff has not examined himself to substantiate the said plea in the absence of which the plea taken by him in the plaint remained unsubstantiated. The plaintiff has examined his attorney as PW-1, however, the said witness could not have deposed in place of the plaintiff, he could have made deposition with respect to any act which he has performed pursuant to the attorney executed by the plaintiff in his favour but he cannot substitute the plaintiff. The plaintiff has also not placed any material on record which can show or suggest that the rent of the suit premises was ever enhanced from Rs. 30 to Rs. 3525/- in the year 2000 or to Rs. 3878/- in the year 2003 or that defendant ever paid the rent at that rate at any point of time vide counter foil of the receipt Ex.PW1/3 to Ex.PW1/67. On the other hand, the defendant has proved on record that the suit premises was let out to his father 5 decades before and after his demise he has been occupying the suit premises as tenant at a monthly rent of Rs. 30 per month which he has paid to the plaintiff.
41 In view of the above my issue wise findings is as under:-
ISSUE NO. 1 Whether suit is barred by provisions of Section 50 of DRC Act as alleged by the defendant? OPD In view of the above discussion, I am of the considered view that the defendant has proved on record that he has been occupying the suit premises as a tenant at a monthly rent of Rs. 30 per month and said rent has not been enhanced as per law or with the mutual consent of the parties. The premises in question thus falls within the jurisdiction of the Rent Control Tribunal as the rent of the suit premises is less than Rs. 3500/- per month. Thus the defendant can be evicted only as per the provision contained in the Delhi Rent Control Act. The defendant has thus proved on record that the present suit Suit No. 84/10 Page no. 23/25 filed by the plaintiff is barred under Section 50 of Delhi Rent Control Act. The defendant has successfully discharged the onus of Issue No. 1, same is decided in favour of the defendant.
42 ISSUE NO. 2 Whether last paid rent by the defendant was Rs.
3878/- per month as alleged by the plaintiff? OPP In view of my above discussion, I am of the considered view that plaintiff has failed to prove on record that rent of the suit premises was ever enhanced with the mutual consent of the parties from Rs.30 to Rs.3525/- per month. He has also failed to prove on record that the rent of the premises was further enhanced to Rs. 3878/- w.e.f. 01.01.2003 with the mutual consent of the parties. The plaintiff has thus failed to prove on record that last paid rent by the defendant was Rs. 3875/- per month. The plaintiff has failed to discharge the onus of Issue No. 2, same is decided against the plaintiff.
43 ISSUE NO. 3 Whether the plaintiff has validly terminated the tenancy of the defendant as alleged by the plaintiff, if so, its effect? OPP ISSUE NO. 4 Whether plaintiff is entitled to recover possession of the suit premises from the defendant? OPP ISSUE NO. 5 Whether plaintiff is entitled to recover any amount on account of user charges/ mesne profit / arrears of rent, if so at what rate and for what period and to what amount? OPP In view my findings on Issue No. 1 & 2, the tenancy of the defendant is still subsisting and has not been terminated. The defendant can only be evicted on the ground enumerated in Section 14 of the Delhi Rent Control Act. The plaintiff is thus neither entitled for possession of the suit premises nor en for mesne profit as claimed. The plaintiff has thus failed to discharge the onus of Issue No. 3 to 5, same are accordingly decided against the plaintiff.
Suit No. 84/10 Page no. 24/2544 RELIEF.
In view of the above, the suit filed by the plaintiff against the defendant for ejectment, recovery and mesne profit is dismissed being barred by Section 50 of Delhi Rent Control Act. Decree sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
30.07.2013 Additional District Judge
Delhi
Suit No. 84/10 Page no. 25/25